>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Kendrick (Janine Plaza Pierce)\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-10-10\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n16-3030-cr\\nUnited States of America v. Kendrick (Janine Plaza Pierce)\\n\\n UNITED STATES COURT OF APPEALS\\n\\n FOR THE SECOND CIRCUIT\\n\\n August Term 2019\\n\\n Argued: August 21, 2019 Decided: October 10, 2019\\n\\n Docket No. 16‐3030‐cr\\n\\n‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐\\nUNITED STATES OF AMERICA,\\n\\n Appellant,\\n\\n v.\\n\\nJANINE PLAZA PIERCE,\\n\\n Defendant ‐ Appellee.1\\n‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐\\n\\nBefore: NEWMAN, HALL, Circuit Judges; KELLY, Judge.\\n\\n Appeal by the Government from the August 1, 2016, order of the District\\n\\nCourt for the Northern District of New York (Frank P. Geraci, Jr., Chief Judge),\\n\\nsetting aside a jury’s verdict finding Janine Plaza Pierce guilty of a narcotics\\n\\n\\n\\n\\n1 The Clerk is requested to amend the official caption as above.\\n\\n\\n Judge Claire R. Kelly, of the United States Court of International Trade, sitting by designation.\\n\\fconspiracy. Chief Judge Geraci ruled that the verdict was inconsistent with the\\n\\njury’s findings on eight interrogatories.\\n\\n Affirmed.\\n\\n\\n\\n Everardo A. Rodriguez, Asst. U.S. Atty.,\\n Rochester, NY (James P. Kennedy, Jr., U.S.\\n Atty., Tiffany H. Lee, Asst. U.S. Atty.,\\n Rochester, NY, on the brief), for Appellant\\n United States of America.\\n\\n Cheryl Meyers Buth, Meyers Buth Law Group,\\n Orchard Park, NY, for Defendant‐Appellee\\n Janine Plaza Pierce.\\n\\n\\nJON O. NEWMAN, Circuit Judge:\\n\\n This appeal by the Government concerns facially inconsistent jury verdicts\\n\\nin a criminal case. The United States appeals from the August 1, 2016, order of the\\n\\nUnited States District Court for the Northern District of New York, (Frank P.\\n\\nGeraci, Jr., Chief District Judge), setting aside a jury’s verdict finding Janine Plaza\\n\\nPierce2 guilty of a conspiracy to possess with intent to distribute, and to distribute,\\n\\nfour types of narcotics. Chief Judge Geraci ruled that the verdict was inconsistent\\n\\nwith the jury’s eight findings that it was “Not Proven” that Pierce conspired to\\n\\n\\n\\n 2 Appellant’s surname is rendered “Pierce,” “Plaza Pierce,” and “Plaza‐Pierce” in the\\nparties’ papers and the transcript. We will use “Pierce,” the surname in the indictment.\\n 2\\n\\fpossess with intent to distribute each one of the four types of narcotics or\\n\\nconspired to distribute each one of the four types of narcotics.\\n\\n Although it is unfortunate that the jury was not afforded an opportunity to\\n\\nreconsider its findings, we conclude that, in view of the inconsistency and the\\n\\nGovernment’s unhelpful role in the proceedings, we must affirm.\\n\\n Background\\n\\n The indictment charged Pierce and her co‐defendants with several\\n\\ncounts. Count 1, the only count relevant to this appeal,3 charged Pierce and\\n\\nsome of the defendants with conspiracy to possess with intent to distribute,\\n\\nand to distribute, cocaine, cocaine base, heroin, and marijuana, in violation of\\n\\n21 U.S.C. § 846. Because the trial evidence is not relevant to this appeal, we\\n\\nneed not detail it.\\n\\n In the jury charge, Chief Judge Geraci informed the jurors that they\\n\\nwould be provided with a verdict sheet. He then explained,\\n\\n “The amount of the controlled substances involved is\\n unrelated to the issue of whether or not the defendants are, in fact,\\n guilty. You will note, however, that the verdict sheet requires that\\n in the event you determine the defendants guilty of the particular\\n conspiracy charged in Count 1, you must then determine the\\n weight, whether the weight was for a mixture or substance\\n\\n\\n 3 Pierce was charged in two other counts, on which she was found not guilty.\\n 3\\n\\f containing cocaine of at least 5 kilograms, of at least 500 grams but\\n less than 5 kilograms, or less than 500 grams.”\\n\\nJ. App’x 1146. He then mentioned the choices of weights that the verdict sheet\\n\\nprovided for cocaine base and heroin. The verdict sheet provided choices for weights\\n\\nof cocaine, cocaine base, and heroin because, in the event of a guilty verdict, the\\n\\nweight of a substance found to have been involved in the conspiracy charged in\\n\\nCount 1 could increase the applicable statutory maximum sentence under 21 U.S.C.\\n\\n§§ 841(b), 846, and therefore must be found beyond a reasonable doubt by a jury to\\n\\neffect such an increase, see United States v. Apprendi, 530 U.S. 466, 476 (2000).4\\n\\n The verdict sheet, as returned by the jury, included the following:\\n\\n AS TO DEFENDANT JANINE PLAZA PIERCE:\\n COUNT 1\\n Conspiracy to possess with intent to distribute, and to distribute, cocaine,\\n cocaine base, heroin and marijuana, between in or about 1993 and on or about\\n March 2, 2011, in violation of 21, United States Code, Section 846.\\n How do you find as to defendant Janine Plaza Pierce on Count 1?\\n ( √ ) Guilty ( ) Not Guilty\\n If you find defendant Janine Plaza Pierce guilty, proceed to parts (a),\\n (b), (c), (d), (e), (f), (g) and (h).\\n (a) We the jury find that the allegation that defendant Janine\\n Plaza Pierce conspired to possess with intent to distribute cocaine\\n is:\\n ___ Proven _√_ Not Proven\\n If you find that part (a) is proven, then proceed to part (a)(1).\\n (1) We the jury find that defendant Janine Plaza Pierce conspired\\n to possess with intent to distribute the following amount of cocaine:\\n\\n 4 The verdict sheet provided no choice of weights for marijuana.\\n 4\\n\\f (mark only one)\\n ___ 5 kilograms or more\\n ___ 500 grams or more, but less than 5 kilograms\\n ___ less than 500 grams\\n (b) We the jury find that the allegation that defendant Janice\\n Plaza Pierce conspired to distribute cocaine is:\\n ___ Proven _√_ Not Proven\\n If you find that part (b) is proven, then proceed to part (b)(1).\\n (1) We the jury find that defendant Janine Plaza Pierce conspired\\n to possess with intent to distribute the following amount of cocaine:\\n (mark only one)\\n ___ 5 kilograms or more\\n ___ 500 grams or more, but less than 5 kilograms\\n ___ less than 500 grams\\n\\nJ. App’x 1206‒07.\\n\\n The verdict sheet continued in parts (c) through (h) with the same language as\\n\\nin parts (a) and (b), changing the narcotic to cocaine base in parts (c) and (d), heroin\\n\\nin parts (e) and (f), and marijuana in parts (g) and (h), and providing different choices\\n\\nof weights for cocaine base and heroin. As they had done with parts (a) and (b), the\\n\\njurors placed check marks next to “Not Proven” on each of the lines where that choice\\n\\nappeared in parts (c) through (h) for cocaine base, heroin, and marijuana.\\n\\n The same inconsistency occurred for defendant Pablo Plaza. With respect to\\n\\nCount 4, which charged only Plaza with the substantive offense of “possession with\\n\\nintent to distribute” and “to distribute” heroin (during dates and at a location\\n\\ndifferent from those in the Count 1 conspiracy of which he was found guilty), the\\n\\n 5\\n\\fjurors placed a check mark next to “Guilty” and check marks on the lines next to\\n\\n“Not Proven” asking whether Plaza possessed heroin with intent to distribute and\\n\\ndistributed heroin.5\\n\\n After the jury foreman reported the verdicts, Chief Judge Geraci said to\\n\\ncounsel at sidebar, “We know we have a problem with a couple of counts here.” J.\\n\\nApp’x 1246. One defense counsel asked to have the jurors polled. Chief Judge Geraci\\n\\nsaid he would do that and added, “I’m not going to discharge them . . . and we’ll\\n\\ndiscuss this . . . .” Id. The jurors orally confirmed their verdicts. They were then told\\n\\nthat they were not being discharged and were sent back to the jury room. Chief Judge\\n\\nGeraci then pointed out to counsel the facial inconsistencies in the verdicts with\\n\\nrespect to Pierce on Count 1 and Plaza on Count 4 and invited the views of counsel.\\n\\n Defense counsel asked that the jury be discharged. The prosecutor said, “I\\n\\nthink it may be worth asking the jury about the apparent inconsistency.” J. App’x\\n\\n1261. When Chief Judge Geraci asked him, “What question do you propose I ask the\\n\\njury to reconsider?” id. at 1262, the prosecutor replied, “How could they find guilty\\n\\n\\n 5 A somewhat similar, yet significantly different, set of verdicts was returned for defendant\\nJames Kendrick. With respect to Count 10, which charged only Kendrick with “knowing and\\nunlawful use, carry and discharge of firearms . . . in relation to a drug trafficking crime,” the jurors\\nplaced a check mark next to “Guilty” as to Count 10 and a check mark next to “Not Proven” below\\nthe line asking whether Kendrick discharged a firearm in relation to a drug trafficking crime.\\nApparently the jury found that Kendrick used or carried a firearm, but did not discharge one.\\n\\n\\n 6\\n\\fon Count 1 without having found any of the objectives were proven.” Id. 1262‒63.\\n\\nChief Judge Geraci said, “I’m not sure that would be proper.” Id. at 1263. The\\n\\nprosecutor later said, “[O]ur argument is their finding as to whether a finding of\\n\\nguilty as to the first count as to Ms. Plaza‐Pierce is sufficient to support the count\\n\\neven though they later were not able to unanimously agree as to which of the counts\\n\\nshe conspired as to ‒‒.“ Id. Chief Judge Geraci then said, “I can’t imagine what\\n\\nquestion to ask the jury to go back and reconsider.” Id. After the prosecutor said he\\n\\ndid not have anything further, the jury was brought back to the courtroom and\\n\\ndischarged. Counsel for Pierce then wrote the District Court a letter asking the Court\\n\\nto dismiss the Count 1 charge.\\n\\n On July 29, the District Court held a hearing on Pierce’s request. The\\n\\nprosecutor acknowledged that he had drafted the verdict sheet. Chief Judge Geraci\\n\\nasked him what was the purpose of drafting the question with the choices of\\n\\n“Proven” and “Not Proven.” The prosecutor said the purpose was for sentencing, to\\n\\nenable the Court to enhance the maximum sentences and apply mandatory\\n\\nminimums. Chief Judge Geraci pointed out, “You could have just said conspiracy\\n\\nand then go through . . . the different weights, correct?” SPA 23.\\n\\n\\n\\n\\n 7\\n\\f At the end of the hearing, Chief Judge Geraci granted the motion to set aside\\n\\nthe guilty verdict as to Pierce on Count 1. The Government timely appealed.\\n\\n Discussion\\n\\n 18 U.S.C. § 3731 authorizes the Government to appeal from an order of a\\n\\ndistrict court “dismissing an indictment . . . as to any one or more counts,” and the\\n\\nSupreme Court has stated that “[a]lthough this provision authorizes appeal from\\n\\na district court ‘dismiss[al]’ rather than ‘acquittal,’ it is now established that the\\n\\nform of the ruling is not dispositive of appealability[.]” United States v. Martin Linen\\n\\nSupply Co., 430 U.S. 564, 567 n.4 (1977); see United States v. Aslam, 936 F.2d 751, 754\\n\\n(2d Cir. 1991).\\n\\n We review a district court’s grant of a motion for a judgment of acquittal de\\n\\nnovo. See United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000). Although Autuori\\n\\ninvolved a district judge’s ruling as a matter of law that the evidence was\\n\\ninsufficient to support a conviction, the same standard of review applies here on\\n\\nthe legal issue of whether the inconsistency in the jury’s verdicts required a\\n\\njudgment of acquittal.\\n\\n “There is no counterpart in the Federal Rules of Criminal Procedure to the\\n\\ngeneral authority contained in Rule 49(b) of the Federal Rules of Civil Procedure\\n\\n\\n\\n 8\\n\\fto have a jury respond to interrogatories when returning a general verdict.” United\\n\\nStates v. Ruggiero, 726 F.2d 913, 925–26 (2d Cir. 1984) (Newman, J., concurring in\\n\\npart, and dissenting in part), (Court’s ruling abrogated without consideration of this\\n\\npoint by Salinas v. United States, 522 U.S. 52 (1997)). Although special interrogatories\\n\\nare generally disfavored in criminal cases, see United States v. Coonan, 839 F.2d 886,\\n\\n891 (2d Cir. 1988), in some situations they are recommended, see, e.g., United States\\n\\nv. Ogando, 968 F.2d 146, 148–49 (2d Cir. 1992) (interrogatories to determine whether\\n\\njury finds “continuing series of violations” for purposes of continuing criminal\\n\\nenterprise conviction in violation of 21 U.S.C. § 848(c)). Of course, as this appeal\\n\\nillustrates, care must be taken in drafting interrogatories to minimize the risk of\\n\\ninconsistent verdicts.\\n\\n In the civil context, where a verdict is rendered inconsistent by the jury’s\\n\\nspecial interrogatory answers, “[i]t is the duty of the court to attempt to harmonize\\n\\nthe answers, if it is possible under a fair reading of them. Thus, where there is a\\n\\nview of the case that makes the juryʹs answers to special interrogatories consistent,\\n\\nthey must be resolved that way.” Auwood v. Harry Brandt Booking Office, Inc., 850\\n\\nF.2d 884, 891 (2d Cir. 1988) (quotation marks and citations omitted). We will\\n\\n\\n\\n\\n 9\\n\\fassume that a similar “attempt to harmonize” should be made in the criminal\\n\\ncontext.\\n\\n We can imagine one possible way that the “guilty” verdict and the “Not\\n\\nProven” answers in the pending case might be harmonized. The jury might have\\n\\nthought that each pair of interrogatories asked whether it was proven or not\\n\\nproven that the defendant conspired to possess with intent to distribute, or\\n\\nconspired to distribute, only the one narcotic named in each pair of interrogatories\\n\\nfor each narcotic. On that understanding, the jury could logically have answered\\n\\n“Not Proven” as to each narcotic after finding the defendant guilty of conspiring\\n\\nwith respect to all four narcotics. Of course, the interrogatories did not include the\\n\\nword “only,” and the Government has not contended that this word should be\\n\\nread into them. Indeed, such a reading would arguably strain “harmonization”\\n\\nbeyond the breaking point. In any event, this jury rejected this reading by their\\n\\nverdict and interrogatory answers with respect to Count 4, charging defendant\\n\\nPlaza with possession with intent to distribute, and distribution of, only one\\n\\nsubstance, heroin. The jury found him guilty on Count 4, but placed check marks\\n\\nnext to “Not Proven” below the lines stating that the jury found that Plaza\\n\\npossessed with intent to distribute heroin and that he distributed heroin. Because\\n\\n\\n\\n 10\\n\\fthese verdicts as to Plaza on Count 4 preclude interpreting the interrogatory\\n\\nfindings, which were worded the same as to Pierce on Count 1, to include the word\\n\\n“only,” we face the unusual situation where a verdict of guilty is inconsistent with\\n\\ninterrogatory answers, all of which relate to the same count.\\n\\n The Supreme Court has considered the issue of inconsistent jury verdicts in\\n\\ncriminal cases in various contexts. In Dunn v. United States, 284 U.S. 390 (1932), the\\n\\nCourt rejected a challenge to jury verdicts that were inconsistent as to different\\n\\ncounts of an indictment. See id. at 393. Justice Holmes wrote, rather broadly,\\n\\n“Consistency in the verdict is not necessary.” Id.6 A challenge to inconsistent\\n\\nverdicts as to different counts was also rejected in United States v. Powell, 469 U.S.\\n\\n57, 61‒69 (1984). In United States v. Dotterweich, 320 U.S. 277 (1943), the Court\\n\\nrejected a challenge to jury verdicts that were inconsistent as to different\\n\\ndefendants in a joint trial. See id. at 279. A challenge to a state trial judge’s\\n\\ninconsistent bench trial findings as to different defendants was also rejected in\\n\\nRivera v. Harris, 454 U.S. 339, 345‒48 (1981). In United States v. Standefer, 447 U.S. 10\\n\\n(1980), the Court rejected the application of collateral estoppel claimed to insulate\\n\\na defendant convicted of aiding and abetting a principal who has been acquitted.\\n\\n\\n 6 This was Holmes’s last Supreme Court opinion. See Harris v. Rivera, 454 U.S. 339, 346 n.15\\n(1981).\\n 11\\n\\fSee id. at 21‒25. In Harris, the Court echoed Holmes’s broad language in Dunn,\\n\\nstating: “Inconsistency in a verdict is not a sufficient reason for setting it aside,”\\n\\nHarris, 454 U.S. at 345, and reading Dunn and Dotterweich to have “stressed the\\n\\nunreviewable power of a jury to return a verdict of not guilty for impermissible\\n\\nreasons,” id. at 346, a quotation repeated in Powell, 469 U.S. at 63.\\n\\n Though the language from these opinions is broad, the Court’s holdings do\\n\\nnot resolve the precise issue we face here: irreconcilably inconsistent verdicts as to\\n\\nthe same defendant on the same count of an indictment. That issue came before a\\n\\ndistrict court in the Tenth Circuit, as recounted in United States v. Shippley, 690 F.3d\\n\\n1192 (10th Cir. 2012). Identically to our pending appeal, a jury found a defendant\\n\\nguilty of a count charging a conspiracy to distribute three narcotics and also\\n\\nanswered “no” to interrogatories asking whether the defendant conspired to\\n\\ndistribute each narcotic listed in that count. See id. at 1193. The district judge\\n\\npointed out the inconsistency to the jury and gave them three choices: reconsider\\n\\nthe answer to the guilty verdict, reconsider the answers to the interrogatories, or\\n\\n“stand on its existing verdict.” Id. at 1193‒94. The judge sent the jury back for\\n\\nfurther deliberations. Soon after, the jury returned with a verdict of guilty and a\\n\\n“yes” answer to the interrogatory asking if the defendant had conspired to\\n\\n\\n\\n 12\\n\\fdistribute 500 grams or more of cocaine, one of the three narcotics listed in the\\n\\nconspiracy count. See id. at 1194.\\n\\n Had the District Judge in Pierce’s case employed the procedure used by the\\n\\ntrial judge in Shippley, our pending issue might never have arisen.7 However, when\\n\\nasked for his views, the prosecutor did not suggest that the jury, which had not\\n\\nthen been discharged, be invited to resume deliberations. Instead he suggested\\n\\nthat the jurors be asked, “How could they find guilty on Count 1 without having\\n\\nfound any of the objectives were proven.” J. App’x 1262‒63. Chief Judge Geraci\\n\\nsensibly replied, “I’m not sure that would be proper.” Id. at 1263. As he obviously\\n\\nunderstood, “Courts have always resisted inquiring into a jury’s thought\\n\\nprocesses.” Powell, 469 U.S. at 67; see also Fed. R. Evid. 606(b) (jurors not competent\\n\\nto testify concerning jury deliberations, with exceptions not here relevant).\\n\\n Chief Judge Geraci was also correct in pointing out to the prosecutor that\\n\\ninclusion of the interrogatories asking whether the jury found the conspiracy\\n\\n\\n\\n\\n 7 In making this observation, we express no view on whether renewed jury deliberations\\nresulting in elimination of the inconsistency by changing at least one “Not Proven” answer to\\n“Proven” would have been subject to challenge on double jeopardy grounds. In Shippley, the\\ndefendant‐appellant did not raise this concern, and the Tenth Circuit did not consider it. See 690\\nF.3d at 1194, 1196.\\n 13\\n\\fallegations as to each narcotic proven or not proven was not necessary. As he noted,\\n\\nthe interrogatories could simply have asked about the different weights.\\n\\n Continuing our account of the Shippley case, we note that the defendant’s\\n\\nappeal there challenged the jury’s reconsideration of its inconsistency. Although not\\n\\nraising a double jeopardy argument, the defendant contended that Powell and\\n\\nDotterweich required the trial judge to enter a verdict of acquittal. See Shippley, 690\\n\\nF.3d at 1194. Then‐judge Gorsuch rejected that claim, noting that those decisions\\n\\nconcerned inconsistencies between different counts and different defendants. See id.\\n\\nat 1195. He then recognized that Shippley’s case (like ours) presented a more\\n\\nsignificant inconsistency:\\n\\n [I]t wasnʹt just logically incongruous to enter the juryʹs verdict[s], it\\n was metaphysically impossible. . . . To enter an acquittal, the district\\n court would have needed to disregard the fact that the jury expressly\\n found Mr. Shippley guilty. To enter a guilty verdict, the court would\\n have needed to overlook the special verdict findings that Mr.\\n Shippley did not conspire to distribute any of the drugs at issue in the\\n case. And nothing in Powell or Dotterweich speaks either explicitly or\\n implicitly about what a courtʹs to do in these circumstances, let alone\\n suggests the district court committed an error of constitutional\\n magnitude (or otherwise) in proceeding as it did in this case.\\n\\nId.\\n\\n With the inconsistency eliminated by the jury’s reconsideration (and no double\\n\\njeopardy claim raised on appeal), the Tenth Circuit affirmed.\\n\\n 14\\n\\f The Sixth Circuit encountered a similar situation in United States v. Randolph,\\n\\n794 F.3d 602 (6th Cir. 2012). As in our pending case and Shippley, a jury found a\\n\\ndefendant guilty of a conspiracy involving three narcotics. The verdict form gave the\\n\\njury a choice of quantities for each narcotic, including the choice of “None.”8 The jury\\n\\nchecked “None” for each narcotic. See id. at 607. In a corrected charge, the trial judge\\n\\ntold the jury, “If you unanimously find that a particular controlled substance was not\\n\\ninvolved in the offense, mark none on the appropriate special verdict form.” Id. The\\n\\nSixth Circuit concluded that “[b]ecause the jury found that none of the charged drugs\\n\\nwere ‘involved in’ the conspiracy, it follows that [the defendant] cannot be guilty of\\n\\nthe charged conspiracy.” Id. at 612. The Court reversed the conviction on the\\n\\nconspiracy count and ordered a judgment of acquittal.9\\n\\n\\n\\n\\n 8 A wording that might have avoided the risk of inconsistency would have asked the jury\\nto determine the amounts of each narcotic only if the jurors unanimously concluded that the\\nevidence provided a basis for determining such amounts. An inability to determine the amount\\nas to any narcotic would not have resulted in a failure to find an element of the conspiracy offense.\\nSee United States v. Person, 745 F. App’x 380, 385 (2d Cir. 2018) (“[D]rug type and quantity are not\\nan element of the charged conspiracy offense.”); United States v. Daniels, 723 F.3d 562, 572 (5th Cir.\\n2013) (“[F]ailure to prove drug quantity or type does not undermine a defendant’s conviction [for\\nnarcotics conspiracy]”).\\n 9 The Sixth Circuit also expressed the view that “[t]o the extent that dicta in Shippley\\n\\nsuggest[] that the appropriate remedy in this situation is a remand for a new trial, we disagree.”\\n794 F.3d at 612. The Sixth Circuit believed that a retrial would subject the defendant to double\\njeopardy. See id. The Sixth Circuit did not express a view as to the propriety or constitutional\\nvalidity of having the same jury reconsider its verdicts before being discharged.\\n 15\\n\\f In the pending appeal, the jury’s “Not Proven” answers to the interrogatories\\n\\nasking whether Pierce conspired as to each narcotic involved in the conspiracy count\\n\\nare similar to the “None” answers in Randolph.10 And because the jury in our case\\n\\nwas not asked to reconsider before being discharged, as occurred in Shippley, we have\\n\\nno occasion to consider whether that procedure would have encountered a valid\\n\\ndouble jeopardy objection.\\n\\n We conclude that the verdicts in Pierce’s case are, in the words of then‐Judge\\n\\nGorsuch in Shippley, “metaphysically impossible,” and we agree with the Sixth\\n\\nCircuit in Randoph that the appropriate remedy for the inconsistency (where the jury\\n\\nwas not given the opportunity to reconsider) was to set aside the guilty verdict, as\\n\\n\\n\\n\\n 10 Disputing the starkness of the inconsistency in the verdicts in the pending appeal, the\\nGovernment, using a “compare with” citation signal, calls our attention to the District Court’s\\ndecision in United States v. Person, No. 15‐CR‐466, 2017 WL 2455072 (E.D.N.Y. June 6, 2017), aff’d,\\n745 F. App’x 380 (2d Cir. 2018). See Br. for Appellant at 18‒19. In Person, the District Court upheld\\na conviction for a narcotics conspiracy despite the jury’s answers of “No” to questions asking:\\n“Did the government prove that the defendant was responsible for a substance containing” each of\\nthe narcotics listed in the conspiracy count. See Person, 745 F. App’x at 384 (emphasis added).\\nAfter the briefs were filed in the pending appeal, we affirmed Person in a non‐precedential\\nsummary order. Although the Person interrogatory is similar to the interrogatory in the pending\\nappeal, a negative answer to whether the defendant in Person was “responsible for” each narcotic\\ndid not create the irreconcilable inconsistency arising from negative answers to the questions\\nasking whether Pierce conspired to possess and conspired to distribute each narcotic‒‒the exact\\nlanguage of the conspiracy count. Moreover, our summary order pointed out that the District\\nCourt “never defined for the jury what it meant for Person to be ‘responsible for’ drugs such that\\nthe special interrogatories should be answered in the affirmative.” Id. at 384‒85.\\n 16\\n\\fChief Judge Geraci did, especially in view of the Government’s unhelpful role in the\\n\\nproceedings.\\n\\n Conclusion\\n\\n The judgment of the District Court is affirmed.\\n\\n\\n\\n\\n 17\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4547,"cells":{"id":{"kind":"number","value":4668492,"string":"4,668,492"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Donald J. Trump v. Deutsche Bank AG"},"decision_date":{"kind":"string","value":"2019-10-10"},"docket_number":{"kind":"string","value":"19-1540-cv"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: NEWMAN, HALL, and LIVINGSTON, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JON O. NEWMAN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"19-1540-cv\\nDonald J. Trump v. Deutsche Bank AG\\n\\n UNITED STATES COURT OF APPEALS\\n\\n FOR THE SECOND CIRCUIT\\n\\n August Term 2019\\n\\n\\n\\nMotions filed: September 11, 2019 Motions Decided: October 10, 2019\\n September 18, 2019\\n\\n Docket No. 19‐1540‐cv\\n\\n‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐\\nDONALD J. TRUMP, DONALD J. TRUMP, JR., ERIC\\nTRUMP, IVANKA TRUMP, DONALD J. TRUMP\\nREVOCABLE TRUST, TRUMP ORGANIZATION, INC.,\\nTRUMP ORGANIZATION LLC, DJT HOLDINGS LLC,\\nDJT HOLDINGS MANAGING MEMBER LLC, TRUMP\\nACQUISITION LLC, TRUMP ACQUISITION, CORP.,\\n\\n Plaintiffs ‐ Appellants,\\n\\n v.\\n\\nDEUTSCHE BANK AG, CAPITAL ONE FINANCIAL\\nCORPORATION,\\n\\n Defendants ‐ Appellees,\\n\\nCOMMITTEE ON FINANCIAL SERVICES OF THE\\nUNITED STATES HOUSE OF REPRESENTATIVES,\\nPERMANENT SELECT COMMITTEE ON\\nINTELLIGENCE OF THE UNITED STATES HOUSE\\nOF REPRESENTATIVES,\\n\\n Intervenor Defendants – Appellees,\\n\\n\\n 1\\n\\fTHE ASSOCIATED PRESS, CABLE NEWS NETWORK,\\nINC., THE NEW YORK TIMES COMPANY, POLITICO\\nLLC, WP CO. LLC, DOW JONES & COMPANY, INC.,\\nREUTERS NEWS & MEDIA INC.,\\n\\n Movants.1\\n\\n‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐\\n\\nBefore: NEWMAN, HALL, and LIVINGSTON, Circuit Judges.\\n\\n Motions to intervene and to unseal unredacted letter sent August 27, 2019,\\nby Deutsche Bank AG to Clerk of Court, Second Circuit Court of Appeals, and\\nfiled under seal.\\n Motions to intervene GRANTED; motions to unseal DENIED.\\n\\n Patrick Strawbridge, Consovoy McCarthy PLLC,\\n Boston, MA (William S. Consovoy,\\n Cameron T. Norris, Consovoy McCarthy\\n PLLC, Arlington, VA, Marc Lee Mukasey,\\n Mukasey Frenchman & Sklaroff LLP, New\\n York, NY) for Plaintiffs‐Appellants Donald\\n J. Trump, Donald J. Trump, Jr., Eric Trump,\\n Ivanka Trump, Donald J. Trump Revocable\\n Trust, Trump Organization, Inc., Trump\\n Organization LLC, DJT Holdings LLC, DJT\\n Holdings Managing Member LLC, Trump\\n Acquisition LLC, Trump Acquisition, Corp.\\n\\n Douglas N. Letter, General Counsel, U.S. House of\\n Representatives, Washington, D.C. (Todd B.\\n Tatelman, Dep. General Counsel, Megan\\n Barbero, Josephine Morse, Assoc. General\\n Counsel, Office of General Counsel, U.S.\\n House of Representatives, Washington,\\n\\n 1\\n Movants are added to this opinion’s caption for the sole purpose of ruling on this motion.\\nThe official caption will remain unchanged.\\n 2\\n\\f D.C.), for Intervenor Defendants‐Appellees\\n Committee on Financial Services and\\n Permanent Select Committee on Intelligence\\n of the United States House of\\n Representatives.\\n\\n Parvin D. Moyne, Akin Gump Strauss Hauer &\\n Feld LLP, New York, NY (Thomas C.\\n Moyer, Raphael A. Prober, Steven R. Ross,\\n Akin Gump Strauss Hauer & Feld LLP,\\n Washington, D.C.), for Defendant‐Appellee\\n Deutsche Bank AG.\\n\\n James A. Murphy, Murphy & McGonigle, PC,\\n New York, NY (Steven D. Feldman, Murphy\\n & McGonigle, PC, New York, NY), for\\n Defendant‐Appellee Capital One Financial\\n Corporation.\\n\\n Jacquelyn Schell, Ballard Spahr LLP, New York,\\n NY (Jay Ward Brown, Ballard Spahr LLP,\\n New York, NY) for Movants The Associated\\n Press, Cable News Network, Inc., The New\\n York Times Company, POLITICO LLC, WP\\n Co. LLC, Dow Jones & Company, Inc., and\\n Reuters News & Media Inc.\\n\\n\\nJON O. NEWMAN, Circuit Judge:\\n\\n This opinion considers motions by several news organizations to intervene\\n\\nin a pending appeal and to unseal an unredacted letter filed in this Court on\\n\\nAugust 27, 2019, under seal in that appeal. See Trump v. Deutsche Bank, AG, No. 19‒\\n\\n1540 (2d Cir. argued Aug. 23, 2019). The letter was filed by Deutsche Bank AG in\\n\\n\\n 3\\n\\fan appeal from an Order denying a preliminary injunction sought by President\\n\\nDonald J. Trump, members of his family, and several affiliated entities\\n\\n(“Appellants”) to prevent compliance with subpoenas issued to Deutsche Bank\\n\\nand Capital One Financial Corporation by two committees of the United States\\n\\nHouse of Representatives. The subpoenas seek production of numerous\\n\\ndocuments, including tax returns. The appeal is still pending. Unsealing the letter\\n\\nis sought to learn the redacted names of taxpayers whose income tax returns are\\n\\nin Deutsche Bank’s possession. Appellants in the pending appeal and Deutsche\\n\\nBank oppose the motion.\\n\\n The motions to intervene are GRANTED; the motions for unsealing are\\n\\nDENIED.\\n\\n Background\\n\\n On April 11, 2019, the House Committee on Financial Services and the\\n\\nHouse Permanent Select Committee on Intelligence (collectively, “Committees”)\\n\\nissued subpoenas to Deutsche Bank and Capital One (collectively, “Banks”),\\n\\nseeking production of numerous documents, including tax returns of several\\n\\npersons and entities listed in the subpoenas. On the appeal from the Order\\n\\ndenying Appellants’ motion for a preliminary injunction to prevent compliance\\n\\n\\n\\n 4\\n\\fwith the subpoenas, none of the briefs filed by the parties indicated which, if any,\\n\\ntax returns within the coverage of the subpoenas were in the possession of either\\n\\nof the Banks. In fact, none of the parties’ briefs mentioned tax returns, either to\\n\\noppose or require their disclosure.\\n\\n At oral argument on August 23, we asked counsel for each of the Banks\\n\\nwhether it had in its possession any tax returns within the coverage of the\\n\\nsubpoenas. Counsel for Deutsche Bank initially replied that he could not answer\\n\\nthe question, but, after some colloquy with the panel, agreed to submit a letter of\\n\\nfurther explanation. Counsel for Capital One took the same position. After oral\\n\\nargument, on August 26 we ordered each of the Banks to state “whether it has in\\n\\nits possession any tax returns of any of the individuals or entities named or\\n\\nreferred to (directly or indirectly) in paragraph 1 of the subpoenas” and, if either\\n\\nbank believed “in good faith that all or part of its response to this Order is entitled\\n\\nto confidentiality, it shall set forth the basis of such belief in its response.” No. 19‒\\n\\n1540, Dkt. No. 156 (Aug. 26, 2019). On August 27, we entered an order informing\\n\\nthe Banks that if they filed an unredacted letter under seal, a redacted version of\\n\\nthe letter served on the Committees should be served on Appellants and filed on\\n\\nthe public docket. See id., Dkt. No. 157.\\n\\n\\n\\n 5\\n\\f On August 27, the Banks filed responses. Capital One stated that it had no\\n\\ntax returns sought by the subpoena it had received.2 Deutsche Bank filed a\\n\\nredacted version of a letter3 and also filed under seal an unredacted version of the\\n\\nletter.4 The redacted version reported that Deutsche Bank had tax returns\\n\\nresponsive to the subpoenas, redacted the names of the taxpayers who had filed\\n\\nthose returns, and provided arguments to support the redaction of those names.\\n\\nThe sealed unredacted version of Deutsche Bank’s letter provided the taxpayers’\\n\\nnames.\\n\\n The filing of Deutsche Bank’s unredacted letter under seal prompted several\\n\\nnews organizations (“Media Coalition”) to file a motion on Sept. 11 seeking leave\\n\\nto intervene and to unseal the unredacted version of the letter.5 On Sept. 18, other\\n\\nnews organizations filed a similar motion.6 Also on Sept. 18, we ordered the parties\\n\\nto the underlying appeal to file responses to the motions to intervene and unseal.\\n\\n\\n 2 See Letter from James A. Murphy to Clerk of Court, Second Circuit Court of Appeals,\\nNo. 19‒1540, Dkt. No. 162 (Aug. 27, 2019).\\n 3 See Letter from Raphael A. Prober to Clerk of Court, Second Circuit Court of Appeals,\\n\\nNo. 19‒1540, Dkt. No. 161 (Aug. 27, 2019).\\n 4 See Letter from Raphael A. Prober to Clerk of Court, Second Circuit Court of Appeals,\\n\\nNo. 19‒1540, Dkt. No. 165 (Aug. 27, 2019).\\n 5 Motion to Intervene and to Unseal Judicial Records, No. 19‒1540, Dkt. No. 168 (Sept. 11,\\n\\n2019). The motion was filed by The Associated Press, Cable News Network, Inc., The New York\\nTimes Company, POLITICO LLC, and WP Co. LLC.\\n 6 Motion of Additional Media Entities to Intervene and to Unseal Judicial Records, No.\\n\\n19‒1540, Dkt. No. 181 (Sept. 18, 2019). The motion was filed by Dow Jones & Company, Inc. and\\nReuters News & Media Inc.\\n 6\\n\\fOn Sept. 27, responses were received from Appellants, Deutsche Bank, Capital\\n\\nOne, and the Committees.\\n\\n The initial arguments of the movants are set forth in a memorandum\\n\\naccompanying the Media Coalition’s motion to intervene and unseal. With respect\\n\\nto the movants’ request to intervene, the parties to the underlying appeal either\\n\\ntake no position or have no objection.7 With respect to the movants’ request to\\n\\nunseal, Appellants and Deutsche Bank oppose unsealing,8 the Committees oppose\\n\\nunsealing to the extent that the named individuals or entities are not parties,9 and\\n\\nCapital One takes no position.10 The movants have supplemented their initial\\n\\narguments with a memorandum replying to Appellants’ and Deutsche Bank’s\\n\\nopposition to unsealing (“Movants’ Reply Memorandum”).11\\n\\n\\n\\n\\n 7 See Motions to Intervene and Unseal, Certification pursuant to Local Rule 27.1(b), No.\\n19‒1540, Dkt. Nos. 168, 181 (Sept. 11, 2019).\\n 8 See Plaintiffs‒Appellants’ Opposition to Motion to Unseal, No.19‒1540, Dkt. No. 186\\n\\n(Sept. 27, 2019); Response of Deutsche Bank AG to Media Coalition’s Dow Jones’, and Reuters’\\nMotions to Intervene and Unseal Judicial Records, No. 19‒1549, Dkt. No. 184 (Sept. 27, 2019).\\n 9 See Letter from Douglas N. Letter to Clerk of Court, Second Circuit Court of Appeals,\\n\\nNo. 19‒1540, Dkt. No. 190 (Sept. 27, 2019).\\n 10 See Letter from James A. Murphy to Clerk of Court, Second Circuit Court of Appeals,\\n\\nNo. 19‒1540, Dkt. No. 188 (Sept. 27, 2019).\\n 11 Media Coalition’s Reply in Support of Its Motion to Intervene and to Unseal Judicial\\n\\nRecords, No. 19‒1540, Dkt. No. 193 (Oct. 4, 2019).\\n 7\\n\\f Discussion\\n\\nI. Intervention\\n\\n “Representatives of the press . . . ‘must be given an opportunity to be\\n\\nheard on the question of their exclusion’” from a court proceeding, Globe\\n\\nNewspaper Co. v. Superior Court, 457 U.S. 596, 609 n.25 (1982) (quoting Gannett\\n\\nCo. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)), and we\\n\\nhave recognized a similar right of news media to intervene in this Court to\\n\\nseek unsealing of documents filed in a court proceeding, see Roe v. United\\n\\nStates, Nos. 10‒2905, 11‒479, Dkt. No. 409 (2d Cir. Apr. 10, 2017) (granting\\n\\nmotion of Forbes Media LLC and one of its editors to intervene). We will\\n\\ngrant the motions to the extent that they seek intervention.\\n\\nII. Unsealing\\n\\n Sealing documents filed with a court implicates a common law and a\\n\\nqualified First Amendment right of access to such documents. See Brown v.\\n\\nMaxwell, 929 F.3d 41, 48 (2d Cir. 2019); Lugosch v. Pyramid Co. of Onondaga,\\n\\n435 F.3d 110, 119‒20 (2d Cir. 2006); Hartford Courant Co. v. Pellegrino, 380 F.3d\\n\\n83, 91 (2d Cir. 2004). The initial issue on a request to unseal a document filed\\n\\nin a court is whether it is a “judicial document.” See Lugosch, 435 F.3d at 119.\\n\\n\\n\\n 8\\n\\f“[T]he mere filing of a paper or document with the court is insufficient to\\n\\nrender that paper a judicial document subject to the right of public access.”\\n\\nUnited States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995). “In order to be\\n\\ndesignated a judicial document, ‘the item filed must be relevant to the\\n\\nperformance of the judicial function and useful in the judicial process.’”\\n\\nLugosch, 534 F.3d at 119 (quoting Amodeo, 44 F.3d at 145).\\n\\n Usually determination of whether a sealed item is a judicial document\\n\\nis made with respect to the entirety of the item; the news media want the\\n\\nwhole document unsealed, and the proponent of sealing wants it to remain\\n\\nsealed. In this case, however, the sealed letter from Deutsche Bank combines\\n\\ntwo names that have been redacted from the letter with an argument\\n\\nsupporting redaction. The argument portion of the letter is already on the\\n\\npublic docket in the form of the redacted version of the letter. So the issue is\\n\\nnarrowed to whether the two redacted names constitute a “judicial\\n\\ndocument.”\\n\\n The redaction of these two names presents at least a potential issue as to\\n\\nwhether they are relevant to the performance of a judicial function. In considering\\n\\nthat issue, we note that none of the parties briefing the underlying appeal thought\\n\\n\\n\\n 9\\n\\fthat the Court needed to know whether Deutsche Bank had any tax returns within\\n\\nthe coverage of the subpoenas or the names of any such taxpayers filing such\\n\\nreturns. Their briefs did not indicate that such information was relevant to any\\n\\nissue we needed to decide in the appeal. Nevertheless, Media Coalition contends\\n\\nin its initial submission that the information in the sealed letter “is analogous to\\n\\ndocuments submitted for consideration on a motion for summary judgment.”12\\n\\nDocuments of that type are generally relevant to a decision on such a motion. “Our\\n\\nprecedents indicate that documents submitted to a court for its consideration in a\\n\\nsummary judgment motion are‒‒as a matter of law‒‒judicial documents to which\\n\\na strong presumption of access attaches, under both the common law and the First\\n\\nAmendment.” Lugosch, 435 F.3d at 121. All such information will usually be\\n\\nrelevant to a court determining whether there is a “genuine dispute as to any\\n\\nmaterial fact,” Fed. R. Civ. P. 56(a), or whether a party “is entitled to judgment as\\n\\na matter of law,” id.\\n\\n In the pending appeal, the basic issue is whether Appellants are entitled to\\n\\npreliminarily enjoin compliance with the subpoenas, and, as to that broad issue,\\n\\nthe two names are not necessarily relevant. With one exception, the identity of the\\n\\n\\n 12\\n Motion to Intervene and to Unseal Judicial Records at 9, No. 19‒1540, Dkt. No. 168 (Sept.\\n11, 2019).\\n 10\\n\\ftaxpayers whose returns are within the coverage of the subpoenas will not be\\n\\nrelevant to our decision on review of the Order denying an injunction. That\\n\\nexception would arise if one of the taxpayers is the President, who, it should be\\n\\nnoted, is one of the Appellants seeking the injunction. Even though the President\\n\\nis not suing in his official capacity, as his complaint explicitly acknowledges and\\n\\nno claim of executive privilege has been asserted in the underlying appeal,\\n\\ndisclosure of a president’s tax returns might raise an issue meriting consideration\\n\\ndistinct from that given to disclosure of the returns of other taxpayers.\\n\\n However, the unredacted letter from Deutsche Bank has removed that\\n\\npotential issue from the appeal because that letter reports that the only tax returns\\n\\nit has for individuals or entities named in the subpoenas are not those of the\\n\\nPresident. In light of that response, information in the sealed letter, i.e., the identity\\n\\nof the two taxpayers whose tax returns Deutsche Bank has, is not relevant to any\\n\\nissue we need to decide. The fact that Deutsche Bank has their tax returns adds\\n\\nnothing to the arguments of the parties in the pending appeal.\\n\\n The Movants, in their reply memorandum, no longer contend that the sealed\\n\\ninformation is analogous to documents submitted on a motion for summary\\n\\njudgment. Their latest filing contends that the sealed information qualifies as a\\n\\n\\n\\n 11\\n\\f“judicial document” because “the right of access attaches when documents are\\n\\nsubmitted to the court for consideration, regardless of whether or not the court at\\n\\nsome point thereafter relies upon them . . . .“ Movants’ Reply Memorandum at 4\\n\\n(emphasis in original). We agree that court reliance is not the test. “[T]he proper\\n\\ninquiry is whether the documents are relevant to the performance of the judicial\\n\\nfunction, not whether they were relied upon.” Brown, 929 F.3d at 50.\\n\\n Because the sealed letter (more precisely, the only portion of the letter that\\n\\nis sealed) is not relevant to any issue in the underlying appeal, it is not a “judicial\\n\\ndocument” within the meaning of the decisions requiring unsealing of documents\\n\\nfiled with a court. Nor is it a record of any court action, which, absent special\\n\\ncircumstances, would be available for public scrutiny.\\n\\n Conclusion\\n\\n Accordingly, the motions to intervene are GRANTED, and the motions for\\n\\nunsealing are DENIED.\\n\\n\\n\\n\\n 12\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4445745/\", \"author_raw\": \"JON O. NEWMAN, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"NEWMAN"},"judge2":{"kind":"string","value":"HALL"},"judge3":{"kind":"string","value":"LIVINGSTON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"NEWMAN\": \", Circuit\", \"HALL\": \", Circuit\", \"LIVINGSTON\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4668492/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Donald J. Trump v. Deutsche Bank AG\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-10-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n19-1540-cv\nDonald J. Trump v. Deutsche Bank AG\n\n UNITED STATES COURT OF APPEALS\n\n FOR THE SECOND CIRCUIT\n\n August Term 2019\n\n\n\nMotions filed: September 11, 2019 Motions Decided: October 10, 2019\n September 18, 2019\n\n Docket No. 19‐1540‐cv\n\n‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐\nDONALD J. TRUMP, DONALD J. TRUMP, JR., ERIC\nTRUMP, IVANKA TRUMP, DONALD J. TRUMP\nREVOCABLE TRUST, TRUMP ORGANIZATION, INC.,\nTRUMP ORGANIZATION LLC, DJT HOLDINGS LLC,\nDJT HOLDINGS MANAGING MEMBER LLC, TRUMP\nACQUISITION LLC, TRUMP ACQUISITION, CORP.,\n\n Plaintiffs ‐ Appellants,\n\n v.\n\nDEUTSCHE BANK AG, CAPITAL ONE FINANCIAL\nCORPORATION,\n\n Defendants ‐ Appellees,\n\nCOMMITTEE ON FINANCIAL SERVICES OF THE\nUNITED STATES HOUSE OF REPRESENTATIVES,\nPERMANENT SELECT COMMITTEE ON\nINTELLIGENCE OF THE UNITED STATES HOUSE\nOF REPRESENTATIVES,\n\n Intervenor Defendants – Appellees,\n\n\n 1\n\fTHE ASSOCIATED PRESS, CABLE NEWS NETWORK,\nINC., THE NEW YORK TIMES COMPANY, POLITICO\nLLC, WP CO. LLC, DOW JONES & COMPANY, INC.,\nREUTERS NEWS & MEDIA INC.,\n\n Movants.1\n\n‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐\n\nBefore: NEWMAN, HALL, and LIVINGSTON, Circuit Judges.\n\n Motions to intervene and to unseal unredacted letter sent August 27, 2019,\nby Deutsche Bank AG to Clerk of Court, Second Circuit Court of Appeals, and\nfiled under seal.\n Motions to intervene GRANTED; motions to unseal DENIED.\n\n Patrick Strawbridge, Consovoy McCarthy PLLC,\n Boston, MA (William S. Consovoy,\n Cameron T. Norris, Consovoy McCarthy\n PLLC, Arlington, VA, Marc Lee Mukasey,\n Mukasey Frenchman & Sklaroff LLP, New\n York, NY) for Plaintiffs‐Appellants Donald\n J. Trump, Donald J. Trump, Jr., Eric Trump,\n Ivanka Trump, Donald J. Trump Revocable\n Trust, Trump Organization, Inc., Trump\n Organization LLC, DJT Holdings LLC, DJT\n Holdings Managing Member LLC, Trump\n Acquisition LLC, Trump Acquisition, Corp.\n\n Douglas N. Letter, General Counsel, U.S. House of\n Representatives, Washington, D.C. (Todd B.\n Tatelman, Dep. General Counsel, Megan\n Barbero, Josephine Morse, Assoc. General\n Counsel, Office of General Counsel, U.S.\n House of Representatives, Washington,\n\n 1\n Movants are added to this opinion’s caption for the sole purpose of ruling on this motion.\nThe official caption will remain unchanged.\n 2\n\f D.C.), for Intervenor Defendants‐Appellees\n Committee on Financial Services and\n Permanent Select Committee on Intelligence\n of the United States House of\n Representatives.\n\n Parvin D. Moyne, Akin Gump Strauss Hauer &\n Feld LLP, New York, NY (Thomas C.\n Moyer, Raphael A. Prober, Steven R. Ross,\n Akin Gump Strauss Hauer & Feld LLP,\n Washington, D.C.), for Defendant‐Appellee\n Deutsche Bank AG.\n\n James A. Murphy, Murphy & McGonigle, PC,\n New York, NY (Steven D. Feldman, Murphy\n & McGonigle, PC, New York, NY), for\n Defendant‐Appellee Capital One Financial\n Corporation.\n\n Jacquelyn Schell, Ballard Spahr LLP, New York,\n NY (Jay Ward Brown, Ballard Spahr LLP,\n New York, NY) for Movants The Associated\n Press, Cable News Network, Inc., The New\n York Times Company, POLITICO LLC, WP\n Co. LLC, Dow Jones & Company, Inc., and\n Reuters News & Media Inc.\n\n\nJON O. NEWMAN, Circuit Judge:\n\n This opinion considers motions by several news organizations to intervene\n\nin a pending appeal and to unseal an unredacted letter filed in this Court on\n\nAugust 27, 2019, under seal in that appeal. See Trump v. Deutsche Bank, AG, No. 19‒\n\n1540 (2d Cir. argued Aug. 23, 2019). The letter was filed by Deutsche Bank AG in\n\n\n 3\n\fan appeal from an Order denying a preliminary injunction sought by President\n\nDonald J. Trump, members of his family, and several affiliated entities\n\n(“Appellants”) to prevent compliance with subpoenas issued to Deutsche Bank\n\nand Capital One Financial Corporation by two committees of the United States\n\nHouse of Representatives. The subpoenas seek production of numerous\n\ndocuments, including tax returns. The appeal is still pending. Unsealing the letter\n\nis sought to learn the redacted names of taxpayers whose income tax returns are\n\nin Deutsche Bank’s possession. Appellants in the pending appeal and Deutsche\n\nBank oppose the motion.\n\n The motions to intervene are GRANTED; the motions for unsealing are\n\nDENIED.\n\n Background\n\n On April 11, 2019, the House Committee on Financial Services and the\n\nHouse Permanent Select Committee on Intelligence (collectively, “Committees”)\n\nissued subpoenas to Deutsche Bank and Capital One (collectively, “Banks”),\n\nseeking production of numerous documents, including tax returns of several\n\npersons and entities listed in the subpoenas. On the appeal from the Order\n\ndenying Appellants’ motion for a preliminary injunction to prevent compliance\n\n\n\n 4\n\fwith the subpoenas, none of the briefs filed by the parties indicated which, if any,\n\ntax returns within the coverage of the subpoenas were in the possession of either\n\nof the Banks. In fact, none of the parties’ briefs mentioned tax returns, either to\n\noppose or require their disclosure.\n\n At oral argument on August 23, we asked counsel for each of the Banks\n\nwhether it had in its possession any tax returns within the coverage of the\n\nsubpoenas. Counsel for Deutsche Bank initially replied that he could not answer\n\nthe question, but, after some colloquy with the panel, agreed to submit a letter of\n\nfurther explanation. Counsel for Capital One took the same position. After oral\n\nargument, on August 26 we ordered each of the Banks to state “whether it has in\n\nits possession any tax returns of any of the individuals or entities named or\n\nreferred to (directly or indirectly) in paragraph 1 of the subpoenas” and, if either\n\nbank believed “in good faith that all or part of its response to this Order is entitled\n\nto confidentiality, it shall set forth the basis of such belief in its response.” No. 19‒\n\n1540, Dkt. No. 156 (Aug. 26, 2019). On August 27, we entered an order informing\n\nthe Banks that if they filed an unredacted letter under seal, a redacted version of\n\nthe letter served on the Committees should be served on Appellants and filed on\n\nthe public docket. See id., Dkt. No. 157.\n\n\n\n 5\n\f On August 27, the Banks filed responses. Capital One stated that it had no\n\ntax returns sought by the subpoena it had received.2 Deutsche Bank filed a\n\nredacted version of a letter3 and also filed under seal an unredacted version of the\n\nletter.4 The redacted version reported that Deutsche Bank had tax returns\n\nresponsive to the subpoenas, redacted the names of the taxpayers who had filed\n\nthose returns, and provided arguments to support the redaction of those names.\n\nThe sealed unredacted version of Deutsche Bank’s letter provided the taxpayers’\n\nnames.\n\n The filing of Deutsche Bank’s unredacted letter under seal prompted several\n\nnews organizations (“Media Coalition”) to file a motion on Sept. 11 seeking leave\n\nto intervene and to unseal the unredacted version of the letter.5 On Sept. 18, other\n\nnews organizations filed a similar motion.6 Also on Sept. 18, we ordered the parties\n\nto the underlying appeal to file responses to the motions to intervene and unseal.\n\n\n 2 See Letter from James A. Murphy to Clerk of Court, Second Circuit Court of Appeals,\nNo. 19‒1540, Dkt. No. 162 (Aug. 27, 2019).\n 3 See Letter from Raphael A. Prober to Clerk of Court, Second Circuit Court of Appeals,\n\nNo. 19‒1540, Dkt. No. 161 (Aug. 27, 2019).\n 4 See Letter from Raphael A. Prober to Clerk of Court, Second Circuit Court of Appeals,\n\nNo. 19‒1540, Dkt. No. 165 (Aug. 27, 2019).\n 5 Motion to Intervene and to Unseal Judicial Records, No. 19‒1540, Dkt. No. 168 (Sept. 11,\n\n2019). The motion was filed by The Associated Press, Cable News Network, Inc., The New York\nTimes Company, POLITICO LLC, and WP Co. LLC.\n 6 Motion of Additional Media Entities to Intervene and to Unseal Judicial Records, No.\n\n19‒1540, Dkt. No. 181 (Sept. 18, 2019). The motion was filed by Dow Jones & Company, Inc. and\nReuters News & Media Inc.\n 6\n\fOn Sept. 27, responses were received from Appellants, Deutsche Bank, Capital\n\nOne, and the Committees.\n\n The initial arguments of the movants are set forth in a memorandum\n\naccompanying the Media Coalition’s motion to intervene and unseal. With respect\n\nto the movants’ request to intervene, the parties to the underlying appeal either\n\ntake no position or have no objection.7 With respect to the movants’ request to\n\nunseal, Appellants and Deutsche Bank oppose unsealing,8 the Committees oppose\n\nunsealing to the extent that the named individuals or entities are not parties,9 and\n\nCapital One takes no position.10 The movants have supplemented their initial\n\narguments with a memorandum replying to Appellants’ and Deutsche Bank’s\n\nopposition to unsealing (“Movants’ Reply Memorandum”).11\n\n\n\n\n 7 See Motions to Intervene and Unseal, Certification pursuant to Local Rule 27.1(b), No.\n19‒1540, Dkt. Nos. 168, 181 (Sept. 11, 2019).\n 8 See Plaintiffs‒Appellants’ Opposition to Motion to Unseal, No.19‒1540, Dkt. No. 186\n\n(Sept. 27, 2019); Response of Deutsche Bank AG to Media Coalition’s Dow Jones’, and Reuters’\nMotions to Intervene and Unseal Judicial Records, No. 19‒1549, Dkt. No. 184 (Sept. 27, 2019).\n 9 See Letter from Douglas N. Letter to Clerk of Court, Second Circuit Court of Appeals,\n\nNo. 19‒1540, Dkt. No. 190 (Sept. 27, 2019).\n 10 See Letter from James A. Murphy to Clerk of Court, Second Circuit Court of Appeals,\n\nNo. 19‒1540, Dkt. No. 188 (Sept. 27, 2019).\n 11 Media Coalition’s Reply in Support of Its Motion to Intervene and to Unseal Judicial\n\nRecords, No. 19‒1540, Dkt. No. 193 (Oct. 4, 2019).\n 7\n\f Discussion\n\nI. Intervention\n\n “Representatives of the press . . . ‘must be given an opportunity to be\n\nheard on the question of their exclusion’” from a court proceeding, Globe\n\nNewspaper Co. v. Superior Court, 457 U.S. 596, 609 n.25 (1982) (quoting Gannett\n\nCo. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)), and we\n\nhave recognized a similar right of news media to intervene in this Court to\n\nseek unsealing of documents filed in a court proceeding, see Roe v. United\n\nStates, Nos. 10‒2905, 11‒479, Dkt. No. 409 (2d Cir. Apr. 10, 2017) (granting\n\nmotion of Forbes Media LLC and one of its editors to intervene). We will\n\ngrant the motions to the extent that they seek intervention.\n\nII. Unsealing\n\n Sealing documents filed with a court implicates a common law and a\n\nqualified First Amendment right of access to such documents. See Brown v.\n\nMaxwell, 929 F.3d 41, 48 (2d Cir. 2019); Lugosch v. Pyramid Co. of Onondaga,\n\n435 F.3d 110, 119‒20 (2d Cir. 2006); Hartford Courant Co. v. Pellegrino, 380 F.3d\n\n83, 91 (2d Cir. 2004). The initial issue on a request to unseal a document filed\n\nin a court is whether it is a “judicial document.” See Lugosch, 435 F.3d at 119.\n\n\n\n 8\n\f“[T]he mere filing of a paper or document with the court is insufficient to\n\nrender that paper a judicial document subject to the right of public access.”\n\nUnited States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995). “In order to be\n\ndesignated a judicial document, ‘the item filed must be relevant to the\n\nperformance of the judicial function and useful in the judicial process.’”\n\nLugosch, 534 F.3d at 119 (quoting Amodeo, 44 F.3d at 145).\n\n Usually determination of whether a sealed item is a judicial document\n\nis made with respect to the entirety of the item; the news media want the\n\nwhole document unsealed, and the proponent of sealing wants it to remain\n\nsealed. In this case, however, the sealed letter from Deutsche Bank combines\n\ntwo names that have been redacted from the letter with an argument\n\nsupporting redaction. The argument portion of the letter is already on the\n\npublic docket in the form of the redacted version of the letter. So the issue is\n\nnarrowed to whether the two redacted names constitute a “judicial\n\ndocument.”\n\n The redaction of these two names presents at least a potential issue as to\n\nwhether they are relevant to the performance of a judicial function. In considering\n\nthat issue, we note that none of the parties briefing the underlying appeal thought\n\n\n\n 9\n\fthat the Court needed to know whether Deutsche Bank had any tax returns within\n\nthe coverage of the subpoenas or the names of any such taxpayers filing such\n\nreturns. Their briefs did not indicate that such information was relevant to any\n\nissue we needed to decide in the appeal. Nevertheless, Media Coalition contends\n\nin its initial submission that the information in the sealed letter “is analogous to\n\ndocuments submitted for consideration on a motion for summary judgment.”12\n\nDocuments of that type are generally relevant to a decision on such a motion. “Our\n\nprecedents indicate that documents submitted to a court for its consideration in a\n\nsummary judgment motion are‒‒as a matter of law‒‒judicial documents to which\n\na strong presumption of access attaches, under both the common law and the First\n\nAmendment.” Lugosch, 435 F.3d at 121. All such information will usually be\n\nrelevant to a court determining whether there is a “genuine dispute as to any\n\nmaterial fact,” Fed. R. Civ. P. 56(a), or whether a party “is entitled to judgment as\n\na matter of law,” id.\n\n In the pending appeal, the basic issue is whether Appellants are entitled to\n\npreliminarily enjoin compliance with the subpoenas, and, as to that broad issue,\n\nthe two names are not necessarily relevant. With one exception, the identity of the\n\n\n 12\n Motion to Intervene and to Unseal Judicial Records at 9, No. 19‒1540, Dkt. No. 168 (Sept.\n11, 2019).\n 10\n\ftaxpayers whose returns are within the coverage of the subpoenas will not be\n\nrelevant to our decision on review of the Order denying an injunction. That\n\nexception would arise if one of the taxpayers is the President, who, it should be\n\nnoted, is one of the Appellants seeking the injunction. Even though the President\n\nis not suing in his official capacity, as his complaint explicitly acknowledges and\n\nno claim of executive privilege has been asserted in the underlying appeal,\n\ndisclosure of a president’s tax returns might raise an issue meriting consideration\n\ndistinct from that given to disclosure of the returns of other taxpayers.\n\n However, the unredacted letter from Deutsche Bank has removed that\n\npotential issue from the appeal because that letter reports that the only tax returns\n\nit has for individuals or entities named in the subpoenas are not those of the\n\nPresident. In light of that response, information in the sealed letter, i.e., the identity\n\nof the two taxpayers whose tax returns Deutsche Bank has, is not relevant to any\n\nissue we need to decide. The fact that Deutsche Bank has their tax returns adds\n\nnothing to the arguments of the parties in the pending appeal.\n\n The Movants, in their reply memorandum, no longer contend that the sealed\n\ninformation is analogous to documents submitted on a motion for summary\n\njudgment. Their latest filing contends that the sealed information qualifies as a\n\n\n\n 11\n\f“judicial document” because “the right of access attaches when documents are\n\nsubmitted to the court for consideration, regardless of whether or not the court at\n\nsome point thereafter relies upon them . . . .“ Movants’ Reply Memorandum at 4\n\n(emphasis in original). We agree that court reliance is not the test. “[T]he proper\n\ninquiry is whether the documents are relevant to the performance of the judicial\n\nfunction, not whether they were relied upon.” Brown, 929 F.3d at 50.\n\n Because the sealed letter (more precisely, the only portion of the letter that\n\nis sealed) is not relevant to any issue in the underlying appeal, it is not a “judicial\n\ndocument” within the meaning of the decisions requiring unsealing of documents\n\nfiled with a court. Nor is it a record of any court action, which, absent special\n\ncircumstances, would be available for public scrutiny.\n\n Conclusion\n\n Accordingly, the motions to intervene are GRANTED, and the motions for\n\nunsealing are DENIED.\n\n\n\n\n 12\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Donald J. Trump v. Deutsche Bank AG\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-10-10\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n19-1540-cv\\nDonald J. Trump v. Deutsche Bank AG\\n\\n UNITED STATES COURT OF APPEALS\\n\\n FOR THE SECOND CIRCUIT\\n\\n August Term 2019\\n\\n\\n\\nMotions filed: September 11, 2019 Motions Decided: October 10, 2019\\n September 18, 2019\\n\\n Docket No. 19‐1540‐cv\\n\\n‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐\\nDONALD J. TRUMP, DONALD J. TRUMP, JR., ERIC\\nTRUMP, IVANKA TRUMP, DONALD J. TRUMP\\nREVOCABLE TRUST, TRUMP ORGANIZATION, INC.,\\nTRUMP ORGANIZATION LLC, DJT HOLDINGS LLC,\\nDJT HOLDINGS MANAGING MEMBER LLC, TRUMP\\nACQUISITION LLC, TRUMP ACQUISITION, CORP.,\\n\\n Plaintiffs ‐ Appellants,\\n\\n v.\\n\\nDEUTSCHE BANK AG, CAPITAL ONE FINANCIAL\\nCORPORATION,\\n\\n Defendants ‐ Appellees,\\n\\nCOMMITTEE ON FINANCIAL SERVICES OF THE\\nUNITED STATES HOUSE OF REPRESENTATIVES,\\nPERMANENT SELECT COMMITTEE ON\\nINTELLIGENCE OF THE UNITED STATES HOUSE\\nOF REPRESENTATIVES,\\n\\n Intervenor Defendants – Appellees,\\n\\n\\n 1\\n\\fTHE ASSOCIATED PRESS, CABLE NEWS NETWORK,\\nINC., THE NEW YORK TIMES COMPANY, POLITICO\\nLLC, WP CO. LLC, DOW JONES & COMPANY, INC.,\\nREUTERS NEWS & MEDIA INC.,\\n\\n Movants.1\\n\\n‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐\\n\\nBefore: NEWMAN, HALL, and LIVINGSTON, Circuit Judges.\\n\\n Motions to intervene and to unseal unredacted letter sent August 27, 2019,\\nby Deutsche Bank AG to Clerk of Court, Second Circuit Court of Appeals, and\\nfiled under seal.\\n Motions to intervene GRANTED; motions to unseal DENIED.\\n\\n Patrick Strawbridge, Consovoy McCarthy PLLC,\\n Boston, MA (William S. Consovoy,\\n Cameron T. Norris, Consovoy McCarthy\\n PLLC, Arlington, VA, Marc Lee Mukasey,\\n Mukasey Frenchman & Sklaroff LLP, New\\n York, NY) for Plaintiffs‐Appellants Donald\\n J. Trump, Donald J. Trump, Jr., Eric Trump,\\n Ivanka Trump, Donald J. Trump Revocable\\n Trust, Trump Organization, Inc., Trump\\n Organization LLC, DJT Holdings LLC, DJT\\n Holdings Managing Member LLC, Trump\\n Acquisition LLC, Trump Acquisition, Corp.\\n\\n Douglas N. Letter, General Counsel, U.S. House of\\n Representatives, Washington, D.C. (Todd B.\\n Tatelman, Dep. General Counsel, Megan\\n Barbero, Josephine Morse, Assoc. General\\n Counsel, Office of General Counsel, U.S.\\n House of Representatives, Washington,\\n\\n 1\\n Movants are added to this opinion’s caption for the sole purpose of ruling on this motion.\\nThe official caption will remain unchanged.\\n 2\\n\\f D.C.), for Intervenor Defendants‐Appellees\\n Committee on Financial Services and\\n Permanent Select Committee on Intelligence\\n of the United States House of\\n Representatives.\\n\\n Parvin D. Moyne, Akin Gump Strauss Hauer &\\n Feld LLP, New York, NY (Thomas C.\\n Moyer, Raphael A. Prober, Steven R. Ross,\\n Akin Gump Strauss Hauer & Feld LLP,\\n Washington, D.C.), for Defendant‐Appellee\\n Deutsche Bank AG.\\n\\n James A. Murphy, Murphy & McGonigle, PC,\\n New York, NY (Steven D. Feldman, Murphy\\n & McGonigle, PC, New York, NY), for\\n Defendant‐Appellee Capital One Financial\\n Corporation.\\n\\n Jacquelyn Schell, Ballard Spahr LLP, New York,\\n NY (Jay Ward Brown, Ballard Spahr LLP,\\n New York, NY) for Movants The Associated\\n Press, Cable News Network, Inc., The New\\n York Times Company, POLITICO LLC, WP\\n Co. LLC, Dow Jones & Company, Inc., and\\n Reuters News & Media Inc.\\n\\n\\nJON O. NEWMAN, Circuit Judge:\\n\\n This opinion considers motions by several news organizations to intervene\\n\\nin a pending appeal and to unseal an unredacted letter filed in this Court on\\n\\nAugust 27, 2019, under seal in that appeal. See Trump v. Deutsche Bank, AG, No. 19‒\\n\\n1540 (2d Cir. argued Aug. 23, 2019). The letter was filed by Deutsche Bank AG in\\n\\n\\n 3\\n\\fan appeal from an Order denying a preliminary injunction sought by President\\n\\nDonald J. Trump, members of his family, and several affiliated entities\\n\\n(“Appellants”) to prevent compliance with subpoenas issued to Deutsche Bank\\n\\nand Capital One Financial Corporation by two committees of the United States\\n\\nHouse of Representatives. The subpoenas seek production of numerous\\n\\ndocuments, including tax returns. The appeal is still pending. Unsealing the letter\\n\\nis sought to learn the redacted names of taxpayers whose income tax returns are\\n\\nin Deutsche Bank’s possession. Appellants in the pending appeal and Deutsche\\n\\nBank oppose the motion.\\n\\n The motions to intervene are GRANTED; the motions for unsealing are\\n\\nDENIED.\\n\\n Background\\n\\n On April 11, 2019, the House Committee on Financial Services and the\\n\\nHouse Permanent Select Committee on Intelligence (collectively, “Committees”)\\n\\nissued subpoenas to Deutsche Bank and Capital One (collectively, “Banks”),\\n\\nseeking production of numerous documents, including tax returns of several\\n\\npersons and entities listed in the subpoenas. On the appeal from the Order\\n\\ndenying Appellants’ motion for a preliminary injunction to prevent compliance\\n\\n\\n\\n 4\\n\\fwith the subpoenas, none of the briefs filed by the parties indicated which, if any,\\n\\ntax returns within the coverage of the subpoenas were in the possession of either\\n\\nof the Banks. In fact, none of the parties’ briefs mentioned tax returns, either to\\n\\noppose or require their disclosure.\\n\\n At oral argument on August 23, we asked counsel for each of the Banks\\n\\nwhether it had in its possession any tax returns within the coverage of the\\n\\nsubpoenas. Counsel for Deutsche Bank initially replied that he could not answer\\n\\nthe question, but, after some colloquy with the panel, agreed to submit a letter of\\n\\nfurther explanation. Counsel for Capital One took the same position. After oral\\n\\nargument, on August 26 we ordered each of the Banks to state “whether it has in\\n\\nits possession any tax returns of any of the individuals or entities named or\\n\\nreferred to (directly or indirectly) in paragraph 1 of the subpoenas” and, if either\\n\\nbank believed “in good faith that all or part of its response to this Order is entitled\\n\\nto confidentiality, it shall set forth the basis of such belief in its response.” No. 19‒\\n\\n1540, Dkt. No. 156 (Aug. 26, 2019). On August 27, we entered an order informing\\n\\nthe Banks that if they filed an unredacted letter under seal, a redacted version of\\n\\nthe letter served on the Committees should be served on Appellants and filed on\\n\\nthe public docket. See id., Dkt. No. 157.\\n\\n\\n\\n 5\\n\\f On August 27, the Banks filed responses. Capital One stated that it had no\\n\\ntax returns sought by the subpoena it had received.2 Deutsche Bank filed a\\n\\nredacted version of a letter3 and also filed under seal an unredacted version of the\\n\\nletter.4 The redacted version reported that Deutsche Bank had tax returns\\n\\nresponsive to the subpoenas, redacted the names of the taxpayers who had filed\\n\\nthose returns, and provided arguments to support the redaction of those names.\\n\\nThe sealed unredacted version of Deutsche Bank’s letter provided the taxpayers’\\n\\nnames.\\n\\n The filing of Deutsche Bank’s unredacted letter under seal prompted several\\n\\nnews organizations (“Media Coalition”) to file a motion on Sept. 11 seeking leave\\n\\nto intervene and to unseal the unredacted version of the letter.5 On Sept. 18, other\\n\\nnews organizations filed a similar motion.6 Also on Sept. 18, we ordered the parties\\n\\nto the underlying appeal to file responses to the motions to intervene and unseal.\\n\\n\\n 2 See Letter from James A. Murphy to Clerk of Court, Second Circuit Court of Appeals,\\nNo. 19‒1540, Dkt. No. 162 (Aug. 27, 2019).\\n 3 See Letter from Raphael A. Prober to Clerk of Court, Second Circuit Court of Appeals,\\n\\nNo. 19‒1540, Dkt. No. 161 (Aug. 27, 2019).\\n 4 See Letter from Raphael A. Prober to Clerk of Court, Second Circuit Court of Appeals,\\n\\nNo. 19‒1540, Dkt. No. 165 (Aug. 27, 2019).\\n 5 Motion to Intervene and to Unseal Judicial Records, No. 19‒1540, Dkt. No. 168 (Sept. 11,\\n\\n2019). The motion was filed by The Associated Press, Cable News Network, Inc., The New York\\nTimes Company, POLITICO LLC, and WP Co. LLC.\\n 6 Motion of Additional Media Entities to Intervene and to Unseal Judicial Records, No.\\n\\n19‒1540, Dkt. No. 181 (Sept. 18, 2019). The motion was filed by Dow Jones & Company, Inc. and\\nReuters News & Media Inc.\\n 6\\n\\fOn Sept. 27, responses were received from Appellants, Deutsche Bank, Capital\\n\\nOne, and the Committees.\\n\\n The initial arguments of the movants are set forth in a memorandum\\n\\naccompanying the Media Coalition’s motion to intervene and unseal. With respect\\n\\nto the movants’ request to intervene, the parties to the underlying appeal either\\n\\ntake no position or have no objection.7 With respect to the movants’ request to\\n\\nunseal, Appellants and Deutsche Bank oppose unsealing,8 the Committees oppose\\n\\nunsealing to the extent that the named individuals or entities are not parties,9 and\\n\\nCapital One takes no position.10 The movants have supplemented their initial\\n\\narguments with a memorandum replying to Appellants’ and Deutsche Bank’s\\n\\nopposition to unsealing (“Movants’ Reply Memorandum”).11\\n\\n\\n\\n\\n 7 See Motions to Intervene and Unseal, Certification pursuant to Local Rule 27.1(b), No.\\n19‒1540, Dkt. Nos. 168, 181 (Sept. 11, 2019).\\n 8 See Plaintiffs‒Appellants’ Opposition to Motion to Unseal, No.19‒1540, Dkt. No. 186\\n\\n(Sept. 27, 2019); Response of Deutsche Bank AG to Media Coalition’s Dow Jones’, and Reuters’\\nMotions to Intervene and Unseal Judicial Records, No. 19‒1549, Dkt. No. 184 (Sept. 27, 2019).\\n 9 See Letter from Douglas N. Letter to Clerk of Court, Second Circuit Court of Appeals,\\n\\nNo. 19‒1540, Dkt. No. 190 (Sept. 27, 2019).\\n 10 See Letter from James A. Murphy to Clerk of Court, Second Circuit Court of Appeals,\\n\\nNo. 19‒1540, Dkt. No. 188 (Sept. 27, 2019).\\n 11 Media Coalition’s Reply in Support of Its Motion to Intervene and to Unseal Judicial\\n\\nRecords, No. 19‒1540, Dkt. No. 193 (Oct. 4, 2019).\\n 7\\n\\f Discussion\\n\\nI. Intervention\\n\\n “Representatives of the press . . . ‘must be given an opportunity to be\\n\\nheard on the question of their exclusion’” from a court proceeding, Globe\\n\\nNewspaper Co. v. Superior Court, 457 U.S. 596, 609 n.25 (1982) (quoting Gannett\\n\\nCo. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)), and we\\n\\nhave recognized a similar right of news media to intervene in this Court to\\n\\nseek unsealing of documents filed in a court proceeding, see Roe v. United\\n\\nStates, Nos. 10‒2905, 11‒479, Dkt. No. 409 (2d Cir. Apr. 10, 2017) (granting\\n\\nmotion of Forbes Media LLC and one of its editors to intervene). We will\\n\\ngrant the motions to the extent that they seek intervention.\\n\\nII. Unsealing\\n\\n Sealing documents filed with a court implicates a common law and a\\n\\nqualified First Amendment right of access to such documents. See Brown v.\\n\\nMaxwell, 929 F.3d 41, 48 (2d Cir. 2019); Lugosch v. Pyramid Co. of Onondaga,\\n\\n435 F.3d 110, 119‒20 (2d Cir. 2006); Hartford Courant Co. v. Pellegrino, 380 F.3d\\n\\n83, 91 (2d Cir. 2004). The initial issue on a request to unseal a document filed\\n\\nin a court is whether it is a “judicial document.” See Lugosch, 435 F.3d at 119.\\n\\n\\n\\n 8\\n\\f“[T]he mere filing of a paper or document with the court is insufficient to\\n\\nrender that paper a judicial document subject to the right of public access.”\\n\\nUnited States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995). “In order to be\\n\\ndesignated a judicial document, ‘the item filed must be relevant to the\\n\\nperformance of the judicial function and useful in the judicial process.’”\\n\\nLugosch, 534 F.3d at 119 (quoting Amodeo, 44 F.3d at 145).\\n\\n Usually determination of whether a sealed item is a judicial document\\n\\nis made with respect to the entirety of the item; the news media want the\\n\\nwhole document unsealed, and the proponent of sealing wants it to remain\\n\\nsealed. In this case, however, the sealed letter from Deutsche Bank combines\\n\\ntwo names that have been redacted from the letter with an argument\\n\\nsupporting redaction. The argument portion of the letter is already on the\\n\\npublic docket in the form of the redacted version of the letter. So the issue is\\n\\nnarrowed to whether the two redacted names constitute a “judicial\\n\\ndocument.”\\n\\n The redaction of these two names presents at least a potential issue as to\\n\\nwhether they are relevant to the performance of a judicial function. In considering\\n\\nthat issue, we note that none of the parties briefing the underlying appeal thought\\n\\n\\n\\n 9\\n\\fthat the Court needed to know whether Deutsche Bank had any tax returns within\\n\\nthe coverage of the subpoenas or the names of any such taxpayers filing such\\n\\nreturns. Their briefs did not indicate that such information was relevant to any\\n\\nissue we needed to decide in the appeal. Nevertheless, Media Coalition contends\\n\\nin its initial submission that the information in the sealed letter “is analogous to\\n\\ndocuments submitted for consideration on a motion for summary judgment.”12\\n\\nDocuments of that type are generally relevant to a decision on such a motion. “Our\\n\\nprecedents indicate that documents submitted to a court for its consideration in a\\n\\nsummary judgment motion are‒‒as a matter of law‒‒judicial documents to which\\n\\na strong presumption of access attaches, under both the common law and the First\\n\\nAmendment.” Lugosch, 435 F.3d at 121. All such information will usually be\\n\\nrelevant to a court determining whether there is a “genuine dispute as to any\\n\\nmaterial fact,” Fed. R. Civ. P. 56(a), or whether a party “is entitled to judgment as\\n\\na matter of law,” id.\\n\\n In the pending appeal, the basic issue is whether Appellants are entitled to\\n\\npreliminarily enjoin compliance with the subpoenas, and, as to that broad issue,\\n\\nthe two names are not necessarily relevant. With one exception, the identity of the\\n\\n\\n 12\\n Motion to Intervene and to Unseal Judicial Records at 9, No. 19‒1540, Dkt. No. 168 (Sept.\\n11, 2019).\\n 10\\n\\ftaxpayers whose returns are within the coverage of the subpoenas will not be\\n\\nrelevant to our decision on review of the Order denying an injunction. That\\n\\nexception would arise if one of the taxpayers is the President, who, it should be\\n\\nnoted, is one of the Appellants seeking the injunction. Even though the President\\n\\nis not suing in his official capacity, as his complaint explicitly acknowledges and\\n\\nno claim of executive privilege has been asserted in the underlying appeal,\\n\\ndisclosure of a president’s tax returns might raise an issue meriting consideration\\n\\ndistinct from that given to disclosure of the returns of other taxpayers.\\n\\n However, the unredacted letter from Deutsche Bank has removed that\\n\\npotential issue from the appeal because that letter reports that the only tax returns\\n\\nit has for individuals or entities named in the subpoenas are not those of the\\n\\nPresident. In light of that response, information in the sealed letter, i.e., the identity\\n\\nof the two taxpayers whose tax returns Deutsche Bank has, is not relevant to any\\n\\nissue we need to decide. The fact that Deutsche Bank has their tax returns adds\\n\\nnothing to the arguments of the parties in the pending appeal.\\n\\n The Movants, in their reply memorandum, no longer contend that the sealed\\n\\ninformation is analogous to documents submitted on a motion for summary\\n\\njudgment. Their latest filing contends that the sealed information qualifies as a\\n\\n\\n\\n 11\\n\\f“judicial document” because “the right of access attaches when documents are\\n\\nsubmitted to the court for consideration, regardless of whether or not the court at\\n\\nsome point thereafter relies upon them . . . .“ Movants’ Reply Memorandum at 4\\n\\n(emphasis in original). We agree that court reliance is not the test. “[T]he proper\\n\\ninquiry is whether the documents are relevant to the performance of the judicial\\n\\nfunction, not whether they were relied upon.” Brown, 929 F.3d at 50.\\n\\n Because the sealed letter (more precisely, the only portion of the letter that\\n\\nis sealed) is not relevant to any issue in the underlying appeal, it is not a “judicial\\n\\ndocument” within the meaning of the decisions requiring unsealing of documents\\n\\nfiled with a court. Nor is it a record of any court action, which, absent special\\n\\ncircumstances, would be available for public scrutiny.\\n\\n Conclusion\\n\\n Accordingly, the motions to intervene are GRANTED, and the motions for\\n\\nunsealing are DENIED.\\n\\n\\n\\n\\n 12\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4548,"cells":{"id":{"kind":"number","value":4669465,"string":"4,669,465"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Palin v. The New York Times Company"},"decision_date":{"kind":"string","value":"2019-10-15"},"docket_number":{"kind":"string","value":"17-3801-cv"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: WALKER and CHIN, Circuit Judges, and KEENAN.\", \"parties\": \"\", \"opinions\": [{\"author\": \"No. 17-cv-04853 - Jed S. Rakoff, Judge\", \"type\": \"010combined\", \"text\": \"17‐3801‐cv\\n Palin v. The New York Times Company\\n\\n 1\\n\\n 2 In the\\n 3 United States Court of Appeals\\n 4 For the Second Circuit\\n 5 ________\\n 6\\n 7 AUGUST TERM, 2018\\n 8\\n 9 ARGUED: SEPTEMBER 21, 2018\\n10 DECIDED: AUGUST 6, 2019\\n11 AMENDED: OCTOBER 15, 2019\\n12\\n13 No. 17‐3801‐cv\\n14\\n15 SARAH PALIN, an individual,\\n16 Plaintiff‐Appellant,\\n17\\n18 v.\\n19\\n20 THE NEW YORK TIMES COMPANY,\\n21 Defendant‐Appellee.\\n22 ________\\n23\\n24 Appeal from the United States District Court\\n25 for the Southern District of New York.\\n26 No. 17‐cv‐04853 – Jed S. Rakoff, Judge.\\n27 ________\\n28\\n29 Before: WALKER and CHIN, Circuit Judges, and KEENAN.\\n30\\n31 ________\\n\\n\\n \\n Judge John F. Keenan, of the United States District Court for the Southern\\n District of New York, sitting by designation.\\n\\f 2 No. 17‐3801‐cv\\n\\n 1 This case is ultimately about the First Amendment, but the\\n 2 subject matter implicated in this appeal is far less dramatic: rules of\\n 3 procedure and pleading standards. Sarah Palin appeals the dismissal\\n 4 of her defamation complaint against The New York Times (“the Times”)\\n 5 for failure to state a claim. The district court (Rakoff, J.), uncertain as\\n 6 to whether Palin’s complaint plausibly alleged all of the required\\n 7 elements of her defamation claim, held an evidentiary hearing to test\\n 8 the sufficiency of Palin’s pleadings. Following the hearing, and\\n 9 without converting the proceeding to one for summary judgment, the\\n10 district court relied on evidence adduced at that hearing to dismiss\\n11 Palin’s complaint under Federal Rule of Civil Procedure 12(b)(6). We\\n12 find that the district court erred in relying on facts outside the\\n13 pleadings to dismiss the complaint. We further conclude that Palin’s\\n14 Proposed Amended Complaint plausibly states a claim for\\n15 defamation and may proceed to full discovery.\\n\\n16 We therefore VACATE and REMAND for proceedings\\n17 consistent with this opinion.\\n\\n18 ________\\n19\\n20 ELIZABETH M. LOCKE, Clare Locke LLP,\\n21 Alexandria, VA (Thomas A. Clare, Joseph R.\\n22 Oliveri, Clare Locke LLP, Alexandria, VA;\\n23 Kenneth G. Turkel, Shane B. Vogt, Bajo Cuva\\n24 Cohen Turkel P.A., Tampa, FL; S. Preston Ricardo,\\n25 Golenbock Eiseman Assor Bell & Peskoe LLP,\\n26 New York, NY, on the brief), for Plaintiff‐Appellant.\\n\\n27 LEE LEVINE, Ballard Spahr LLP, Washington, DC\\n28 (Jay Ward Brown, Ballard Spahr LLP, Washington,\\n29 D.C.; David A. Schultz, Ballard Spahr LLP, New\\n30 York, NY; David E. McCraw, The New York\\n\\f 3 No. 17‐3801‐cv\\n\\n 1 Times, New York, NY, on the brief), for Defendant‐\\n 2 Appellee.\\n\\n 3 ________\\n 4\\n 5 JOHN M. WALKER, JR., Circuit Judge:\\n\\n 6 This case is ultimately about the First Amendment, but the\\n 7 subject matter implicated in this appeal is far less dramatic: rules of\\n 8 procedure and pleading standards. Sarah Palin appeals the dismissal\\n 9 of her defamation complaint against The New York Times (“the Times”)\\n10 for failure to state a claim. The district court (Rakoff, J.), uncertain as\\n11 to whether Palin’s complaint plausibly alleged all of the required\\n12 elements of her defamation claim, held an evidentiary hearing to test\\n13 the sufficiency of Palin’s pleadings. Following the hearing, and\\n14 without converting the proceeding to one for summary judgment, the\\n15 district court relied on evidence adduced at that hearing to dismiss\\n16 Palin’s complaint under Federal Rule of Civil Procedure 12(b)(6). We\\n17 find that the district court erred in relying on facts outside the\\n18 pleadings to dismiss the complaint. We further conclude that Palin’s\\n19 Proposed Amended Complaint plausibly states a claim for\\n20 defamation and may proceed to full discovery.\\n\\n21 We therefore VACATE and REMAND for proceedings\\n22 consistent with this opinion.\\n\\n23 BACKGROUND\\n\\n24 On January 8, 2011, Jared Loughner opened fire at a political\\n25 rally for Democratic Congresswoman Gabrielle Giffords in Tucson,\\n26 Arizona (“the Loughner shooting”), killing six people and injuring\\n27 thirteen others. Representative Giffords was seriously wounded in\\n28 the attack.\\n\\f 4 No. 17‐3801‐cv\\n\\n 1 Shortly before the tragic attack, Sarah Palin’s political action\\n 2 committee (“SarahPAC”) had circulated a map that superimposed the\\n 3 image of a crosshairs target over certain Democratic congressional\\n 4 districts (evoking, in the view of many, images of violence). Giffords’\\n 5 district was among those targeted by the SarahPAC crosshairs map.\\n 6 The image had been publicized during the earlier political\\n 7 controversy surrounding the Affordable Care Act, but in the wake of\\n 8 the Loughner shooting, some speculated that the shooting was\\n 9 connected to the crosshairs map. No evidence ever emerged to\\n10 establish that link; in fact, the criminal investigation of Loughner\\n11 indicated that his animosity toward Representative Giffords had\\n12 arisen before SarahPAC published the map.\\n\\n13 Six years later, on June 14, 2017, another political shooting\\n14 occurred when James Hodgkinson opened fire in Alexandria,\\n15 Virginia at a practice for a congressional baseball game. He seriously\\n16 injured four people, including Republican Congressman Steve Scalise\\n17 (“the Hodgkinson shooting”). That same evening, the Times, under\\n18 the Editorial Board’s byline, published an editorial entitled\\n19 “America’s Lethal Politics” (“the editorial”) in response to the\\n20 shooting.\\n\\n21 The editorial argued that these two political shootings\\n22 evidenced the “vicious” nature of American politics.1 Reflecting on\\n23 the Loughner shooting and the SarahPAC crosshairs map, the\\n24 editorial claimed that the “link to political incitement was clear,” and\\n25 noted that Palin’s political action committee had “circulated a map of\\n26 targeted electoral districts that put Ms. Giffords and 19 other\\n27 Democrats under stylized cross hairs,” suggesting that the\\n\\n 1 App’x 37.\\n\\f 5 No. 17‐3801‐cv\\n\\n 1 congressmembers themselves had been pictured on the map.2 In the\\n 2 next paragraph, the editorial referenced the Hodgkinson shooting\\n 3 that had happened that day: “Though there’s no sign of incitement as\\n 4 direct as in the Giffords attack, liberals should of course hold\\n 5 themselves to the same standard of decency that they ask of the\\n 6 right.”3\\n\\n 7 The Times faced an immediate backlash for publishing the\\n 8 editorial. Within a day, it had changed the editorial and issued a\\n 9 correction. The Times removed the two phrases suggesting a link\\n10 between Palin and the Loughner shooting. Added to the editorial was\\n11 a correction that read: “An earlier version of this editorial incorrectly\\n12 stated that a link existed between political incitement and the 2011\\n13 shooting of Representative Gabby Giffords. In fact, no such link was\\n14 established.”4 The Times also clarified that the SarahPAC map had\\n15 overlaid crosshairs on Democratic congressional districts, not the\\n16 representatives themselves.\\n\\n17 Twelve days after the editorial was published Palin sued the\\n18 Times in federal court. She alleged one count of defamation under\\n19 New York law. Thereafter, the Times moved to dismiss Palin’s\\n20 complaint for failure to state a claim.\\n\\n21 After the motion to dismiss had been fully briefed, the case took\\n22 an unusual procedural turn: the district judge held an evidentiary\\n23 hearing on the motion to dismiss. The district judge stated that the\\n\\n 2App’x 36–37. The crosshairs were put on a map over the locations of the\\n congressional districts, and the names of the congressmembers in question—\\n including Representative Giffords—were listed at the bottom of the page.\\n 3 App’x 41.\\n 4 App’x 22.\\n\\f 6 No. 17‐3801‐cv\\n\\n 1 hearing was to assess the plausibility of the “[o]ne close question”\\n 2 presented by the Times’ motion to dismiss: whether Palin had\\n 3 sufficiently pled the actual malice element of her defamation claim.5\\n\\n 4 The district judge ordered the Times to identify the author of\\n 5 the editorial and the Times produced James Bennet, the editorial page\\n 6 editor at the Times and the author of the editorial, to testify at the\\n 7 hearing. Bennet was the hearing’s only witness. Bennet explained at\\n 8 the hearing that his reference to Palin in the editorial was intended to\\n 9 make a rhetorical point about the present atmosphere of political\\n10 anger. He also recounted the editorial’s research and publication\\n11 process and answered inquiries about his prior knowledge of the\\n12 Loughner shooting six years earlier and any connection to Palin.\\n13 Bennet testified that he was unaware of any of the earlier articles\\n14 published by the Times, or by The Atlantic (where he had previously\\n15 been the editor‐in‐chief), that indicated that no connection between\\n16 Palin or her political action committee and Loughner had ever been\\n17 established. In addition to answering questions from the Times’\\n18 counsel, Bennet responded to questions by Palin’s counsel and the\\n19 district judge. Neither party objected to the district judge’s decision\\n20 to hold the hearing.\\n\\n21 On August 29, 2017, the district court, relying on evidence\\n22 adduced at the hearing, granted the Times’ motion to dismiss. The\\n23 district court determined that any amendment would be futile and\\n24 dismissed Palin’s complaint with prejudice. Later, Palin asked the\\n25 district court to reconsider its decision that the dismissal was with\\n26 prejudice and included a Proposed Amended Complaint with her\\n\\n\\n\\n\\n 5 Order re: Motion to Dismiss, ECF No. 35.\\n\\f 7 No. 17‐3801‐cv\\n\\n 1 motion. The district court denied the motion for reconsideration and\\n 2 leave to replead. She now appeals.\\n\\n 3 DISCUSSION\\n\\n 4 We review a district court’s grant of a motion to dismiss the\\n 5 complaint on the pleadings de novo and “constru[e] the complaint\\n 6 liberally, accepting all factual allegations in the complaint as true, and\\n 7 drawing all reasonable inferences in the plaintiff’s favor.”6\\n\\n 8 Under New York law a defamation plaintiff must establish five\\n 9 elements: (1) a written defamatory statement of and concerning the\\n10 plaintiff, (2) publication to a third party, (3) fault, (4) falsity of the\\n11 defamatory statement, and (5) special damages or per se\\n12 actionability.7 In addition, “a public figure plaintiff must prove that\\n13 an allegedly libelous statement was made with actual malice, that is,\\n14 made ‘with knowledge that it was false or with reckless disregard of\\n15 whether it was false or not.’”8 It is undisputed that Palin, a former\\n16 governor of Alaska and Republican candidate for Vice President in\\n17 2008, is a public figure.\\n\\n18 When actual malice in making a defamatory statement is at\\n19 issue, the critical question is the state of mind of those responsible for\\n20 the publication.9 Because the Times identified Bennet as the author of\\n\\n\\n Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017) (internal quotation\\n 6\\n\\n marks omitted).\\n 7 See Celle v. Filipino Reporter Enterps. Inc., 209 F.3d 163, 176 (2d Cir. 2000)\\n (citations omitted).\\n\\n Church of Scientology Int’l v. Behar, 238 F.3d 168, 173–74 (2d Cir. 2001) (quoting\\n 8\\n\\n New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964)).\\n\\n Dongguk Univ. v. Yale Univ., 734 F.3d 113, 123 (2d Cir. 2013) (“[T]he plaintiff\\n 9\\n\\n must identify the individual responsible for publication of a statement, and it is\\n\\f 8 No. 17‐3801‐cv\\n\\n 1 the editorial, it was his state of mind that was relevant to the actual\\n 2 malice determination. We will first address the district court’s use of\\n 3 the hearing in the process of deciding the motion to dismiss and then\\n 4 determine whether Palin’s Proposed Amended Complaint plausibly\\n 5 states a claim for defamation.\\n\\n 6 I. The Hearing\\n\\n 7 The pleading standards articulated in Bell Atlantic Corp. v.\\n 8 Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009)\\n 9 are well‐known: in order to satisfy Federal Rule of Civil Procedure 8,\\n10 a complaint must contain “enough facts to state a claim to relief that\\n11 is plausible on its face.”10 A claim is plausible “when the plaintiff\\n12 pleads factual content that allows the court to draw the reasonable\\n13 inference that the defendant is liable for the misconduct alleged.”11 A\\n14 well‐pleaded complaint will include facts that “raise a right to relief\\n15 above the speculative level.”12 “The plausibility standard is not akin\\n16 to a ‘probability requirement,’ but it asks for more than a sheer\\n17 possibility that a defendant has acted unlawfully.”13\\n\\n18 On appeal, Palin argues that the district court’s reliance on the\\n19 hearing to decide the motion to dismiss offends the Federal Rules of\\n\\n\\n\\n\\n that individual the plaintiff must prove acted with actual malice.” (citing New York\\n Times, 376 U.S. at 287)).\\n 10 Twombly, 550 U.S. at 570.\\n 11 Iqbal, 556 U.S. at 678.\\n 12 Twombly, 550 U.S. at 555.\\n 13 Iqbal, 556 U.S. at 678.\\n\\f 9 No. 17‐3801‐cv\\n\\n 1 Civil Procedure. We agree that the hearing runs headlong into the\\n 2 federal rules.\\n\\n 3 When presented with the Times’ Rule 12(b)(6) motion to\\n 4 dismiss for failure to state a claim, the district court relied on Rule\\n 5 43(c) to convene the hearing at which Bennet testified. The district\\n 6 court’s invocation of Rule 43(c), which addresses taking testimony at\\n 7 trial, was misplaced: that rule has nothing to do with the proceedings\\n 8 at the motion‐to‐dismiss stage. Following the hearing, the district\\n 9 court granted the Times’ motion to dismiss, finding that Palin failed\\n10 to plausibly allege actual malice. This conclusion rested on inferences\\n11 drawn from Bennet’s testimony at the plausibility hearing.\\n\\n12 Rule 12(d) provides: “If, on a motion under Rule 12(b)(6) or\\n13 12(c), matters outside the pleadings are presented to and not excluded\\n14 by the court, the motion must be treated as one for summary\\n15 judgment under Rule 56. All parties must be given a reasonable\\n16 opportunity to present all the material that is pertinent to the motion.”\\n17 Rule 12(d), therefore, presents district courts with only two options:\\n18 (1) “the court may exclude the additional material and decide the\\n19 motion on the complaint alone” or (2) “it may convert the motion to\\n20 one for summary judgment under Fed. R. Civ. P. 56 and afford all\\n21 parties the opportunity to present supporting material.”14\\n\\n22 The district judge took neither permissible route under Rule\\n23 12(d). The judge both relied on matters outside the pleadings to\\n24 decide the motion to dismiss and did not convert the motion into one\\n25 for summary judgment. To the contrary, his aim was explicit: to\\n26 determine whether Palin’s complaint stated a plausible claim for\\n\\n\\n Kopec v. Coughlin, 922 F.2d 152, 154 (2d Cir. 1991) (quoting Fonte v. Bd. of\\n 14\\n\\n Managers of Continent Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988)).\\n\\f 10 No. 17‐3801‐cv\\n\\n 1 relief under Rule 12(b)(6). The district judge explained that “[b]y\\n 2 requiring district courts to make plausibility determinations based on\\n 3 the pleadings, the Supreme Court has, in effect, made district courts\\n 4 gatekeepers.”15\\n\\n 5 In an effort to salvage the propriety of the district court’s\\n 6 decision, the Times argues that the district court complied with Rule\\n 7 12(d) because it did not rely on matters outside the pleadings.16 The\\n 8 Times argues that Bennet’s testimony was not outside the pleadings\\n 9 because it presented material integral to the complaint by merely\\n10 adding depth to what was apparent from the face of Palin’s\\n11 complaint. But the material that came to light at the hearing did\\n12 considerably more than elaborate on the allegations in the complaint.\\n\\n13 A matter is deemed “integral” to the complaint when the\\n14 complaint “relies heavily upon its terms and effect.”17 Typically, an\\n15 integral matter is a contract, agreement, or other document essential\\n16 to the litigation.18 Hearing testimony elicited by the trial judge after\\n17 litigation has already begun is not the type of material that ordinarily\\n18 has the potential to be a matter “integral” to a plaintiff’s complaint.\\n\\n 15Palin v. New York Times Co., 264 F. Supp. 3d 527, 530 n.1 (S.D.N.Y. 2017) (citing\\n Iqbal, 556 U.S. at 662; Twombly, 550 U.S. at 554) (internal citations omitted).\\n\\n See Chambers v. Time Warner, Inc., 282 F.3d 147, 153–54 (2d Cir. 2002) (holding\\n 16\\n\\n that extraneous material is not “outside the pleadings” when the material is\\n integral to complaint and relied upon by the plaintiff in framing the complaint).\\n 17 Id. at 153 (internal quotation marks omitted).\\n 18See Glob. Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir.\\n 2006) (“In most instances . . . the incorporated material is a contract or other legal\\n document containing obligations upon which the plaintiff’s complaint stands or\\n falls . . . .”); see also Nicoisa v. Amazon.com, Inc., 834 F.3d 220, 234 (2d Cir. 2016) (an\\n “order page” and “conditions of use” agreement were integral to the complaint\\n when the complaint contained numerous references to them).\\n\\f 11 No. 17‐3801‐cv\\n\\n 1 Regardless, Palin could not have “relie[d] heavily”19 on Bennet’s\\n 2 testimony when drafting her complaint because she had no idea what\\n 3 Bennet would say. Bennet’s testimony revealed substantive\\n 4 information about his motivations and the editorial drafting\\n 5 process—none of which Palin could have known in advance of her\\n 6 pleadings, much less “relie[d] heavily” on.20\\n\\n 7 The Times falls back on the argument that, even if the district\\n 8 court relied on matters outside the pleadings, we may treat the\\n 9 motion as if it had been converted to a motion for summary judgment.\\n10 We have held that the “conversion of a Rule 12(b)(6) motion into one\\n11 for summary judgment is governed by principles of substance rather\\n12 than form”21 and that “[t]he essential inquiry is whether the appellant\\n13 should reasonably have recognized the possibility that the motion\\n14 might be converted into one for summary judgment.”22\\n\\n15 We decline to treat the Rule 12(b)(6) motion here as having been\\n16 converted to one for summary judgment. Apart from the fact that the\\n17 able and highly experienced district judge did not purport to convert\\n18 the motion, Palin had no prior notice that the district court might\\n19 resolve the Times’ Rule 12(b)(6) motion after the judge’s sua sponte\\n20 hearing, much less that he might treat the motion as one for summary\\n21 judgment. Indeed, the district court was explicit about treating the\\n22 motion only as a test of the sufficiency of the pleadings. The Times\\n23 relies on cases where the plaintiff had adequate notice and the district\\n\\n 19 Chambers, 282 F.3d at 153 (internal quotation marks omitted).\\n 20 Id.\\n 21 In re G &A Books, 770 F.2d 288, 295 (2d Cir. 1985).\\n\\n Id.; see also Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 592 (2d\\n 22\\n\\n Cir. 1993).\\n\\f 12 No. 17‐3801‐cv\\n\\n 1 court simply neglected to properly convert the motion.23 This is not a\\n 2 situation in which where the plaintiff ought to have seen a summary‐\\n 3 judgment decision coming.24\\n\\n 4 Even if the plaintiff had been given notice and the court had\\n 5 explicitly converted the motion to one for summary judgment, we\\n 6 would still have to vacate because the district court’s opinion relied\\n 7 on credibility determinations not permissible at any stage before\\n 8 trial.25 As we will discuss in the next section, the district court’s\\n 9 acceptance of Bennet’s testimony as credible was what led it to grant\\n10 the Times’ motion to dismiss.\\n\\n11 The Times also argues that Palin was not deprived of a\\n12 meaningful opportunity to conduct discovery “pertinent to the\\n13 motion.”26 Presumably, the Times is referring to “discovery” on the\\n14 spot: Bennet’s testimony and some related documents. Even\\n15 assuming that the hearing afforded Palin all of the discovery to which\\n\\n See G & A Books, 770 F.2d at 295; Northville Downs v. Granholm, 622 F.3d 579,\\n 23\\n\\n 585–86 (6th Cir. 2010).\\n\\n In fact, the hearing transcript reflects the understandable confusion of Palin’s\\n 24\\n\\n counsel. App’x 395–97 (The Court: “Neither side raised any objection to my\\n holding [the evidentiary] hearing . . . Counsel: . . . It wasn’t a normal kind of\\n hearing during a 12(b)(6) . . . . And to be honest, Judge, we really wouldn’t have\\n tendered an objection because we were trying to get a better understanding of kind\\n of what the inquiry was . . . .”).\\n\\n See Soto v. Gaudett, 862 F.3d 148, 157 (2d Cir. 2017) (noting that at the\\n 25\\n\\n summary judgment stage “[c]redibility determinations, the weighing of the\\n evidence, and the drawing of legitimate inferences from the facts are jury\\n functions, not those of a judge” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.\\n 242, 255 (1986))).\\n 26Fed. R. Civ. P. 12(d); see United States ex rel. Chorches v. Am. Med. Response,\\n Inc., 865 F.3d 71, 88 n.13 (2d Cir. 2017) (noting the district court’s “broad discretion\\n to limit discovery in a prudential and proportionate way” (internal quotation\\n marks omitted)).\\n\\f 13 No. 17‐3801‐cv\\n\\n 1 she was entitled, this fact does not mitigate the errors committed by\\n 2 the district court.\\n\\n 3 It is clear to us that the district court viewed the hearing as a\\n 4 way to more expeditiously decide whether Palin had a viable way to\\n 5 establish actual malice. But, despite the flexibility that is accorded\\n 6 district courts to streamline proceedings and manage their calendars,\\n 7 district courts are not free to bypass rules of procedure that are\\n 8 carefully calibrated to ensure fair process to both sides. The\\n 9 procedural path followed by the district court conforms to neither of\\n10 the two options permitted by Rule 12(d). While we are cognizant of\\n11 the difficult determinations that Twombly and Iqbal often place on\\n12 district courts, the district court’s gatekeeping procedures must\\n13 nevertheless comply with the Federal Rules of Civil Procedure.\\n\\n14 II. Palin’s Proposed Amended Complaint\\n\\n15 Having determined that the district court erred in relying on\\n16 evidence that came to light in the plausibility hearing when it granted\\n17 the Times’ motion to dismiss, we must ascertain what effect, if any,\\n18 that error had on the dismissal of Palin’s defamation complaint. To\\n19 do so, we will review Palin’s Proposed Amendment Complaint (“the\\n20 PAC”) to determine whether she stated a plausible claim for\\n21 defamation. Because of the district court’s decision to hold the\\n22 plausibility hearing, this case comes to us in unique form. After the\\n23 district court dismissed her claim with prejudice, Palin attached a\\n24 PAC to her motion for reconsideration of the “with prejudice” part of\\n25 the dismissal. The PAC included certain material added by the\\n26 hearing and we discern no fault here because Bennet’s testimony,\\n27 reliable or not, was now part of the record. The district court denied\\n28 the motion for reconsideration, finding that leave to replead would be\\n29 futile and that the PAC suffered the same “fatal flaws” as the original\\n\\f 14 No. 17‐3801‐cv\\n\\n 1 complaint.27 Our review of the grant of a motion to dismiss is de\\n 2 novo;28 therefore we now turn to whether the PAC states a plausible\\n 3 claim for relief. We conclude that it does.\\n\\n 4 In the Times’ view, the district court correctly determined that\\n 5 Palin’s original complaint and the PAC both gave rise to only one\\n 6 plausible conclusion: that Bennet made an unintended mistake by\\n 7 including the erroneous facts about Palin. We disagree.\\n\\n 8 In both the original complaint and the PAC, Palin’s overarching\\n 9 theory of actual malice is that Bennet had a “pre‐determined”\\n10 argument he wanted to make in the editorial.29 Bennet’s fixation on\\n11 this set goal, the claim goes, led him to publish a statement about Palin\\n12 that he either knew to be false, or at least was reckless as to whether\\n13 it was false. The PAC contains allegations that paint a plausible\\n14 picture of this actual‐malice scenario in three respects: (1) Bennet’s\\n15 background as an editor and political advocate provided sufficient\\n16 evidence to permit a jury to find that he published the editorial with\\n17 deliberate or reckless disregard for its truth, (2) the drafting and\\n18 editorial process also permitted an inference of deliberate or reckless\\n19 falsification, and (3) the Times’ subsequent correction to the editorial\\n20 did not undermine the plausibility of that inference.\\n\\n21 First, Palin alleges that, because of the editorial positions\\n22 Bennet held at The Atlantic and The New York Times, a jury could\\n23 plausibly find that Bennet knew before publishing the editorial that it\\n\\n\\n\\n\\n 27 Memorandum and Order denying Motion for Reconsideration, ECF No. 61.\\n 28 Elias, 872 F.3d at 104.\\n 29 App’x 472.\\n\\f 15 No. 17‐3801‐cv\\n\\n 1 was false to claim that Palin or her political action committee were\\n 2 connected to the Loughner shooting.\\n\\n 3 The PAC alleges that, from 2006 to 2016, Bennet was the editor‐\\n 4 in‐chief of The Atlantic, where “he was responsible for the content of,\\n 5 reviewed, edited and approved the publication of numerous articles\\n 6 confirming there was no link between Mrs. Palin and Loughner’s\\n 7 shooting.”30 The complaint references several articles about the\\n 8 Loughner shooting published by The Atlantic during Bennet’s tenure,\\n 9 the most notable of which is entitled “Ten Days That Defined 2011.”\\n10 The part of that article discussing the Loughner shooting reads: “. . .\\n11 the bad thing to come out of this already terrible story was a round of\\n12 blame hurling, with people rushing to point at Sarah Palin’s infamous\\n13 target map . . . . In truth, Loughner is clinically insane and this was\\n14 not really about politics at all.”31\\n\\n15 At the hearing, Bennet stated that he could not recall reading\\n16 those articles, and even if he had read them, he did not have them in\\n17 mind when he published the editorial. The district court, in rejecting\\n18 Palin’s theory as implausible, credited this testimony as truthful when\\n19 it found that Bennet’s failure to read the articles was simply a research\\n20 failure that did not rise to the level of actual malice.\\n\\n21 By crediting Bennet’s testimony, the district court rejected a\\n22 permissible inference from the articles: that one who had risen to\\n23 editor‐in‐chief at The Atlantic knew their content and thus that there\\n24 was no connection between Palin and the Loughner shooting. That\\n25 Palin’s complaint sufficiently alleges that Bennet’s opportunity to\\n\\n\\n 30 App’x 481.\\n 31 Richard Lawson, Ten Days That Defined 2011, The Atlantic, Dec. 29, 2011.\\n\\f 16 No. 17‐3801‐cv\\n\\n 1 know the journalistic consensus that the connection was lacking gives\\n 2 rise to the inference that he actually did know.\\n\\n 3 The PAC also includes allegations suggesting that Bennet in\\n 4 particular was more likely than the average editor‐in‐chief to know\\n 5 the truth about the Loughner shooting because he had reason to be\\n 6 personally hostile toward Palin, her political party, and her pro‐gun\\n 7 stance. Bennet’s brother, a Democrat, had served as a United States\\n 8 Senator for Colorado since 2009. In 2010, Senator Bennet was\\n 9 endorsed by two House members whose districts had been targeted\\n10 by the SarahPAC map. Two days before the Loughner shooting, a\\n11 man threatened to open fire on Senator Bennet’s offices, and\\n12 thereafter both Bennet brothers became “outspoken advocate[s] for\\n13 gun control.”32 Also, during the 2016 election, Palin endorsed Senator\\n14 Bennet’s opponent and Representative Giffords endorsed Senator\\n15 Bennet.\\n\\n16 The district court gave no weight to these allegations, finding\\n17 that political opposition did not rise to the level of actual malice. We\\n18 agree with the district court that political opposition alone does not\\n19 constitute actual malice, but we conclude that these allegations could\\n20 indicate more than sheer political bias—they arguably show that\\n21 Bennet had a personal connection to a potential shooting that\\n22 animated his hostility to pro‐gun positions at the time of the\\n23 Loughner shooting in 2011.33 Palin’s allegations are relevant to the\\n24 credibility of Bennet’s testimony that he was unaware of facts\\n\\n\\n 32 App’x 480.\\n\\n Cf. Jankovic v. Int’l Crisis Grp., 822 F.3d 576, 590 (D.C. Cir. 2016) (“[A]\\n 33\\n\\n newspaper’s motive in publishing a story . . . cannot provide a sufficient basis for\\n finding actual malice.” (quoting Harte‐Hanks Commc’ns, Inc. v. Connaughton, 491\\n U.S. 657, 665 (1989))).\\n\\f 17 No. 17‐3801‐cv\\n\\n 1 published on his watch relating to the Loughner shooting and that he\\n 2 made a mistake when he connected Palin to the that shooting. Palin’s\\n 3 allegations present a plausible inference that Bennet’s claim of\\n 4 memory loss is untrue.\\n\\n 5 At a minimum, these allegations give rise to a plausible\\n 6 inference that Bennet was recklessly disregarding the truth when he\\n 7 published the editorial without reacquainting himself with the\\n 8 contrary articles published in The Atlantic six years earlier.34 And that\\n 9 plausible inference of reckless disregard is strengthened when added\\n10 to Palin’s allegations that Bennet had reason to be personally biased\\n11 against Palin and pro‐gun positions in general. When properly\\n12 viewed in the plaintiff’s favor, a reasonable factfinder could conclude\\n13 this amounted to more than a mistake due to a research failure.\\n\\n14 Second, the PAC also alleges that certain aspects of the drafting\\n15 and publication process of the editorial at The New York Times permits\\n16 an inference of actual malice. Elizabeth Williamson, the editorial\\n17 writer who drafted the initial version of the editorial, had hyperlinked\\n18 in her draft an article entitled ”Sarah Palin’s ‘Crosshairs’ Ad Dominates\\n19 Gabrielle Giffords Debate.” The article stated, contrary to the claim in\\n20 the published editorial, that “[n]o connection” was made between the\\n21 SarahPAC map and Loughner.35 The link was also included in the\\n22 final version of the editorial, a version that Bennet essentially rewrote.\\n23 The Times argues that the hyperlink shows the absence of malice. But\\n\\n\\n\\n\\n See Behar, 238 F.3d at 173–74 (actual malice satisfied upon a showing the\\n 34\\n\\n statement was made “with reckless disregard of whether it was false or not”\\n (internal quotation marks omitted)).\\n 35 App’x 642–43.\\n\\f 18 No. 17‐3801‐cv\\n\\n 1 the PAC alleges that, by including a hyperlink that contradicted the\\n 2 argument of his editorial, Bennet “willfully disregarded the truth.”36\\n\\n 3 The district court, siding with the Times, concluded that\\n 4 including the hyperlinked article was further evidence of simple\\n 5 mistake. After crediting Bennet’s testimony that he did not read the\\n 6 hyperlinked article, the district judge concluded that a mistake was\\n 7 the only plausible explanation. But the inclusion of the hyperlinked\\n 8 article gives rise to more than one plausible inference, and any\\n 9 inference to be drawn from the inclusion of the hyperlinked article\\n10 was for the jury—not the court.\\n\\n11 Third, the district court concluded that the correction swiftly\\n12 issued by the Times again demonstrated that the only plausible\\n13 explanation for the erroneous statements was a mistake. Yet, it is also\\n14 plausible that the correction was issued after a calculus that standing\\n15 by the editorial was not worth the cost of the public backlash. Bennet\\n16 could have published the editorial knowing—or recklessly\\n17 disregarding—the falsity of the claim, and then decided later that the\\n18 false allegation was not worth defending.\\n\\n19 At bottom, it is plain from the record that the district court\\n20 found Bennet a credible witness, and that the district court’s crediting\\n21 his testimony impermissibly anchored the district court’s own\\n22 negative view of the plausibility of Palin’s allegations.\\n\\n23 The district court at one point stated that Bennet’s “behavior is\\n24 much more plausibly consistent with making an unintended mistake\\n25 and then correcting it than with acting with actual malice.”37 Perhaps\\n\\n\\n 36 App’x 494.\\n 37 Palin, 264 F. Supp. 3d at 537 (emphasis added).\\n\\f 19 No. 17‐3801‐cv\\n\\n 1 so, but it is not the district court’s province to dismiss a plausible\\n 2 complaint because it is not as plausible as the defendant’s theory. The\\n 3 test is whether the complaint is plausible, not whether it is less\\n 4 plausible than an alternative explanation.38 The jury may ultimately\\n 5 agree with the district court’s conclusion that Bennet was credible—\\n 6 but it is the jury that must decide. Therefore, at the pleading stage, we\\n 7 are satisfied that Palin has met her burden to plead facts giving rise\\n 8 to the plausible inference that Bennet published the allegedly\\n 9 defamatory editorial with actual malice. We emphasize that actual\\n10 malice does not mean maliciousness or ill will; it simply means the\\n11 statement was “made with knowledge that it was false or with\\n12 reckless disregard of whether it was false or not.”39 Here, given the\\n13 facts alleged, the assertion that Bennet knew the statement was false,\\n14 or acted with reckless disregard as to whether the statement was false,\\n15 is plausible.\\n\\n16 The Times also argues that Palin failed to plausibly allege two\\n17 other elements of a defamation claim: (1) that the editorial is not “of\\n18 and concerning”40 Palin and (2) the challenged statements cannot\\n19 reasonably be understood as assertions of provably false fact. The\\n\\n\\n\\n\\n See Iqbal, 556 U.S. at 678 (“The plausibility standard is not akin to a\\n 38\\n\\n probability requirement . . . .”) (internal quotation marks omitted).\\n\\n Behar, 238 F.3d at 174 (internal quotation marks omitted); see id. (“The\\n 39\\n\\n reckless conduct needed to show actual malice is not measured by whether a\\n reasonably prudent man would have published, or would have investigated\\n before publishing, but by whether there is sufficient evidence to permit the\\n conclusion that the defendant in fact entertained serious doubts as to the truth of\\n his publication.” (internal quotation marks and citation omitted)).\\n 40 See Elias, 872 F.3d at 104.\\n\\f 20 No. 17‐3801‐cv\\n\\n 1 district court considered and rejected both of these arguments, and\\n 2 we agree.\\n\\n 3 First, Palin has plausibly alleged that the challenged statements\\n 4 are “of and concerning” her.41 The Times argues that SarahPAC, as a\\n 5 political action committee, is a creature of federal law and entirely\\n 6 distinct from Palin herself. At the pleading stage, however, the bar to\\n 7 satisfy this element is low. As we held in Elias, the plaintiff “need only\\n 8 plead sufficient facts to make it plausible—not probable or even\\n 9 reasonably likely—that a reader familiar with [the plaintiff] would\\n10 identify [the plaintiff] as the subject of the statements at issue.”42\\n\\n11 Palin’s allegations are more than sufficient to plausibly allege\\n12 that the challenged statements were “of and concerning” her. The\\n13 editorial refers to Palin specifically—“Sarah Palin’s political action\\n14 committee.”43 The legal designation of a political action committee\\n15 under federal law notwithstanding, Palin has plausibly pleaded that\\n16 a reader would identify her as the subject of the statements. The\\n17 Times’ arguments to the contrary are unpersuasive.\\n\\n18 Second, the Times argues that we can also affirm the district\\n19 court because the challenged statements are not reasonably capable\\n20 of being proven false.44 The Times claims that Loughner’s motivations\\n\\n\\n Id. (“[A] defamation plaintiff must allege that the purportedly defamatory\\n 41\\n\\n statement was of and concerning him or her . . . .” (internal quotation marks\\n omitted)).\\n 42 Id. at 105 (citing Iqbal, 556 U.S. at 678).\\n 43 App’x 37.\\n\\n See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19–20 (1990); see also Celle, 209\\n 44\\n\\n F.3d at 178 (noting that under New York law differentiating opinion from\\n actionable fact involves “a determination of whether the statement is capable of\\n\\f 21 No. 17‐3801‐cv\\n\\n 1 are ultimately unknowable and speculative. This objection also goes\\n 2 nowhere. We agree with the district court that a reasonable reader\\n 3 could view the challenged statements as factual, namely that Palin,\\n 4 through her political action committee, was directly linked to the\\n 5 Loughner shooting. The social media backlash that precipitated the\\n 6 correction further suggests that the Times’ readers perceived the false\\n 7 statements as fact‐based.\\n\\n 8 We conclude by recognizing that First Amendment protections\\n 9 are essential to provide “breathing space” for freedom of expression.45\\n10 But, at this stage, our concern is with how district courts evaluate\\n11 pleadings. Nothing in this opinion should therefore be construed to\\n12 cast doubt on the First Amendment’s crucial constitutional\\n13 protections. Indeed, this protection is precisely why Palin’s\\n14 evidentiary burden at trial—to show by clear and convincing\\n15 evidence that Bennet acted with actual malice—is high. At the\\n16 pleading stage, however, Palin’s only obstacle is the plausibility\\n17 standard of Twombly and Iqbal. She has cleared that hurdle.\\n\\n18 Naturally, we take no position on the merits of Palin’s claim.\\n\\n19 CONCLUSION\\n\\n20 For the reasons stated above, we VACATE and REMAND the\\n21 judgment of the district court for further proceedings consistent with\\n22 this opinion.\\n\\n\\n\\n\\n being objectively characterized as true or false” (internal quotation marks\\n omitted)).\\n 45 New York Times, 376 U.S. at 271–72.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4446718/\", \"author_raw\": \"No. 17-cv-04853 - Jed S. Rakoff, Judge\"}]}"},"judge1":{"kind":"string","value":"WALKER"},"judge2":{"kind":"string","value":"CHIN"},"judge3":{"kind":"string","value":"KEENAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"WALKER\": \", Circuit\", \"CHIN\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4669465/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Palin v. The New York Times Company\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-10-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17‐3801‐cv\n Palin v. The New York Times Company\n\n 1\n\n 2 In the\n 3 United States Court of Appeals\n 4 For the Second Circuit\n 5 ________\n 6\n 7 AUGUST TERM, 2018\n 8\n 9 ARGUED: SEPTEMBER 21, 2018\n10 DECIDED: AUGUST 6, 2019\n11 AMENDED: OCTOBER 15, 2019\n12\n13 No. 17‐3801‐cv\n14\n15 SARAH PALIN, an individual,\n16 Plaintiff‐Appellant,\n17\n18 v.\n19\n20 THE NEW YORK TIMES COMPANY,\n21 Defendant‐Appellee.\n22 ________\n23\n24 Appeal from the United States District Court\n25 for the Southern District of New York.\n26 No. 17‐cv‐04853 – Jed S. Rakoff, Judge.\n27 ________\n28\n29 Before: WALKER and CHIN, Circuit Judges, and KEENAN.\n30\n31 ________\n\n\n \n Judge John F. Keenan, of the United States District Court for the Southern\n District of New York, sitting by designation.\n\f 2 No. 17‐3801‐cv\n\n 1 This case is ultimately about the First Amendment, but the\n 2 subject matter implicated in this appeal is far less dramatic: rules of\n 3 procedure and pleading standards. Sarah Palin appeals the dismissal\n 4 of her defamation complaint against The New York Times (“the Times”)\n 5 for failure to state a claim. The district court (Rakoff, J.), uncertain as\n 6 to whether Palin’s complaint plausibly alleged all of the required\n 7 elements of her defamation claim, held an evidentiary hearing to test\n 8 the sufficiency of Palin’s pleadings. Following the hearing, and\n 9 without converting the proceeding to one for summary judgment, the\n10 district court relied on evidence adduced at that hearing to dismiss\n11 Palin’s complaint under Federal Rule of Civil Procedure 12(b)(6). We\n12 find that the district court erred in relying on facts outside the\n13 pleadings to dismiss the complaint. We further conclude that Palin’s\n14 Proposed Amended Complaint plausibly states a claim for\n15 defamation and may proceed to full discovery.\n\n16 We therefore VACATE and REMAND for proceedings\n17 consistent with this opinion.\n\n18 ________\n19\n20 ELIZABETH M. LOCKE, Clare Locke LLP,\n21 Alexandria, VA (Thomas A. Clare, Joseph R.\n22 Oliveri, Clare Locke LLP, Alexandria, VA;\n23 Kenneth G. Turkel, Shane B. Vogt, Bajo Cuva\n24 Cohen Turkel P.A., Tampa, FL; S. Preston Ricardo,\n25 Golenbock Eiseman Assor Bell & Peskoe LLP,\n26 New York, NY, on the brief), for Plaintiff‐Appellant.\n\n27 LEE LEVINE, Ballard Spahr LLP, Washington, DC\n28 (Jay Ward Brown, Ballard Spahr LLP, Washington,\n29 D.C.; David A. Schultz, Ballard Spahr LLP, New\n30 York, NY; David E. McCraw, The New York\n\f 3 No. 17‐3801‐cv\n\n 1 Times, New York, NY, on the brief), for Defendant‐\n 2 Appellee.\n\n 3 ________\n 4\n 5 JOHN M. WALKER, JR., Circuit Judge:\n\n 6 This case is ultimately about the First Amendment, but the\n 7 subject matter implicated in this appeal is far less dramatic: rules of\n 8 procedure and pleading standards. Sarah Palin appeals the dismissal\n 9 of her defamation complaint against The New York Times (“the Times”)\n10 for failure to state a claim. The district court (Rakoff, J.), uncertain as\n11 to whether Palin’s complaint plausibly alleged all of the required\n12 elements of her defamation claim, held an evidentiary hearing to test\n13 the sufficiency of Palin’s pleadings. Following the hearing, and\n14 without converting the proceeding to one for summary judgment, the\n15 district court relied on evidence adduced at that hearing to dismiss\n16 Palin’s complaint under Federal Rule of Civil Procedure 12(b)(6). We\n17 find that the district court erred in relying on facts outside the\n18 pleadings to dismiss the complaint. We further conclude that Palin’s\n19 Proposed Amended Complaint plausibly states a claim for\n20 defamation and may proceed to full discovery.\n\n21 We therefore VACATE and REMAND for proceedings\n22 consistent with this opinion.\n\n23 BACKGROUND\n\n24 On January 8, 2011, Jared Loughner opened fire at a political\n25 rally for Democratic Congresswoman Gabrielle Giffords in Tucson,\n26 Arizona (“the Loughner shooting”), killing six people and injuring\n27 thirteen others. Representative Giffords was seriously wounded in\n28 the attack.\n\f 4 No. 17‐3801‐cv\n\n 1 Shortly before the tragic attack, Sarah Palin’s political action\n 2 committee (“SarahPAC”) had circulated a map that superimposed the\n 3 image of a crosshairs target over certain Democratic congressional\n 4 districts (evoking, in the view of many, images of violence). Giffords’\n 5 district was among those targeted by the SarahPAC crosshairs map.\n 6 The image had been publicized during the earlier political\n 7 controversy surrounding the Affordable Care Act, but in the wake of\n 8 the Loughner shooting, some speculated that the shooting was\n 9 connected to the crosshairs map. No evidence ever emerged to\n10 establish that link; in fact, the criminal investigation of Loughner\n11 indicated that his animosity toward Representative Giffords had\n12 arisen before SarahPAC published the map.\n\n13 Six years later, on June 14, 2017, another political shooting\n14 occurred when James Hodgkinson opened fire in Alexandria,\n15 Virginia at a practice for a congressional baseball game. He seriously\n16 injured four people, including Republican Congressman Steve Scalise\n17 (“the Hodgkinson shooting”). That same evening, the Times, under\n18 the Editorial Board’s byline, published an editorial entitled\n19 “America’s Lethal Politics” (“the editorial”) in response to the\n20 shooting.\n\n21 The editorial argued that these two political shootings\n22 evidenced the “vicious” nature of American politics.1 Reflecting on\n23 the Loughner shooting and the SarahPAC crosshairs map, the\n24 editorial claimed that the “link to political incitement was clear,” and\n25 noted that Palin’s political action committee had “circulated a map of\n26 targeted electoral districts that put Ms. Giffords and 19 other\n27 Democrats under stylized cross hairs,” suggesting that the\n\n 1 App’x 37.\n\f 5 No. 17‐3801‐cv\n\n 1 congressmembers themselves had been pictured on the map.2 In the\n 2 next paragraph, the editorial referenced the Hodgkinson shooting\n 3 that had happened that day: “Though there’s no sign of incitement as\n 4 direct as in the Giffords attack, liberals should of course hold\n 5 themselves to the same standard of decency that they ask of the\n 6 right.”3\n\n 7 The Times faced an immediate backlash for publishing the\n 8 editorial. Within a day, it had changed the editorial and issued a\n 9 correction. The Times removed the two phrases suggesting a link\n10 between Palin and the Loughner shooting. Added to the editorial was\n11 a correction that read: “An earlier version of this editorial incorrectly\n12 stated that a link existed between political incitement and the 2011\n13 shooting of Representative Gabby Giffords. In fact, no such link was\n14 established.”4 The Times also clarified that the SarahPAC map had\n15 overlaid crosshairs on Democratic congressional districts, not the\n16 representatives themselves.\n\n17 Twelve days after the editorial was published Palin sued the\n18 Times in federal court. She alleged one count of defamation under\n19 New York law. Thereafter, the Times moved to dismiss Palin’s\n20 complaint for failure to state a claim.\n\n21 After the motion to dismiss had been fully briefed, the case took\n22 an unusual procedural turn: the district judge held an evidentiary\n23 hearing on the motion to dismiss. The district judge stated that the\n\n 2App’x 36–37. The crosshairs were put on a map over the locations of the\n congressional districts, and the names of the congressmembers in question—\n including Representative Giffords—were listed at the bottom of the page.\n 3 App’x 41.\n 4 App’x 22.\n\f 6 No. 17‐3801‐cv\n\n 1 hearing was to assess the plausibility of the “[o]ne close question”\n 2 presented by the Times’ motion to dismiss: whether Palin had\n 3 sufficiently pled the actual malice element of her defamation claim.5\n\n 4 The district judge ordered the Times to identify the author of\n 5 the editorial and the Times produced James Bennet, the editorial page\n 6 editor at the Times and the author of the editorial, to testify at the\n 7 hearing. Bennet was the hearing’s only witness. Bennet explained at\n 8 the hearing that his reference to Palin in the editorial was intended to\n 9 make a rhetorical point about the present atmosphere of political\n10 anger. He also recounted the editorial’s research and publication\n11 process and answered inquiries about his prior knowledge of the\n12 Loughner shooting six years earlier and any connection to Palin.\n13 Bennet testified that he was unaware of any of the earlier articles\n14 published by the Times, or by The Atlantic (where he had previously\n15 been the editor‐in‐chief), that indicated that no connection between\n16 Palin or her political action committee and Loughner had ever been\n17 established. In addition to answering questions from the Times’\n18 counsel, Bennet responded to questions by Palin’s counsel and the\n19 district judge. Neither party objected to the district judge’s decision\n20 to hold the hearing.\n\n21 On August 29, 2017, the district court, relying on evidence\n22 adduced at the hearing, granted the Times’ motion to dismiss. The\n23 district court determined that any amendment would be futile and\n24 dismissed Palin’s complaint with prejudice. Later, Palin asked the\n25 district court to reconsider its decision that the dismissal was with\n26 prejudice and included a Proposed Amended Complaint with her\n\n\n\n\n 5 Order re: Motion to Dismiss, ECF No. 35.\n\f 7 No. 17‐3801‐cv\n\n 1 motion. The district court denied the motion for reconsideration and\n 2 leave to replead. She now appeals.\n\n 3 DISCUSSION\n\n 4 We review a district court’s grant of a motion to dismiss the\n 5 complaint on the pleadings de novo and “constru[e] the complaint\n 6 liberally, accepting all factual allegations in the complaint as true, and\n 7 drawing all reasonable inferences in the plaintiff’s favor.”6\n\n 8 Under New York law a defamation plaintiff must establish five\n 9 elements: (1) a written defamatory statement of and concerning the\n10 plaintiff, (2) publication to a third party, (3) fault, (4) falsity of the\n11 defamatory statement, and (5) special damages or per se\n12 actionability.7 In addition, “a public figure plaintiff must prove that\n13 an allegedly libelous statement was made with actual malice, that is,\n14 made ‘with knowledge that it was false or with reckless disregard of\n15 whether it was false or not.’”8 It is undisputed that Palin, a former\n16 governor of Alaska and Republican candidate for Vice President in\n17 2008, is a public figure.\n\n18 When actual malice in making a defamatory statement is at\n19 issue, the critical question is the state of mind of those responsible for\n20 the publication.9 Because the Times identified Bennet as the author of\n\n\n Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017) (internal quotation\n 6\n\n marks omitted).\n 7 See Celle v. Filipino Reporter Enterps. Inc., 209 F.3d 163, 176 (2d Cir. 2000)\n (citations omitted).\n\n Church of Scientology Int’l v. Behar, 238 F.3d 168, 173–74 (2d Cir. 2001) (quoting\n 8\n\n New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964)).\n\n Dongguk Univ. v. Yale Univ., 734 F.3d 113, 123 (2d Cir. 2013) (“[T]he plaintiff\n 9\n\n must identify the individual responsible for publication of a statement, and it is\n\f 8 No. 17‐3801‐cv\n\n 1 the editorial, it was his state of mind that was relevant to the actual\n 2 malice determination. We will first address the district court’s use of\n 3 the hearing in the process of deciding the motion to dismiss and then\n 4 determine whether Palin’s Proposed Amended Complaint plausibly\n 5 states a claim for defamation.\n\n 6 I. The Hearing\n\n 7 The pleading standards articulated in Bell Atlantic Corp. v.\n 8 Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009)\n 9 are well‐known: in order to satisfy Federal Rule of Civil Procedure 8,\n10 a complaint must contain “enough facts to state a claim to relief that\n11 is plausible on its face.”10 A claim is plausible “when the plaintiff\n12 pleads factual content that allows the court to draw the reasonable\n13 inference that the defendant is liable for the misconduct alleged.”11 A\n14 well‐pleaded complaint will include facts that “raise a right to relief\n15 above the speculative level.”12 “The plausibility standard is not akin\n16 to a ‘probability requirement,’ but it asks for more than a sheer\n17 possibility that a defendant has acted unlawfully.”13\n\n18 On appeal, Palin argues that the district court’s reliance on the\n19 hearing to decide the motion to dismiss offends the Federal Rules of\n\n\n\n\n that individual the plaintiff must prove acted with actual malice.” (citing New York\n Times, 376 U.S. at 287)).\n 10 Twombly, 550 U.S. at 570.\n 11 Iqbal, 556 U.S. at 678.\n 12 Twombly, 550 U.S. at 555.\n 13 Iqbal, 556 U.S. at 678.\n\f 9 No. 17‐3801‐cv\n\n 1 Civil Procedure. We agree that the hearing runs headlong into the\n 2 federal rules.\n\n 3 When presented with the Times’ Rule 12(b)(6) motion to\n 4 dismiss for failure to state a claim, the district court relied on Rule\n 5 43(c) to convene the hearing at which Bennet testified. The district\n 6 court’s invocation of Rule 43(c), which addresses taking testimony at\n 7 trial, was misplaced: that rule has nothing to do with the proceedings\n 8 at the motion‐to‐dismiss stage. Following the hearing, the district\n 9 court granted the Times’ motion to dismiss, finding that Palin failed\n10 to plausibly allege actual malice. This conclusion rested on inferences\n11 drawn from Bennet’s testimony at the plausibility hearing.\n\n12 Rule 12(d) provides: “If, on a motion under Rule 12(b)(6) or\n13 12(c), matters outside the pleadings are presented to and not excluded\n14 by the court, the motion must be treated as one for summary\n15 judgment under Rule 56. All parties must be given a reasonable\n16 opportunity to present all the material that is pertinent to the motion.”\n17 Rule 12(d), therefore, presents district courts with only two options:\n18 (1) “the court may exclude the additional material and decide the\n19 motion on the complaint alone” or (2) “it may convert the motion to\n20 one for summary judgment under Fed. R. Civ. P. 56 and afford all\n21 parties the opportunity to present supporting material.”14\n\n22 The district judge took neither permissible route under Rule\n23 12(d). The judge both relied on matters outside the pleadings to\n24 decide the motion to dismiss and did not convert the motion into one\n25 for summary judgment. To the contrary, his aim was explicit: to\n26 determine whether Palin’s complaint stated a plausible claim for\n\n\n Kopec v. Coughlin, 922 F.2d 152, 154 (2d Cir. 1991) (quoting Fonte v. Bd. of\n 14\n\n Managers of Continent Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988)).\n\f 10 No. 17‐3801‐cv\n\n 1 relief under Rule 12(b)(6). The district judge explained that “[b]y\n 2 requiring district courts to make plausibility determinations based on\n 3 the pleadings, the Supreme Court has, in effect, made district courts\n 4 gatekeepers.”15\n\n 5 In an effort to salvage the propriety of the district court’s\n 6 decision, the Times argues that the district court complied with Rule\n 7 12(d) because it did not rely on matters outside the pleadings.16 The\n 8 Times argues that Bennet’s testimony was not outside the pleadings\n 9 because it presented material integral to the complaint by merely\n10 adding depth to what was apparent from the face of Palin’s\n11 complaint. But the material that came to light at the hearing did\n12 considerably more than elaborate on the allegations in the complaint.\n\n13 A matter is deemed “integral” to the complaint when the\n14 complaint “relies heavily upon its terms and effect.”17 Typically, an\n15 integral matter is a contract, agreement, or other document essential\n16 to the litigation.18 Hearing testimony elicited by the trial judge after\n17 litigation has already begun is not the type of material that ordinarily\n18 has the potential to be a matter “integral” to a plaintiff’s complaint.\n\n 15Palin v. New York Times Co., 264 F. Supp. 3d 527, 530 n.1 (S.D.N.Y. 2017) (citing\n Iqbal, 556 U.S. at 662; Twombly, 550 U.S. at 554) (internal citations omitted).\n\n See Chambers v. Time Warner, Inc., 282 F.3d 147, 153–54 (2d Cir. 2002) (holding\n 16\n\n that extraneous material is not “outside the pleadings” when the material is\n integral to complaint and relied upon by the plaintiff in framing the complaint).\n 17 Id. at 153 (internal quotation marks omitted).\n 18See Glob. Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir.\n 2006) (“In most instances . . . the incorporated material is a contract or other legal\n document containing obligations upon which the plaintiff’s complaint stands or\n falls . . . .”); see also Nicoisa v. Amazon.com, Inc., 834 F.3d 220, 234 (2d Cir. 2016) (an\n “order page” and “conditions of use” agreement were integral to the complaint\n when the complaint contained numerous references to them).\n\f 11 No. 17‐3801‐cv\n\n 1 Regardless, Palin could not have “relie[d] heavily”19 on Bennet’s\n 2 testimony when drafting her complaint because she had no idea what\n 3 Bennet would say. Bennet’s testimony revealed substantive\n 4 information about his motivations and the editorial drafting\n 5 process—none of which Palin could have known in advance of her\n 6 pleadings, much less “relie[d] heavily” on.20\n\n 7 The Times falls back on the argument that, even if the district\n 8 court relied on matters outside the pleadings, we may treat the\n 9 motion as if it had been converted to a motion for summary judgment.\n10 We have held that the “conversion of a Rule 12(b)(6) motion into one\n11 for summary judgment is governed by principles of substance rather\n12 than form”21 and that “[t]he essential inquiry is whether the appellant\n13 should reasonably have recognized the possibility that the motion\n14 might be converted into one for summary judgment.”22\n\n15 We decline to treat the Rule 12(b)(6) motion here as having been\n16 converted to one for summary judgment. Apart from the fact that the\n17 able and highly experienced district judge did not purport to convert\n18 the motion, Palin had no prior notice that the district court might\n19 resolve the Times’ Rule 12(b)(6) motion after the judge’s sua sponte\n20 hearing, much less that he might treat the motion as one for summary\n21 judgment. Indeed, the district court was explicit about treating the\n22 motion only as a test of the sufficiency of the pleadings. The Times\n23 relies on cases where the plaintiff had adequate notice and the district\n\n 19 Chambers, 282 F.3d at 153 (internal quotation marks omitted).\n 20 Id.\n 21 In re G &A Books, 770 F.2d 288, 295 (2d Cir. 1985).\n\n Id.; see also Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 592 (2d\n 22\n\n Cir. 1993).\n\f 12 No. 17‐3801‐cv\n\n 1 court simply neglected to properly convert the motion.23 This is not a\n 2 situation in which where the plaintiff ought to have seen a summary‐\n 3 judgment decision coming.24\n\n 4 Even if the plaintiff had been given notice and the court had\n 5 explicitly converted the motion to one for summary judgment, we\n 6 would still have to vacate because the district court’s opinion relied\n 7 on credibility determinations not permissible at any stage before\n 8 trial.25 As we will discuss in the next section, the district court’s\n 9 acceptance of Bennet’s testimony as credible was what led it to grant\n10 the Times’ motion to dismiss.\n\n11 The Times also argues that Palin was not deprived of a\n12 meaningful opportunity to conduct discovery “pertinent to the\n13 motion.”26 Presumably, the Times is referring to “discovery” on the\n14 spot: Bennet’s testimony and some related documents. Even\n15 assuming that the hearing afforded Palin all of the discovery to which\n\n See G & A Books, 770 F.2d at 295; Northville Downs v. Granholm, 622 F.3d 579,\n 23\n\n 585–86 (6th Cir. 2010).\n\n In fact, the hearing transcript reflects the understandable confusion of Palin’s\n 24\n\n counsel. App’x 395–97 (The Court: “Neither side raised any objection to my\n holding [the evidentiary] hearing . . . Counsel: . . . It wasn’t a normal kind of\n hearing during a 12(b)(6) . . . . And to be honest, Judge, we really wouldn’t have\n tendered an objection because we were trying to get a better understanding of kind\n of what the inquiry was . . . .”).\n\n See Soto v. Gaudett, 862 F.3d 148, 157 (2d Cir. 2017) (noting that at the\n 25\n\n summary judgment stage “[c]redibility determinations, the weighing of the\n evidence, and the drawing of legitimate inferences from the facts are jury\n functions, not those of a judge” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.\n 242, 255 (1986))).\n 26Fed. R. Civ. P. 12(d); see United States ex rel. Chorches v. Am. Med. Response,\n Inc., 865 F.3d 71, 88 n.13 (2d Cir. 2017) (noting the district court’s “broad discretion\n to limit discovery in a prudential and proportionate way” (internal quotation\n marks omitted)).\n\f 13 No. 17‐3801‐cv\n\n 1 she was entitled, this fact does not mitigate the errors committed by\n 2 the district court.\n\n 3 It is clear to us that the district court viewed the hearing as a\n 4 way to more expeditiously decide whether Palin had a viable way to\n 5 establish actual malice. But, despite the flexibility that is accorded\n 6 district courts to streamline proceedings and manage their calendars,\n 7 district courts are not free to bypass rules of procedure that are\n 8 carefully calibrated to ensure fair process to both sides. The\n 9 procedural path followed by the district court conforms to neither of\n10 the two options permitted by Rule 12(d). While we are cognizant of\n11 the difficult determinations that Twombly and Iqbal often place on\n12 district courts, the district court’s gatekeeping procedures must\n13 nevertheless comply with the Federal Rules of Civil Procedure.\n\n14 II. Palin’s Proposed Amended Complaint\n\n15 Having determined that the district court erred in relying on\n16 evidence that came to light in the plausibility hearing when it granted\n17 the Times’ motion to dismiss, we must ascertain what effect, if any,\n18 that error had on the dismissal of Palin’s defamation complaint. To\n19 do so, we will review Palin’s Proposed Amendment Complaint (“the\n20 PAC”) to determine whether she stated a plausible claim for\n21 defamation. Because of the district court’s decision to hold the\n22 plausibility hearing, this case comes to us in unique form. After the\n23 district court dismissed her claim with prejudice, Palin attached a\n24 PAC to her motion for reconsideration of the “with prejudice” part of\n25 the dismissal. The PAC included certain material added by the\n26 hearing and we discern no fault here because Bennet’s testimony,\n27 reliable or not, was now part of the record. The district court denied\n28 the motion for reconsideration, finding that leave to replead would be\n29 futile and that the PAC suffered the same “fatal flaws” as the original\n\f 14 No. 17‐3801‐cv\n\n 1 complaint.27 Our review of the grant of a motion to dismiss is de\n 2 novo;28 therefore we now turn to whether the PAC states a plausible\n 3 claim for relief. We conclude that it does.\n\n 4 In the Times’ view, the district court correctly determined that\n 5 Palin’s original complaint and the PAC both gave rise to only one\n 6 plausible conclusion: that Bennet made an unintended mistake by\n 7 including the erroneous facts about Palin. We disagree.\n\n 8 In both the original complaint and the PAC, Palin’s overarching\n 9 theory of actual malice is that Bennet had a “pre‐determined”\n10 argument he wanted to make in the editorial.29 Bennet’s fixation on\n11 this set goal, the claim goes, led him to publish a statement about Palin\n12 that he either knew to be false, or at least was reckless as to whether\n13 it was false. The PAC contains allegations that paint a plausible\n14 picture of this actual‐malice scenario in three respects: (1) Bennet’s\n15 background as an editor and political advocate provided sufficient\n16 evidence to permit a jury to find that he published the editorial with\n17 deliberate or reckless disregard for its truth, (2) the drafting and\n18 editorial process also permitted an inference of deliberate or reckless\n19 falsification, and (3) the Times’ subsequent correction to the editorial\n20 did not undermine the plausibility of that inference.\n\n21 First, Palin alleges that, because of the editorial positions\n22 Bennet held at The Atlantic and The New York Times, a jury could\n23 plausibly find that Bennet knew before publishing the editorial that it\n\n\n\n\n 27 Memorandum and Order denying Motion for Reconsideration, ECF No. 61.\n 28 Elias, 872 F.3d at 104.\n 29 App’x 472.\n\f 15 No. 17‐3801‐cv\n\n 1 was false to claim that Palin or her political action committee were\n 2 connected to the Loughner shooting.\n\n 3 The PAC alleges that, from 2006 to 2016, Bennet was the editor‐\n 4 in‐chief of The Atlantic, where “he was responsible for the content of,\n 5 reviewed, edited and approved the publication of numerous articles\n 6 confirming there was no link between Mrs. Palin and Loughner’s\n 7 shooting.”30 The complaint references several articles about the\n 8 Loughner shooting published by The Atlantic during Bennet’s tenure,\n 9 the most notable of which is entitled “Ten Days That Defined 2011.”\n10 The part of that article discussing the Loughner shooting reads: “. . .\n11 the bad thing to come out of this already terrible story was a round of\n12 blame hurling, with people rushing to point at Sarah Palin’s infamous\n13 target map . . . . In truth, Loughner is clinically insane and this was\n14 not really about politics at all.”31\n\n15 At the hearing, Bennet stated that he could not recall reading\n16 those articles, and even if he had read them, he did not have them in\n17 mind when he published the editorial. The district court, in rejecting\n18 Palin’s theory as implausible, credited this testimony as truthful when\n19 it found that Bennet’s failure to read the articles was simply a research\n20 failure that did not rise to the level of actual malice.\n\n21 By crediting Bennet’s testimony, the district court rejected a\n22 permissible inference from the articles: that one who had risen to\n23 editor‐in‐chief at The Atlantic knew their content and thus that there\n24 was no connection between Palin and the Loughner shooting. That\n25 Palin’s complaint sufficiently alleges that Bennet’s opportunity to\n\n\n 30 App’x 481.\n 31 Richard Lawson, Ten Days That Defined 2011, The Atlantic, Dec. 29, 2011.\n\f 16 No. 17‐3801‐cv\n\n 1 know the journalistic consensus that the connection was lacking gives\n 2 rise to the inference that he actually did know.\n\n 3 The PAC also includes allegations suggesting that Bennet in\n 4 particular was more likely than the average editor‐in‐chief to know\n 5 the truth about the Loughner shooting because he had reason to be\n 6 personally hostile toward Palin, her political party, and her pro‐gun\n 7 stance. Bennet’s brother, a Democrat, had served as a United States\n 8 Senator for Colorado since 2009. In 2010, Senator Bennet was\n 9 endorsed by two House members whose districts had been targeted\n10 by the SarahPAC map. Two days before the Loughner shooting, a\n11 man threatened to open fire on Senator Bennet’s offices, and\n12 thereafter both Bennet brothers became “outspoken advocate[s] for\n13 gun control.”32 Also, during the 2016 election, Palin endorsed Senator\n14 Bennet’s opponent and Representative Giffords endorsed Senator\n15 Bennet.\n\n16 The district court gave no weight to these allegations, finding\n17 that political opposition did not rise to the level of actual malice. We\n18 agree with the district court that political opposition alone does not\n19 constitute actual malice, but we conclude that these allegations could\n20 indicate more than sheer political bias—they arguably show that\n21 Bennet had a personal connection to a potential shooting that\n22 animated his hostility to pro‐gun positions at the time of the\n23 Loughner shooting in 2011.33 Palin’s allegations are relevant to the\n24 credibility of Bennet’s testimony that he was unaware of facts\n\n\n 32 App’x 480.\n\n Cf. Jankovic v. Int’l Crisis Grp., 822 F.3d 576, 590 (D.C. Cir. 2016) (“[A]\n 33\n\n newspaper’s motive in publishing a story . . . cannot provide a sufficient basis for\n finding actual malice.” (quoting Harte‐Hanks Commc’ns, Inc. v. Connaughton, 491\n U.S. 657, 665 (1989))).\n\f 17 No. 17‐3801‐cv\n\n 1 published on his watch relating to the Loughner shooting and that he\n 2 made a mistake when he connected Palin to the that shooting. Palin’s\n 3 allegations present a plausible inference that Bennet’s claim of\n 4 memory loss is untrue.\n\n 5 At a minimum, these allegations give rise to a plausible\n 6 inference that Bennet was recklessly disregarding the truth when he\n 7 published the editorial without reacquainting himself with the\n 8 contrary articles published in The Atlantic six years earlier.34 And that\n 9 plausible inference of reckless disregard is strengthened when added\n10 to Palin’s allegations that Bennet had reason to be personally biased\n11 against Palin and pro‐gun positions in general. When properly\n12 viewed in the plaintiff’s favor, a reasonable factfinder could conclude\n13 this amounted to more than a mistake due to a research failure.\n\n14 Second, the PAC also alleges that certain aspects of the drafting\n15 and publication process of the editorial at The New York Times permits\n16 an inference of actual malice. Elizabeth Williamson, the editorial\n17 writer who drafted the initial version of the editorial, had hyperlinked\n18 in her draft an article entitled ”Sarah Palin’s ‘Crosshairs’ Ad Dominates\n19 Gabrielle Giffords Debate.” The article stated, contrary to the claim in\n20 the published editorial, that “[n]o connection” was made between the\n21 SarahPAC map and Loughner.35 The link was also included in the\n22 final version of the editorial, a version that Bennet essentially rewrote.\n23 The Times argues that the hyperlink shows the absence of malice. But\n\n\n\n\n See Behar, 238 F.3d at 173–74 (actual malice satisfied upon a showing the\n 34\n\n statement was made “with reckless disregard of whether it was false or not”\n (internal quotation marks omitted)).\n 35 App’x 642–43.\n\f 18 No. 17‐3801‐cv\n\n 1 the PAC alleges that, by including a hyperlink that contradicted the\n 2 argument of his editorial, Bennet “willfully disregarded the truth.”36\n\n 3 The district court, siding with the Times, concluded that\n 4 including the hyperlinked article was further evidence of simple\n 5 mistake. After crediting Bennet’s testimony that he did not read the\n 6 hyperlinked article, the district judge concluded that a mistake was\n 7 the only plausible explanation. But the inclusion of the hyperlinked\n 8 article gives rise to more than one plausible inference, and any\n 9 inference to be drawn from the inclusion of the hyperlinked article\n10 was for the jury—not the court.\n\n11 Third, the district court concluded that the correction swiftly\n12 issued by the Times again demonstrated that the only plausible\n13 explanation for the erroneous statements was a mistake. Yet, it is also\n14 plausible that the correction was issued after a calculus that standing\n15 by the editorial was not worth the cost of the public backlash. Bennet\n16 could have published the editorial knowing—or recklessly\n17 disregarding—the falsity of the claim, and then decided later that the\n18 false allegation was not worth defending.\n\n19 At bottom, it is plain from the record that the district court\n20 found Bennet a credible witness, and that the district court’s crediting\n21 his testimony impermissibly anchored the district court’s own\n22 negative view of the plausibility of Palin’s allegations.\n\n23 The district court at one point stated that Bennet’s “behavior is\n24 much more plausibly consistent with making an unintended mistake\n25 and then correcting it than with acting with actual malice.”37 Perhaps\n\n\n 36 App’x 494.\n 37 Palin, 264 F. Supp. 3d at 537 (emphasis added).\n\f 19 No. 17‐3801‐cv\n\n 1 so, but it is not the district court’s province to dismiss a plausible\n 2 complaint because it is not as plausible as the defendant’s theory. The\n 3 test is whether the complaint is plausible, not whether it is less\n 4 plausible than an alternative explanation.38 The jury may ultimately\n 5 agree with the district court’s conclusion that Bennet was credible—\n 6 but it is the jury that must decide. Therefore, at the pleading stage, we\n 7 are satisfied that Palin has met her burden to plead facts giving rise\n 8 to the plausible inference that Bennet published the allegedly\n 9 defamatory editorial with actual malice. We emphasize that actual\n10 malice does not mean maliciousness or ill will; it simply means the\n11 statement was “made with knowledge that it was false or with\n12 reckless disregard of whether it was false or not.”39 Here, given the\n13 facts alleged, the assertion that Bennet knew the statement was false,\n14 or acted with reckless disregard as to whether the statement was false,\n15 is plausible.\n\n16 The Times also argues that Palin failed to plausibly allege two\n17 other elements of a defamation claim: (1) that the editorial is not “of\n18 and concerning”40 Palin and (2) the challenged statements cannot\n19 reasonably be understood as assertions of provably false fact. The\n\n\n\n\n See Iqbal, 556 U.S. at 678 (“The plausibility standard is not akin to a\n 38\n\n probability requirement . . . .”) (internal quotation marks omitted).\n\n Behar, 238 F.3d at 174 (internal quotation marks omitted); see id. (“The\n 39\n\n reckless conduct needed to show actual malice is not measured by whether a\n reasonably prudent man would have published, or would have investigated\n before publishing, but by whether there is sufficient evidence to permit the\n conclusion that the defendant in fact entertained serious doubts as to the truth of\n his publication.” (internal quotation marks and citation omitted)).\n 40 See Elias, 872 F.3d at 104.\n\f 20 No. 17‐3801‐cv\n\n 1 district court considered and rejected both of these arguments, and\n 2 we agree.\n\n 3 First, Palin has plausibly alleged that the challenged statements\n 4 are “of and concerning” her.41 The Times argues that SarahPAC, as a\n 5 political action committee, is a creature of federal law and entirely\n 6 distinct from Palin herself. At the pleading stage, however, the bar to\n 7 satisfy this element is low. As we held in Elias, the plaintiff “need only\n 8 plead sufficient facts to make it plausible—not probable or even\n 9 reasonably likely—that a reader familiar with [the plaintiff] would\n10 identify [the plaintiff] as the subject of the statements at issue.”42\n\n11 Palin’s allegations are more than sufficient to plausibly allege\n12 that the challenged statements were “of and concerning” her. The\n13 editorial refers to Palin specifically—“Sarah Palin’s political action\n14 committee.”43 The legal designation of a political action committee\n15 under federal law notwithstanding, Palin has plausibly pleaded that\n16 a reader would identify her as the subject of the statements. The\n17 Times’ arguments to the contrary are unpersuasive.\n\n18 Second, the Times argues that we can also affirm the district\n19 court because the challenged statements are not reasonably capable\n20 of being proven false.44 The Times claims that Loughner’s motivations\n\n\n Id. (“[A] defamation plaintiff must allege that the purportedly defamatory\n 41\n\n statement was of and concerning him or her . . . .” (internal quotation marks\n omitted)).\n 42 Id. at 105 (citing Iqbal, 556 U.S. at 678).\n 43 App’x 37.\n\n See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19–20 (1990); see also Celle, 209\n 44\n\n F.3d at 178 (noting that under New York law differentiating opinion from\n actionable fact involves “a determination of whether the statement is capable of\n\f 21 No. 17‐3801‐cv\n\n 1 are ultimately unknowable and speculative. This objection also goes\n 2 nowhere. We agree with the district court that a reasonable reader\n 3 could view the challenged statements as factual, namely that Palin,\n 4 through her political action committee, was directly linked to the\n 5 Loughner shooting. The social media backlash that precipitated the\n 6 correction further suggests that the Times’ readers perceived the false\n 7 statements as fact‐based.\n\n 8 We conclude by recognizing that First Amendment protections\n 9 are essential to provide “breathing space” for freedom of expression.45\n10 But, at this stage, our concern is with how district courts evaluate\n11 pleadings. Nothing in this opinion should therefore be construed to\n12 cast doubt on the First Amendment’s crucial constitutional\n13 protections. Indeed, this protection is precisely why Palin’s\n14 evidentiary burden at trial—to show by clear and convincing\n15 evidence that Bennet acted with actual malice—is high. At the\n16 pleading stage, however, Palin’s only obstacle is the plausibility\n17 standard of Twombly and Iqbal. She has cleared that hurdle.\n\n18 Naturally, we take no position on the merits of Palin’s claim.\n\n19 CONCLUSION\n\n20 For the reasons stated above, we VACATE and REMAND the\n21 judgment of the district court for further proceedings consistent with\n22 this opinion.\n\n\n\n\n being objectively characterized as true or false” (internal quotation marks\n omitted)).\n 45 New York Times, 376 U.S. at 271–72.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Palin v. The New York Times Company\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-10-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17‐3801‐cv\\n Palin v. The New York Times Company\\n\\n 1\\n\\n 2 In the\\n 3 United States Court of Appeals\\n 4 For the Second Circuit\\n 5 ________\\n 6\\n 7 AUGUST TERM, 2018\\n 8\\n 9 ARGUED: SEPTEMBER 21, 2018\\n10 DECIDED: AUGUST 6, 2019\\n11 AMENDED: OCTOBER 15, 2019\\n12\\n13 No. 17‐3801‐cv\\n14\\n15 SARAH PALIN, an individual,\\n16 Plaintiff‐Appellant,\\n17\\n18 v.\\n19\\n20 THE NEW YORK TIMES COMPANY,\\n21 Defendant‐Appellee.\\n22 ________\\n23\\n24 Appeal from the United States District Court\\n25 for the Southern District of New York.\\n26 No. 17‐cv‐04853 – Jed S. Rakoff, Judge.\\n27 ________\\n28\\n29 Before: WALKER and CHIN, Circuit Judges, and KEENAN.\\n30\\n31 ________\\n\\n\\n \\n Judge John F. Keenan, of the United States District Court for the Southern\\n District of New York, sitting by designation.\\n\\f 2 No. 17‐3801‐cv\\n\\n 1 This case is ultimately about the First Amendment, but the\\n 2 subject matter implicated in this appeal is far less dramatic: rules of\\n 3 procedure and pleading standards. Sarah Palin appeals the dismissal\\n 4 of her defamation complaint against The New York Times (“the Times”)\\n 5 for failure to state a claim. The district court (Rakoff, J.), uncertain as\\n 6 to whether Palin’s complaint plausibly alleged all of the required\\n 7 elements of her defamation claim, held an evidentiary hearing to test\\n 8 the sufficiency of Palin’s pleadings. Following the hearing, and\\n 9 without converting the proceeding to one for summary judgment, the\\n10 district court relied on evidence adduced at that hearing to dismiss\\n11 Palin’s complaint under Federal Rule of Civil Procedure 12(b)(6). We\\n12 find that the district court erred in relying on facts outside the\\n13 pleadings to dismiss the complaint. We further conclude that Palin’s\\n14 Proposed Amended Complaint plausibly states a claim for\\n15 defamation and may proceed to full discovery.\\n\\n16 We therefore VACATE and REMAND for proceedings\\n17 consistent with this opinion.\\n\\n18 ________\\n19\\n20 ELIZABETH M. LOCKE, Clare Locke LLP,\\n21 Alexandria, VA (Thomas A. Clare, Joseph R.\\n22 Oliveri, Clare Locke LLP, Alexandria, VA;\\n23 Kenneth G. Turkel, Shane B. Vogt, Bajo Cuva\\n24 Cohen Turkel P.A., Tampa, FL; S. Preston Ricardo,\\n25 Golenbock Eiseman Assor Bell & Peskoe LLP,\\n26 New York, NY, on the brief), for Plaintiff‐Appellant.\\n\\n27 LEE LEVINE, Ballard Spahr LLP, Washington, DC\\n28 (Jay Ward Brown, Ballard Spahr LLP, Washington,\\n29 D.C.; David A. Schultz, Ballard Spahr LLP, New\\n30 York, NY; David E. McCraw, The New York\\n\\f 3 No. 17‐3801‐cv\\n\\n 1 Times, New York, NY, on the brief), for Defendant‐\\n 2 Appellee.\\n\\n 3 ________\\n 4\\n 5 JOHN M. WALKER, JR., Circuit Judge:\\n\\n 6 This case is ultimately about the First Amendment, but the\\n 7 subject matter implicated in this appeal is far less dramatic: rules of\\n 8 procedure and pleading standards. Sarah Palin appeals the dismissal\\n 9 of her defamation complaint against The New York Times (“the Times”)\\n10 for failure to state a claim. The district court (Rakoff, J.), uncertain as\\n11 to whether Palin’s complaint plausibly alleged all of the required\\n12 elements of her defamation claim, held an evidentiary hearing to test\\n13 the sufficiency of Palin’s pleadings. Following the hearing, and\\n14 without converting the proceeding to one for summary judgment, the\\n15 district court relied on evidence adduced at that hearing to dismiss\\n16 Palin’s complaint under Federal Rule of Civil Procedure 12(b)(6). We\\n17 find that the district court erred in relying on facts outside the\\n18 pleadings to dismiss the complaint. We further conclude that Palin’s\\n19 Proposed Amended Complaint plausibly states a claim for\\n20 defamation and may proceed to full discovery.\\n\\n21 We therefore VACATE and REMAND for proceedings\\n22 consistent with this opinion.\\n\\n23 BACKGROUND\\n\\n24 On January 8, 2011, Jared Loughner opened fire at a political\\n25 rally for Democratic Congresswoman Gabrielle Giffords in Tucson,\\n26 Arizona (“the Loughner shooting”), killing six people and injuring\\n27 thirteen others. Representative Giffords was seriously wounded in\\n28 the attack.\\n\\f 4 No. 17‐3801‐cv\\n\\n 1 Shortly before the tragic attack, Sarah Palin’s political action\\n 2 committee (“SarahPAC”) had circulated a map that superimposed the\\n 3 image of a crosshairs target over certain Democratic congressional\\n 4 districts (evoking, in the view of many, images of violence). Giffords’\\n 5 district was among those targeted by the SarahPAC crosshairs map.\\n 6 The image had been publicized during the earlier political\\n 7 controversy surrounding the Affordable Care Act, but in the wake of\\n 8 the Loughner shooting, some speculated that the shooting was\\n 9 connected to the crosshairs map. No evidence ever emerged to\\n10 establish that link; in fact, the criminal investigation of Loughner\\n11 indicated that his animosity toward Representative Giffords had\\n12 arisen before SarahPAC published the map.\\n\\n13 Six years later, on June 14, 2017, another political shooting\\n14 occurred when James Hodgkinson opened fire in Alexandria,\\n15 Virginia at a practice for a congressional baseball game. He seriously\\n16 injured four people, including Republican Congressman Steve Scalise\\n17 (“the Hodgkinson shooting”). That same evening, the Times, under\\n18 the Editorial Board’s byline, published an editorial entitled\\n19 “America’s Lethal Politics” (“the editorial”) in response to the\\n20 shooting.\\n\\n21 The editorial argued that these two political shootings\\n22 evidenced the “vicious” nature of American politics.1 Reflecting on\\n23 the Loughner shooting and the SarahPAC crosshairs map, the\\n24 editorial claimed that the “link to political incitement was clear,” and\\n25 noted that Palin’s political action committee had “circulated a map of\\n26 targeted electoral districts that put Ms. Giffords and 19 other\\n27 Democrats under stylized cross hairs,” suggesting that the\\n\\n 1 App’x 37.\\n\\f 5 No. 17‐3801‐cv\\n\\n 1 congressmembers themselves had been pictured on the map.2 In the\\n 2 next paragraph, the editorial referenced the Hodgkinson shooting\\n 3 that had happened that day: “Though there’s no sign of incitement as\\n 4 direct as in the Giffords attack, liberals should of course hold\\n 5 themselves to the same standard of decency that they ask of the\\n 6 right.”3\\n\\n 7 The Times faced an immediate backlash for publishing the\\n 8 editorial. Within a day, it had changed the editorial and issued a\\n 9 correction. The Times removed the two phrases suggesting a link\\n10 between Palin and the Loughner shooting. Added to the editorial was\\n11 a correction that read: “An earlier version of this editorial incorrectly\\n12 stated that a link existed between political incitement and the 2011\\n13 shooting of Representative Gabby Giffords. In fact, no such link was\\n14 established.”4 The Times also clarified that the SarahPAC map had\\n15 overlaid crosshairs on Democratic congressional districts, not the\\n16 representatives themselves.\\n\\n17 Twelve days after the editorial was published Palin sued the\\n18 Times in federal court. She alleged one count of defamation under\\n19 New York law. Thereafter, the Times moved to dismiss Palin’s\\n20 complaint for failure to state a claim.\\n\\n21 After the motion to dismiss had been fully briefed, the case took\\n22 an unusual procedural turn: the district judge held an evidentiary\\n23 hearing on the motion to dismiss. The district judge stated that the\\n\\n 2App’x 36–37. The crosshairs were put on a map over the locations of the\\n congressional districts, and the names of the congressmembers in question—\\n including Representative Giffords—were listed at the bottom of the page.\\n 3 App’x 41.\\n 4 App’x 22.\\n\\f 6 No. 17‐3801‐cv\\n\\n 1 hearing was to assess the plausibility of the “[o]ne close question”\\n 2 presented by the Times’ motion to dismiss: whether Palin had\\n 3 sufficiently pled the actual malice element of her defamation claim.5\\n\\n 4 The district judge ordered the Times to identify the author of\\n 5 the editorial and the Times produced James Bennet, the editorial page\\n 6 editor at the Times and the author of the editorial, to testify at the\\n 7 hearing. Bennet was the hearing’s only witness. Bennet explained at\\n 8 the hearing that his reference to Palin in the editorial was intended to\\n 9 make a rhetorical point about the present atmosphere of political\\n10 anger. He also recounted the editorial’s research and publication\\n11 process and answered inquiries about his prior knowledge of the\\n12 Loughner shooting six years earlier and any connection to Palin.\\n13 Bennet testified that he was unaware of any of the earlier articles\\n14 published by the Times, or by The Atlantic (where he had previously\\n15 been the editor‐in‐chief), that indicated that no connection between\\n16 Palin or her political action committee and Loughner had ever been\\n17 established. In addition to answering questions from the Times’\\n18 counsel, Bennet responded to questions by Palin’s counsel and the\\n19 district judge. Neither party objected to the district judge’s decision\\n20 to hold the hearing.\\n\\n21 On August 29, 2017, the district court, relying on evidence\\n22 adduced at the hearing, granted the Times’ motion to dismiss. The\\n23 district court determined that any amendment would be futile and\\n24 dismissed Palin’s complaint with prejudice. Later, Palin asked the\\n25 district court to reconsider its decision that the dismissal was with\\n26 prejudice and included a Proposed Amended Complaint with her\\n\\n\\n\\n\\n 5 Order re: Motion to Dismiss, ECF No. 35.\\n\\f 7 No. 17‐3801‐cv\\n\\n 1 motion. The district court denied the motion for reconsideration and\\n 2 leave to replead. She now appeals.\\n\\n 3 DISCUSSION\\n\\n 4 We review a district court’s grant of a motion to dismiss the\\n 5 complaint on the pleadings de novo and “constru[e] the complaint\\n 6 liberally, accepting all factual allegations in the complaint as true, and\\n 7 drawing all reasonable inferences in the plaintiff’s favor.”6\\n\\n 8 Under New York law a defamation plaintiff must establish five\\n 9 elements: (1) a written defamatory statement of and concerning the\\n10 plaintiff, (2) publication to a third party, (3) fault, (4) falsity of the\\n11 defamatory statement, and (5) special damages or per se\\n12 actionability.7 In addition, “a public figure plaintiff must prove that\\n13 an allegedly libelous statement was made with actual malice, that is,\\n14 made ‘with knowledge that it was false or with reckless disregard of\\n15 whether it was false or not.’”8 It is undisputed that Palin, a former\\n16 governor of Alaska and Republican candidate for Vice President in\\n17 2008, is a public figure.\\n\\n18 When actual malice in making a defamatory statement is at\\n19 issue, the critical question is the state of mind of those responsible for\\n20 the publication.9 Because the Times identified Bennet as the author of\\n\\n\\n Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017) (internal quotation\\n 6\\n\\n marks omitted).\\n 7 See Celle v. Filipino Reporter Enterps. Inc., 209 F.3d 163, 176 (2d Cir. 2000)\\n (citations omitted).\\n\\n Church of Scientology Int’l v. Behar, 238 F.3d 168, 173–74 (2d Cir. 2001) (quoting\\n 8\\n\\n New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964)).\\n\\n Dongguk Univ. v. Yale Univ., 734 F.3d 113, 123 (2d Cir. 2013) (“[T]he plaintiff\\n 9\\n\\n must identify the individual responsible for publication of a statement, and it is\\n\\f 8 No. 17‐3801‐cv\\n\\n 1 the editorial, it was his state of mind that was relevant to the actual\\n 2 malice determination. We will first address the district court’s use of\\n 3 the hearing in the process of deciding the motion to dismiss and then\\n 4 determine whether Palin’s Proposed Amended Complaint plausibly\\n 5 states a claim for defamation.\\n\\n 6 I. The Hearing\\n\\n 7 The pleading standards articulated in Bell Atlantic Corp. v.\\n 8 Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009)\\n 9 are well‐known: in order to satisfy Federal Rule of Civil Procedure 8,\\n10 a complaint must contain “enough facts to state a claim to relief that\\n11 is plausible on its face.”10 A claim is plausible “when the plaintiff\\n12 pleads factual content that allows the court to draw the reasonable\\n13 inference that the defendant is liable for the misconduct alleged.”11 A\\n14 well‐pleaded complaint will include facts that “raise a right to relief\\n15 above the speculative level.”12 “The plausibility standard is not akin\\n16 to a ‘probability requirement,’ but it asks for more than a sheer\\n17 possibility that a defendant has acted unlawfully.”13\\n\\n18 On appeal, Palin argues that the district court’s reliance on the\\n19 hearing to decide the motion to dismiss offends the Federal Rules of\\n\\n\\n\\n\\n that individual the plaintiff must prove acted with actual malice.” (citing New York\\n Times, 376 U.S. at 287)).\\n 10 Twombly, 550 U.S. at 570.\\n 11 Iqbal, 556 U.S. at 678.\\n 12 Twombly, 550 U.S. at 555.\\n 13 Iqbal, 556 U.S. at 678.\\n\\f 9 No. 17‐3801‐cv\\n\\n 1 Civil Procedure. We agree that the hearing runs headlong into the\\n 2 federal rules.\\n\\n 3 When presented with the Times’ Rule 12(b)(6) motion to\\n 4 dismiss for failure to state a claim, the district court relied on Rule\\n 5 43(c) to convene the hearing at which Bennet testified. The district\\n 6 court’s invocation of Rule 43(c), which addresses taking testimony at\\n 7 trial, was misplaced: that rule has nothing to do with the proceedings\\n 8 at the motion‐to‐dismiss stage. Following the hearing, the district\\n 9 court granted the Times’ motion to dismiss, finding that Palin failed\\n10 to plausibly allege actual malice. This conclusion rested on inferences\\n11 drawn from Bennet’s testimony at the plausibility hearing.\\n\\n12 Rule 12(d) provides: “If, on a motion under Rule 12(b)(6) or\\n13 12(c), matters outside the pleadings are presented to and not excluded\\n14 by the court, the motion must be treated as one for summary\\n15 judgment under Rule 56. All parties must be given a reasonable\\n16 opportunity to present all the material that is pertinent to the motion.”\\n17 Rule 12(d), therefore, presents district courts with only two options:\\n18 (1) “the court may exclude the additional material and decide the\\n19 motion on the complaint alone” or (2) “it may convert the motion to\\n20 one for summary judgment under Fed. R. Civ. P. 56 and afford all\\n21 parties the opportunity to present supporting material.”14\\n\\n22 The district judge took neither permissible route under Rule\\n23 12(d). The judge both relied on matters outside the pleadings to\\n24 decide the motion to dismiss and did not convert the motion into one\\n25 for summary judgment. To the contrary, his aim was explicit: to\\n26 determine whether Palin’s complaint stated a plausible claim for\\n\\n\\n Kopec v. Coughlin, 922 F.2d 152, 154 (2d Cir. 1991) (quoting Fonte v. Bd. of\\n 14\\n\\n Managers of Continent Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988)).\\n\\f 10 No. 17‐3801‐cv\\n\\n 1 relief under Rule 12(b)(6). The district judge explained that “[b]y\\n 2 requiring district courts to make plausibility determinations based on\\n 3 the pleadings, the Supreme Court has, in effect, made district courts\\n 4 gatekeepers.”15\\n\\n 5 In an effort to salvage the propriety of the district court’s\\n 6 decision, the Times argues that the district court complied with Rule\\n 7 12(d) because it did not rely on matters outside the pleadings.16 The\\n 8 Times argues that Bennet’s testimony was not outside the pleadings\\n 9 because it presented material integral to the complaint by merely\\n10 adding depth to what was apparent from the face of Palin’s\\n11 complaint. But the material that came to light at the hearing did\\n12 considerably more than elaborate on the allegations in the complaint.\\n\\n13 A matter is deemed “integral” to the complaint when the\\n14 complaint “relies heavily upon its terms and effect.”17 Typically, an\\n15 integral matter is a contract, agreement, or other document essential\\n16 to the litigation.18 Hearing testimony elicited by the trial judge after\\n17 litigation has already begun is not the type of material that ordinarily\\n18 has the potential to be a matter “integral” to a plaintiff’s complaint.\\n\\n 15Palin v. New York Times Co., 264 F. Supp. 3d 527, 530 n.1 (S.D.N.Y. 2017) (citing\\n Iqbal, 556 U.S. at 662; Twombly, 550 U.S. at 554) (internal citations omitted).\\n\\n See Chambers v. Time Warner, Inc., 282 F.3d 147, 153–54 (2d Cir. 2002) (holding\\n 16\\n\\n that extraneous material is not “outside the pleadings” when the material is\\n integral to complaint and relied upon by the plaintiff in framing the complaint).\\n 17 Id. at 153 (internal quotation marks omitted).\\n 18See Glob. Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir.\\n 2006) (“In most instances . . . the incorporated material is a contract or other legal\\n document containing obligations upon which the plaintiff’s complaint stands or\\n falls . . . .”); see also Nicoisa v. Amazon.com, Inc., 834 F.3d 220, 234 (2d Cir. 2016) (an\\n “order page” and “conditions of use” agreement were integral to the complaint\\n when the complaint contained numerous references to them).\\n\\f 11 No. 17‐3801‐cv\\n\\n 1 Regardless, Palin could not have “relie[d] heavily”19 on Bennet’s\\n 2 testimony when drafting her complaint because she had no idea what\\n 3 Bennet would say. Bennet’s testimony revealed substantive\\n 4 information about his motivations and the editorial drafting\\n 5 process—none of which Palin could have known in advance of her\\n 6 pleadings, much less “relie[d] heavily” on.20\\n\\n 7 The Times falls back on the argument that, even if the district\\n 8 court relied on matters outside the pleadings, we may treat the\\n 9 motion as if it had been converted to a motion for summary judgment.\\n10 We have held that the “conversion of a Rule 12(b)(6) motion into one\\n11 for summary judgment is governed by principles of substance rather\\n12 than form”21 and that “[t]he essential inquiry is whether the appellant\\n13 should reasonably have recognized the possibility that the motion\\n14 might be converted into one for summary judgment.”22\\n\\n15 We decline to treat the Rule 12(b)(6) motion here as having been\\n16 converted to one for summary judgment. Apart from the fact that the\\n17 able and highly experienced district judge did not purport to convert\\n18 the motion, Palin had no prior notice that the district court might\\n19 resolve the Times’ Rule 12(b)(6) motion after the judge’s sua sponte\\n20 hearing, much less that he might treat the motion as one for summary\\n21 judgment. Indeed, the district court was explicit about treating the\\n22 motion only as a test of the sufficiency of the pleadings. The Times\\n23 relies on cases where the plaintiff had adequate notice and the district\\n\\n 19 Chambers, 282 F.3d at 153 (internal quotation marks omitted).\\n 20 Id.\\n 21 In re G &A Books, 770 F.2d 288, 295 (2d Cir. 1985).\\n\\n Id.; see also Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 592 (2d\\n 22\\n\\n Cir. 1993).\\n\\f 12 No. 17‐3801‐cv\\n\\n 1 court simply neglected to properly convert the motion.23 This is not a\\n 2 situation in which where the plaintiff ought to have seen a summary‐\\n 3 judgment decision coming.24\\n\\n 4 Even if the plaintiff had been given notice and the court had\\n 5 explicitly converted the motion to one for summary judgment, we\\n 6 would still have to vacate because the district court’s opinion relied\\n 7 on credibility determinations not permissible at any stage before\\n 8 trial.25 As we will discuss in the next section, the district court’s\\n 9 acceptance of Bennet’s testimony as credible was what led it to grant\\n10 the Times’ motion to dismiss.\\n\\n11 The Times also argues that Palin was not deprived of a\\n12 meaningful opportunity to conduct discovery “pertinent to the\\n13 motion.”26 Presumably, the Times is referring to “discovery” on the\\n14 spot: Bennet’s testimony and some related documents. Even\\n15 assuming that the hearing afforded Palin all of the discovery to which\\n\\n See G & A Books, 770 F.2d at 295; Northville Downs v. Granholm, 622 F.3d 579,\\n 23\\n\\n 585–86 (6th Cir. 2010).\\n\\n In fact, the hearing transcript reflects the understandable confusion of Palin’s\\n 24\\n\\n counsel. App’x 395–97 (The Court: “Neither side raised any objection to my\\n holding [the evidentiary] hearing . . . Counsel: . . . It wasn’t a normal kind of\\n hearing during a 12(b)(6) . . . . And to be honest, Judge, we really wouldn’t have\\n tendered an objection because we were trying to get a better understanding of kind\\n of what the inquiry was . . . .”).\\n\\n See Soto v. Gaudett, 862 F.3d 148, 157 (2d Cir. 2017) (noting that at the\\n 25\\n\\n summary judgment stage “[c]redibility determinations, the weighing of the\\n evidence, and the drawing of legitimate inferences from the facts are jury\\n functions, not those of a judge” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.\\n 242, 255 (1986))).\\n 26Fed. R. Civ. P. 12(d); see United States ex rel. Chorches v. Am. Med. Response,\\n Inc., 865 F.3d 71, 88 n.13 (2d Cir. 2017) (noting the district court’s “broad discretion\\n to limit discovery in a prudential and proportionate way” (internal quotation\\n marks omitted)).\\n\\f 13 No. 17‐3801‐cv\\n\\n 1 she was entitled, this fact does not mitigate the errors committed by\\n 2 the district court.\\n\\n 3 It is clear to us that the district court viewed the hearing as a\\n 4 way to more expeditiously decide whether Palin had a viable way to\\n 5 establish actual malice. But, despite the flexibility that is accorded\\n 6 district courts to streamline proceedings and manage their calendars,\\n 7 district courts are not free to bypass rules of procedure that are\\n 8 carefully calibrated to ensure fair process to both sides. The\\n 9 procedural path followed by the district court conforms to neither of\\n10 the two options permitted by Rule 12(d). While we are cognizant of\\n11 the difficult determinations that Twombly and Iqbal often place on\\n12 district courts, the district court’s gatekeeping procedures must\\n13 nevertheless comply with the Federal Rules of Civil Procedure.\\n\\n14 II. Palin’s Proposed Amended Complaint\\n\\n15 Having determined that the district court erred in relying on\\n16 evidence that came to light in the plausibility hearing when it granted\\n17 the Times’ motion to dismiss, we must ascertain what effect, if any,\\n18 that error had on the dismissal of Palin’s defamation complaint. To\\n19 do so, we will review Palin’s Proposed Amendment Complaint (“the\\n20 PAC”) to determine whether she stated a plausible claim for\\n21 defamation. Because of the district court’s decision to hold the\\n22 plausibility hearing, this case comes to us in unique form. After the\\n23 district court dismissed her claim with prejudice, Palin attached a\\n24 PAC to her motion for reconsideration of the “with prejudice” part of\\n25 the dismissal. The PAC included certain material added by the\\n26 hearing and we discern no fault here because Bennet’s testimony,\\n27 reliable or not, was now part of the record. The district court denied\\n28 the motion for reconsideration, finding that leave to replead would be\\n29 futile and that the PAC suffered the same “fatal flaws” as the original\\n\\f 14 No. 17‐3801‐cv\\n\\n 1 complaint.27 Our review of the grant of a motion to dismiss is de\\n 2 novo;28 therefore we now turn to whether the PAC states a plausible\\n 3 claim for relief. We conclude that it does.\\n\\n 4 In the Times’ view, the district court correctly determined that\\n 5 Palin’s original complaint and the PAC both gave rise to only one\\n 6 plausible conclusion: that Bennet made an unintended mistake by\\n 7 including the erroneous facts about Palin. We disagree.\\n\\n 8 In both the original complaint and the PAC, Palin’s overarching\\n 9 theory of actual malice is that Bennet had a “pre‐determined”\\n10 argument he wanted to make in the editorial.29 Bennet’s fixation on\\n11 this set goal, the claim goes, led him to publish a statement about Palin\\n12 that he either knew to be false, or at least was reckless as to whether\\n13 it was false. The PAC contains allegations that paint a plausible\\n14 picture of this actual‐malice scenario in three respects: (1) Bennet’s\\n15 background as an editor and political advocate provided sufficient\\n16 evidence to permit a jury to find that he published the editorial with\\n17 deliberate or reckless disregard for its truth, (2) the drafting and\\n18 editorial process also permitted an inference of deliberate or reckless\\n19 falsification, and (3) the Times’ subsequent correction to the editorial\\n20 did not undermine the plausibility of that inference.\\n\\n21 First, Palin alleges that, because of the editorial positions\\n22 Bennet held at The Atlantic and The New York Times, a jury could\\n23 plausibly find that Bennet knew before publishing the editorial that it\\n\\n\\n\\n\\n 27 Memorandum and Order denying Motion for Reconsideration, ECF No. 61.\\n 28 Elias, 872 F.3d at 104.\\n 29 App’x 472.\\n\\f 15 No. 17‐3801‐cv\\n\\n 1 was false to claim that Palin or her political action committee were\\n 2 connected to the Loughner shooting.\\n\\n 3 The PAC alleges that, from 2006 to 2016, Bennet was the editor‐\\n 4 in‐chief of The Atlantic, where “he was responsible for the content of,\\n 5 reviewed, edited and approved the publication of numerous articles\\n 6 confirming there was no link between Mrs. Palin and Loughner’s\\n 7 shooting.”30 The complaint references several articles about the\\n 8 Loughner shooting published by The Atlantic during Bennet’s tenure,\\n 9 the most notable of which is entitled “Ten Days That Defined 2011.”\\n10 The part of that article discussing the Loughner shooting reads: “. . .\\n11 the bad thing to come out of this already terrible story was a round of\\n12 blame hurling, with people rushing to point at Sarah Palin’s infamous\\n13 target map . . . . In truth, Loughner is clinically insane and this was\\n14 not really about politics at all.”31\\n\\n15 At the hearing, Bennet stated that he could not recall reading\\n16 those articles, and even if he had read them, he did not have them in\\n17 mind when he published the editorial. The district court, in rejecting\\n18 Palin’s theory as implausible, credited this testimony as truthful when\\n19 it found that Bennet’s failure to read the articles was simply a research\\n20 failure that did not rise to the level of actual malice.\\n\\n21 By crediting Bennet’s testimony, the district court rejected a\\n22 permissible inference from the articles: that one who had risen to\\n23 editor‐in‐chief at The Atlantic knew their content and thus that there\\n24 was no connection between Palin and the Loughner shooting. That\\n25 Palin’s complaint sufficiently alleges that Bennet’s opportunity to\\n\\n\\n 30 App’x 481.\\n 31 Richard Lawson, Ten Days That Defined 2011, The Atlantic, Dec. 29, 2011.\\n\\f 16 No. 17‐3801‐cv\\n\\n 1 know the journalistic consensus that the connection was lacking gives\\n 2 rise to the inference that he actually did know.\\n\\n 3 The PAC also includes allegations suggesting that Bennet in\\n 4 particular was more likely than the average editor‐in‐chief to know\\n 5 the truth about the Loughner shooting because he had reason to be\\n 6 personally hostile toward Palin, her political party, and her pro‐gun\\n 7 stance. Bennet’s brother, a Democrat, had served as a United States\\n 8 Senator for Colorado since 2009. In 2010, Senator Bennet was\\n 9 endorsed by two House members whose districts had been targeted\\n10 by the SarahPAC map. Two days before the Loughner shooting, a\\n11 man threatened to open fire on Senator Bennet’s offices, and\\n12 thereafter both Bennet brothers became “outspoken advocate[s] for\\n13 gun control.”32 Also, during the 2016 election, Palin endorsed Senator\\n14 Bennet’s opponent and Representative Giffords endorsed Senator\\n15 Bennet.\\n\\n16 The district court gave no weight to these allegations, finding\\n17 that political opposition did not rise to the level of actual malice. We\\n18 agree with the district court that political opposition alone does not\\n19 constitute actual malice, but we conclude that these allegations could\\n20 indicate more than sheer political bias—they arguably show that\\n21 Bennet had a personal connection to a potential shooting that\\n22 animated his hostility to pro‐gun positions at the time of the\\n23 Loughner shooting in 2011.33 Palin’s allegations are relevant to the\\n24 credibility of Bennet’s testimony that he was unaware of facts\\n\\n\\n 32 App’x 480.\\n\\n Cf. Jankovic v. Int’l Crisis Grp., 822 F.3d 576, 590 (D.C. Cir. 2016) (“[A]\\n 33\\n\\n newspaper’s motive in publishing a story . . . cannot provide a sufficient basis for\\n finding actual malice.” (quoting Harte‐Hanks Commc’ns, Inc. v. Connaughton, 491\\n U.S. 657, 665 (1989))).\\n\\f 17 No. 17‐3801‐cv\\n\\n 1 published on his watch relating to the Loughner shooting and that he\\n 2 made a mistake when he connected Palin to the that shooting. Palin’s\\n 3 allegations present a plausible inference that Bennet’s claim of\\n 4 memory loss is untrue.\\n\\n 5 At a minimum, these allegations give rise to a plausible\\n 6 inference that Bennet was recklessly disregarding the truth when he\\n 7 published the editorial without reacquainting himself with the\\n 8 contrary articles published in The Atlantic six years earlier.34 And that\\n 9 plausible inference of reckless disregard is strengthened when added\\n10 to Palin’s allegations that Bennet had reason to be personally biased\\n11 against Palin and pro‐gun positions in general. When properly\\n12 viewed in the plaintiff’s favor, a reasonable factfinder could conclude\\n13 this amounted to more than a mistake due to a research failure.\\n\\n14 Second, the PAC also alleges that certain aspects of the drafting\\n15 and publication process of the editorial at The New York Times permits\\n16 an inference of actual malice. Elizabeth Williamson, the editorial\\n17 writer who drafted the initial version of the editorial, had hyperlinked\\n18 in her draft an article entitled ”Sarah Palin’s ‘Crosshairs’ Ad Dominates\\n19 Gabrielle Giffords Debate.” The article stated, contrary to the claim in\\n20 the published editorial, that “[n]o connection” was made between the\\n21 SarahPAC map and Loughner.35 The link was also included in the\\n22 final version of the editorial, a version that Bennet essentially rewrote.\\n23 The Times argues that the hyperlink shows the absence of malice. But\\n\\n\\n\\n\\n See Behar, 238 F.3d at 173–74 (actual malice satisfied upon a showing the\\n 34\\n\\n statement was made “with reckless disregard of whether it was false or not”\\n (internal quotation marks omitted)).\\n 35 App’x 642–43.\\n\\f 18 No. 17‐3801‐cv\\n\\n 1 the PAC alleges that, by including a hyperlink that contradicted the\\n 2 argument of his editorial, Bennet “willfully disregarded the truth.”36\\n\\n 3 The district court, siding with the Times, concluded that\\n 4 including the hyperlinked article was further evidence of simple\\n 5 mistake. After crediting Bennet’s testimony that he did not read the\\n 6 hyperlinked article, the district judge concluded that a mistake was\\n 7 the only plausible explanation. But the inclusion of the hyperlinked\\n 8 article gives rise to more than one plausible inference, and any\\n 9 inference to be drawn from the inclusion of the hyperlinked article\\n10 was for the jury—not the court.\\n\\n11 Third, the district court concluded that the correction swiftly\\n12 issued by the Times again demonstrated that the only plausible\\n13 explanation for the erroneous statements was a mistake. Yet, it is also\\n14 plausible that the correction was issued after a calculus that standing\\n15 by the editorial was not worth the cost of the public backlash. Bennet\\n16 could have published the editorial knowing—or recklessly\\n17 disregarding—the falsity of the claim, and then decided later that the\\n18 false allegation was not worth defending.\\n\\n19 At bottom, it is plain from the record that the district court\\n20 found Bennet a credible witness, and that the district court’s crediting\\n21 his testimony impermissibly anchored the district court’s own\\n22 negative view of the plausibility of Palin’s allegations.\\n\\n23 The district court at one point stated that Bennet’s “behavior is\\n24 much more plausibly consistent with making an unintended mistake\\n25 and then correcting it than with acting with actual malice.”37 Perhaps\\n\\n\\n 36 App’x 494.\\n 37 Palin, 264 F. Supp. 3d at 537 (emphasis added).\\n\\f 19 No. 17‐3801‐cv\\n\\n 1 so, but it is not the district court’s province to dismiss a plausible\\n 2 complaint because it is not as plausible as the defendant’s theory. The\\n 3 test is whether the complaint is plausible, not whether it is less\\n 4 plausible than an alternative explanation.38 The jury may ultimately\\n 5 agree with the district court’s conclusion that Bennet was credible—\\n 6 but it is the jury that must decide. Therefore, at the pleading stage, we\\n 7 are satisfied that Palin has met her burden to plead facts giving rise\\n 8 to the plausible inference that Bennet published the allegedly\\n 9 defamatory editorial with actual malice. We emphasize that actual\\n10 malice does not mean maliciousness or ill will; it simply means the\\n11 statement was “made with knowledge that it was false or with\\n12 reckless disregard of whether it was false or not.”39 Here, given the\\n13 facts alleged, the assertion that Bennet knew the statement was false,\\n14 or acted with reckless disregard as to whether the statement was false,\\n15 is plausible.\\n\\n16 The Times also argues that Palin failed to plausibly allege two\\n17 other elements of a defamation claim: (1) that the editorial is not “of\\n18 and concerning”40 Palin and (2) the challenged statements cannot\\n19 reasonably be understood as assertions of provably false fact. The\\n\\n\\n\\n\\n See Iqbal, 556 U.S. at 678 (“The plausibility standard is not akin to a\\n 38\\n\\n probability requirement . . . .”) (internal quotation marks omitted).\\n\\n Behar, 238 F.3d at 174 (internal quotation marks omitted); see id. (“The\\n 39\\n\\n reckless conduct needed to show actual malice is not measured by whether a\\n reasonably prudent man would have published, or would have investigated\\n before publishing, but by whether there is sufficient evidence to permit the\\n conclusion that the defendant in fact entertained serious doubts as to the truth of\\n his publication.” (internal quotation marks and citation omitted)).\\n 40 See Elias, 872 F.3d at 104.\\n\\f 20 No. 17‐3801‐cv\\n\\n 1 district court considered and rejected both of these arguments, and\\n 2 we agree.\\n\\n 3 First, Palin has plausibly alleged that the challenged statements\\n 4 are “of and concerning” her.41 The Times argues that SarahPAC, as a\\n 5 political action committee, is a creature of federal law and entirely\\n 6 distinct from Palin herself. At the pleading stage, however, the bar to\\n 7 satisfy this element is low. As we held in Elias, the plaintiff “need only\\n 8 plead sufficient facts to make it plausible—not probable or even\\n 9 reasonably likely—that a reader familiar with [the plaintiff] would\\n10 identify [the plaintiff] as the subject of the statements at issue.”42\\n\\n11 Palin’s allegations are more than sufficient to plausibly allege\\n12 that the challenged statements were “of and concerning” her. The\\n13 editorial refers to Palin specifically—“Sarah Palin’s political action\\n14 committee.”43 The legal designation of a political action committee\\n15 under federal law notwithstanding, Palin has plausibly pleaded that\\n16 a reader would identify her as the subject of the statements. The\\n17 Times’ arguments to the contrary are unpersuasive.\\n\\n18 Second, the Times argues that we can also affirm the district\\n19 court because the challenged statements are not reasonably capable\\n20 of being proven false.44 The Times claims that Loughner’s motivations\\n\\n\\n Id. (“[A] defamation plaintiff must allege that the purportedly defamatory\\n 41\\n\\n statement was of and concerning him or her . . . .” (internal quotation marks\\n omitted)).\\n 42 Id. at 105 (citing Iqbal, 556 U.S. at 678).\\n 43 App’x 37.\\n\\n See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19–20 (1990); see also Celle, 209\\n 44\\n\\n F.3d at 178 (noting that under New York law differentiating opinion from\\n actionable fact involves “a determination of whether the statement is capable of\\n\\f 21 No. 17‐3801‐cv\\n\\n 1 are ultimately unknowable and speculative. This objection also goes\\n 2 nowhere. We agree with the district court that a reasonable reader\\n 3 could view the challenged statements as factual, namely that Palin,\\n 4 through her political action committee, was directly linked to the\\n 5 Loughner shooting. The social media backlash that precipitated the\\n 6 correction further suggests that the Times’ readers perceived the false\\n 7 statements as fact‐based.\\n\\n 8 We conclude by recognizing that First Amendment protections\\n 9 are essential to provide “breathing space” for freedom of expression.45\\n10 But, at this stage, our concern is with how district courts evaluate\\n11 pleadings. Nothing in this opinion should therefore be construed to\\n12 cast doubt on the First Amendment’s crucial constitutional\\n13 protections. Indeed, this protection is precisely why Palin’s\\n14 evidentiary burden at trial—to show by clear and convincing\\n15 evidence that Bennet acted with actual malice—is high. At the\\n16 pleading stage, however, Palin’s only obstacle is the plausibility\\n17 standard of Twombly and Iqbal. She has cleared that hurdle.\\n\\n18 Naturally, we take no position on the merits of Palin’s claim.\\n\\n19 CONCLUSION\\n\\n20 For the reasons stated above, we VACATE and REMAND the\\n21 judgment of the district court for further proceedings consistent with\\n22 this opinion.\\n\\n\\n\\n\\n being objectively characterized as true or false” (internal quotation marks\\n omitted)).\\n 45 New York Times, 376 U.S. at 271–72.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4549,"cells":{"id":{"kind":"number","value":4670749,"string":"4,670,749"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Arrington"},"decision_date":{"kind":"string","value":"2019-10-18"},"docket_number":{"kind":"string","value":"17-4092-cr"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: 24 25 LYNCH and LOHIER, Circuit Judges, and COGAN, District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"LOHIER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17‐4092‐cr\\n United States v. Arrington\\n 1 UNITED STATES COURT OF APPEALS\\n 2 FOR THE SECOND CIRCUIT\\n 3\\n 4 August Term, 2018\\n 5\\n 6 (Argued: May 29, 2019 Decided: October 18, 2019)\\n 7\\n 8 Docket No. 17‐4092‐cr\\n 9\\n10 _____________________________________\\n11\\n12 UNITED STATES OF AMERICA,\\n13\\n14 Appellee,\\n15\\n16 v.\\n17\\n18 RODERICK ARRINGTON,\\n19\\n20 Defendant‐Appellant.*\\n21 _____________________________________\\n22\\n23 Before:\\n24\\n25 LYNCH and LOHIER, Circuit Judges, and COGAN, District Judge.**\\n26\\n27 Roderick Arrington appeals from a judgment of conviction entered\\n28 after a jury trial in the United States District Court for the Western District of\\n29 New York (Arcara, J.). We conclude that the trial evidence was sufficient to\\n30 support each count of conviction, including Arrington’s convictions for\\n31 murder and attempted murder in aid of racketeering under 18 U.S.C. § 1959.\\n32 We also conclude, however, that Arrington’s Sixth Amendment right to\\n33 effective assistance of counsel was violated when the District Court failed to\\n34 ensure that Arrington understood the full scope of the consequences arising\\n\\n * The Clerk of Court is directed to amend the official caption to conform with the\\n above.\\n ** Judge Brian M. Cogan of the United States District Court for the Eastern District of\\n\\n New York, sitting by designation.\\n\\f 1 from his counsel’s conflict of interest, including the disadvantages of a trial\\n 2 severance that counsel proposed. We therefore VACATE Arrington’s\\n 3 conviction and REMAND to the District Court for a new trial.\\n 4\\n 5 ANDREW LEVCHUK, Amherst, MA, for Defendant‐\\n 6 Appellant Roderick Arrington.\\n 7\\n 8 WEI XIANG, Assistant United States Attorney (Mary\\n 9 C. Baumgarten, Assistant United States Attorney, on\\n10 the brief), for James P. Kennedy, Jr., United States\\n11 Attorney for the Western District of New York,\\n12 Buffalo, NY, for Appellee United States of America.\\n13\\n14 LOHIER, Circuit Judge:\\n\\n15 Roderick Arrington appeals from a judgment of conviction entered\\n\\n16 after a jury trial in the United States District Court for the Western District of\\n\\n17 New York (Arcara, J.). We conclude that the trial evidence was sufficient to\\n\\n18 support each count of conviction, including Arrington’s convictions for\\n\\n19 murder and attempted murder in aid of racketeering under 18 U.S.C. § 1959.\\n\\n20 We also conclude, however, that Arrington’s Sixth Amendment right to\\n\\n21 effective assistance of counsel was violated when the District Court failed to\\n\\n22 ensure that Arrington understood the full scope of the consequences arising\\n\\n23 from his counsel’s conflict of interest, including the disadvantages of a trial\\n\\n24 severance that counsel proposed. We therefore vacate Arrington’s conviction\\n\\n25 and remand to the District Court for a new trial.\\n\\n\\n 2\\n\\f 1 BACKGROUND\\n\\n 2 Because this is an appeal from a judgment of conviction entered after a\\n\\n 3 jury trial and Arrington challenges the sufficiency of the evidence against\\n\\n 4 him, the following facts are drawn from the trial evidence and described in\\n\\n 5 the light most favorable to the Government. See United States v. Caltabiano,\\n\\n 6 871 F.3d 210, 218 (2d Cir. 2017).\\n\\n 7 A. The “Schuele Boys” and Arrington’s Role\\n\\n 8 This case centers on the drug trafficking of a violent gang operating\\n\\n 9 principally in a neighborhood on the east side of the City of Buffalo. The\\n\\n10 Government refers to the members of the gang as “the Schuele Boys,” after\\n\\n11 Schuele Avenue, a street in the neighborhood. Gov’t App’x 66–67. The\\n\\n12 Schuele Boys—including Arrington, his co‐defendants Aaron Hicks, Marcel\\n\\n13 Worthy, and LeTorrance Travis, and witnesses Jerome Grant and Demario\\n\\n14 James—grew up together in the neighborhood.\\n\\n15 Arrington’s trial focused largely on the group’s drug trafficking starting\\n\\n16 around 2010. Some Schuele Boys members arranged to transport kilograms of\\n\\n17 cocaine and marijuana to Buffalo through “traps” in vehicles or through\\n\\n18 shipped parcels. Hicks, Travis, and Worthy were responsible for distributing\\n\\n 3\\n\\f 1 the cocaine and marijuana when it arrived in Buffalo. Another Schuele Boys\\n\\n 2 member and co‐defendant, Julio Contreras, invested some of the drug\\n\\n 3 proceeds in G.O.N.E. Entertainment, a record label incorporated by Hicks that\\n\\n 4 promoted Schuele Boys associate Sandy Jones. Two music videos produced\\n\\n 5 by G.O.N.E. starred Jones, included scenes with Arrington, Hicks, Travis,\\n\\n 6 Worthy, and other Schuele Boys members, and contained lyrics that\\n\\n 7 referenced drug trafficking, drug proceeds, guns, and violence committed to\\n\\n 8 protect the drug business.\\n\\n 9 Arrington appears to have been only peripherally involved in the\\n\\n10 group’s core drug distribution activities. For example, Arrington was present\\n\\n11 when Grant and others broke down a forty‐pound bale of marijuana for sale.\\n\\n12 Grant also testified that Arrington sold him marijuana in 2001 and cocaine in\\n\\n13 2013. And in 2014 the police executed a warrant to search Arrington’s\\n\\n14 mother’s house, where Arrington had been staying, and found heroin, drug\\n\\n15 paraphernalia, and a loaded handgun.\\n\\n16 But violence played an important part in protecting the Schuele Boys\\n\\n17 and their territory for drug dealing in the neighborhood, and it is Arrington’s\\n\\n18 role as an “enforcer” that is a central focus of our sufficiency review. At trial,\\n\\n 4\\n\\f 1 the Government repeatedly described Arrington as an “enforcer” or as\\n\\n 2 “muscle” for the Schuele Boys. See, e.g., Gov’t App’x 102–03, 108, 1077, 1086,\\n\\n 3 1091–92, 1102. Grant testified that Arrington once expressed his frustration\\n\\n 4 with wearing an ankle monitor because he wanted to “tak[e] hits,” which\\n\\n 5 Grant understood to mean that Arrington wanted to kill on behalf of others.\\n\\n 6 Gov’t App’x 531, 533. Arrington also offered to kill people for Grant. And\\n\\n 7 James testified that Arrington offered, for a discounted price reserved for\\n\\n 8 close friends or relatives, to “take care of” someone who had robbed James.\\n\\n 9 Gov’t App’x 636.\\n\\n10 B. The Murder of Quincy Balance and Attempted Murder of Damon\\n11 Hunter\\n12\\n13 Arrington’s role as an “enforcer” for the Schuele Boys was on full\\n\\n14 display in August 2012. On August 26, 2012, Schuele Boys member and drug\\n\\n15 dealer Walter “Matt” Davison—Hicks’s best friend—was shot and killed. In\\n\\n16 the immediate aftermath of Davison’s murder, Arrington and other Schuele\\n\\n17 Boys members talked about two individuals that they believed were involved\\n\\n\\n\\n\\n 5\\n\\f 1 in Davison’s killing. Arrington was armed with guns at that gathering. Later,\\n\\n 2 at Davison’s wake, the same group vowed to kill whoever had killed Davison.\\n\\n 3 Four days after Davison’s death, on August 30, 2012, Quincy Balance\\n\\n 4 and Damon Hunter approached Hicks in the Schuele neighborhood to\\n\\n 5 convince Hicks that they were not responsible for Davison’s death, as Hunter\\n\\n 6 had been previously warned that “someone was after” Hunter and Balance\\n\\n 7 for killing Davison. Gov’t App’x 977. Moments after Balance started talking\\n\\n 8 with Hicks, Arrington emerged from “the other side of the street.” Id. at 988.\\n\\n 9 Balance approached Arrington, apparently intending to explain that he had\\n\\n10 not killed Davison. Arrington then pulled out a pistol and shot Balance dead.\\n\\n11 Hunter heard the shots and yelled at Arrington that he had nothing to do\\n\\n12 with Davison’s death. Hunter then dropped to the ground unharmed, rolled\\n\\n13 under a truck, and began running away as shots flew past him.\\n\\n14 Arrington was later arrested at this mother’s house on October 31, 2014.\\n\\n15 After his arrest and detention for murder, Arrington made a number of\\n\\n16 incriminating statements and engaged in some conduct evincing\\n\\n17 consciousness of guilt. For example, in early 2015, Arrington repeatedly\\n\\n18 asked Grant whether he had spoken with law enforcement. Additionally,\\n\\n 6\\n\\f 1 Arrington told Grant, with apparent relief, that Hunter had given his\\n\\n 2 assurance that he was not cooperating against Arrington about “shooting”\\n\\n 3 Balance. Gov’t App’x 500, 504–08. Arrington also wrote a note to a friend\\n\\n 4 pressuring him not to cooperate and directing the friend to tear up the note\\n\\n 5 after reading it.\\n\\n 6 C. Procedural History\\n\\n 7 On June 19, 2015, the Government filed a superseding indictment\\n\\n 8 against Arrington, Hicks, Worthy, Travis, and Contreras. Arrington was\\n\\n 9 charged with twelve counts: racketeering conspiracy in violation of 18 U.S.C.\\n\\n10 § 1962(d); narcotics conspiracy in violation of 21 U.S.C. § 846; possession of a\\n\\n11 firearm in furtherance of a crime of violence and drug trafficking crime in\\n\\n12 violation of 18 U.S.C. § 924(c)(1)(A)(i); murder in aid of racketeering activity\\n\\n13 in violation of 18 U.S.C. § 1959(a)(1); two counts of discharge of a firearm in\\n\\n14 furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii);\\n\\n15 discharge of a firearm in furtherance of a crime of violence, resulting in\\n\\n16 murder, in violation of 18 U.S.C. § 924(j)(1); attempted murder in aid of\\n\\n17 racketeering activity in violation of 18 U.S.C. § 1959(a)(5); possession of heroin\\n\\n18 with intent to distribute in violation of 21 U.S.C. § 841(a)(1); maintaining\\n\\n 7\\n\\f 1 drug‐involved premises in violation of 21 U.S.C. § 856(a)(1); possession of a\\n\\n 2 firearm in furtherance of drug trafficking crimes in violation of 18 U.S.C.\\n\\n 3 § 924(c)(1)(A)(i); and possession of a firearm and ammunition by a convicted\\n\\n 4 felon in violation of 18 U.S.C. § 922(g)(1).\\n\\n 5 1. Pretrial Proceedings\\n\\n 6 On April 22, 2016, Arrington’s trial attorney, Andrew LoTempio,\\n\\n 7 disclosed to the District Court his ongoing representation in a separate but\\n\\n 8 related case of Michael Robertson, who had been mentioned in certain\\n\\n 9 discovery documents. A magistrate judge (Scott, M.J.) held a hearing in\\n\\n10 accordance with United States v. Curcio, 680 F.2d 881 (2d Cir. 1982), to\\n\\n11 determine whether or not a conflict of interest existed, and appointed\\n\\n12 independent Curcio counsel for Arrington. After conferring with Arrington,\\n\\n13 Curcio counsel recommended that Magistrate Judge Scott not find a conflict\\n\\n14 of interest with respect to LoTempio’s representation of Robertson. The\\n\\n15 Magistrate Judge then granted LoTempio’s motion to withdraw his\\n\\n16 representation of Robertson and accepted Arrington’s in‐court waiver of a\\n\\n17 potential conflict related to LoTempio’s representation of Robertson. At the\\n\\n18 hearing, LoTempio disclosed that he previously also represented Hicks “in\\n\\n 8\\n\\f 1 unrelated criminal matters.” Dist. Ct. Dkt. No. 92. We see no record of any\\n\\n 2 further discussion of LoTempio’s prior representation of Hicks that day.\\n\\n 3 On September 14, 2016, Arrington, represented by LoTempio, moved to\\n\\n 4 sever his trial from that of his co‐defendants, and, on October 11, 2016,\\n\\n 5 requested an immediate trial. In his severance motion, Arrington, relying\\n\\n 6 primarily on Bruton v. United States, 391 U.S. 123 (1968), said that his co‐\\n\\n 7 defendants’ post‐arrest statements and confessions might implicate him. That\\n\\n 8 motion was denied. Almost a year later, on August 28 and August 31, 2017,\\n\\n 9 respectively, Travis and Contreras pled guilty, leaving Arrington, Hicks, and\\n\\n10 Worthy set to proceed to trial on September 11, 2017.\\n\\n11 On September 3, 2017, roughly one week before trial, Hicks filed a\\n\\n12 motion urging the District Court to find that LoTempio had an actual conflict\\n\\n13 of interest stemming from his prior representation of Hicks in a state court\\n\\n14 matter referenced as an overt act in the superseding indictment. The overt\\n\\n15 act, which the Government alleged was committed in furtherance of the\\n\\n16 racketeering enterprise, related to Hicks’s retrieval of a box containing thirty‐\\n\\n17 three pounds of marijuana in 2014. Hicks’s trial attorney, Robert Ross Fogg,\\n\\n\\n\\n\\n 9\\n\\f 1 asserted that LoTempio’s conflict of interest was unwaivable and, in any\\n\\n 2 event, that Hicks refused to waive it.\\n\\n 3 2. The Curcio Hearing\\n\\n 4 On September 5 and 6, the District Court (Arcara, J.) held a Curcio\\n\\n 5 hearing to address the conflict arising from LoTempio’s prior representation\\n\\n 6 of Hicks. Arrington was in the courtroom at the start of the hearing on the\\n\\n 7 first day, as were LoTempio, Fogg, and Hicks. The District Court informed\\n\\n 8 Arrington that he had “a very strong interest in having Mr. LoTempio cross‐\\n\\n 9 examine all the witnesses against [him] aggressively to try to challenge the\\n\\n10 believability or the credibility or the reliability of the witnesses.” Joint App’x\\n\\n11 260. Because LoTempio also owed a duty to Hicks, the District Court\\n\\n12 explained, LoTempio could not use information he had learned while\\n\\n13 representing Hicks, and therefore “might not be able to represent [Arrington]\\n\\n14 as zealously as he should by aggressively cross‐examining witnesses of events\\n\\n15 that happen[ed] in 2014,” Joint App’x 261, and might “have to pull some\\n\\n16 punches . . . because of his loyalty to . . . Hicks,” Joint App’x 262–63.\\n\\n17 LoTempio confirmed that he could not use any information from Hicks’s\\n\\n18 earlier case to cross‐examine Hicks. Joint App’x 263–64. In response to these\\n\\n 10\\n\\f 1 warnings, Arrington repeatedly said that he understood the nature of the\\n\\n 2 conflict. The District Court then apprised Arrington of his right to a conflict‐\\n\\n 3 free lawyer, assigned independent Curcio counsel to advise Arrington,\\n\\n 4 instructed Arrington that he could discuss whether or not to waive the\\n\\n 5 conflict with both Curcio counsel and LoTempio, and gave Arrington ample\\n\\n 6 time to decide. Arrington and his Curcio counsel then left the courtroom to\\n\\n 7 discuss the issues in another room.\\n\\n 8 Unfortunately, the District Court continued to discuss the nature of the\\n\\n 9 conflict with LoTempio and Fogg while Arrington was outside the courtroom.\\n\\n10 Fogg argued that LoTempio should be disqualified because Hicks would be\\n\\n11 less likely to testify in his own defense if LoTempio, his former lawyer, could\\n\\n12 cross‐examine him. LoTempio responded that “it would put me in an awful\\n\\n13 predicament if [Hicks] took the stand and it would probably be more of a\\n\\n14 severance issue than me being removed.” Joint App’x 268. This was the first\\n\\n15 time anyone mentioned severing the trials of Arrington and Hicks as a\\n\\n16 solution to LoTempio’s conflict of interest. In response, the District Court\\n\\n17 suggested that severance might make “the issue go[] away.” Joint App’x 272.\\n\\n\\n\\n\\n 11\\n\\f 1 The next day, September 6, the District Court finished its Curcio\\n\\n 2 colloquy with Arrington and, based on Curcio counsel’s representations,\\n\\n 3 accepted Arrington’s waiver of the conflict and adjourned. Later that day, the\\n\\n 4 District Court held a separate proceeding to deal with Hicks’s motion to\\n\\n 5 disqualify LoTempio. Although LoTempio was present virtually throughout,\\n\\n 6 the record suggests that Arrington was not even in the courtroom and did not\\n\\n 7 otherwise participate in this proceeding.1 In any event, the District Court\\n\\n 8 never addressed Arrington about LoTempio’s request for a severance (or\\n\\n 9 anything else) during the proceeding even though it significantly affected\\n\\n10 Arrington.\\n\\n11 The proceeding started with Fogg again arguing that Hicks would be\\n\\n12 less likely to testify because of LoTempio’s conflict, that the conflict was not\\n\\n13 waivable, and that disqualifying LoTempio was the only appropriate remedy.\\n\\n14 Severance, Fogg added, was not in his client’s best interest.\\n\\n15 Because it framed the District Court’s decision to sever the trials, we\\n\\n16 quote LoTempio’s response at length:\\n\\n\\n 1 It is helpful for appellate review for the minute entry on the docket (or for the\\n transcript of proceedings) to indicate that a criminal defendant is present in the\\n courtroom.\\n 12\\n\\f 1 Now, I don’t know [what Hicks will say]. If he\\n 2 [inculpates Arrington], then I owe a duty to Mr. Arrington\\n 3 to go after Mr. Hicks and impeach him and cross‐examine\\n 4 him with everything I have at my abilities. And you know,\\n 5 it would be hard for me to separate what I know from . . .\\n 6 what Mr. Hicks may or may not have told me when I\\n 7 represented him during the overt act in this.\\n 8 So, the Canons of Ethics basically start with the idea\\n 9 that I can’t represent either one of them. And then it goes\\n10 on to say that, depending on how related the matters are,\\n11 increases the prohibition. And here, they’re definitely\\n12 related to one another. The two cases, they’re inextricably\\n13 interwoven. They’re part and parcel of the charges.\\n14 And then the question then becomes, can\\n15 [Arrington] consent? And it talks about cases where he\\n16 can’t even consent because the temptation of a lawyer\\n17 serving both people is so grave that there shouldn’t even\\n18 be consent. So, I think, at this point—I don’t know that it’s\\n19 appropriate to kick me off the case. I think that the\\n20 appropriate remedy, at this point, would be to grant a\\n21 severance.\\n22 And then, only if Mr. Hicks cooperates with the\\n23 government in a separate trial against Mr. Arrington\\n24 would this issue come up again. If he doesn’t cooperate,\\n25 then he’s removed from . . . Mr. Arrington’s case, and I\\n26 never have to cross‐examine him and I’m never tempted to\\n27 use information that he gave to me and it becomes a moot\\n28 point. If he does cooperate, then we’re kind of kicking the\\n29 can down the road, but you’re still giving – at least giving\\n30 Mr. Arrington an opportunity to keep the attorney of his\\n31 choice.\\n32 So, I think that this case would come back on appeal\\n33 if we don’t at least do a severance. I guess that’s my\\n34 opinion, for what it’s worth. And I’m asking that you do\\n35 that, because otherwise, I’m being put in a predicament\\n\\n 13\\n\\f 1 where I am going to almost have to choose between Mr.\\n 2 Arrington and my duty to—that’s still left over to my\\n 3 former client, which is to not talk about things or confront\\n 4 him with things that I may or may not remember. I’m\\n 5 being put in an awful position.\\n 6\\n 7 ....\\n 8\\n 9 So, at this late stage, I think that the—I would like to\\n10 represent Mr. Arrington and continue to do that. And I\\n11 think the only way that that can happen, without me\\n12 violating my former client’s rights, is if we’re given a\\n13 separate trial. And I don’t care if I go first. I’m ready to try\\n14 the case. I’ll go first, if you want. Doesn’t matter to me.\\n15\\n16 Joint App’x 302–05.\\n\\n17 LoTempio’s proposal did not go over well with the other parties. Fogg\\n\\n18 continued to strongly oppose severance, while the Government disputed that\\n\\n19 severance would resolve the conflict because Arrington could still call Hicks\\n\\n20 as a witness in his own case. But the District Court was concerned about\\n\\n21 delaying trial, and it ultimately agreed to sever the trials and to immediately\\n\\n22 try Arrington and Worthy.\\n\\n23 3. Arrington’s Trial and the Jury Verdict\\n\\n24 Trial started on September 11, 2017. Worthy pled guilty on the first\\n\\n25 morning of jury selection, leaving Arrington to be tried alone. During trial, it\\n\\n\\n 14\\n\\f 1 became abundantly clear that Arrington killed Balance and tried to shoot\\n\\n 2 Hunter. For example, Worthy confirmed that Arrington shot Balance and\\n\\n 3 tried to shoot Hunter. Another witness, Ja’Quan Johnson, testified that\\n\\n 4 Arrington shot Balance, and that in the days leading up to the shooting,\\n\\n 5 Arrington asked people in the neighborhood about Balance’s whereabouts.\\n\\n 6 Arrington’s defense at trial focused on the Government’s limited\\n\\n 7 evidence that Arrington participated in the Schuele Boys’ drug dealing or\\n\\n 8 acted as their “enforcer.” Arrington consequently argued that because no\\n\\n 9 conspiracy or racketeering enterprise existed under federal law, any murder\\n\\n10 charges against him should have instead proceeded in state court.\\n\\n11 The trial lasted nine days. During the first full day of jury\\n\\n12 deliberations, one juror alerted the District Court that he knew one of the\\n\\n13 victims of a shooting mentioned at trial and said that his personal knowledge\\n\\n14 might impair his ability to deliberate. The District Court denied Arrington’s\\n\\n15 motion for a mistrial, replaced the juror with an alternate, and instructed the\\n\\n\\n\\n\\n 15\\n\\f 1 jury to “start all over again” and “disregard your earlier deliberations.” Gov’t\\n\\n 2 App’x 1243–44, 1248–49, 1254.\\n\\n 3 A few hours later, the reconstituted jury convicted Arrington on Counts\\n\\n 4 1 through 8: racketeering conspiracy (Count 1), narcotics conspiracy (Count\\n\\n 5 2), possession of firearms in furtherance of a crime of violence or drug\\n\\n 6 trafficking crime (Count 3), murder in aid of racketeering activity (Count 4),\\n\\n 7 two counts of discharge of a firearm in furtherance of crimes of violence\\n\\n 8 (Counts 5 and 8), discharge of a firearm causing death in furtherance of a\\n\\n 9 crime of violence (Count 6), and attempted murder in aid of racketeering\\n\\n10 activity (Count 7). The jury acquitted Arrington of the four remaining drug or\\n\\n11 gun possession charges.\\n\\n12 4. Hicks’s Trial and Retrial\\n\\n13 Hicks’s trial took place shortly after Arrington’s. Testifying in his own\\n\\n14 defense, Hicks denied the existence of the Schuele Boys enterprise, denied\\n\\n15 knowing why Balance was killed, and claimed that he did not see Arrington\\n\\n16 at the scene of Balance’s murder. Hicks confirmed that Balance and Hunter\\n\\n\\n\\n\\n 16\\n\\f 1 told him that they did not kill Davison; but Hicks also testified that Balance\\n\\n 2 told him that Hunter was responsible.\\n\\n 3 A jury convicted Hicks of narcotics conspiracy, acquitted him of\\n\\n 4 possession of a firearm in furtherance of a crime of violence or drug\\n\\n 5 trafficking offense, and deadlocked on the racketeering conspiracy charge.\\n\\n 6 The Government retried Hicks on the racketeering conspiracy charge, and the\\n\\n 7 second jury convicted him. Hicks did not testify at his second trial.\\n\\n 8 5. Arrington’s Post‐Trial Motions and Sentencing\\n\\n 9 Arrington filed a motion for acquittal under Federal Rule of Criminal\\n\\n10 Procedure 29, arguing principally that the evidence was insufficient to\\n\\n11 establish an enterprise, Arrington’s membership in the enterprise, his role in a\\n\\n12 drug conspiracy, or that Arrington killed Balance in furtherance of any\\n\\n13 enterprise. The District Court denied the motion, concluding that the\\n\\n14 evidence showed that Arrington knew of the conspiracy’s core racketeering\\n\\n15 activity and knowingly joined the conspiracy. Joint App’x 669–79. The\\n\\n16 District Court also found that the evidence established that the Schuele Boys\\n\\n17 were an association‐in‐fact enterprise in which Arrington held a position. The\\n\\n18 District Court pointed to the “overwhelming evidence” that Arrington\\n\\n 17\\n\\f 1 murdered Balance and attempted to murder Hunter and determined that a\\n\\n 2 reasonable jury could conclude that Arrington did so to maintain or promote\\n\\n 3 his position in the enterprise. Joint App’x 675.2 This appeal followed.\\n\\n 4 DISCUSSION\\n\\n 5 On appeal, Arrington makes three main arguments.\\n\\n 6 First, he challenges the sufficiency of the evidence supporting each\\n\\n 7 count of conviction.3 We conclude that the evidence, viewed in the light most\\n\\n 8 favorable to the Government, was sufficient to support each count of\\n\\n 9 conviction.\\n\\n10 Second, Arrington argues that his Sixth Amendment right to conflict‐\\n\\n11 free counsel was violated when the District Court failed to disqualify his trial\\n\\n12 counsel, or, alternatively, that the District Court failed to conduct a waiver\\n\\n13 colloquy that adequately informed Arrington of the nature of the conflict.\\n\\n\\n\\n\\n 2 The District Court did, however, vacate one of Arrington’s discharge convictions\\n (Count 5) as the lesser‐included offense of another (Count 6).\\n 3 Although we vacate Arrington’s conviction on other grounds discussed below, we\\n\\n address his sufficiency challenges because we would be required to direct the\\n District Court to enter a judgment of acquittal if there were insufficient evidence to\\n support conviction, instead of vacating the conviction and remanding for a new\\n trial. United States v. Rosemond, 841 F.3d 95, 113 (2d Cir. 2016).\\n 18\\n\\f 1 Because we agree that Arrington’s waiver was not knowing and intelligent,\\n\\n 2 we vacate Arrington’s conviction and remand for a new trial.\\n\\n 3 We therefore need not, and do not, reach Arrington’s third argument\\n\\n 4 that the District Court abused its discretion in replacing a juror for good cause\\n\\n 5 and refusing to grant a mistrial.\\n\\n 6 A. Sufficiency of the Evidence\\n\\n 7 We review sufficiency challenges de novo, considering the evidence in\\n\\n 8 its totality. United States v. Persico, 645 F.3d 85, 104 (2d Cir. 2011). We defer\\n\\n 9 to the jury’s choice between competing inferences reasonably drawn from the\\n\\n10 evidence. Id. In a criminal case, we will uphold the conviction if, “after\\n\\n11 viewing the evidence in the light most favorable to the prosecution, any\\n\\n12 rational trier of fact could have found the essential elements of the crime\\n\\n13 beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).\\n\\n14 1. Racketeering Conspiracy\\n\\n15 The conspiracy provision of the Racketeer Influenced and Corrupt\\n\\n16 Organizations Act (RICO), 18 U.S.C. § 1962(d), “proscribes an agreement to\\n\\n17 conduct or to participate in the conduct of [an] enterprise’s affairs through a\\n\\n18 pattern of racketeering activity.” United States v. Pizzonia, 577 F.3d 455, 462\\n\\n 19\\n\\f 1 (2d Cir. 2009). To prove a RICO conspiracy, the Government need not\\n\\n 2 establish the existence of an enterprise, United States v. Applins, 637 F.3d 59,\\n\\n 3 75 (2d Cir. 2011), or that the defendant committed any predicate act, United\\n\\n 4 States v. Yannotti, 541 F.3d 112, 129 (2d Cir. 2008). It need only prove that the\\n\\n 5 defendant knew of, and agreed to, the general criminal objective of a jointly\\n\\n 6 undertaken scheme. Applins, 637 F.3d at 75; see United States v. Zichettello,\\n\\n 7 208 F.3d 72, 99–100 (2d Cir. 2000).\\n\\n 8 Here, a reasonable jury could find beyond a reasonable doubt that\\n\\n 9 Arrington agreed with other members of the Schuele Boys to function as a\\n\\n10 unit for the common purpose of selling drugs. First, evidence at trial\\n\\n11 established that, while his personal participation was limited, Arrington knew\\n\\n12 that his associates were involved in the drug trafficking business. We note\\n\\n13 especially the evidence that Arrington offered James, a Schuele Boys member,\\n\\n14 a “family price” to retaliate against a robber who stole marijuana belonging to\\n\\n15 James. Gov’t App’x 636. We also note Arrington’s participation in the\\n\\n16 G.O.N.E. music videos. Second, based on the evidence we have already\\n\\n17 described, a reasonable jury could find beyond a reasonable doubt that\\n\\n18 Arrington murdered Balance and shot at Hunter in retaliation for Davison’s\\n\\n 20\\n\\f 1 murder and to protect the Schuele Boys’ drug trafficking business, although\\n\\n 2 the connection between the murder and the business itself is a close call. See\\n\\n 3 Yannotti, 541 F.3d at 122.\\n\\n 4 2. Narcotics Conspiracy\\n\\n 5 For largely the same reasons that the evidence was sufficient to support\\n\\n 6 Arrington’s conviction for RICO conspiracy, the evidence was also sufficient\\n\\n 7 to support his conviction for narcotics conspiracy. Arrington concedes the\\n\\n 8 existence of a drug conspiracy involving Hicks, Travis, Worthy, and others.\\n\\n 9 He simply denies that he joined the conspiracy. But a reasonable jury could\\n\\n10 have found that Arrington’s role and offers to serve as “muscle” assisted his\\n\\n11 co‐conspirators’ drug trafficking activities. See United States v. Hawkins, 547\\n\\n12 F.3d 66, 71 (2d Cir. 2008).\\n\\n13 3. Murder and Attempted Murder in Aid of Racketeering\\n\\n14 To convict Arrington for committing a violent crime in aid of\\n\\n15 racketeering under 18 U.S.C. § 1959, the Government had to establish that: (1)\\n\\n16 a racketeering enterprise existed; (2) the enterprise’s activities affected\\n\\n17 interstate commerce; (3) Arrington had a position in the enterprise; (4)\\n\\n18 Arrington committed a violent crime; and (5) Arrington committed the\\n\\n 21\\n\\f 1 violent crime, as relevant here, “for the purpose of . . . maintaining or\\n\\n 2 increasing position in [the] enterprise.” Id. § 1959(a); United States v.\\n\\n 3 Concepcion, 983 F.2d 369, 380–81 (2d Cir. 1992). On appeal, Arrington\\n\\n 4 challenges the sufficiency of the evidence supporting the first, third, and fifth\\n\\n 5 elements. We address each of Arrington’s challenges in turn.\\n\\n 6 a. The Existence of a Racketeering Enterprise\\n\\n 7 “[A]n association‐in‐fact enterprise is simply a continuing unit that\\n\\n 8 functions with a common purpose.” Boyle v. United States, 556 U.S. 938, 948\\n\\n 9 (2009); see also United States v. Pierce, 785 F.3d 832, 838–39 (2d Cir. 2015). As\\n\\n10 we explained above with respect to Arrington’s conviction for racketeering\\n\\n11 conspiracy, a reasonable jury could conclude from evidence of the\\n\\n12 relationship between Hicks, Travis, Worthy, Contreras, and others, and from\\n\\n13 their actions over a period of years, that the Schuele Boys were “a continuing\\n\\n14 unit that function[ed] with [the] common purpose” of selling drugs in and\\n\\n15 around their neighborhood on the east side of Buffalo. Boyle, 556 U.S. at 948.\\n\\n\\n\\n\\n 22\\n\\f 1 We therefore reject Arrington’s sufficiency challenge to the first element of his\\n\\n 2 conviction for committing a violent crime in aid of racketeering activity.\\n\\n 3 b. Arrington’s Position in a Racketeering Enterprise\\n\\n 4 Despite Arrington’s limited participation in the enterprise’s core drug\\n\\n 5 trafficking activity, for many of the same reasons that we conclude there was\\n\\n 6 sufficient evidence of Arrington’s agreement to participate in the RICO\\n\\n 7 conspiracy, we are also of the view that the evidence at trial was sufficient to\\n\\n 8 allow a reasonable jury to conclude that Arrington held a position within the\\n\\n 9 Schuele Boys enterprise. While Arrington’s position was, to be sure, a low\\n\\n10 and peripheral one, any position is enough. See United States v. Brady, 26\\n\\n11 F.3d 282, 290 (2d Cir. 1994). Arrington served as an enforcer for the Schuele\\n\\n12 Boys, able and willing to hurt people who crossed its members. Arrington’s\\n\\n13 role in the G.O.N.E. music videos and his activities while in jail also\\n\\n14 evidenced his membership in the Schuele Boys.\\n\\n15 c. The Motive Requirement\\n\\n16 As relevant here, § 1959 required the Government to prove that\\n\\n17 Arrington committed a crime of violence at least in part “for the purpose\\n\\n18 of . . . maintaining or increasing [his] position in” the Schuele Boys enterprise.\\n\\n 23\\n\\f 1 18 U.S.C. § 1959(a); see United States v. Pimentel, 346 F.3d 285, 295–96 (2d Cir.\\n\\n 2 2003); United States v. Thai, 29 F.3d 785, 817 (2d Cir. 1994). This motive\\n\\n 3 requirement is “satisfied if ‘the jury could properly infer that [Arrington]\\n\\n 4 committed his violent crime because he knew it was expected of him by\\n\\n 5 reason of his membership in the enterprise or that he committed it in\\n\\n 6 furtherance of that membership.’” Thai, 29 F.3d at 817 (quoting Concepcion,\\n\\n 7 983 F.2d at 381).\\n\\n 8 Arrington argues that there was insufficient evidence for the jury to\\n\\n 9 conclude that he killed Balance or tried to kill Hunter for the purpose of\\n\\n10 maintaining or promoting his position within the Schuele Boys group.\\n\\n11 Arrington does not dispute that Balance and Hunter were targeted to avenge\\n\\n12 Davison’s death and barely disputes the strong evidence that he shot them.\\n\\n13 See, e.g., Gov’t App’x 1128; Appellant’s Br. 35–36.4 The real question for us,\\n\\n14 then, is whether there was evidence from which a reasonable jury could\\n\\n15 conclude that Arrington committed either act in furtherance of, or as an\\n\\n\\n\\n\\n 4As the District Court recognized, the evidence of Arrington’s personal involvement\\n in the murder was overwhelming. Three eyewitnesses identified Arrington as the\\n shooter. See Gov’t App’x 562–75, 933–34, 989–92.\\n 24\\n\\f 1 integral aspect of, his role as an enforcer for the Schuele Boys. Although it is a\\n\\n 2 close call, the answer is yes.\\n\\n 3 At trial, some witnesses testified about the use of violence to protect the\\n\\n 4 Schuele Boys’ drug business. A few witnesses described Arrington’s offers to\\n\\n 5 serve as an enforcer for members of the Schuele Boys and to kill people on\\n\\n 6 their behalf either for free or at a discounted “family” price. And in the run‐\\n\\n 7 up to Balance’s murder, Arrington, armed, talked with Hicks, Worthy, and\\n\\n 8 others about killing whoever had killed Davison.\\n\\n 9 What gives us some pause about the evidence of Arrington’s\\n\\n10 motivation is that he appears to have been a peripheral member of the\\n\\n11 Schuele Boys. And his work for the group could suggest a financial or\\n\\n12 personal motivation as much as it does an effort to protect the group’s\\n\\n13 reputation or members. Urging that conclusion, Arrington points to our\\n\\n14 decisions in Thai and United States v. Bruno, 383 F.3d 65 (2d Cir. 2004), in\\n\\n15 which we vacated convictions under § 1959.\\n\\n16 Both cases are distinguishable. In Thai, the evidence showed that the\\n\\n17 defendant committed murder for “purely mercenary” reasons (money), rather\\n\\n18 than to protect his criminal organization or maintain his position within it. 29\\n\\n 25\\n\\f 1 F.3d at 818; accord United States v. Ferguson, 246 F.3d 129, 135–36 (2d Cir.\\n\\n 2 2001) (defendant was an outside hitman who did not belong to the gang).\\n\\n 3 And in Bruno, the defendant was motivated entirely by money and a personal\\n\\n 4 vendetta to commit a violent crime that served only to decrease his position\\n\\n 5 within the Genovese crime family. 383 F.3d at 84–85. Here, in contrast to\\n\\n 6 both Thai and Bruno, there is no evidence that Arrington was paid to avenge\\n\\n 7 Davison’s murder. Nor is there evidence, as the Government observes, that\\n\\n 8 Arrington harbored a motive for the shootings unrelated to his attachment to\\n\\n 9 the Schuele Boys. To the contrary, in this case, as in United States v. Burden,\\n\\n10 while “[p]ersonal beefs also may have been satisfied . . . the evidence\\n\\n11 supported a finding” that Arrington “engaged in violent acts because it was\\n\\n12 expected of [him] as . . . [a] member[] of the [enterprise].” 600 F.3d 204, 221\\n\\n13 (2d Cir. 2010).\\n\\n14 In arriving at this conclusion, we rely on the evidence that some\\n\\n15 Schuele Boys members believed that Davison, a fellow member, was killed\\n\\n16 during a drug robbery committed by Balance and Hunter. Such a robbery\\n\\n17 would have posed a direct threat to the Schuele Boys. We are also persuaded\\n\\n18 by evidence that Arrington’s plan to murder Balance and Hunter was hatched\\n\\n 26\\n\\f 1 with other Schuele Boys members, not alone. At Davison’s wake, for\\n\\n 2 example, Arrington talked with Schuele Boys members specifically about\\n\\n 3 killing Balance and Hunter. For these reasons, the jury properly could have\\n\\n 4 inferred that Arrington sought to avenge Davison’s murder on behalf of the\\n\\n 5 Schuele Boys and thereby confirm his position as an enforcer in the group—in\\n\\n 6 other words, that the shootings were not merely “an act of personal revenge”\\n\\n 7 but also “tied to [Arrington’s] racketeering activities.” United States v. James,\\n\\n 8 239 F.3d 120, 124 n.5 (2d Cir. 2000).\\n\\n 9 4. Firearms Counts\\n\\n10 In addition to challenging the racketeering and narcotics conspiracy\\n\\n11 charges against him, Arrington attacks his convictions on the firearms‐related\\n\\n12 charges (Counts 3, 5, 6, and 8) on the ground that the evidence was\\n\\n13 insufficient to support the predicate crimes of violence or drug trafficking\\n\\n14 (Counts 1, 2, 4, and 7). Because we reject those sufficiency arguments above,\\n\\n\\n\\n\\n 27\\n\\f 1 we also reject Arrington’s sufficiency challenge with respect to his firearms\\n\\n 2 convictions.\\n\\n 3 B. The Conflict of Interest in Representation\\n\\n 4 Although there was sufficient evidence to support Arrington’s counts\\n\\n 5 of conviction, we agree with Arrington that his waiver of LoTempio’s conflict\\n\\n 6 of interest was not knowing and intelligent. We therefore vacate Arrington’s\\n\\n 7 conviction.\\n\\n 8 1. Legal Background\\n\\n 9 The Sixth Amendment right to effective assistance of counsel “generally\\n\\n10 ensures that an accused may be represented by any attorney who will agree to\\n\\n11 take his case.” United States v. Perez, 325 F.3d 115, 124 (2d Cir. 2003). A\\n\\n12 defendant has a “’correlative right to representation that is free from conflicts\\n\\n13 of interest.’” Cardoza v. Rock, 731 F.3d 169, 183 (2d Cir. 2013) (quoting Wood\\n\\n14 v. Georgia, 450 U.S. 261, 271 (1981)).\\n\\n15 When a defendant’s right to choose the counsel he wants “conflicts with\\n\\n16 the right to an attorney of undivided loyalty, the choice as to which right is to\\n\\n17 take precedence must generally be left to the defendant.” Perez, 325 F.3d at\\n\\n18 125. But district courts have an “independent duty to ensure that criminal\\n\\n 28\\n\\f 1 defendants receive a trial that is fair and does not contravene the Sixth\\n\\n 2 Amendment.” Wheat v. United States, 486 U.S. 153, 161 (1988). For that\\n\\n 3 reason, “[w]hen a district court is sufficiently apprised of even the possibility\\n\\n 4 of a conflict of interest”—as the District Court was here—it has a threshold\\n\\n 5 obligation to “investigate the facts and details of the attorney’s interests to\\n\\n 6 determine whether the attorney in fact suffers from an actual conflict, a\\n\\n 7 potential conflict, or no genuine conflict at all.” United States v. Levy, 25 F.3d\\n\\n 8 146, 153 (2d Cir. 1994); see Perez, 325 F.3d at 125.\\n\\n 9 An attorney has an actual conflict “when, during the course of the\\n\\n10 representation, the attorney’s and defendant’s interests diverge with respect\\n\\n11 to a material factual or legal issue or to a course of action.” United States v.\\n\\n12 Schwarz, 283 F.3d 76, 91 (2d Cir. 2002) (quotation marks omitted). The\\n\\n13 attorney suffers from only a potential conflict when the “interests of the\\n\\n14 defendant may place the attorney under inconsistent duties at some time in\\n\\n15 the future.” Perez, 325 F.3d at 125 (quotation marks omitted).\\n\\n16 If the district court concludes that defense counsel has a genuine\\n\\n17 conflict, it has to determine whether the conflict is so severe as to require the\\n\\n18 attorney’s disqualification or whether it is a lesser conflict that can be waived\\n\\n 29\\n\\f 1 in a Curcio hearing. Levy, 25 F.3d at 153. In most cases where a defendant’s\\n\\n 2 attorney has a conflict, the defendant “may make a knowing and intelligent\\n\\n 3 waiver of his right to a conflict‐free lawyer if he desires to continue the\\n\\n 4 representation.” United States v. Cain, 671 F.3d 271, 293 (2d Cir. 2012). In\\n\\n 5 rare cases, an attorney’s conflict is unwaivable because it is so serious that “no\\n\\n 6 rational defendant . . . would have knowingly and intelligently desired” the\\n\\n 7 conflicted attorney’s representation, Perez, 325 F.3d at 127; see Cain, 671 F.3d\\n\\n 8 at 293; Schwarz, 283 F.3d at 95–97; United States v. Fulton, 5 F.3d 605, 613 (2d\\n\\n 9 Cir. 1993), or because, as we have also phrased it, the conflict is “so severe as\\n\\n10 to indicate per se that the rendering of effective assistance will be impeded,”\\n\\n11 Perez, 325 F.3d at 125. We have identified such “per se violation[s] of the\\n\\n12 Sixth Amendment” where the “defendant’s counsel was unlicensed, and\\n\\n13 when the attorney has engaged in the defendant’s crimes.” Fulton, 5 F.3d at\\n\\n14 611.\\n\\n15 Where an attorney suffers from a waivable actual or potential conflict,\\n\\n16 the district court must conduct a Curcio hearing to determine whether the\\n\\n17 defendant will knowingly and intelligently waive his right to conflict‐free\\n\\n18 representation. Curcio, 680 F.2d at 881‐91; Levy, 25 F.3d at 153. To ensure\\n\\n 30\\n\\f 1 that a defendant’s waiver is made knowingly and intelligently at the Curcio\\n\\n 2 hearing, the district court should: “(i) advise the defendant of the dangers\\n\\n 3 arising from the particular conflict; (ii) determine through questions that are\\n\\n 4 likely to be answered in narrative form whether the defendant understands\\n\\n 5 those risks and freely chooses to run them; and (iii) give the defendant time to\\n\\n 6 digest and contemplate the risks after encouraging him or her to seek advice\\n\\n 7 from independent counsel.” United States v. Iorizzo, 786 F.2d 52, 59 (2d Cir.\\n\\n 8 1986). In evaluating a district court’s fidelity to Curcio’s guidance, “we are\\n\\n 9 more concerned with whether the defendant appreciated his predicament and\\n\\n10 made a properly informed choice than we are with whether the trial judge\\n\\n11 recited any particular litany of questions.” United States v. Jenkins, 943 F.2d\\n\\n12 167, 176 (2d Cir. 1991). We also recognize that a district court must decide\\n\\n13 whether to allow a waiver of a conflict of interest “not with the wisdom of\\n\\n14 hindsight after the trial has taken place, but in the murkier pre‐trial context,”\\n\\n15 when the “likelihood and dimensions of nascent conflicts of interest are\\n\\n16 notoriously hard to predict.” Wheat, 486 U.S. at 162.\\n\\n17 On appeal, a defendant challenging his conviction on the ground that\\n\\n18 he was deprived of his Sixth Amendment right to effective assistance of\\n\\n 31\\n\\f 1 counsel as the result of a conflict must demonstrate, first, that the conflict was\\n\\n 2 either unwaivable or that his waiver was not knowing and intelligent, see\\n\\n 3 Schwarz, 283 F.3d at 95, and second, that he was prejudiced by the conflict,\\n\\n 4 see Levy, 25 F.3d at 152, in other words, that “but for counsel’s unprofessional\\n\\n 5 errors, the result of the proceeding would have been different,” Fulton, 5 F.3d\\n\\n 6 at 609 (quotation marks omitted). As for the second requirement, where the\\n\\n 7 conflict is potential we require that the defendant establish prejudice. Where\\n\\n 8 an actual conflict exists, however, we presume prejudice and require only that\\n\\n 9 the defendant show that “a lapse in representation . . . resulted from the\\n\\n10 conflict.” Iorizzo, 786 F.2d at 58 (quotation marks omitted). A lapse in\\n\\n11 representation means that some “plausible alternative defense strategy or\\n\\n12 tactic might have been pursued, and that the alternative defense was\\n\\n13 inherently in conflict with or not undertaken due to the attorney’s other\\n\\n14 loyalties or interests.” Levy, 25 F.3d at 157 (quotation marks omitted).\\n\\n\\n\\n\\n 32\\n\\f 1 2. Counsel’s Conflict\\n\\n 2 Arrington argues that LoTempio’s conflict was not waivable. If that\\n\\n 3 were right, then the District Court would have abused its discretion in\\n\\n 4 denying Hicks’s motion to disqualify LoTempio. See Schwarz, 283 F.3d at 95.\\n\\n 5 But we conclude that the two conflicts that arose from LoTempio’s prior\\n\\n 6 representation of Arrington’s co‐defendant were both waivable.\\n\\n 7 The first conflict arose from LoTempio’s duty to Hicks, his former\\n\\n 8 client, which compromised his ability to be a zealous advocate for Arrington.\\n\\n 9 LoTempio had represented Hicks with respect to one of the overt acts in the\\n\\n10 indictment, and he was therefore barred from using the fruits of that\\n\\n11 representation to benefit Arrington or from fully cross‐examining witnesses\\n\\n12 about related events. The effects of this conflict would have been magnified\\n\\n13 had Hicks testified in his own defense at a joint trial. See, e.g., United States\\n\\n14 v. Kliti, 156 F.3d 150, 154–55 (2d Cir. 1998); United States v. Leslie, 103 F.3d\\n\\n15 1093, 1098 (2d Cir. 1997); United States v. Lussier, 71 F.3d 456, 462 (2d Cir.\\n\\n16 1995); United States v. Malpiedi, 62 F.3d 465, 470 (2d Cir. 1995).\\n\\n17 Although LoTempio’s conflict compromised his ability to be a zealous\\n\\n18 advocate for Arrington, it was nonetheless waivable. See Perez 325 F.3d at\\n\\n 33\\n\\f 1 127–29; Iorizzo, 786 F.2d at 59; see also Lussier, 71 F.3d at 462. For one thing,\\n\\n 2 we have generally found that this type of conflict is waivable. See United\\n\\n 3 States v. Oberoi, 331 F.3d 44, 50 (2d Cir. 2003). For another thing, this first\\n\\n 4 conflict stemming from LoTempio’s prior representation was potential, not\\n\\n 5 actual; at the time the District Court severed the trials, it was not clear that\\n\\n 6 Hicks would testify or what he would say if he did. See Lussier, 71 F.3d at\\n\\n 7 462; see also Joint App’x 302.\\n\\n 8 The second, more serious conflict arose from Hicks’s refusal to waive\\n\\n 9 LoTempio’s conflict, LoTempio’s insistence on severing the trials, and\\n\\n10 LoTempio’s offer to have Arrington tried first. Recall that Hicks was\\n\\n11 concerned that LoTempio would draw from his prior representation of Hicks\\n\\n12 when cross‐examining Hicks if he testified. This put LoTempio in what he\\n\\n13 aptly called an “awful predicament.” Joint App’x 268. It could be reasonably\\n\\n14 inferred that LoTempio suggested a severance (something he had raised on\\n\\n15 different grounds about a year earlier and had not since revisited) in response\\n\\n16 to the “predicament” presented by Hicks’s disqualification motion. See Joint\\n\\n17 App’x 268, 303–04. During the Curcio hearing, LoTempio stated: “I would\\n\\n18 like to represent Mr. Arrington and continue to do that. And I think the only\\n\\n 34\\n\\f 1 way that that can happen, without me violating my former client’s rights, is if\\n\\n 2 we’re given a separate trial. And I don’t care if I go first. I’m ready to try the\\n\\n 3 case. I’ll go first, if you want. Doesn’t matter to me.” Joint App’x 304–05. By\\n\\n 4 proposing that Arrington be tried first, LoTempio surrendered the significant\\n\\n 5 strategic advantage of learning the Government’s evidence with respect to\\n\\n 6 Hicks in advance of or during Arrington’s trial. At that point, because\\n\\n 7 LoTempio’s interest and Arrington’s interest “diverge[d] with respect to a . . .\\n\\n 8 course of action,” LoTempio’s conflict was actual, not potential. Schwarz, 283\\n\\n 9 F.3d at 91 (quotation marks omitted).\\n\\n10 But even though this second conflict was actual, it was also waivable.\\n\\n11 See Perez, 325 F.3d at 125; compare Fulton, 5 F.3d at 612–13 (witness\\n\\n12 implicated defendant’s attorney in drug deal, which created a conflict that “so\\n\\n13 permeate[d] the defense that no meaningful waiver can be obtained”). Three\\n\\n14 reasons in particular compel this view. First, Arrington had no discernible\\n\\n15 right to proceed to trial with or after Hicks. See Zafiro v. United States, 506\\n\\n16 U.S. 534, 539–40 (1993). Second, LoTempio’s conflict primarily implicated his\\n\\n17 ethical obligation to Hicks, and while he had a financial interest in continuing\\n\\n18 to represent Arrington, that interest was not of sufficient magnitude to\\n\\n 35\\n\\f 1 establish an unawaivable conflict. See Perez, 325 F.3d at 126–27 (finding\\n\\n 2 attorney’s interest in standard retainer fee did not create unwaivable conflict\\n\\n 3 as it did not approach the exceptional financial self‐interest presented in\\n\\n 4 Schwarz); cf. Schwarz, 283 F.3d at 98; Fulton, 5 F.3d at 613 (attorney conflict\\n\\n 5 driven by counsel’s interest in “self‐preservation”).\\n\\n 6 And third, while there may be tactical advantages to being tried second\\n\\n 7 if a severance is granted, they are not necessarily so compelling as to create an\\n\\n 8 unwaivable conflict. A reasonable defendant may decide to retain a trusted\\n\\n 9 attorney, even at the risk of losing those advantages, after being properly\\n\\n10 informed of the risks and benefits of severance. We therefore cannot say\\n\\n11 under the circumstances that “no rational defendant would knowingly and\\n\\n12 intelligently desire the conflicted lawyer’s representation.” Levy, 25 F.3d at\\n\\n13 153.\\n\\n14 3. The Inadequacy of the Waiver Colloquy\\n\\n15 Although LoTempio’s conflict was waivable, Arrington’s waiver here\\n\\n16 was neither knowing nor intelligent. Before a defendant can waive his\\n\\n17 attorney’s conflict, he must be advised of the conflict’s significant strategic\\n\\n18 consequences. Here, the District Court failed to advise Arrington at all about\\n\\n 36\\n\\f 1 the main strategic disadvantages arising from LoTempio’s conflict noted\\n\\n 2 above.\\n\\n 3 To be sure, on the first day of the Curcio hearing, with Arrington\\n\\n 4 present, the District Court described Arrington’s interest in having LoTempio\\n\\n 5 vigorously cross‐examine Hicks should he testify and told Arrington how\\n\\n 6 LoTempio’s conflict might affect his interests. The District Court then\\n\\n 7 arranged for Arrington to meet with independent Curcio counsel and gave\\n\\n 8 Arrington a day to consider what he wanted to do.\\n\\n 9 But Arrington was not told about the severance or that he would be\\n\\n10 tried first until after the District Court ordered it. He was absent when\\n\\n11 Hicks’s counsel moved to disqualify LoTempio and the initial discussion\\n\\n12 about severing the trials occurred. Nor, it appears, was Arrington in court\\n\\n13 when LoTempio offered to proceed with Arrington’s trial first, even though\\n\\n14 the proposal put Arrington at a strategic disadvantage. The District Court\\n\\n15 thus never directly addressed Arrington regarding these consequences of his\\n\\n16 counsel’s conflict, and we have no record of LoTempio independently\\n\\n17 discussing them with Arrington. In other words, Arrington was not given\\n\\n18 reasonably adequate information about the material risks of LoTempio’s\\n\\n 37\\n\\f 1 continued representation, particularly the risks of a trial severance and the\\n\\n 2 risk of being required (let alone volunteered) to be tried first.\\n\\n 3 As for the inquiry the District Court should have conducted, as noted\\n\\n 4 “we are more concerned with whether the defendant appreciated his\\n\\n 5 predicament and made a properly informed choice than we are with whether\\n\\n 6 the trial judge recited any particular litany of questions.” Jenkins, 943 F.2d at\\n\\n 7 176. But district courts must at least “advise the defendant of the dangers\\n\\n 8 arising from the particular conflict.” Iorizzo, 786 F.2d at 59. Where, as here,\\n\\n 9 those “dangers” include giving up the strategic advantages of a joint trial or\\n\\n10 being tried before a co‐defendant, they should be a part of the judge’s inquiry\\n\\n11 to obtain the defendant’s informed consent. See RESTATEMENT (THIRD) OF THE\\n\\n12 LAW GOVERNING LAWYERS § 122 cmt. c(i) (AM. LAW INST. 2000) (Informed\\n\\n13 consent “requires that each affected client be aware of the material respects in\\n\\n14 which the representation could have adverse effects on the interests of that\\n\\n15 client,” including “tactical considerations . . . that would be foreclosed or\\n\\n16 made less readily available by the conflict”). Where a counsel’s conflict of\\n\\n17 interest materially affects a significant tactical or strategic consideration, a\\n\\n\\n\\n\\n 38\\n\\f 1 court should advise the defendant of the nature of that risk as part of a Curcio\\n\\n 2 inquiry.\\n\\n 3 Finally, we conclude that “a lapse in representation[] resulted from the\\n\\n 4 conflict,” Iorizzo, 786 F.2d at 58 (quotation marks omitted), because some\\n\\n 5 “plausible alternative defense strategy or tactic might have been pursued” but\\n\\n 6 for LoTempio’s actual conflict of interest, Levy, 25 F.3d at 157 (quotation\\n\\n 7 marks omitted). Had Arrington and Hicks been tried together and Hicks\\n\\n 8 testified, Arrington might have been able to benefit from Hicks’s testimony.\\n\\n 9 As it turns out, Hicks, testifying in his own defense at trial, denied the\\n\\n10 existence of the Schuele Boys enterprise, that Balance’s murder was in\\n\\n11 retaliation for Davison’s, or having seen Arrington at the scene of Balance’s\\n\\n12 murder. It is impossible to know whether the outcome for Arrington would\\n\\n13 have changed had Hicks’s testimony come during or before Arrington’s trial.\\n\\n14 But at the end, when the conflict is actual, as it is here, “the applicable\\n\\n15 standard requires only the demonstration of a conflict inconsistent with a\\n\\n16 plausible trial strategy or tactic,” not prejudice. Malpiedi, 62 F.3d at 470.\\n\\n17 Arrington had to show that an alternative strategic approach (not severing the\\n\\n18 trials, or pressing to be tried after Hicks) was “not undertaken due to\\n\\n 39\\n\\f 1 [LoTempio’s] other loyalties and interests.” Id. at 469 (quotation marks\\n\\n 2 omitted). Once such a showing is made, as we think it was here, Strickland’s\\n\\n 3 “fairly rigid” presumption of prejudice applies. Strickland v. Washington,\\n\\n 4 466 U.S. 668, 692 (1984).\\n\\n 5 Having determined that Arrington’s right to effective counsel was\\n\\n 6 violated, we vacate the convictions and remand for a new trial. The Sixth\\n\\n 7 Amendment compels this result regardless of the strength of the trial\\n\\n 8 evidence.\\n\\n 9 CONCLUSION\\n\\n10 Because we conclude that Arrington’s waiver of his counsel’s conflict of\\n\\n11 interest was not knowing and intelligent, we VACATE Arrington’s conviction\\n\\n12 and REMAND to the District Court for a new trial.\\n\\n\\n\\n\\n 40\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4448002/\", \"author_raw\": \"LOHIER, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"LYNCH"},"judge2":{"kind":"string","value":"LOHIER"},"judge3":{"kind":"string","value":"COGAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"LYNCH\": \", Circuit\", \"LOHIER\": \", Circuit\", \"COGAN\": \", District\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4670749/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Arrington\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-10-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17‐4092‐cr\n United States v. Arrington\n 1 UNITED STATES COURT OF APPEALS\n 2 FOR THE SECOND CIRCUIT\n 3\n 4 August Term, 2018\n 5\n 6 (Argued: May 29, 2019 Decided: October 18, 2019)\n 7\n 8 Docket No. 17‐4092‐cr\n 9\n10 _____________________________________\n11\n12 UNITED STATES OF AMERICA,\n13\n14 Appellee,\n15\n16 v.\n17\n18 RODERICK ARRINGTON,\n19\n20 Defendant‐Appellant.*\n21 _____________________________________\n22\n23 Before:\n24\n25 LYNCH and LOHIER, Circuit Judges, and COGAN, District Judge.**\n26\n27 Roderick Arrington appeals from a judgment of conviction entered\n28 after a jury trial in the United States District Court for the Western District of\n29 New York (Arcara, J.). We conclude that the trial evidence was sufficient to\n30 support each count of conviction, including Arrington’s convictions for\n31 murder and attempted murder in aid of racketeering under 18 U.S.C. § 1959.\n32 We also conclude, however, that Arrington’s Sixth Amendment right to\n33 effective assistance of counsel was violated when the District Court failed to\n34 ensure that Arrington understood the full scope of the consequences arising\n\n * The Clerk of Court is directed to amend the official caption to conform with the\n above.\n ** Judge Brian M. Cogan of the United States District Court for the Eastern District of\n\n New York, sitting by designation.\n\f 1 from his counsel’s conflict of interest, including the disadvantages of a trial\n 2 severance that counsel proposed. We therefore VACATE Arrington’s\n 3 conviction and REMAND to the District Court for a new trial.\n 4\n 5 ANDREW LEVCHUK, Amherst, MA, for Defendant‐\n 6 Appellant Roderick Arrington.\n 7\n 8 WEI XIANG, Assistant United States Attorney (Mary\n 9 C. Baumgarten, Assistant United States Attorney, on\n10 the brief), for James P. Kennedy, Jr., United States\n11 Attorney for the Western District of New York,\n12 Buffalo, NY, for Appellee United States of America.\n13\n14 LOHIER, Circuit Judge:\n\n15 Roderick Arrington appeals from a judgment of conviction entered\n\n16 after a jury trial in the United States District Court for the Western District of\n\n17 New York (Arcara, J.). We conclude that the trial evidence was sufficient to\n\n18 support each count of conviction, including Arrington’s convictions for\n\n19 murder and attempted murder in aid of racketeering under 18 U.S.C. § 1959.\n\n20 We also conclude, however, that Arrington’s Sixth Amendment right to\n\n21 effective assistance of counsel was violated when the District Court failed to\n\n22 ensure that Arrington understood the full scope of the consequences arising\n\n23 from his counsel’s conflict of interest, including the disadvantages of a trial\n\n24 severance that counsel proposed. We therefore vacate Arrington’s conviction\n\n25 and remand to the District Court for a new trial.\n\n\n 2\n\f 1 BACKGROUND\n\n 2 Because this is an appeal from a judgment of conviction entered after a\n\n 3 jury trial and Arrington challenges the sufficiency of the evidence against\n\n 4 him, the following facts are drawn from the trial evidence and described in\n\n 5 the light most favorable to the Government. See United States v. Caltabiano,\n\n 6 871 F.3d 210, 218 (2d Cir. 2017).\n\n 7 A. The “Schuele Boys” and Arrington’s Role\n\n 8 This case centers on the drug trafficking of a violent gang operating\n\n 9 principally in a neighborhood on the east side of the City of Buffalo. The\n\n10 Government refers to the members of the gang as “the Schuele Boys,” after\n\n11 Schuele Avenue, a street in the neighborhood. Gov’t App’x 66–67. The\n\n12 Schuele Boys—including Arrington, his co‐defendants Aaron Hicks, Marcel\n\n13 Worthy, and LeTorrance Travis, and witnesses Jerome Grant and Demario\n\n14 James—grew up together in the neighborhood.\n\n15 Arrington’s trial focused largely on the group’s drug trafficking starting\n\n16 around 2010. Some Schuele Boys members arranged to transport kilograms of\n\n17 cocaine and marijuana to Buffalo through “traps” in vehicles or through\n\n18 shipped parcels. Hicks, Travis, and Worthy were responsible for distributing\n\n 3\n\f 1 the cocaine and marijuana when it arrived in Buffalo. Another Schuele Boys\n\n 2 member and co‐defendant, Julio Contreras, invested some of the drug\n\n 3 proceeds in G.O.N.E. Entertainment, a record label incorporated by Hicks that\n\n 4 promoted Schuele Boys associate Sandy Jones. Two music videos produced\n\n 5 by G.O.N.E. starred Jones, included scenes with Arrington, Hicks, Travis,\n\n 6 Worthy, and other Schuele Boys members, and contained lyrics that\n\n 7 referenced drug trafficking, drug proceeds, guns, and violence committed to\n\n 8 protect the drug business.\n\n 9 Arrington appears to have been only peripherally involved in the\n\n10 group’s core drug distribution activities. For example, Arrington was present\n\n11 when Grant and others broke down a forty‐pound bale of marijuana for sale.\n\n12 Grant also testified that Arrington sold him marijuana in 2001 and cocaine in\n\n13 2013. And in 2014 the police executed a warrant to search Arrington’s\n\n14 mother’s house, where Arrington had been staying, and found heroin, drug\n\n15 paraphernalia, and a loaded handgun.\n\n16 But violence played an important part in protecting the Schuele Boys\n\n17 and their territory for drug dealing in the neighborhood, and it is Arrington’s\n\n18 role as an “enforcer” that is a central focus of our sufficiency review. At trial,\n\n 4\n\f 1 the Government repeatedly described Arrington as an “enforcer” or as\n\n 2 “muscle” for the Schuele Boys. See, e.g., Gov’t App’x 102–03, 108, 1077, 1086,\n\n 3 1091–92, 1102. Grant testified that Arrington once expressed his frustration\n\n 4 with wearing an ankle monitor because he wanted to “tak[e] hits,” which\n\n 5 Grant understood to mean that Arrington wanted to kill on behalf of others.\n\n 6 Gov’t App’x 531, 533. Arrington also offered to kill people for Grant. And\n\n 7 James testified that Arrington offered, for a discounted price reserved for\n\n 8 close friends or relatives, to “take care of” someone who had robbed James.\n\n 9 Gov’t App’x 636.\n\n10 B. The Murder of Quincy Balance and Attempted Murder of Damon\n11 Hunter\n12\n13 Arrington’s role as an “enforcer” for the Schuele Boys was on full\n\n14 display in August 2012. On August 26, 2012, Schuele Boys member and drug\n\n15 dealer Walter “Matt” Davison—Hicks’s best friend—was shot and killed. In\n\n16 the immediate aftermath of Davison’s murder, Arrington and other Schuele\n\n17 Boys members talked about two individuals that they believed were involved\n\n\n\n\n 5\n\f 1 in Davison’s killing. Arrington was armed with guns at that gathering. Later,\n\n 2 at Davison’s wake, the same group vowed to kill whoever had killed Davison.\n\n 3 Four days after Davison’s death, on August 30, 2012, Quincy Balance\n\n 4 and Damon Hunter approached Hicks in the Schuele neighborhood to\n\n 5 convince Hicks that they were not responsible for Davison’s death, as Hunter\n\n 6 had been previously warned that “someone was after” Hunter and Balance\n\n 7 for killing Davison. Gov’t App’x 977. Moments after Balance started talking\n\n 8 with Hicks, Arrington emerged from “the other side of the street.” Id. at 988.\n\n 9 Balance approached Arrington, apparently intending to explain that he had\n\n10 not killed Davison. Arrington then pulled out a pistol and shot Balance dead.\n\n11 Hunter heard the shots and yelled at Arrington that he had nothing to do\n\n12 with Davison’s death. Hunter then dropped to the ground unharmed, rolled\n\n13 under a truck, and began running away as shots flew past him.\n\n14 Arrington was later arrested at this mother’s house on October 31, 2014.\n\n15 After his arrest and detention for murder, Arrington made a number of\n\n16 incriminating statements and engaged in some conduct evincing\n\n17 consciousness of guilt. For example, in early 2015, Arrington repeatedly\n\n18 asked Grant whether he had spoken with law enforcement. Additionally,\n\n 6\n\f 1 Arrington told Grant, with apparent relief, that Hunter had given his\n\n 2 assurance that he was not cooperating against Arrington about “shooting”\n\n 3 Balance. Gov’t App’x 500, 504–08. Arrington also wrote a note to a friend\n\n 4 pressuring him not to cooperate and directing the friend to tear up the note\n\n 5 after reading it.\n\n 6 C. Procedural History\n\n 7 On June 19, 2015, the Government filed a superseding indictment\n\n 8 against Arrington, Hicks, Worthy, Travis, and Contreras. Arrington was\n\n 9 charged with twelve counts: racketeering conspiracy in violation of 18 U.S.C.\n\n10 § 1962(d); narcotics conspiracy in violation of 21 U.S.C. § 846; possession of a\n\n11 firearm in furtherance of a crime of violence and drug trafficking crime in\n\n12 violation of 18 U.S.C. § 924(c)(1)(A)(i); murder in aid of racketeering activity\n\n13 in violation of 18 U.S.C. § 1959(a)(1); two counts of discharge of a firearm in\n\n14 furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii);\n\n15 discharge of a firearm in furtherance of a crime of violence, resulting in\n\n16 murder, in violation of 18 U.S.C. § 924(j)(1); attempted murder in aid of\n\n17 racketeering activity in violation of 18 U.S.C. § 1959(a)(5); possession of heroin\n\n18 with intent to distribute in violation of 21 U.S.C. § 841(a)(1); maintaining\n\n 7\n\f 1 drug‐involved premises in violation of 21 U.S.C. § 856(a)(1); possession of a\n\n 2 firearm in furtherance of drug trafficking crimes in violation of 18 U.S.C.\n\n 3 § 924(c)(1)(A)(i); and possession of a firearm and ammunition by a convicted\n\n 4 felon in violation of 18 U.S.C. § 922(g)(1).\n\n 5 1. Pretrial Proceedings\n\n 6 On April 22, 2016, Arrington’s trial attorney, Andrew LoTempio,\n\n 7 disclosed to the District Court his ongoing representation in a separate but\n\n 8 related case of Michael Robertson, who had been mentioned in certain\n\n 9 discovery documents. A magistrate judge (Scott, M.J.) held a hearing in\n\n10 accordance with United States v. Curcio, 680 F.2d 881 (2d Cir. 1982), to\n\n11 determine whether or not a conflict of interest existed, and appointed\n\n12 independent Curcio counsel for Arrington. After conferring with Arrington,\n\n13 Curcio counsel recommended that Magistrate Judge Scott not find a conflict\n\n14 of interest with respect to LoTempio’s representation of Robertson. The\n\n15 Magistrate Judge then granted LoTempio’s motion to withdraw his\n\n16 representation of Robertson and accepted Arrington’s in‐court waiver of a\n\n17 potential conflict related to LoTempio’s representation of Robertson. At the\n\n18 hearing, LoTempio disclosed that he previously also represented Hicks “in\n\n 8\n\f 1 unrelated criminal matters.” Dist. Ct. Dkt. No. 92. We see no record of any\n\n 2 further discussion of LoTempio’s prior representation of Hicks that day.\n\n 3 On September 14, 2016, Arrington, represented by LoTempio, moved to\n\n 4 sever his trial from that of his co‐defendants, and, on October 11, 2016,\n\n 5 requested an immediate trial. In his severance motion, Arrington, relying\n\n 6 primarily on Bruton v. United States, 391 U.S. 123 (1968), said that his co‐\n\n 7 defendants’ post‐arrest statements and confessions might implicate him. That\n\n 8 motion was denied. Almost a year later, on August 28 and August 31, 2017,\n\n 9 respectively, Travis and Contreras pled guilty, leaving Arrington, Hicks, and\n\n10 Worthy set to proceed to trial on September 11, 2017.\n\n11 On September 3, 2017, roughly one week before trial, Hicks filed a\n\n12 motion urging the District Court to find that LoTempio had an actual conflict\n\n13 of interest stemming from his prior representation of Hicks in a state court\n\n14 matter referenced as an overt act in the superseding indictment. The overt\n\n15 act, which the Government alleged was committed in furtherance of the\n\n16 racketeering enterprise, related to Hicks’s retrieval of a box containing thirty‐\n\n17 three pounds of marijuana in 2014. Hicks’s trial attorney, Robert Ross Fogg,\n\n\n\n\n 9\n\f 1 asserted that LoTempio’s conflict of interest was unwaivable and, in any\n\n 2 event, that Hicks refused to waive it.\n\n 3 2. The Curcio Hearing\n\n 4 On September 5 and 6, the District Court (Arcara, J.) held a Curcio\n\n 5 hearing to address the conflict arising from LoTempio’s prior representation\n\n 6 of Hicks. Arrington was in the courtroom at the start of the hearing on the\n\n 7 first day, as were LoTempio, Fogg, and Hicks. The District Court informed\n\n 8 Arrington that he had “a very strong interest in having Mr. LoTempio cross‐\n\n 9 examine all the witnesses against [him] aggressively to try to challenge the\n\n10 believability or the credibility or the reliability of the witnesses.” Joint App’x\n\n11 260. Because LoTempio also owed a duty to Hicks, the District Court\n\n12 explained, LoTempio could not use information he had learned while\n\n13 representing Hicks, and therefore “might not be able to represent [Arrington]\n\n14 as zealously as he should by aggressively cross‐examining witnesses of events\n\n15 that happen[ed] in 2014,” Joint App’x 261, and might “have to pull some\n\n16 punches . . . because of his loyalty to . . . Hicks,” Joint App’x 262–63.\n\n17 LoTempio confirmed that he could not use any information from Hicks’s\n\n18 earlier case to cross‐examine Hicks. Joint App’x 263–64. In response to these\n\n 10\n\f 1 warnings, Arrington repeatedly said that he understood the nature of the\n\n 2 conflict. The District Court then apprised Arrington of his right to a conflict‐\n\n 3 free lawyer, assigned independent Curcio counsel to advise Arrington,\n\n 4 instructed Arrington that he could discuss whether or not to waive the\n\n 5 conflict with both Curcio counsel and LoTempio, and gave Arrington ample\n\n 6 time to decide. Arrington and his Curcio counsel then left the courtroom to\n\n 7 discuss the issues in another room.\n\n 8 Unfortunately, the District Court continued to discuss the nature of the\n\n 9 conflict with LoTempio and Fogg while Arrington was outside the courtroom.\n\n10 Fogg argued that LoTempio should be disqualified because Hicks would be\n\n11 less likely to testify in his own defense if LoTempio, his former lawyer, could\n\n12 cross‐examine him. LoTempio responded that “it would put me in an awful\n\n13 predicament if [Hicks] took the stand and it would probably be more of a\n\n14 severance issue than me being removed.” Joint App’x 268. This was the first\n\n15 time anyone mentioned severing the trials of Arrington and Hicks as a\n\n16 solution to LoTempio’s conflict of interest. In response, the District Court\n\n17 suggested that severance might make “the issue go[] away.” Joint App’x 272.\n\n\n\n\n 11\n\f 1 The next day, September 6, the District Court finished its Curcio\n\n 2 colloquy with Arrington and, based on Curcio counsel’s representations,\n\n 3 accepted Arrington’s waiver of the conflict and adjourned. Later that day, the\n\n 4 District Court held a separate proceeding to deal with Hicks’s motion to\n\n 5 disqualify LoTempio. Although LoTempio was present virtually throughout,\n\n 6 the record suggests that Arrington was not even in the courtroom and did not\n\n 7 otherwise participate in this proceeding.1 In any event, the District Court\n\n 8 never addressed Arrington about LoTempio’s request for a severance (or\n\n 9 anything else) during the proceeding even though it significantly affected\n\n10 Arrington.\n\n11 The proceeding started with Fogg again arguing that Hicks would be\n\n12 less likely to testify because of LoTempio’s conflict, that the conflict was not\n\n13 waivable, and that disqualifying LoTempio was the only appropriate remedy.\n\n14 Severance, Fogg added, was not in his client’s best interest.\n\n15 Because it framed the District Court’s decision to sever the trials, we\n\n16 quote LoTempio’s response at length:\n\n\n 1 It is helpful for appellate review for the minute entry on the docket (or for the\n transcript of proceedings) to indicate that a criminal defendant is present in the\n courtroom.\n 12\n\f 1 Now, I don’t know [what Hicks will say]. If he\n 2 [inculpates Arrington], then I owe a duty to Mr. Arrington\n 3 to go after Mr. Hicks and impeach him and cross‐examine\n 4 him with everything I have at my abilities. And you know,\n 5 it would be hard for me to separate what I know from . . .\n 6 what Mr. Hicks may or may not have told me when I\n 7 represented him during the overt act in this.\n 8 So, the Canons of Ethics basically start with the idea\n 9 that I can’t represent either one of them. And then it goes\n10 on to say that, depending on how related the matters are,\n11 increases the prohibition. And here, they’re definitely\n12 related to one another. The two cases, they’re inextricably\n13 interwoven. They’re part and parcel of the charges.\n14 And then the question then becomes, can\n15 [Arrington] consent? And it talks about cases where he\n16 can’t even consent because the temptation of a lawyer\n17 serving both people is so grave that there shouldn’t even\n18 be consent. So, I think, at this point—I don’t know that it’s\n19 appropriate to kick me off the case. I think that the\n20 appropriate remedy, at this point, would be to grant a\n21 severance.\n22 And then, only if Mr. Hicks cooperates with the\n23 government in a separate trial against Mr. Arrington\n24 would this issue come up again. If he doesn’t cooperate,\n25 then he’s removed from . . . Mr. Arrington’s case, and I\n26 never have to cross‐examine him and I’m never tempted to\n27 use information that he gave to me and it becomes a moot\n28 point. If he does cooperate, then we’re kind of kicking the\n29 can down the road, but you’re still giving – at least giving\n30 Mr. Arrington an opportunity to keep the attorney of his\n31 choice.\n32 So, I think that this case would come back on appeal\n33 if we don’t at least do a severance. I guess that’s my\n34 opinion, for what it’s worth. And I’m asking that you do\n35 that, because otherwise, I’m being put in a predicament\n\n 13\n\f 1 where I am going to almost have to choose between Mr.\n 2 Arrington and my duty to—that’s still left over to my\n 3 former client, which is to not talk about things or confront\n 4 him with things that I may or may not remember. I’m\n 5 being put in an awful position.\n 6\n 7 ....\n 8\n 9 So, at this late stage, I think that the—I would like to\n10 represent Mr. Arrington and continue to do that. And I\n11 think the only way that that can happen, without me\n12 violating my former client’s rights, is if we’re given a\n13 separate trial. And I don’t care if I go first. I’m ready to try\n14 the case. I’ll go first, if you want. Doesn’t matter to me.\n15\n16 Joint App’x 302–05.\n\n17 LoTempio’s proposal did not go over well with the other parties. Fogg\n\n18 continued to strongly oppose severance, while the Government disputed that\n\n19 severance would resolve the conflict because Arrington could still call Hicks\n\n20 as a witness in his own case. But the District Court was concerned about\n\n21 delaying trial, and it ultimately agreed to sever the trials and to immediately\n\n22 try Arrington and Worthy.\n\n23 3. Arrington’s Trial and the Jury Verdict\n\n24 Trial started on September 11, 2017. Worthy pled guilty on the first\n\n25 morning of jury selection, leaving Arrington to be tried alone. During trial, it\n\n\n 14\n\f 1 became abundantly clear that Arrington killed Balance and tried to shoot\n\n 2 Hunter. For example, Worthy confirmed that Arrington shot Balance and\n\n 3 tried to shoot Hunter. Another witness, Ja’Quan Johnson, testified that\n\n 4 Arrington shot Balance, and that in the days leading up to the shooting,\n\n 5 Arrington asked people in the neighborhood about Balance’s whereabouts.\n\n 6 Arrington’s defense at trial focused on the Government’s limited\n\n 7 evidence that Arrington participated in the Schuele Boys’ drug dealing or\n\n 8 acted as their “enforcer.” Arrington consequently argued that because no\n\n 9 conspiracy or racketeering enterprise existed under federal law, any murder\n\n10 charges against him should have instead proceeded in state court.\n\n11 The trial lasted nine days. During the first full day of jury\n\n12 deliberations, one juror alerted the District Court that he knew one of the\n\n13 victims of a shooting mentioned at trial and said that his personal knowledge\n\n14 might impair his ability to deliberate. The District Court denied Arrington’s\n\n15 motion for a mistrial, replaced the juror with an alternate, and instructed the\n\n\n\n\n 15\n\f 1 jury to “start all over again” and “disregard your earlier deliberations.” Gov’t\n\n 2 App’x 1243–44, 1248–49, 1254.\n\n 3 A few hours later, the reconstituted jury convicted Arrington on Counts\n\n 4 1 through 8: racketeering conspiracy (Count 1), narcotics conspiracy (Count\n\n 5 2), possession of firearms in furtherance of a crime of violence or drug\n\n 6 trafficking crime (Count 3), murder in aid of racketeering activity (Count 4),\n\n 7 two counts of discharge of a firearm in furtherance of crimes of violence\n\n 8 (Counts 5 and 8), discharge of a firearm causing death in furtherance of a\n\n 9 crime of violence (Count 6), and attempted murder in aid of racketeering\n\n10 activity (Count 7). The jury acquitted Arrington of the four remaining drug or\n\n11 gun possession charges.\n\n12 4. Hicks’s Trial and Retrial\n\n13 Hicks’s trial took place shortly after Arrington’s. Testifying in his own\n\n14 defense, Hicks denied the existence of the Schuele Boys enterprise, denied\n\n15 knowing why Balance was killed, and claimed that he did not see Arrington\n\n16 at the scene of Balance’s murder. Hicks confirmed that Balance and Hunter\n\n\n\n\n 16\n\f 1 told him that they did not kill Davison; but Hicks also testified that Balance\n\n 2 told him that Hunter was responsible.\n\n 3 A jury convicted Hicks of narcotics conspiracy, acquitted him of\n\n 4 possession of a firearm in furtherance of a crime of violence or drug\n\n 5 trafficking offense, and deadlocked on the racketeering conspiracy charge.\n\n 6 The Government retried Hicks on the racketeering conspiracy charge, and the\n\n 7 second jury convicted him. Hicks did not testify at his second trial.\n\n 8 5. Arrington’s Post‐Trial Motions and Sentencing\n\n 9 Arrington filed a motion for acquittal under Federal Rule of Criminal\n\n10 Procedure 29, arguing principally that the evidence was insufficient to\n\n11 establish an enterprise, Arrington’s membership in the enterprise, his role in a\n\n12 drug conspiracy, or that Arrington killed Balance in furtherance of any\n\n13 enterprise. The District Court denied the motion, concluding that the\n\n14 evidence showed that Arrington knew of the conspiracy’s core racketeering\n\n15 activity and knowingly joined the conspiracy. Joint App’x 669–79. The\n\n16 District Court also found that the evidence established that the Schuele Boys\n\n17 were an association‐in‐fact enterprise in which Arrington held a position. The\n\n18 District Court pointed to the “overwhelming evidence” that Arrington\n\n 17\n\f 1 murdered Balance and attempted to murder Hunter and determined that a\n\n 2 reasonable jury could conclude that Arrington did so to maintain or promote\n\n 3 his position in the enterprise. Joint App’x 675.2 This appeal followed.\n\n 4 DISCUSSION\n\n 5 On appeal, Arrington makes three main arguments.\n\n 6 First, he challenges the sufficiency of the evidence supporting each\n\n 7 count of conviction.3 We conclude that the evidence, viewed in the light most\n\n 8 favorable to the Government, was sufficient to support each count of\n\n 9 conviction.\n\n10 Second, Arrington argues that his Sixth Amendment right to conflict‐\n\n11 free counsel was violated when the District Court failed to disqualify his trial\n\n12 counsel, or, alternatively, that the District Court failed to conduct a waiver\n\n13 colloquy that adequately informed Arrington of the nature of the conflict.\n\n\n\n\n 2 The District Court did, however, vacate one of Arrington’s discharge convictions\n (Count 5) as the lesser‐included offense of another (Count 6).\n 3 Although we vacate Arrington’s conviction on other grounds discussed below, we\n\n address his sufficiency challenges because we would be required to direct the\n District Court to enter a judgment of acquittal if there were insufficient evidence to\n support conviction, instead of vacating the conviction and remanding for a new\n trial. United States v. Rosemond, 841 F.3d 95, 113 (2d Cir. 2016).\n 18\n\f 1 Because we agree that Arrington’s waiver was not knowing and intelligent,\n\n 2 we vacate Arrington’s conviction and remand for a new trial.\n\n 3 We therefore need not, and do not, reach Arrington’s third argument\n\n 4 that the District Court abused its discretion in replacing a juror for good cause\n\n 5 and refusing to grant a mistrial.\n\n 6 A. Sufficiency of the Evidence\n\n 7 We review sufficiency challenges de novo, considering the evidence in\n\n 8 its totality. United States v. Persico, 645 F.3d 85, 104 (2d Cir. 2011). We defer\n\n 9 to the jury’s choice between competing inferences reasonably drawn from the\n\n10 evidence. Id. In a criminal case, we will uphold the conviction if, “after\n\n11 viewing the evidence in the light most favorable to the prosecution, any\n\n12 rational trier of fact could have found the essential elements of the crime\n\n13 beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).\n\n14 1. Racketeering Conspiracy\n\n15 The conspiracy provision of the Racketeer Influenced and Corrupt\n\n16 Organizations Act (RICO), 18 U.S.C. § 1962(d), “proscribes an agreement to\n\n17 conduct or to participate in the conduct of [an] enterprise’s affairs through a\n\n18 pattern of racketeering activity.” United States v. Pizzonia, 577 F.3d 455, 462\n\n 19\n\f 1 (2d Cir. 2009). To prove a RICO conspiracy, the Government need not\n\n 2 establish the existence of an enterprise, United States v. Applins, 637 F.3d 59,\n\n 3 75 (2d Cir. 2011), or that the defendant committed any predicate act, United\n\n 4 States v. Yannotti, 541 F.3d 112, 129 (2d Cir. 2008). It need only prove that the\n\n 5 defendant knew of, and agreed to, the general criminal objective of a jointly\n\n 6 undertaken scheme. Applins, 637 F.3d at 75; see United States v. Zichettello,\n\n 7 208 F.3d 72, 99–100 (2d Cir. 2000).\n\n 8 Here, a reasonable jury could find beyond a reasonable doubt that\n\n 9 Arrington agreed with other members of the Schuele Boys to function as a\n\n10 unit for the common purpose of selling drugs. First, evidence at trial\n\n11 established that, while his personal participation was limited, Arrington knew\n\n12 that his associates were involved in the drug trafficking business. We note\n\n13 especially the evidence that Arrington offered James, a Schuele Boys member,\n\n14 a “family price” to retaliate against a robber who stole marijuana belonging to\n\n15 James. Gov’t App’x 636. We also note Arrington’s participation in the\n\n16 G.O.N.E. music videos. Second, based on the evidence we have already\n\n17 described, a reasonable jury could find beyond a reasonable doubt that\n\n18 Arrington murdered Balance and shot at Hunter in retaliation for Davison’s\n\n 20\n\f 1 murder and to protect the Schuele Boys’ drug trafficking business, although\n\n 2 the connection between the murder and the business itself is a close call. See\n\n 3 Yannotti, 541 F.3d at 122.\n\n 4 2. Narcotics Conspiracy\n\n 5 For largely the same reasons that the evidence was sufficient to support\n\n 6 Arrington’s conviction for RICO conspiracy, the evidence was also sufficient\n\n 7 to support his conviction for narcotics conspiracy. Arrington concedes the\n\n 8 existence of a drug conspiracy involving Hicks, Travis, Worthy, and others.\n\n 9 He simply denies that he joined the conspiracy. But a reasonable jury could\n\n10 have found that Arrington’s role and offers to serve as “muscle” assisted his\n\n11 co‐conspirators’ drug trafficking activities. See United States v. Hawkins, 547\n\n12 F.3d 66, 71 (2d Cir. 2008).\n\n13 3. Murder and Attempted Murder in Aid of Racketeering\n\n14 To convict Arrington for committing a violent crime in aid of\n\n15 racketeering under 18 U.S.C. § 1959, the Government had to establish that: (1)\n\n16 a racketeering enterprise existed; (2) the enterprise’s activities affected\n\n17 interstate commerce; (3) Arrington had a position in the enterprise; (4)\n\n18 Arrington committed a violent crime; and (5) Arrington committed the\n\n 21\n\f 1 violent crime, as relevant here, “for the purpose of . . . maintaining or\n\n 2 increasing position in [the] enterprise.” Id. § 1959(a); United States v.\n\n 3 Concepcion, 983 F.2d 369, 380–81 (2d Cir. 1992). On appeal, Arrington\n\n 4 challenges the sufficiency of the evidence supporting the first, third, and fifth\n\n 5 elements. We address each of Arrington’s challenges in turn.\n\n 6 a. The Existence of a Racketeering Enterprise\n\n 7 “[A]n association‐in‐fact enterprise is simply a continuing unit that\n\n 8 functions with a common purpose.” Boyle v. United States, 556 U.S. 938, 948\n\n 9 (2009); see also United States v. Pierce, 785 F.3d 832, 838–39 (2d Cir. 2015). As\n\n10 we explained above with respect to Arrington’s conviction for racketeering\n\n11 conspiracy, a reasonable jury could conclude from evidence of the\n\n12 relationship between Hicks, Travis, Worthy, Contreras, and others, and from\n\n13 their actions over a period of years, that the Schuele Boys were “a continuing\n\n14 unit that function[ed] with [the] common purpose” of selling drugs in and\n\n15 around their neighborhood on the east side of Buffalo. Boyle, 556 U.S. at 948.\n\n\n\n\n 22\n\f 1 We therefore reject Arrington’s sufficiency challenge to the first element of his\n\n 2 conviction for committing a violent crime in aid of racketeering activity.\n\n 3 b. Arrington’s Position in a Racketeering Enterprise\n\n 4 Despite Arrington’s limited participation in the enterprise’s core drug\n\n 5 trafficking activity, for many of the same reasons that we conclude there was\n\n 6 sufficient evidence of Arrington’s agreement to participate in the RICO\n\n 7 conspiracy, we are also of the view that the evidence at trial was sufficient to\n\n 8 allow a reasonable jury to conclude that Arrington held a position within the\n\n 9 Schuele Boys enterprise. While Arrington’s position was, to be sure, a low\n\n10 and peripheral one, any position is enough. See United States v. Brady, 26\n\n11 F.3d 282, 290 (2d Cir. 1994). Arrington served as an enforcer for the Schuele\n\n12 Boys, able and willing to hurt people who crossed its members. Arrington’s\n\n13 role in the G.O.N.E. music videos and his activities while in jail also\n\n14 evidenced his membership in the Schuele Boys.\n\n15 c. The Motive Requirement\n\n16 As relevant here, § 1959 required the Government to prove that\n\n17 Arrington committed a crime of violence at least in part “for the purpose\n\n18 of . . . maintaining or increasing [his] position in” the Schuele Boys enterprise.\n\n 23\n\f 1 18 U.S.C. § 1959(a); see United States v. Pimentel, 346 F.3d 285, 295–96 (2d Cir.\n\n 2 2003); United States v. Thai, 29 F.3d 785, 817 (2d Cir. 1994). This motive\n\n 3 requirement is “satisfied if ‘the jury could properly infer that [Arrington]\n\n 4 committed his violent crime because he knew it was expected of him by\n\n 5 reason of his membership in the enterprise or that he committed it in\n\n 6 furtherance of that membership.’” Thai, 29 F.3d at 817 (quoting Concepcion,\n\n 7 983 F.2d at 381).\n\n 8 Arrington argues that there was insufficient evidence for the jury to\n\n 9 conclude that he killed Balance or tried to kill Hunter for the purpose of\n\n10 maintaining or promoting his position within the Schuele Boys group.\n\n11 Arrington does not dispute that Balance and Hunter were targeted to avenge\n\n12 Davison’s death and barely disputes the strong evidence that he shot them.\n\n13 See, e.g., Gov’t App’x 1128; Appellant’s Br. 35–36.4 The real question for us,\n\n14 then, is whether there was evidence from which a reasonable jury could\n\n15 conclude that Arrington committed either act in furtherance of, or as an\n\n\n\n\n 4As the District Court recognized, the evidence of Arrington’s personal involvement\n in the murder was overwhelming. Three eyewitnesses identified Arrington as the\n shooter. See Gov’t App’x 562–75, 933–34, 989–92.\n 24\n\f 1 integral aspect of, his role as an enforcer for the Schuele Boys. Although it is a\n\n 2 close call, the answer is yes.\n\n 3 At trial, some witnesses testified about the use of violence to protect the\n\n 4 Schuele Boys’ drug business. A few witnesses described Arrington’s offers to\n\n 5 serve as an enforcer for members of the Schuele Boys and to kill people on\n\n 6 their behalf either for free or at a discounted “family” price. And in the run‐\n\n 7 up to Balance’s murder, Arrington, armed, talked with Hicks, Worthy, and\n\n 8 others about killing whoever had killed Davison.\n\n 9 What gives us some pause about the evidence of Arrington’s\n\n10 motivation is that he appears to have been a peripheral member of the\n\n11 Schuele Boys. And his work for the group could suggest a financial or\n\n12 personal motivation as much as it does an effort to protect the group’s\n\n13 reputation or members. Urging that conclusion, Arrington points to our\n\n14 decisions in Thai and United States v. Bruno, 383 F.3d 65 (2d Cir. 2004), in\n\n15 which we vacated convictions under § 1959.\n\n16 Both cases are distinguishable. In Thai, the evidence showed that the\n\n17 defendant committed murder for “purely mercenary” reasons (money), rather\n\n18 than to protect his criminal organization or maintain his position within it. 29\n\n 25\n\f 1 F.3d at 818; accord United States v. Ferguson, 246 F.3d 129, 135–36 (2d Cir.\n\n 2 2001) (defendant was an outside hitman who did not belong to the gang).\n\n 3 And in Bruno, the defendant was motivated entirely by money and a personal\n\n 4 vendetta to commit a violent crime that served only to decrease his position\n\n 5 within the Genovese crime family. 383 F.3d at 84–85. Here, in contrast to\n\n 6 both Thai and Bruno, there is no evidence that Arrington was paid to avenge\n\n 7 Davison’s murder. Nor is there evidence, as the Government observes, that\n\n 8 Arrington harbored a motive for the shootings unrelated to his attachment to\n\n 9 the Schuele Boys. To the contrary, in this case, as in United States v. Burden,\n\n10 while “[p]ersonal beefs also may have been satisfied . . . the evidence\n\n11 supported a finding” that Arrington “engaged in violent acts because it was\n\n12 expected of [him] as . . . [a] member[] of the [enterprise].” 600 F.3d 204, 221\n\n13 (2d Cir. 2010).\n\n14 In arriving at this conclusion, we rely on the evidence that some\n\n15 Schuele Boys members believed that Davison, a fellow member, was killed\n\n16 during a drug robbery committed by Balance and Hunter. Such a robbery\n\n17 would have posed a direct threat to the Schuele Boys. We are also persuaded\n\n18 by evidence that Arrington’s plan to murder Balance and Hunter was hatched\n\n 26\n\f 1 with other Schuele Boys members, not alone. At Davison’s wake, for\n\n 2 example, Arrington talked with Schuele Boys members specifically about\n\n 3 killing Balance and Hunter. For these reasons, the jury properly could have\n\n 4 inferred that Arrington sought to avenge Davison’s murder on behalf of the\n\n 5 Schuele Boys and thereby confirm his position as an enforcer in the group—in\n\n 6 other words, that the shootings were not merely “an act of personal revenge”\n\n 7 but also “tied to [Arrington’s] racketeering activities.” United States v. James,\n\n 8 239 F.3d 120, 124 n.5 (2d Cir. 2000).\n\n 9 4. Firearms Counts\n\n10 In addition to challenging the racketeering and narcotics conspiracy\n\n11 charges against him, Arrington attacks his convictions on the firearms‐related\n\n12 charges (Counts 3, 5, 6, and 8) on the ground that the evidence was\n\n13 insufficient to support the predicate crimes of violence or drug trafficking\n\n14 (Counts 1, 2, 4, and 7). Because we reject those sufficiency arguments above,\n\n\n\n\n 27\n\f 1 we also reject Arrington’s sufficiency challenge with respect to his firearms\n\n 2 convictions.\n\n 3 B. The Conflict of Interest in Representation\n\n 4 Although there was sufficient evidence to support Arrington’s counts\n\n 5 of conviction, we agree with Arrington that his waiver of LoTempio’s conflict\n\n 6 of interest was not knowing and intelligent. We therefore vacate Arrington’s\n\n 7 conviction.\n\n 8 1. Legal Background\n\n 9 The Sixth Amendment right to effective assistance of counsel “generally\n\n10 ensures that an accused may be represented by any attorney who will agree to\n\n11 take his case.” United States v. Perez, 325 F.3d 115, 124 (2d Cir. 2003). A\n\n12 defendant has a “’correlative right to representation that is free from conflicts\n\n13 of interest.’” Cardoza v. Rock, 731 F.3d 169, 183 (2d Cir. 2013) (quoting Wood\n\n14 v. Georgia, 450 U.S. 261, 271 (1981)).\n\n15 When a defendant’s right to choose the counsel he wants “conflicts with\n\n16 the right to an attorney of undivided loyalty, the choice as to which right is to\n\n17 take precedence must generally be left to the defendant.” Perez, 325 F.3d at\n\n18 125. But district courts have an “independent duty to ensure that criminal\n\n 28\n\f 1 defendants receive a trial that is fair and does not contravene the Sixth\n\n 2 Amendment.” Wheat v. United States, 486 U.S. 153, 161 (1988). For that\n\n 3 reason, “[w]hen a district court is sufficiently apprised of even the possibility\n\n 4 of a conflict of interest”—as the District Court was here—it has a threshold\n\n 5 obligation to “investigate the facts and details of the attorney’s interests to\n\n 6 determine whether the attorney in fact suffers from an actual conflict, a\n\n 7 potential conflict, or no genuine conflict at all.” United States v. Levy, 25 F.3d\n\n 8 146, 153 (2d Cir. 1994); see Perez, 325 F.3d at 125.\n\n 9 An attorney has an actual conflict “when, during the course of the\n\n10 representation, the attorney’s and defendant’s interests diverge with respect\n\n11 to a material factual or legal issue or to a course of action.” United States v.\n\n12 Schwarz, 283 F.3d 76, 91 (2d Cir. 2002) (quotation marks omitted). The\n\n13 attorney suffers from only a potential conflict when the “interests of the\n\n14 defendant may place the attorney under inconsistent duties at some time in\n\n15 the future.” Perez, 325 F.3d at 125 (quotation marks omitted).\n\n16 If the district court concludes that defense counsel has a genuine\n\n17 conflict, it has to determine whether the conflict is so severe as to require the\n\n18 attorney’s disqualification or whether it is a lesser conflict that can be waived\n\n 29\n\f 1 in a Curcio hearing. Levy, 25 F.3d at 153. In most cases where a defendant’s\n\n 2 attorney has a conflict, the defendant “may make a knowing and intelligent\n\n 3 waiver of his right to a conflict‐free lawyer if he desires to continue the\n\n 4 representation.” United States v. Cain, 671 F.3d 271, 293 (2d Cir. 2012). In\n\n 5 rare cases, an attorney’s conflict is unwaivable because it is so serious that “no\n\n 6 rational defendant . . . would have knowingly and intelligently desired” the\n\n 7 conflicted attorney’s representation, Perez, 325 F.3d at 127; see Cain, 671 F.3d\n\n 8 at 293; Schwarz, 283 F.3d at 95–97; United States v. Fulton, 5 F.3d 605, 613 (2d\n\n 9 Cir. 1993), or because, as we have also phrased it, the conflict is “so severe as\n\n10 to indicate per se that the rendering of effective assistance will be impeded,”\n\n11 Perez, 325 F.3d at 125. We have identified such “per se violation[s] of the\n\n12 Sixth Amendment” where the “defendant’s counsel was unlicensed, and\n\n13 when the attorney has engaged in the defendant’s crimes.” Fulton, 5 F.3d at\n\n14 611.\n\n15 Where an attorney suffers from a waivable actual or potential conflict,\n\n16 the district court must conduct a Curcio hearing to determine whether the\n\n17 defendant will knowingly and intelligently waive his right to conflict‐free\n\n18 representation. Curcio, 680 F.2d at 881‐91; Levy, 25 F.3d at 153. To ensure\n\n 30\n\f 1 that a defendant’s waiver is made knowingly and intelligently at the Curcio\n\n 2 hearing, the district court should: “(i) advise the defendant of the dangers\n\n 3 arising from the particular conflict; (ii) determine through questions that are\n\n 4 likely to be answered in narrative form whether the defendant understands\n\n 5 those risks and freely chooses to run them; and (iii) give the defendant time to\n\n 6 digest and contemplate the risks after encouraging him or her to seek advice\n\n 7 from independent counsel.” United States v. Iorizzo, 786 F.2d 52, 59 (2d Cir.\n\n 8 1986). In evaluating a district court’s fidelity to Curcio’s guidance, “we are\n\n 9 more concerned with whether the defendant appreciated his predicament and\n\n10 made a properly informed choice than we are with whether the trial judge\n\n11 recited any particular litany of questions.” United States v. Jenkins, 943 F.2d\n\n12 167, 176 (2d Cir. 1991). We also recognize that a district court must decide\n\n13 whether to allow a waiver of a conflict of interest “not with the wisdom of\n\n14 hindsight after the trial has taken place, but in the murkier pre‐trial context,”\n\n15 when the “likelihood and dimensions of nascent conflicts of interest are\n\n16 notoriously hard to predict.” Wheat, 486 U.S. at 162.\n\n17 On appeal, a defendant challenging his conviction on the ground that\n\n18 he was deprived of his Sixth Amendment right to effective assistance of\n\n 31\n\f 1 counsel as the result of a conflict must demonstrate, first, that the conflict was\n\n 2 either unwaivable or that his waiver was not knowing and intelligent, see\n\n 3 Schwarz, 283 F.3d at 95, and second, that he was prejudiced by the conflict,\n\n 4 see Levy, 25 F.3d at 152, in other words, that “but for counsel’s unprofessional\n\n 5 errors, the result of the proceeding would have been different,” Fulton, 5 F.3d\n\n 6 at 609 (quotation marks omitted). As for the second requirement, where the\n\n 7 conflict is potential we require that the defendant establish prejudice. Where\n\n 8 an actual conflict exists, however, we presume prejudice and require only that\n\n 9 the defendant show that “a lapse in representation . . . resulted from the\n\n10 conflict.” Iorizzo, 786 F.2d at 58 (quotation marks omitted). A lapse in\n\n11 representation means that some “plausible alternative defense strategy or\n\n12 tactic might have been pursued, and that the alternative defense was\n\n13 inherently in conflict with or not undertaken due to the attorney’s other\n\n14 loyalties or interests.” Levy, 25 F.3d at 157 (quotation marks omitted).\n\n\n\n\n 32\n\f 1 2. Counsel’s Conflict\n\n 2 Arrington argues that LoTempio’s conflict was not waivable. If that\n\n 3 were right, then the District Court would have abused its discretion in\n\n 4 denying Hicks’s motion to disqualify LoTempio. See Schwarz, 283 F.3d at 95.\n\n 5 But we conclude that the two conflicts that arose from LoTempio’s prior\n\n 6 representation of Arrington’s co‐defendant were both waivable.\n\n 7 The first conflict arose from LoTempio’s duty to Hicks, his former\n\n 8 client, which compromised his ability to be a zealous advocate for Arrington.\n\n 9 LoTempio had represented Hicks with respect to one of the overt acts in the\n\n10 indictment, and he was therefore barred from using the fruits of that\n\n11 representation to benefit Arrington or from fully cross‐examining witnesses\n\n12 about related events. The effects of this conflict would have been magnified\n\n13 had Hicks testified in his own defense at a joint trial. See, e.g., United States\n\n14 v. Kliti, 156 F.3d 150, 154–55 (2d Cir. 1998); United States v. Leslie, 103 F.3d\n\n15 1093, 1098 (2d Cir. 1997); United States v. Lussier, 71 F.3d 456, 462 (2d Cir.\n\n16 1995); United States v. Malpiedi, 62 F.3d 465, 470 (2d Cir. 1995).\n\n17 Although LoTempio’s conflict compromised his ability to be a zealous\n\n18 advocate for Arrington, it was nonetheless waivable. See Perez 325 F.3d at\n\n 33\n\f 1 127–29; Iorizzo, 786 F.2d at 59; see also Lussier, 71 F.3d at 462. For one thing,\n\n 2 we have generally found that this type of conflict is waivable. See United\n\n 3 States v. Oberoi, 331 F.3d 44, 50 (2d Cir. 2003). For another thing, this first\n\n 4 conflict stemming from LoTempio’s prior representation was potential, not\n\n 5 actual; at the time the District Court severed the trials, it was not clear that\n\n 6 Hicks would testify or what he would say if he did. See Lussier, 71 F.3d at\n\n 7 462; see also Joint App’x 302.\n\n 8 The second, more serious conflict arose from Hicks’s refusal to waive\n\n 9 LoTempio’s conflict, LoTempio’s insistence on severing the trials, and\n\n10 LoTempio’s offer to have Arrington tried first. Recall that Hicks was\n\n11 concerned that LoTempio would draw from his prior representation of Hicks\n\n12 when cross‐examining Hicks if he testified. This put LoTempio in what he\n\n13 aptly called an “awful predicament.” Joint App’x 268. It could be reasonably\n\n14 inferred that LoTempio suggested a severance (something he had raised on\n\n15 different grounds about a year earlier and had not since revisited) in response\n\n16 to the “predicament” presented by Hicks’s disqualification motion. See Joint\n\n17 App’x 268, 303–04. During the Curcio hearing, LoTempio stated: “I would\n\n18 like to represent Mr. Arrington and continue to do that. And I think the only\n\n 34\n\f 1 way that that can happen, without me violating my former client’s rights, is if\n\n 2 we’re given a separate trial. And I don’t care if I go first. I’m ready to try the\n\n 3 case. I’ll go first, if you want. Doesn’t matter to me.” Joint App’x 304–05. By\n\n 4 proposing that Arrington be tried first, LoTempio surrendered the significant\n\n 5 strategic advantage of learning the Government’s evidence with respect to\n\n 6 Hicks in advance of or during Arrington’s trial. At that point, because\n\n 7 LoTempio’s interest and Arrington’s interest “diverge[d] with respect to a . . .\n\n 8 course of action,” LoTempio’s conflict was actual, not potential. Schwarz, 283\n\n 9 F.3d at 91 (quotation marks omitted).\n\n10 But even though this second conflict was actual, it was also waivable.\n\n11 See Perez, 325 F.3d at 125; compare Fulton, 5 F.3d at 612–13 (witness\n\n12 implicated defendant’s attorney in drug deal, which created a conflict that “so\n\n13 permeate[d] the defense that no meaningful waiver can be obtained”). Three\n\n14 reasons in particular compel this view. First, Arrington had no discernible\n\n15 right to proceed to trial with or after Hicks. See Zafiro v. United States, 506\n\n16 U.S. 534, 539–40 (1993). Second, LoTempio’s conflict primarily implicated his\n\n17 ethical obligation to Hicks, and while he had a financial interest in continuing\n\n18 to represent Arrington, that interest was not of sufficient magnitude to\n\n 35\n\f 1 establish an unawaivable conflict. See Perez, 325 F.3d at 126–27 (finding\n\n 2 attorney’s interest in standard retainer fee did not create unwaivable conflict\n\n 3 as it did not approach the exceptional financial self‐interest presented in\n\n 4 Schwarz); cf. Schwarz, 283 F.3d at 98; Fulton, 5 F.3d at 613 (attorney conflict\n\n 5 driven by counsel’s interest in “self‐preservation”).\n\n 6 And third, while there may be tactical advantages to being tried second\n\n 7 if a severance is granted, they are not necessarily so compelling as to create an\n\n 8 unwaivable conflict. A reasonable defendant may decide to retain a trusted\n\n 9 attorney, even at the risk of losing those advantages, after being properly\n\n10 informed of the risks and benefits of severance. We therefore cannot say\n\n11 under the circumstances that “no rational defendant would knowingly and\n\n12 intelligently desire the conflicted lawyer’s representation.” Levy, 25 F.3d at\n\n13 153.\n\n14 3. The Inadequacy of the Waiver Colloquy\n\n15 Although LoTempio’s conflict was waivable, Arrington’s waiver here\n\n16 was neither knowing nor intelligent. Before a defendant can waive his\n\n17 attorney’s conflict, he must be advised of the conflict’s significant strategic\n\n18 consequences. Here, the District Court failed to advise Arrington at all about\n\n 36\n\f 1 the main strategic disadvantages arising from LoTempio’s conflict noted\n\n 2 above.\n\n 3 To be sure, on the first day of the Curcio hearing, with Arrington\n\n 4 present, the District Court described Arrington’s interest in having LoTempio\n\n 5 vigorously cross‐examine Hicks should he testify and told Arrington how\n\n 6 LoTempio’s conflict might affect his interests. The District Court then\n\n 7 arranged for Arrington to meet with independent Curcio counsel and gave\n\n 8 Arrington a day to consider what he wanted to do.\n\n 9 But Arrington was not told about the severance or that he would be\n\n10 tried first until after the District Court ordered it. He was absent when\n\n11 Hicks’s counsel moved to disqualify LoTempio and the initial discussion\n\n12 about severing the trials occurred. Nor, it appears, was Arrington in court\n\n13 when LoTempio offered to proceed with Arrington’s trial first, even though\n\n14 the proposal put Arrington at a strategic disadvantage. The District Court\n\n15 thus never directly addressed Arrington regarding these consequences of his\n\n16 counsel’s conflict, and we have no record of LoTempio independently\n\n17 discussing them with Arrington. In other words, Arrington was not given\n\n18 reasonably adequate information about the material risks of LoTempio’s\n\n 37\n\f 1 continued representation, particularly the risks of a trial severance and the\n\n 2 risk of being required (let alone volunteered) to be tried first.\n\n 3 As for the inquiry the District Court should have conducted, as noted\n\n 4 “we are more concerned with whether the defendant appreciated his\n\n 5 predicament and made a properly informed choice than we are with whether\n\n 6 the trial judge recited any particular litany of questions.” Jenkins, 943 F.2d at\n\n 7 176. But district courts must at least “advise the defendant of the dangers\n\n 8 arising from the particular conflict.” Iorizzo, 786 F.2d at 59. Where, as here,\n\n 9 those “dangers” include giving up the strategic advantages of a joint trial or\n\n10 being tried before a co‐defendant, they should be a part of the judge’s inquiry\n\n11 to obtain the defendant’s informed consent. See RESTATEMENT (THIRD) OF THE\n\n12 LAW GOVERNING LAWYERS § 122 cmt. c(i) (AM. LAW INST. 2000) (Informed\n\n13 consent “requires that each affected client be aware of the material respects in\n\n14 which the representation could have adverse effects on the interests of that\n\n15 client,” including “tactical considerations . . . that would be foreclosed or\n\n16 made less readily available by the conflict”). Where a counsel’s conflict of\n\n17 interest materially affects a significant tactical or strategic consideration, a\n\n\n\n\n 38\n\f 1 court should advise the defendant of the nature of that risk as part of a Curcio\n\n 2 inquiry.\n\n 3 Finally, we conclude that “a lapse in representation[] resulted from the\n\n 4 conflict,” Iorizzo, 786 F.2d at 58 (quotation marks omitted), because some\n\n 5 “plausible alternative defense strategy or tactic might have been pursued” but\n\n 6 for LoTempio’s actual conflict of interest, Levy, 25 F.3d at 157 (quotation\n\n 7 marks omitted). Had Arrington and Hicks been tried together and Hicks\n\n 8 testified, Arrington might have been able to benefit from Hicks’s testimony.\n\n 9 As it turns out, Hicks, testifying in his own defense at trial, denied the\n\n10 existence of the Schuele Boys enterprise, that Balance’s murder was in\n\n11 retaliation for Davison’s, or having seen Arrington at the scene of Balance’s\n\n12 murder. It is impossible to know whether the outcome for Arrington would\n\n13 have changed had Hicks’s testimony come during or before Arrington’s trial.\n\n14 But at the end, when the conflict is actual, as it is here, “the applicable\n\n15 standard requires only the demonstration of a conflict inconsistent with a\n\n16 plausible trial strategy or tactic,” not prejudice. Malpiedi, 62 F.3d at 470.\n\n17 Arrington had to show that an alternative strategic approach (not severing the\n\n18 trials, or pressing to be tried after Hicks) was “not undertaken due to\n\n 39\n\f 1 [LoTempio’s] other loyalties and interests.” Id. at 469 (quotation marks\n\n 2 omitted). Once such a showing is made, as we think it was here, Strickland’s\n\n 3 “fairly rigid” presumption of prejudice applies. Strickland v. Washington,\n\n 4 466 U.S. 668, 692 (1984).\n\n 5 Having determined that Arrington’s right to effective counsel was\n\n 6 violated, we vacate the convictions and remand for a new trial. The Sixth\n\n 7 Amendment compels this result regardless of the strength of the trial\n\n 8 evidence.\n\n 9 CONCLUSION\n\n10 Because we conclude that Arrington’s waiver of his counsel’s conflict of\n\n11 interest was not knowing and intelligent, we VACATE Arrington’s conviction\n\n12 and REMAND to the District Court for a new trial.\n\n\n\n\n 40\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Arrington\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-10-18\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17‐4092‐cr\\n United States v. Arrington\\n 1 UNITED STATES COURT OF APPEALS\\n 2 FOR THE SECOND CIRCUIT\\n 3\\n 4 August Term, 2018\\n 5\\n 6 (Argued: May 29, 2019 Decided: October 18, 2019)\\n 7\\n 8 Docket No. 17‐4092‐cr\\n 9\\n10 _____________________________________\\n11\\n12 UNITED STATES OF AMERICA,\\n13\\n14 Appellee,\\n15\\n16 v.\\n17\\n18 RODERICK ARRINGTON,\\n19\\n20 Defendant‐Appellant.*\\n21 _____________________________________\\n22\\n23 Before:\\n24\\n25 LYNCH and LOHIER, Circuit Judges, and COGAN, District Judge.**\\n26\\n27 Roderick Arrington appeals from a judgment of conviction entered\\n28 after a jury trial in the United States District Court for the Western District of\\n29 New York (Arcara, J.). We conclude that the trial evidence was sufficient to\\n30 support each count of conviction, including Arrington’s convictions for\\n31 murder and attempted murder in aid of racketeering under 18 U.S.C. § 1959.\\n32 We also conclude, however, that Arrington’s Sixth Amendment right to\\n33 effective assistance of counsel was violated when the District Court failed to\\n34 ensure that Arrington understood the full scope of the consequences arising\\n\\n * The Clerk of Court is directed to amend the official caption to conform with the\\n above.\\n ** Judge Brian M. Cogan of the United States District Court for the Eastern District of\\n\\n New York, sitting by designation.\\n\\f 1 from his counsel’s conflict of interest, including the disadvantages of a trial\\n 2 severance that counsel proposed. We therefore VACATE Arrington’s\\n 3 conviction and REMAND to the District Court for a new trial.\\n 4\\n 5 ANDREW LEVCHUK, Amherst, MA, for Defendant‐\\n 6 Appellant Roderick Arrington.\\n 7\\n 8 WEI XIANG, Assistant United States Attorney (Mary\\n 9 C. Baumgarten, Assistant United States Attorney, on\\n10 the brief), for James P. Kennedy, Jr., United States\\n11 Attorney for the Western District of New York,\\n12 Buffalo, NY, for Appellee United States of America.\\n13\\n14 LOHIER, Circuit Judge:\\n\\n15 Roderick Arrington appeals from a judgment of conviction entered\\n\\n16 after a jury trial in the United States District Court for the Western District of\\n\\n17 New York (Arcara, J.). We conclude that the trial evidence was sufficient to\\n\\n18 support each count of conviction, including Arrington’s convictions for\\n\\n19 murder and attempted murder in aid of racketeering under 18 U.S.C. § 1959.\\n\\n20 We also conclude, however, that Arrington’s Sixth Amendment right to\\n\\n21 effective assistance of counsel was violated when the District Court failed to\\n\\n22 ensure that Arrington understood the full scope of the consequences arising\\n\\n23 from his counsel’s conflict of interest, including the disadvantages of a trial\\n\\n24 severance that counsel proposed. We therefore vacate Arrington’s conviction\\n\\n25 and remand to the District Court for a new trial.\\n\\n\\n 2\\n\\f 1 BACKGROUND\\n\\n 2 Because this is an appeal from a judgment of conviction entered after a\\n\\n 3 jury trial and Arrington challenges the sufficiency of the evidence against\\n\\n 4 him, the following facts are drawn from the trial evidence and described in\\n\\n 5 the light most favorable to the Government. See United States v. Caltabiano,\\n\\n 6 871 F.3d 210, 218 (2d Cir. 2017).\\n\\n 7 A. The “Schuele Boys” and Arrington’s Role\\n\\n 8 This case centers on the drug trafficking of a violent gang operating\\n\\n 9 principally in a neighborhood on the east side of the City of Buffalo. The\\n\\n10 Government refers to the members of the gang as “the Schuele Boys,” after\\n\\n11 Schuele Avenue, a street in the neighborhood. Gov’t App’x 66–67. The\\n\\n12 Schuele Boys—including Arrington, his co‐defendants Aaron Hicks, Marcel\\n\\n13 Worthy, and LeTorrance Travis, and witnesses Jerome Grant and Demario\\n\\n14 James—grew up together in the neighborhood.\\n\\n15 Arrington’s trial focused largely on the group’s drug trafficking starting\\n\\n16 around 2010. Some Schuele Boys members arranged to transport kilograms of\\n\\n17 cocaine and marijuana to Buffalo through “traps” in vehicles or through\\n\\n18 shipped parcels. Hicks, Travis, and Worthy were responsible for distributing\\n\\n 3\\n\\f 1 the cocaine and marijuana when it arrived in Buffalo. Another Schuele Boys\\n\\n 2 member and co‐defendant, Julio Contreras, invested some of the drug\\n\\n 3 proceeds in G.O.N.E. Entertainment, a record label incorporated by Hicks that\\n\\n 4 promoted Schuele Boys associate Sandy Jones. Two music videos produced\\n\\n 5 by G.O.N.E. starred Jones, included scenes with Arrington, Hicks, Travis,\\n\\n 6 Worthy, and other Schuele Boys members, and contained lyrics that\\n\\n 7 referenced drug trafficking, drug proceeds, guns, and violence committed to\\n\\n 8 protect the drug business.\\n\\n 9 Arrington appears to have been only peripherally involved in the\\n\\n10 group’s core drug distribution activities. For example, Arrington was present\\n\\n11 when Grant and others broke down a forty‐pound bale of marijuana for sale.\\n\\n12 Grant also testified that Arrington sold him marijuana in 2001 and cocaine in\\n\\n13 2013. And in 2014 the police executed a warrant to search Arrington’s\\n\\n14 mother’s house, where Arrington had been staying, and found heroin, drug\\n\\n15 paraphernalia, and a loaded handgun.\\n\\n16 But violence played an important part in protecting the Schuele Boys\\n\\n17 and their territory for drug dealing in the neighborhood, and it is Arrington’s\\n\\n18 role as an “enforcer” that is a central focus of our sufficiency review. At trial,\\n\\n 4\\n\\f 1 the Government repeatedly described Arrington as an “enforcer” or as\\n\\n 2 “muscle” for the Schuele Boys. See, e.g., Gov’t App’x 102–03, 108, 1077, 1086,\\n\\n 3 1091–92, 1102. Grant testified that Arrington once expressed his frustration\\n\\n 4 with wearing an ankle monitor because he wanted to “tak[e] hits,” which\\n\\n 5 Grant understood to mean that Arrington wanted to kill on behalf of others.\\n\\n 6 Gov’t App’x 531, 533. Arrington also offered to kill people for Grant. And\\n\\n 7 James testified that Arrington offered, for a discounted price reserved for\\n\\n 8 close friends or relatives, to “take care of” someone who had robbed James.\\n\\n 9 Gov’t App’x 636.\\n\\n10 B. The Murder of Quincy Balance and Attempted Murder of Damon\\n11 Hunter\\n12\\n13 Arrington’s role as an “enforcer” for the Schuele Boys was on full\\n\\n14 display in August 2012. On August 26, 2012, Schuele Boys member and drug\\n\\n15 dealer Walter “Matt” Davison—Hicks’s best friend—was shot and killed. In\\n\\n16 the immediate aftermath of Davison’s murder, Arrington and other Schuele\\n\\n17 Boys members talked about two individuals that they believed were involved\\n\\n\\n\\n\\n 5\\n\\f 1 in Davison’s killing. Arrington was armed with guns at that gathering. Later,\\n\\n 2 at Davison’s wake, the same group vowed to kill whoever had killed Davison.\\n\\n 3 Four days after Davison’s death, on August 30, 2012, Quincy Balance\\n\\n 4 and Damon Hunter approached Hicks in the Schuele neighborhood to\\n\\n 5 convince Hicks that they were not responsible for Davison’s death, as Hunter\\n\\n 6 had been previously warned that “someone was after” Hunter and Balance\\n\\n 7 for killing Davison. Gov’t App’x 977. Moments after Balance started talking\\n\\n 8 with Hicks, Arrington emerged from “the other side of the street.” Id. at 988.\\n\\n 9 Balance approached Arrington, apparently intending to explain that he had\\n\\n10 not killed Davison. Arrington then pulled out a pistol and shot Balance dead.\\n\\n11 Hunter heard the shots and yelled at Arrington that he had nothing to do\\n\\n12 with Davison’s death. Hunter then dropped to the ground unharmed, rolled\\n\\n13 under a truck, and began running away as shots flew past him.\\n\\n14 Arrington was later arrested at this mother’s house on October 31, 2014.\\n\\n15 After his arrest and detention for murder, Arrington made a number of\\n\\n16 incriminating statements and engaged in some conduct evincing\\n\\n17 consciousness of guilt. For example, in early 2015, Arrington repeatedly\\n\\n18 asked Grant whether he had spoken with law enforcement. Additionally,\\n\\n 6\\n\\f 1 Arrington told Grant, with apparent relief, that Hunter had given his\\n\\n 2 assurance that he was not cooperating against Arrington about “shooting”\\n\\n 3 Balance. Gov’t App’x 500, 504–08. Arrington also wrote a note to a friend\\n\\n 4 pressuring him not to cooperate and directing the friend to tear up the note\\n\\n 5 after reading it.\\n\\n 6 C. Procedural History\\n\\n 7 On June 19, 2015, the Government filed a superseding indictment\\n\\n 8 against Arrington, Hicks, Worthy, Travis, and Contreras. Arrington was\\n\\n 9 charged with twelve counts: racketeering conspiracy in violation of 18 U.S.C.\\n\\n10 § 1962(d); narcotics conspiracy in violation of 21 U.S.C. § 846; possession of a\\n\\n11 firearm in furtherance of a crime of violence and drug trafficking crime in\\n\\n12 violation of 18 U.S.C. § 924(c)(1)(A)(i); murder in aid of racketeering activity\\n\\n13 in violation of 18 U.S.C. § 1959(a)(1); two counts of discharge of a firearm in\\n\\n14 furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii);\\n\\n15 discharge of a firearm in furtherance of a crime of violence, resulting in\\n\\n16 murder, in violation of 18 U.S.C. § 924(j)(1); attempted murder in aid of\\n\\n17 racketeering activity in violation of 18 U.S.C. § 1959(a)(5); possession of heroin\\n\\n18 with intent to distribute in violation of 21 U.S.C. § 841(a)(1); maintaining\\n\\n 7\\n\\f 1 drug‐involved premises in violation of 21 U.S.C. § 856(a)(1); possession of a\\n\\n 2 firearm in furtherance of drug trafficking crimes in violation of 18 U.S.C.\\n\\n 3 § 924(c)(1)(A)(i); and possession of a firearm and ammunition by a convicted\\n\\n 4 felon in violation of 18 U.S.C. § 922(g)(1).\\n\\n 5 1. Pretrial Proceedings\\n\\n 6 On April 22, 2016, Arrington’s trial attorney, Andrew LoTempio,\\n\\n 7 disclosed to the District Court his ongoing representation in a separate but\\n\\n 8 related case of Michael Robertson, who had been mentioned in certain\\n\\n 9 discovery documents. A magistrate judge (Scott, M.J.) held a hearing in\\n\\n10 accordance with United States v. Curcio, 680 F.2d 881 (2d Cir. 1982), to\\n\\n11 determine whether or not a conflict of interest existed, and appointed\\n\\n12 independent Curcio counsel for Arrington. After conferring with Arrington,\\n\\n13 Curcio counsel recommended that Magistrate Judge Scott not find a conflict\\n\\n14 of interest with respect to LoTempio’s representation of Robertson. The\\n\\n15 Magistrate Judge then granted LoTempio’s motion to withdraw his\\n\\n16 representation of Robertson and accepted Arrington’s in‐court waiver of a\\n\\n17 potential conflict related to LoTempio’s representation of Robertson. At the\\n\\n18 hearing, LoTempio disclosed that he previously also represented Hicks “in\\n\\n 8\\n\\f 1 unrelated criminal matters.” Dist. Ct. Dkt. No. 92. We see no record of any\\n\\n 2 further discussion of LoTempio’s prior representation of Hicks that day.\\n\\n 3 On September 14, 2016, Arrington, represented by LoTempio, moved to\\n\\n 4 sever his trial from that of his co‐defendants, and, on October 11, 2016,\\n\\n 5 requested an immediate trial. In his severance motion, Arrington, relying\\n\\n 6 primarily on Bruton v. United States, 391 U.S. 123 (1968), said that his co‐\\n\\n 7 defendants’ post‐arrest statements and confessions might implicate him. That\\n\\n 8 motion was denied. Almost a year later, on August 28 and August 31, 2017,\\n\\n 9 respectively, Travis and Contreras pled guilty, leaving Arrington, Hicks, and\\n\\n10 Worthy set to proceed to trial on September 11, 2017.\\n\\n11 On September 3, 2017, roughly one week before trial, Hicks filed a\\n\\n12 motion urging the District Court to find that LoTempio had an actual conflict\\n\\n13 of interest stemming from his prior representation of Hicks in a state court\\n\\n14 matter referenced as an overt act in the superseding indictment. The overt\\n\\n15 act, which the Government alleged was committed in furtherance of the\\n\\n16 racketeering enterprise, related to Hicks’s retrieval of a box containing thirty‐\\n\\n17 three pounds of marijuana in 2014. Hicks’s trial attorney, Robert Ross Fogg,\\n\\n\\n\\n\\n 9\\n\\f 1 asserted that LoTempio’s conflict of interest was unwaivable and, in any\\n\\n 2 event, that Hicks refused to waive it.\\n\\n 3 2. The Curcio Hearing\\n\\n 4 On September 5 and 6, the District Court (Arcara, J.) held a Curcio\\n\\n 5 hearing to address the conflict arising from LoTempio’s prior representation\\n\\n 6 of Hicks. Arrington was in the courtroom at the start of the hearing on the\\n\\n 7 first day, as were LoTempio, Fogg, and Hicks. The District Court informed\\n\\n 8 Arrington that he had “a very strong interest in having Mr. LoTempio cross‐\\n\\n 9 examine all the witnesses against [him] aggressively to try to challenge the\\n\\n10 believability or the credibility or the reliability of the witnesses.” Joint App’x\\n\\n11 260. Because LoTempio also owed a duty to Hicks, the District Court\\n\\n12 explained, LoTempio could not use information he had learned while\\n\\n13 representing Hicks, and therefore “might not be able to represent [Arrington]\\n\\n14 as zealously as he should by aggressively cross‐examining witnesses of events\\n\\n15 that happen[ed] in 2014,” Joint App’x 261, and might “have to pull some\\n\\n16 punches . . . because of his loyalty to . . . Hicks,” Joint App’x 262–63.\\n\\n17 LoTempio confirmed that he could not use any information from Hicks’s\\n\\n18 earlier case to cross‐examine Hicks. Joint App’x 263–64. In response to these\\n\\n 10\\n\\f 1 warnings, Arrington repeatedly said that he understood the nature of the\\n\\n 2 conflict. The District Court then apprised Arrington of his right to a conflict‐\\n\\n 3 free lawyer, assigned independent Curcio counsel to advise Arrington,\\n\\n 4 instructed Arrington that he could discuss whether or not to waive the\\n\\n 5 conflict with both Curcio counsel and LoTempio, and gave Arrington ample\\n\\n 6 time to decide. Arrington and his Curcio counsel then left the courtroom to\\n\\n 7 discuss the issues in another room.\\n\\n 8 Unfortunately, the District Court continued to discuss the nature of the\\n\\n 9 conflict with LoTempio and Fogg while Arrington was outside the courtroom.\\n\\n10 Fogg argued that LoTempio should be disqualified because Hicks would be\\n\\n11 less likely to testify in his own defense if LoTempio, his former lawyer, could\\n\\n12 cross‐examine him. LoTempio responded that “it would put me in an awful\\n\\n13 predicament if [Hicks] took the stand and it would probably be more of a\\n\\n14 severance issue than me being removed.” Joint App’x 268. This was the first\\n\\n15 time anyone mentioned severing the trials of Arrington and Hicks as a\\n\\n16 solution to LoTempio’s conflict of interest. In response, the District Court\\n\\n17 suggested that severance might make “the issue go[] away.” Joint App’x 272.\\n\\n\\n\\n\\n 11\\n\\f 1 The next day, September 6, the District Court finished its Curcio\\n\\n 2 colloquy with Arrington and, based on Curcio counsel’s representations,\\n\\n 3 accepted Arrington’s waiver of the conflict and adjourned. Later that day, the\\n\\n 4 District Court held a separate proceeding to deal with Hicks’s motion to\\n\\n 5 disqualify LoTempio. Although LoTempio was present virtually throughout,\\n\\n 6 the record suggests that Arrington was not even in the courtroom and did not\\n\\n 7 otherwise participate in this proceeding.1 In any event, the District Court\\n\\n 8 never addressed Arrington about LoTempio’s request for a severance (or\\n\\n 9 anything else) during the proceeding even though it significantly affected\\n\\n10 Arrington.\\n\\n11 The proceeding started with Fogg again arguing that Hicks would be\\n\\n12 less likely to testify because of LoTempio’s conflict, that the conflict was not\\n\\n13 waivable, and that disqualifying LoTempio was the only appropriate remedy.\\n\\n14 Severance, Fogg added, was not in his client’s best interest.\\n\\n15 Because it framed the District Court’s decision to sever the trials, we\\n\\n16 quote LoTempio’s response at length:\\n\\n\\n 1 It is helpful for appellate review for the minute entry on the docket (or for the\\n transcript of proceedings) to indicate that a criminal defendant is present in the\\n courtroom.\\n 12\\n\\f 1 Now, I don’t know [what Hicks will say]. If he\\n 2 [inculpates Arrington], then I owe a duty to Mr. Arrington\\n 3 to go after Mr. Hicks and impeach him and cross‐examine\\n 4 him with everything I have at my abilities. And you know,\\n 5 it would be hard for me to separate what I know from . . .\\n 6 what Mr. Hicks may or may not have told me when I\\n 7 represented him during the overt act in this.\\n 8 So, the Canons of Ethics basically start with the idea\\n 9 that I can’t represent either one of them. And then it goes\\n10 on to say that, depending on how related the matters are,\\n11 increases the prohibition. And here, they’re definitely\\n12 related to one another. The two cases, they’re inextricably\\n13 interwoven. They’re part and parcel of the charges.\\n14 And then the question then becomes, can\\n15 [Arrington] consent? And it talks about cases where he\\n16 can’t even consent because the temptation of a lawyer\\n17 serving both people is so grave that there shouldn’t even\\n18 be consent. So, I think, at this point—I don’t know that it’s\\n19 appropriate to kick me off the case. I think that the\\n20 appropriate remedy, at this point, would be to grant a\\n21 severance.\\n22 And then, only if Mr. Hicks cooperates with the\\n23 government in a separate trial against Mr. Arrington\\n24 would this issue come up again. If he doesn’t cooperate,\\n25 then he’s removed from . . . Mr. Arrington’s case, and I\\n26 never have to cross‐examine him and I’m never tempted to\\n27 use information that he gave to me and it becomes a moot\\n28 point. If he does cooperate, then we’re kind of kicking the\\n29 can down the road, but you’re still giving – at least giving\\n30 Mr. Arrington an opportunity to keep the attorney of his\\n31 choice.\\n32 So, I think that this case would come back on appeal\\n33 if we don’t at least do a severance. I guess that’s my\\n34 opinion, for what it’s worth. And I’m asking that you do\\n35 that, because otherwise, I’m being put in a predicament\\n\\n 13\\n\\f 1 where I am going to almost have to choose between Mr.\\n 2 Arrington and my duty to—that’s still left over to my\\n 3 former client, which is to not talk about things or confront\\n 4 him with things that I may or may not remember. I’m\\n 5 being put in an awful position.\\n 6\\n 7 ....\\n 8\\n 9 So, at this late stage, I think that the—I would like to\\n10 represent Mr. Arrington and continue to do that. And I\\n11 think the only way that that can happen, without me\\n12 violating my former client’s rights, is if we’re given a\\n13 separate trial. And I don’t care if I go first. I’m ready to try\\n14 the case. I’ll go first, if you want. Doesn’t matter to me.\\n15\\n16 Joint App’x 302–05.\\n\\n17 LoTempio’s proposal did not go over well with the other parties. Fogg\\n\\n18 continued to strongly oppose severance, while the Government disputed that\\n\\n19 severance would resolve the conflict because Arrington could still call Hicks\\n\\n20 as a witness in his own case. But the District Court was concerned about\\n\\n21 delaying trial, and it ultimately agreed to sever the trials and to immediately\\n\\n22 try Arrington and Worthy.\\n\\n23 3. Arrington’s Trial and the Jury Verdict\\n\\n24 Trial started on September 11, 2017. Worthy pled guilty on the first\\n\\n25 morning of jury selection, leaving Arrington to be tried alone. During trial, it\\n\\n\\n 14\\n\\f 1 became abundantly clear that Arrington killed Balance and tried to shoot\\n\\n 2 Hunter. For example, Worthy confirmed that Arrington shot Balance and\\n\\n 3 tried to shoot Hunter. Another witness, Ja’Quan Johnson, testified that\\n\\n 4 Arrington shot Balance, and that in the days leading up to the shooting,\\n\\n 5 Arrington asked people in the neighborhood about Balance’s whereabouts.\\n\\n 6 Arrington’s defense at trial focused on the Government’s limited\\n\\n 7 evidence that Arrington participated in the Schuele Boys’ drug dealing or\\n\\n 8 acted as their “enforcer.” Arrington consequently argued that because no\\n\\n 9 conspiracy or racketeering enterprise existed under federal law, any murder\\n\\n10 charges against him should have instead proceeded in state court.\\n\\n11 The trial lasted nine days. During the first full day of jury\\n\\n12 deliberations, one juror alerted the District Court that he knew one of the\\n\\n13 victims of a shooting mentioned at trial and said that his personal knowledge\\n\\n14 might impair his ability to deliberate. The District Court denied Arrington’s\\n\\n15 motion for a mistrial, replaced the juror with an alternate, and instructed the\\n\\n\\n\\n\\n 15\\n\\f 1 jury to “start all over again” and “disregard your earlier deliberations.” Gov’t\\n\\n 2 App’x 1243–44, 1248–49, 1254.\\n\\n 3 A few hours later, the reconstituted jury convicted Arrington on Counts\\n\\n 4 1 through 8: racketeering conspiracy (Count 1), narcotics conspiracy (Count\\n\\n 5 2), possession of firearms in furtherance of a crime of violence or drug\\n\\n 6 trafficking crime (Count 3), murder in aid of racketeering activity (Count 4),\\n\\n 7 two counts of discharge of a firearm in furtherance of crimes of violence\\n\\n 8 (Counts 5 and 8), discharge of a firearm causing death in furtherance of a\\n\\n 9 crime of violence (Count 6), and attempted murder in aid of racketeering\\n\\n10 activity (Count 7). The jury acquitted Arrington of the four remaining drug or\\n\\n11 gun possession charges.\\n\\n12 4. Hicks’s Trial and Retrial\\n\\n13 Hicks’s trial took place shortly after Arrington’s. Testifying in his own\\n\\n14 defense, Hicks denied the existence of the Schuele Boys enterprise, denied\\n\\n15 knowing why Balance was killed, and claimed that he did not see Arrington\\n\\n16 at the scene of Balance’s murder. Hicks confirmed that Balance and Hunter\\n\\n\\n\\n\\n 16\\n\\f 1 told him that they did not kill Davison; but Hicks also testified that Balance\\n\\n 2 told him that Hunter was responsible.\\n\\n 3 A jury convicted Hicks of narcotics conspiracy, acquitted him of\\n\\n 4 possession of a firearm in furtherance of a crime of violence or drug\\n\\n 5 trafficking offense, and deadlocked on the racketeering conspiracy charge.\\n\\n 6 The Government retried Hicks on the racketeering conspiracy charge, and the\\n\\n 7 second jury convicted him. Hicks did not testify at his second trial.\\n\\n 8 5. Arrington’s Post‐Trial Motions and Sentencing\\n\\n 9 Arrington filed a motion for acquittal under Federal Rule of Criminal\\n\\n10 Procedure 29, arguing principally that the evidence was insufficient to\\n\\n11 establish an enterprise, Arrington’s membership in the enterprise, his role in a\\n\\n12 drug conspiracy, or that Arrington killed Balance in furtherance of any\\n\\n13 enterprise. The District Court denied the motion, concluding that the\\n\\n14 evidence showed that Arrington knew of the conspiracy’s core racketeering\\n\\n15 activity and knowingly joined the conspiracy. Joint App’x 669–79. The\\n\\n16 District Court also found that the evidence established that the Schuele Boys\\n\\n17 were an association‐in‐fact enterprise in which Arrington held a position. The\\n\\n18 District Court pointed to the “overwhelming evidence” that Arrington\\n\\n 17\\n\\f 1 murdered Balance and attempted to murder Hunter and determined that a\\n\\n 2 reasonable jury could conclude that Arrington did so to maintain or promote\\n\\n 3 his position in the enterprise. Joint App’x 675.2 This appeal followed.\\n\\n 4 DISCUSSION\\n\\n 5 On appeal, Arrington makes three main arguments.\\n\\n 6 First, he challenges the sufficiency of the evidence supporting each\\n\\n 7 count of conviction.3 We conclude that the evidence, viewed in the light most\\n\\n 8 favorable to the Government, was sufficient to support each count of\\n\\n 9 conviction.\\n\\n10 Second, Arrington argues that his Sixth Amendment right to conflict‐\\n\\n11 free counsel was violated when the District Court failed to disqualify his trial\\n\\n12 counsel, or, alternatively, that the District Court failed to conduct a waiver\\n\\n13 colloquy that adequately informed Arrington of the nature of the conflict.\\n\\n\\n\\n\\n 2 The District Court did, however, vacate one of Arrington’s discharge convictions\\n (Count 5) as the lesser‐included offense of another (Count 6).\\n 3 Although we vacate Arrington’s conviction on other grounds discussed below, we\\n\\n address his sufficiency challenges because we would be required to direct the\\n District Court to enter a judgment of acquittal if there were insufficient evidence to\\n support conviction, instead of vacating the conviction and remanding for a new\\n trial. United States v. Rosemond, 841 F.3d 95, 113 (2d Cir. 2016).\\n 18\\n\\f 1 Because we agree that Arrington’s waiver was not knowing and intelligent,\\n\\n 2 we vacate Arrington’s conviction and remand for a new trial.\\n\\n 3 We therefore need not, and do not, reach Arrington’s third argument\\n\\n 4 that the District Court abused its discretion in replacing a juror for good cause\\n\\n 5 and refusing to grant a mistrial.\\n\\n 6 A. Sufficiency of the Evidence\\n\\n 7 We review sufficiency challenges de novo, considering the evidence in\\n\\n 8 its totality. United States v. Persico, 645 F.3d 85, 104 (2d Cir. 2011). We defer\\n\\n 9 to the jury’s choice between competing inferences reasonably drawn from the\\n\\n10 evidence. Id. In a criminal case, we will uphold the conviction if, “after\\n\\n11 viewing the evidence in the light most favorable to the prosecution, any\\n\\n12 rational trier of fact could have found the essential elements of the crime\\n\\n13 beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).\\n\\n14 1. Racketeering Conspiracy\\n\\n15 The conspiracy provision of the Racketeer Influenced and Corrupt\\n\\n16 Organizations Act (RICO), 18 U.S.C. § 1962(d), “proscribes an agreement to\\n\\n17 conduct or to participate in the conduct of [an] enterprise’s affairs through a\\n\\n18 pattern of racketeering activity.” United States v. Pizzonia, 577 F.3d 455, 462\\n\\n 19\\n\\f 1 (2d Cir. 2009). To prove a RICO conspiracy, the Government need not\\n\\n 2 establish the existence of an enterprise, United States v. Applins, 637 F.3d 59,\\n\\n 3 75 (2d Cir. 2011), or that the defendant committed any predicate act, United\\n\\n 4 States v. Yannotti, 541 F.3d 112, 129 (2d Cir. 2008). It need only prove that the\\n\\n 5 defendant knew of, and agreed to, the general criminal objective of a jointly\\n\\n 6 undertaken scheme. Applins, 637 F.3d at 75; see United States v. Zichettello,\\n\\n 7 208 F.3d 72, 99–100 (2d Cir. 2000).\\n\\n 8 Here, a reasonable jury could find beyond a reasonable doubt that\\n\\n 9 Arrington agreed with other members of the Schuele Boys to function as a\\n\\n10 unit for the common purpose of selling drugs. First, evidence at trial\\n\\n11 established that, while his personal participation was limited, Arrington knew\\n\\n12 that his associates were involved in the drug trafficking business. We note\\n\\n13 especially the evidence that Arrington offered James, a Schuele Boys member,\\n\\n14 a “family price” to retaliate against a robber who stole marijuana belonging to\\n\\n15 James. Gov’t App’x 636. We also note Arrington’s participation in the\\n\\n16 G.O.N.E. music videos. Second, based on the evidence we have already\\n\\n17 described, a reasonable jury could find beyond a reasonable doubt that\\n\\n18 Arrington murdered Balance and shot at Hunter in retaliation for Davison’s\\n\\n 20\\n\\f 1 murder and to protect the Schuele Boys’ drug trafficking business, although\\n\\n 2 the connection between the murder and the business itself is a close call. See\\n\\n 3 Yannotti, 541 F.3d at 122.\\n\\n 4 2. Narcotics Conspiracy\\n\\n 5 For largely the same reasons that the evidence was sufficient to support\\n\\n 6 Arrington’s conviction for RICO conspiracy, the evidence was also sufficient\\n\\n 7 to support his conviction for narcotics conspiracy. Arrington concedes the\\n\\n 8 existence of a drug conspiracy involving Hicks, Travis, Worthy, and others.\\n\\n 9 He simply denies that he joined the conspiracy. But a reasonable jury could\\n\\n10 have found that Arrington’s role and offers to serve as “muscle” assisted his\\n\\n11 co‐conspirators’ drug trafficking activities. See United States v. Hawkins, 547\\n\\n12 F.3d 66, 71 (2d Cir. 2008).\\n\\n13 3. Murder and Attempted Murder in Aid of Racketeering\\n\\n14 To convict Arrington for committing a violent crime in aid of\\n\\n15 racketeering under 18 U.S.C. § 1959, the Government had to establish that: (1)\\n\\n16 a racketeering enterprise existed; (2) the enterprise’s activities affected\\n\\n17 interstate commerce; (3) Arrington had a position in the enterprise; (4)\\n\\n18 Arrington committed a violent crime; and (5) Arrington committed the\\n\\n 21\\n\\f 1 violent crime, as relevant here, “for the purpose of . . . maintaining or\\n\\n 2 increasing position in [the] enterprise.” Id. § 1959(a); United States v.\\n\\n 3 Concepcion, 983 F.2d 369, 380–81 (2d Cir. 1992). On appeal, Arrington\\n\\n 4 challenges the sufficiency of the evidence supporting the first, third, and fifth\\n\\n 5 elements. We address each of Arrington’s challenges in turn.\\n\\n 6 a. The Existence of a Racketeering Enterprise\\n\\n 7 “[A]n association‐in‐fact enterprise is simply a continuing unit that\\n\\n 8 functions with a common purpose.” Boyle v. United States, 556 U.S. 938, 948\\n\\n 9 (2009); see also United States v. Pierce, 785 F.3d 832, 838–39 (2d Cir. 2015). As\\n\\n10 we explained above with respect to Arrington’s conviction for racketeering\\n\\n11 conspiracy, a reasonable jury could conclude from evidence of the\\n\\n12 relationship between Hicks, Travis, Worthy, Contreras, and others, and from\\n\\n13 their actions over a period of years, that the Schuele Boys were “a continuing\\n\\n14 unit that function[ed] with [the] common purpose” of selling drugs in and\\n\\n15 around their neighborhood on the east side of Buffalo. Boyle, 556 U.S. at 948.\\n\\n\\n\\n\\n 22\\n\\f 1 We therefore reject Arrington’s sufficiency challenge to the first element of his\\n\\n 2 conviction for committing a violent crime in aid of racketeering activity.\\n\\n 3 b. Arrington’s Position in a Racketeering Enterprise\\n\\n 4 Despite Arrington’s limited participation in the enterprise’s core drug\\n\\n 5 trafficking activity, for many of the same reasons that we conclude there was\\n\\n 6 sufficient evidence of Arrington’s agreement to participate in the RICO\\n\\n 7 conspiracy, we are also of the view that the evidence at trial was sufficient to\\n\\n 8 allow a reasonable jury to conclude that Arrington held a position within the\\n\\n 9 Schuele Boys enterprise. While Arrington’s position was, to be sure, a low\\n\\n10 and peripheral one, any position is enough. See United States v. Brady, 26\\n\\n11 F.3d 282, 290 (2d Cir. 1994). Arrington served as an enforcer for the Schuele\\n\\n12 Boys, able and willing to hurt people who crossed its members. Arrington’s\\n\\n13 role in the G.O.N.E. music videos and his activities while in jail also\\n\\n14 evidenced his membership in the Schuele Boys.\\n\\n15 c. The Motive Requirement\\n\\n16 As relevant here, § 1959 required the Government to prove that\\n\\n17 Arrington committed a crime of violence at least in part “for the purpose\\n\\n18 of . . . maintaining or increasing [his] position in” the Schuele Boys enterprise.\\n\\n 23\\n\\f 1 18 U.S.C. § 1959(a); see United States v. Pimentel, 346 F.3d 285, 295–96 (2d Cir.\\n\\n 2 2003); United States v. Thai, 29 F.3d 785, 817 (2d Cir. 1994). This motive\\n\\n 3 requirement is “satisfied if ‘the jury could properly infer that [Arrington]\\n\\n 4 committed his violent crime because he knew it was expected of him by\\n\\n 5 reason of his membership in the enterprise or that he committed it in\\n\\n 6 furtherance of that membership.’” Thai, 29 F.3d at 817 (quoting Concepcion,\\n\\n 7 983 F.2d at 381).\\n\\n 8 Arrington argues that there was insufficient evidence for the jury to\\n\\n 9 conclude that he killed Balance or tried to kill Hunter for the purpose of\\n\\n10 maintaining or promoting his position within the Schuele Boys group.\\n\\n11 Arrington does not dispute that Balance and Hunter were targeted to avenge\\n\\n12 Davison’s death and barely disputes the strong evidence that he shot them.\\n\\n13 See, e.g., Gov’t App’x 1128; Appellant’s Br. 35–36.4 The real question for us,\\n\\n14 then, is whether there was evidence from which a reasonable jury could\\n\\n15 conclude that Arrington committed either act in furtherance of, or as an\\n\\n\\n\\n\\n 4As the District Court recognized, the evidence of Arrington’s personal involvement\\n in the murder was overwhelming. Three eyewitnesses identified Arrington as the\\n shooter. See Gov’t App’x 562–75, 933–34, 989–92.\\n 24\\n\\f 1 integral aspect of, his role as an enforcer for the Schuele Boys. Although it is a\\n\\n 2 close call, the answer is yes.\\n\\n 3 At trial, some witnesses testified about the use of violence to protect the\\n\\n 4 Schuele Boys’ drug business. A few witnesses described Arrington’s offers to\\n\\n 5 serve as an enforcer for members of the Schuele Boys and to kill people on\\n\\n 6 their behalf either for free or at a discounted “family” price. And in the run‐\\n\\n 7 up to Balance’s murder, Arrington, armed, talked with Hicks, Worthy, and\\n\\n 8 others about killing whoever had killed Davison.\\n\\n 9 What gives us some pause about the evidence of Arrington’s\\n\\n10 motivation is that he appears to have been a peripheral member of the\\n\\n11 Schuele Boys. And his work for the group could suggest a financial or\\n\\n12 personal motivation as much as it does an effort to protect the group’s\\n\\n13 reputation or members. Urging that conclusion, Arrington points to our\\n\\n14 decisions in Thai and United States v. Bruno, 383 F.3d 65 (2d Cir. 2004), in\\n\\n15 which we vacated convictions under § 1959.\\n\\n16 Both cases are distinguishable. In Thai, the evidence showed that the\\n\\n17 defendant committed murder for “purely mercenary” reasons (money), rather\\n\\n18 than to protect his criminal organization or maintain his position within it. 29\\n\\n 25\\n\\f 1 F.3d at 818; accord United States v. Ferguson, 246 F.3d 129, 135–36 (2d Cir.\\n\\n 2 2001) (defendant was an outside hitman who did not belong to the gang).\\n\\n 3 And in Bruno, the defendant was motivated entirely by money and a personal\\n\\n 4 vendetta to commit a violent crime that served only to decrease his position\\n\\n 5 within the Genovese crime family. 383 F.3d at 84–85. Here, in contrast to\\n\\n 6 both Thai and Bruno, there is no evidence that Arrington was paid to avenge\\n\\n 7 Davison’s murder. Nor is there evidence, as the Government observes, that\\n\\n 8 Arrington harbored a motive for the shootings unrelated to his attachment to\\n\\n 9 the Schuele Boys. To the contrary, in this case, as in United States v. Burden,\\n\\n10 while “[p]ersonal beefs also may have been satisfied . . . the evidence\\n\\n11 supported a finding” that Arrington “engaged in violent acts because it was\\n\\n12 expected of [him] as . . . [a] member[] of the [enterprise].” 600 F.3d 204, 221\\n\\n13 (2d Cir. 2010).\\n\\n14 In arriving at this conclusion, we rely on the evidence that some\\n\\n15 Schuele Boys members believed that Davison, a fellow member, was killed\\n\\n16 during a drug robbery committed by Balance and Hunter. Such a robbery\\n\\n17 would have posed a direct threat to the Schuele Boys. We are also persuaded\\n\\n18 by evidence that Arrington’s plan to murder Balance and Hunter was hatched\\n\\n 26\\n\\f 1 with other Schuele Boys members, not alone. At Davison’s wake, for\\n\\n 2 example, Arrington talked with Schuele Boys members specifically about\\n\\n 3 killing Balance and Hunter. For these reasons, the jury properly could have\\n\\n 4 inferred that Arrington sought to avenge Davison’s murder on behalf of the\\n\\n 5 Schuele Boys and thereby confirm his position as an enforcer in the group—in\\n\\n 6 other words, that the shootings were not merely “an act of personal revenge”\\n\\n 7 but also “tied to [Arrington’s] racketeering activities.” United States v. James,\\n\\n 8 239 F.3d 120, 124 n.5 (2d Cir. 2000).\\n\\n 9 4. Firearms Counts\\n\\n10 In addition to challenging the racketeering and narcotics conspiracy\\n\\n11 charges against him, Arrington attacks his convictions on the firearms‐related\\n\\n12 charges (Counts 3, 5, 6, and 8) on the ground that the evidence was\\n\\n13 insufficient to support the predicate crimes of violence or drug trafficking\\n\\n14 (Counts 1, 2, 4, and 7). Because we reject those sufficiency arguments above,\\n\\n\\n\\n\\n 27\\n\\f 1 we also reject Arrington’s sufficiency challenge with respect to his firearms\\n\\n 2 convictions.\\n\\n 3 B. The Conflict of Interest in Representation\\n\\n 4 Although there was sufficient evidence to support Arrington’s counts\\n\\n 5 of conviction, we agree with Arrington that his waiver of LoTempio’s conflict\\n\\n 6 of interest was not knowing and intelligent. We therefore vacate Arrington’s\\n\\n 7 conviction.\\n\\n 8 1. Legal Background\\n\\n 9 The Sixth Amendment right to effective assistance of counsel “generally\\n\\n10 ensures that an accused may be represented by any attorney who will agree to\\n\\n11 take his case.” United States v. Perez, 325 F.3d 115, 124 (2d Cir. 2003). A\\n\\n12 defendant has a “’correlative right to representation that is free from conflicts\\n\\n13 of interest.’” Cardoza v. Rock, 731 F.3d 169, 183 (2d Cir. 2013) (quoting Wood\\n\\n14 v. Georgia, 450 U.S. 261, 271 (1981)).\\n\\n15 When a defendant’s right to choose the counsel he wants “conflicts with\\n\\n16 the right to an attorney of undivided loyalty, the choice as to which right is to\\n\\n17 take precedence must generally be left to the defendant.” Perez, 325 F.3d at\\n\\n18 125. But district courts have an “independent duty to ensure that criminal\\n\\n 28\\n\\f 1 defendants receive a trial that is fair and does not contravene the Sixth\\n\\n 2 Amendment.” Wheat v. United States, 486 U.S. 153, 161 (1988). For that\\n\\n 3 reason, “[w]hen a district court is sufficiently apprised of even the possibility\\n\\n 4 of a conflict of interest”—as the District Court was here—it has a threshold\\n\\n 5 obligation to “investigate the facts and details of the attorney’s interests to\\n\\n 6 determine whether the attorney in fact suffers from an actual conflict, a\\n\\n 7 potential conflict, or no genuine conflict at all.” United States v. Levy, 25 F.3d\\n\\n 8 146, 153 (2d Cir. 1994); see Perez, 325 F.3d at 125.\\n\\n 9 An attorney has an actual conflict “when, during the course of the\\n\\n10 representation, the attorney’s and defendant’s interests diverge with respect\\n\\n11 to a material factual or legal issue or to a course of action.” United States v.\\n\\n12 Schwarz, 283 F.3d 76, 91 (2d Cir. 2002) (quotation marks omitted). The\\n\\n13 attorney suffers from only a potential conflict when the “interests of the\\n\\n14 defendant may place the attorney under inconsistent duties at some time in\\n\\n15 the future.” Perez, 325 F.3d at 125 (quotation marks omitted).\\n\\n16 If the district court concludes that defense counsel has a genuine\\n\\n17 conflict, it has to determine whether the conflict is so severe as to require the\\n\\n18 attorney’s disqualification or whether it is a lesser conflict that can be waived\\n\\n 29\\n\\f 1 in a Curcio hearing. Levy, 25 F.3d at 153. In most cases where a defendant’s\\n\\n 2 attorney has a conflict, the defendant “may make a knowing and intelligent\\n\\n 3 waiver of his right to a conflict‐free lawyer if he desires to continue the\\n\\n 4 representation.” United States v. Cain, 671 F.3d 271, 293 (2d Cir. 2012). In\\n\\n 5 rare cases, an attorney’s conflict is unwaivable because it is so serious that “no\\n\\n 6 rational defendant . . . would have knowingly and intelligently desired” the\\n\\n 7 conflicted attorney’s representation, Perez, 325 F.3d at 127; see Cain, 671 F.3d\\n\\n 8 at 293; Schwarz, 283 F.3d at 95–97; United States v. Fulton, 5 F.3d 605, 613 (2d\\n\\n 9 Cir. 1993), or because, as we have also phrased it, the conflict is “so severe as\\n\\n10 to indicate per se that the rendering of effective assistance will be impeded,”\\n\\n11 Perez, 325 F.3d at 125. We have identified such “per se violation[s] of the\\n\\n12 Sixth Amendment” where the “defendant’s counsel was unlicensed, and\\n\\n13 when the attorney has engaged in the defendant’s crimes.” Fulton, 5 F.3d at\\n\\n14 611.\\n\\n15 Where an attorney suffers from a waivable actual or potential conflict,\\n\\n16 the district court must conduct a Curcio hearing to determine whether the\\n\\n17 defendant will knowingly and intelligently waive his right to conflict‐free\\n\\n18 representation. Curcio, 680 F.2d at 881‐91; Levy, 25 F.3d at 153. To ensure\\n\\n 30\\n\\f 1 that a defendant’s waiver is made knowingly and intelligently at the Curcio\\n\\n 2 hearing, the district court should: “(i) advise the defendant of the dangers\\n\\n 3 arising from the particular conflict; (ii) determine through questions that are\\n\\n 4 likely to be answered in narrative form whether the defendant understands\\n\\n 5 those risks and freely chooses to run them; and (iii) give the defendant time to\\n\\n 6 digest and contemplate the risks after encouraging him or her to seek advice\\n\\n 7 from independent counsel.” United States v. Iorizzo, 786 F.2d 52, 59 (2d Cir.\\n\\n 8 1986). In evaluating a district court’s fidelity to Curcio’s guidance, “we are\\n\\n 9 more concerned with whether the defendant appreciated his predicament and\\n\\n10 made a properly informed choice than we are with whether the trial judge\\n\\n11 recited any particular litany of questions.” United States v. Jenkins, 943 F.2d\\n\\n12 167, 176 (2d Cir. 1991). We also recognize that a district court must decide\\n\\n13 whether to allow a waiver of a conflict of interest “not with the wisdom of\\n\\n14 hindsight after the trial has taken place, but in the murkier pre‐trial context,”\\n\\n15 when the “likelihood and dimensions of nascent conflicts of interest are\\n\\n16 notoriously hard to predict.” Wheat, 486 U.S. at 162.\\n\\n17 On appeal, a defendant challenging his conviction on the ground that\\n\\n18 he was deprived of his Sixth Amendment right to effective assistance of\\n\\n 31\\n\\f 1 counsel as the result of a conflict must demonstrate, first, that the conflict was\\n\\n 2 either unwaivable or that his waiver was not knowing and intelligent, see\\n\\n 3 Schwarz, 283 F.3d at 95, and second, that he was prejudiced by the conflict,\\n\\n 4 see Levy, 25 F.3d at 152, in other words, that “but for counsel’s unprofessional\\n\\n 5 errors, the result of the proceeding would have been different,” Fulton, 5 F.3d\\n\\n 6 at 609 (quotation marks omitted). As for the second requirement, where the\\n\\n 7 conflict is potential we require that the defendant establish prejudice. Where\\n\\n 8 an actual conflict exists, however, we presume prejudice and require only that\\n\\n 9 the defendant show that “a lapse in representation . . . resulted from the\\n\\n10 conflict.” Iorizzo, 786 F.2d at 58 (quotation marks omitted). A lapse in\\n\\n11 representation means that some “plausible alternative defense strategy or\\n\\n12 tactic might have been pursued, and that the alternative defense was\\n\\n13 inherently in conflict with or not undertaken due to the attorney’s other\\n\\n14 loyalties or interests.” Levy, 25 F.3d at 157 (quotation marks omitted).\\n\\n\\n\\n\\n 32\\n\\f 1 2. Counsel’s Conflict\\n\\n 2 Arrington argues that LoTempio’s conflict was not waivable. If that\\n\\n 3 were right, then the District Court would have abused its discretion in\\n\\n 4 denying Hicks’s motion to disqualify LoTempio. See Schwarz, 283 F.3d at 95.\\n\\n 5 But we conclude that the two conflicts that arose from LoTempio’s prior\\n\\n 6 representation of Arrington’s co‐defendant were both waivable.\\n\\n 7 The first conflict arose from LoTempio’s duty to Hicks, his former\\n\\n 8 client, which compromised his ability to be a zealous advocate for Arrington.\\n\\n 9 LoTempio had represented Hicks with respect to one of the overt acts in the\\n\\n10 indictment, and he was therefore barred from using the fruits of that\\n\\n11 representation to benefit Arrington or from fully cross‐examining witnesses\\n\\n12 about related events. The effects of this conflict would have been magnified\\n\\n13 had Hicks testified in his own defense at a joint trial. See, e.g., United States\\n\\n14 v. Kliti, 156 F.3d 150, 154–55 (2d Cir. 1998); United States v. Leslie, 103 F.3d\\n\\n15 1093, 1098 (2d Cir. 1997); United States v. Lussier, 71 F.3d 456, 462 (2d Cir.\\n\\n16 1995); United States v. Malpiedi, 62 F.3d 465, 470 (2d Cir. 1995).\\n\\n17 Although LoTempio’s conflict compromised his ability to be a zealous\\n\\n18 advocate for Arrington, it was nonetheless waivable. See Perez 325 F.3d at\\n\\n 33\\n\\f 1 127–29; Iorizzo, 786 F.2d at 59; see also Lussier, 71 F.3d at 462. For one thing,\\n\\n 2 we have generally found that this type of conflict is waivable. See United\\n\\n 3 States v. Oberoi, 331 F.3d 44, 50 (2d Cir. 2003). For another thing, this first\\n\\n 4 conflict stemming from LoTempio’s prior representation was potential, not\\n\\n 5 actual; at the time the District Court severed the trials, it was not clear that\\n\\n 6 Hicks would testify or what he would say if he did. See Lussier, 71 F.3d at\\n\\n 7 462; see also Joint App’x 302.\\n\\n 8 The second, more serious conflict arose from Hicks’s refusal to waive\\n\\n 9 LoTempio’s conflict, LoTempio’s insistence on severing the trials, and\\n\\n10 LoTempio’s offer to have Arrington tried first. Recall that Hicks was\\n\\n11 concerned that LoTempio would draw from his prior representation of Hicks\\n\\n12 when cross‐examining Hicks if he testified. This put LoTempio in what he\\n\\n13 aptly called an “awful predicament.” Joint App’x 268. It could be reasonably\\n\\n14 inferred that LoTempio suggested a severance (something he had raised on\\n\\n15 different grounds about a year earlier and had not since revisited) in response\\n\\n16 to the “predicament” presented by Hicks’s disqualification motion. See Joint\\n\\n17 App’x 268, 303–04. During the Curcio hearing, LoTempio stated: “I would\\n\\n18 like to represent Mr. Arrington and continue to do that. And I think the only\\n\\n 34\\n\\f 1 way that that can happen, without me violating my former client’s rights, is if\\n\\n 2 we’re given a separate trial. And I don’t care if I go first. I’m ready to try the\\n\\n 3 case. I’ll go first, if you want. Doesn’t matter to me.” Joint App’x 304–05. By\\n\\n 4 proposing that Arrington be tried first, LoTempio surrendered the significant\\n\\n 5 strategic advantage of learning the Government’s evidence with respect to\\n\\n 6 Hicks in advance of or during Arrington’s trial. At that point, because\\n\\n 7 LoTempio’s interest and Arrington’s interest “diverge[d] with respect to a . . .\\n\\n 8 course of action,” LoTempio’s conflict was actual, not potential. Schwarz, 283\\n\\n 9 F.3d at 91 (quotation marks omitted).\\n\\n10 But even though this second conflict was actual, it was also waivable.\\n\\n11 See Perez, 325 F.3d at 125; compare Fulton, 5 F.3d at 612–13 (witness\\n\\n12 implicated defendant’s attorney in drug deal, which created a conflict that “so\\n\\n13 permeate[d] the defense that no meaningful waiver can be obtained”). Three\\n\\n14 reasons in particular compel this view. First, Arrington had no discernible\\n\\n15 right to proceed to trial with or after Hicks. See Zafiro v. United States, 506\\n\\n16 U.S. 534, 539–40 (1993). Second, LoTempio’s conflict primarily implicated his\\n\\n17 ethical obligation to Hicks, and while he had a financial interest in continuing\\n\\n18 to represent Arrington, that interest was not of sufficient magnitude to\\n\\n 35\\n\\f 1 establish an unawaivable conflict. See Perez, 325 F.3d at 126–27 (finding\\n\\n 2 attorney’s interest in standard retainer fee did not create unwaivable conflict\\n\\n 3 as it did not approach the exceptional financial self‐interest presented in\\n\\n 4 Schwarz); cf. Schwarz, 283 F.3d at 98; Fulton, 5 F.3d at 613 (attorney conflict\\n\\n 5 driven by counsel’s interest in “self‐preservation”).\\n\\n 6 And third, while there may be tactical advantages to being tried second\\n\\n 7 if a severance is granted, they are not necessarily so compelling as to create an\\n\\n 8 unwaivable conflict. A reasonable defendant may decide to retain a trusted\\n\\n 9 attorney, even at the risk of losing those advantages, after being properly\\n\\n10 informed of the risks and benefits of severance. We therefore cannot say\\n\\n11 under the circumstances that “no rational defendant would knowingly and\\n\\n12 intelligently desire the conflicted lawyer’s representation.” Levy, 25 F.3d at\\n\\n13 153.\\n\\n14 3. The Inadequacy of the Waiver Colloquy\\n\\n15 Although LoTempio’s conflict was waivable, Arrington’s waiver here\\n\\n16 was neither knowing nor intelligent. Before a defendant can waive his\\n\\n17 attorney’s conflict, he must be advised of the conflict’s significant strategic\\n\\n18 consequences. Here, the District Court failed to advise Arrington at all about\\n\\n 36\\n\\f 1 the main strategic disadvantages arising from LoTempio’s conflict noted\\n\\n 2 above.\\n\\n 3 To be sure, on the first day of the Curcio hearing, with Arrington\\n\\n 4 present, the District Court described Arrington’s interest in having LoTempio\\n\\n 5 vigorously cross‐examine Hicks should he testify and told Arrington how\\n\\n 6 LoTempio’s conflict might affect his interests. The District Court then\\n\\n 7 arranged for Arrington to meet with independent Curcio counsel and gave\\n\\n 8 Arrington a day to consider what he wanted to do.\\n\\n 9 But Arrington was not told about the severance or that he would be\\n\\n10 tried first until after the District Court ordered it. He was absent when\\n\\n11 Hicks’s counsel moved to disqualify LoTempio and the initial discussion\\n\\n12 about severing the trials occurred. Nor, it appears, was Arrington in court\\n\\n13 when LoTempio offered to proceed with Arrington’s trial first, even though\\n\\n14 the proposal put Arrington at a strategic disadvantage. The District Court\\n\\n15 thus never directly addressed Arrington regarding these consequences of his\\n\\n16 counsel’s conflict, and we have no record of LoTempio independently\\n\\n17 discussing them with Arrington. In other words, Arrington was not given\\n\\n18 reasonably adequate information about the material risks of LoTempio’s\\n\\n 37\\n\\f 1 continued representation, particularly the risks of a trial severance and the\\n\\n 2 risk of being required (let alone volunteered) to be tried first.\\n\\n 3 As for the inquiry the District Court should have conducted, as noted\\n\\n 4 “we are more concerned with whether the defendant appreciated his\\n\\n 5 predicament and made a properly informed choice than we are with whether\\n\\n 6 the trial judge recited any particular litany of questions.” Jenkins, 943 F.2d at\\n\\n 7 176. But district courts must at least “advise the defendant of the dangers\\n\\n 8 arising from the particular conflict.” Iorizzo, 786 F.2d at 59. Where, as here,\\n\\n 9 those “dangers” include giving up the strategic advantages of a joint trial or\\n\\n10 being tried before a co‐defendant, they should be a part of the judge’s inquiry\\n\\n11 to obtain the defendant’s informed consent. See RESTATEMENT (THIRD) OF THE\\n\\n12 LAW GOVERNING LAWYERS § 122 cmt. c(i) (AM. LAW INST. 2000) (Informed\\n\\n13 consent “requires that each affected client be aware of the material respects in\\n\\n14 which the representation could have adverse effects on the interests of that\\n\\n15 client,” including “tactical considerations . . . that would be foreclosed or\\n\\n16 made less readily available by the conflict”). Where a counsel’s conflict of\\n\\n17 interest materially affects a significant tactical or strategic consideration, a\\n\\n\\n\\n\\n 38\\n\\f 1 court should advise the defendant of the nature of that risk as part of a Curcio\\n\\n 2 inquiry.\\n\\n 3 Finally, we conclude that “a lapse in representation[] resulted from the\\n\\n 4 conflict,” Iorizzo, 786 F.2d at 58 (quotation marks omitted), because some\\n\\n 5 “plausible alternative defense strategy or tactic might have been pursued” but\\n\\n 6 for LoTempio’s actual conflict of interest, Levy, 25 F.3d at 157 (quotation\\n\\n 7 marks omitted). Had Arrington and Hicks been tried together and Hicks\\n\\n 8 testified, Arrington might have been able to benefit from Hicks’s testimony.\\n\\n 9 As it turns out, Hicks, testifying in his own defense at trial, denied the\\n\\n10 existence of the Schuele Boys enterprise, that Balance’s murder was in\\n\\n11 retaliation for Davison’s, or having seen Arrington at the scene of Balance’s\\n\\n12 murder. It is impossible to know whether the outcome for Arrington would\\n\\n13 have changed had Hicks’s testimony come during or before Arrington’s trial.\\n\\n14 But at the end, when the conflict is actual, as it is here, “the applicable\\n\\n15 standard requires only the demonstration of a conflict inconsistent with a\\n\\n16 plausible trial strategy or tactic,” not prejudice. Malpiedi, 62 F.3d at 470.\\n\\n17 Arrington had to show that an alternative strategic approach (not severing the\\n\\n18 trials, or pressing to be tried after Hicks) was “not undertaken due to\\n\\n 39\\n\\f 1 [LoTempio’s] other loyalties and interests.” Id. at 469 (quotation marks\\n\\n 2 omitted). Once such a showing is made, as we think it was here, Strickland’s\\n\\n 3 “fairly rigid” presumption of prejudice applies. Strickland v. Washington,\\n\\n 4 466 U.S. 668, 692 (1984).\\n\\n 5 Having determined that Arrington’s right to effective counsel was\\n\\n 6 violated, we vacate the convictions and remand for a new trial. The Sixth\\n\\n 7 Amendment compels this result regardless of the strength of the trial\\n\\n 8 evidence.\\n\\n 9 CONCLUSION\\n\\n10 Because we conclude that Arrington’s waiver of his counsel’s conflict of\\n\\n11 interest was not knowing and intelligent, we VACATE Arrington’s conviction\\n\\n12 and REMAND to the District Court for a new trial.\\n\\n\\n\\n\\n 40\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4550,"cells":{"id":{"kind":"number","value":4670750,"string":"4,670,750"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Attestor Value v. Republic of Argentina"},"decision_date":{"kind":"string","value":"2019-10-18"},"docket_number":{"kind":"string","value":"16-1124"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"B e f o r e: KATZMANN, Chief Judge, WINTER, Circuit Judge, and STEIN, District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"KATZMANN, Chief Judge, WINTER, Circuit Judge, and STEIN, District Judge\", \"type\": \"010combined\", \"text\": \"16-1124\\nAttestor Value v. Republic of Argentina\\n\\n\\n UNITED STATES COURT OF APPEALS\\n\\n FOR THE SECOND CIRCUIT\\n\\n _______________\\n\\n August Term, 2016\\n\\n (Submitted: November 21, 2016 Decided: October 18, 2019)\\n\\n Docket No. 16‐1124\\n\\n _______________\\n\\n ATTESTOR VALUE MASTER FUND, BYBROOK CAPITAL MASTER FUND LP, BYBROOK\\n CAPITAL HAZLETON MASTER FUND LP, TRINITY INVESTMENTS LIMITED, WHITE\\n HAWTHORNE, LLC,\\n\\n Plaintiffs‐Appellants,\\n\\n ARAG‐A LIMITED, ARAG‐O LIMITED, ARAG‐T LIMITED, ARAG‐V LIMITED, MCHA\\n HOLDINGS, LLC, HONERO FUND I, LLC, RED PINES LLC, SPINNAKER GLOBAL\\n EMERGING MARKETS FUND LTD, SPINNAKER GLOBAL SPECIAL SITUATIONS FUND\\n LP, YELLOW CRANE HOLDINGS, L.L.C., WHITE HAWTHORNE II, LLC,\\n\\n Plaintiffs,\\n\\n —v.—\\n\\n REPUBLIC OF ARGENTINA,\\n\\n Defendant‐Appellee.\\n _______________\\n\\nB e f o r e:\\n\\n KATZMANN, Chief Judge, WINTER, Circuit Judge, and STEIN, District Judge. 1\\n\\n _______________\\n\\n Appeal from a final judgment, entered on April 13, 2016, in the United\\nStates District Court for the Southern District of New York (Griesa, J.), granting\\ndefendant Republic of Argentina’s motion to dismiss with prejudice pursuant to\\nFed. R. Civ. P. 12(b)(6) and denying as moot plaintiffs’ motion for injunctive\\nrelief and expedited discovery. The district court dismissed plaintiffs’ Amended\\nComplaint because plaintiffs failed to allege that they had entered into valid,\\ncountersigned contracts with defendant. The language of the purported contracts\\nexpressly required the defendant’s countersignature for the contracts to be\\nbinding, but defendants never signed the contracts. We hold under this Court’s\\nprecedents and New York state law that, when an agreement expressly requires\\na party’s countersignature to be binding and the factors set out in Winston v.\\nMediafare Entertainment Corp., 777 F.2d 78, 80 (2d Cir. 1985) otherwise indicate\\nthat the parties did not intend to be bound, no valid contract exists in the absence\\nof a party’s countersignature.\\n\\nAccordingly, we AFFIRM the judgment of the district court.\\n\\nJudge Winter dissents in a separate opinion.\\n\\n _______________\\n\\n Peter Sabin Willet (Kenneth I. Schacter, on the brief), Morgan, Lewis & Bockius\\n LLP, Boston, MA and New York, NY, for Plaintiffs‐Appellants.\\n\\nCarmine D. Boccuzzi, Jr., Cleary Gottlieb Steen & Hamilton LLP, New York, NY\\n (Michael A. Paskin, Daniel Slifkin, and Damaris Hernández, Cravath,\\n Swaine & Moore LLP, New York, NY, on the brief), for Defendant‐Appellee.\\n _______________\\n\\n1Judge Sidney H. Stein of the United States District Court for the Southern\\nDistrict of New York, sitting by designation.\\n 2\\n\\nPER CURIAM:\\n\\n After more than a decade of litigation, defendant‐appellee the Republic of\\n\\nArgentina (the “Republic”) sought to settle with certain holders of its defaulted\\n\\nbonds. Plaintiffs‐appellants hold defaulted bonds and claim that they entered\\n\\ninto binding settlement agreements with the Republic. The Republic responds\\n\\nthat it was not bound by the purported agreements because it did not\\n\\ncountersign them. There is no dispute that the Republic never signed the\\n\\nagreements. The question before us is whether the unexecuted agreements were\\n\\nnonetheless binding.\\n\\n Our precedents and those of the New York Court of Appeals supply a\\n\\nclear answer: “[I]f the parties to an agreement do not intend it to be binding upon\\n\\nthem until it is reduced to writing and signed by both of them, they are not\\n\\nbound and may not be held liable until it has been written out and signed.”\\n\\nScheck v. Francis, 260 N.E.2d 493, 494 (N.Y. 1970). We generally look to the four\\n\\nfactors set out in Winston v. Mediafare Entertainment Corp., 777 F.2d 78, 80 (2d Cir.\\n\\n1985), to determine whether parties intended not to be bound until the\\n\\nformalities of execution were satisfied. In the present case, the first factor is most\\n\\nprominent. The purported agreements between plaintiffs and the Republic\\n\\n\\n\\n 3\\n\\nexpressly require the Republic’s countersignature before binding the parties. The\\n\\nother Winston factors also indicate that the parties did not intend to be bound in\\n\\nthe absence of a countersigned agreement. Accordingly, we affirm the judgment\\n\\nof the district court (Griesa, J.).\\n\\n BACKGROUND\\n\\n A. The Republic’s Settlement Proposal\\n\\n In 2001, the Republic defaulted on bonds issued pursuant to a 1994 Fiscal\\n\\nAgency Agreement. The Republic’s default spawned extensive litigation. See, e.g.,\\n\\nNML Capital, Ltd. v. Republic of Argentina, 727 F.3d 230 (2d Cir. 2013); NML\\n\\nCapital, Ltd. v. Republic of Argentina, 699 F.3d 246 (2d Cir. 2012). As part of this\\n\\nlitigation, the district court entered pari passu injunctions barring the Republic\\n\\nfrom making payments on certain other bonds unless it also made payments on\\n\\nits defaulted bonds.\\n\\n On February 5, 2016, the Republic published a settlement proposal (the\\n\\n“Proposal”) to holders of its defaulted debt. The Proposal presented two offers to\\n\\nholders of defaulted bonds. Bondholders without pari passu injunctions could\\n\\nreceive the amount of their original principal plus 50% of that principal.\\n\\nBondholders with pari passu injunctions could receive payment of any money\\n\\n\\n\\n 4\\n\\njudgment or accrued claim against the Republic, less a discount of 30%; if\\n\\nbondholders with pari passu injunctions settled by February 19, 2016, this\\n\\ndiscount would be reduced to 27.5%. The Proposal states that it is “subject . . . to\\n\\nthe judicial decision ordering the lifting of the Pari Passu Injunctions.” Joint App.\\n\\n218 (boldface omitted).\\n\\n On February 17, 2016, the Republic supplemented the initial Proposal with\\n\\nthree documents: a set of Instructions for Bondholders to Accept its Settlement\\n\\nProposal (the “Instructions”), a Master Settlement Agreement, and an Agreement\\n\\nSchedule. The basic plan, as set forth in the Instructions, was for bondholders to\\n\\ncomplete an Agreement Schedule specific to their holdings, including\\n\\ninformation about their bonds and the particular amount of money to be paid.\\n\\nOnce executed and exchanged, this bespoke Agreement Schedule would become\\n\\npart of a Master Settlement Agreement, which contained standard terms for all\\n\\nbondholders. Specifically, the Instructions state as follows:\\n\\n Holders may become a party to a Settlement Agreement by executing\\n and exchanging with the Republic a completed Agreement Schedule\\n . . . . The holder must complete, sign and send the Agreement\\n Schedule to the Republic . . . . That Agreement Schedule, when\\n countersigned by the Republic, shall constitute a binding agreement\\n between the parties to settle all claims in respect of the bonds on the\\n terms contained in the Master Settlement Agreement.\\n\\nJoint App. 90–91.\\n\\n 5\\n\\n The language of the Master Settlement Agreement and Agreement\\n\\nSchedule confirms the plan set out in the Instructions. The Master Settlement\\n\\nAgreement contains standard provisions applicable to all settling bondholders,\\n\\nincluding a provision that New York state law governs the agreement. The\\n\\nMaster Settlement Agreement also states:\\n\\n This Master Settlement Agreement . . . is made, in accordance with\\n the terms of the Proposal . . . , between [the Republic] and the Holder\\n identified in item (i) of the Agreement Schedule signed by the parties\\n in connection with this Agreement (such Agreement Schedule, when\\n executed and exchanged by the Republic and the Holder, being an\\n integral part of this Settlement Agreement).\\n\\nJoint App. 92. The Agreement Schedule contains blanks for bondholders to\\n\\nprovide personal information and various details about their bonds. It also\\n\\ncontains a blank for the monetary settlement amount above a statement that\\n\\n“[t]his Settlement Amount has been reconciled between the Republic and the\\n\\nHolder.” Joint App. 97–98. The signature page of the Agreement Schedule states\\n\\nin its entirety: “By executing counterparts of this Agreement Schedule in the\\n\\nspace provided below and exchanging those counterparts, the parties agree to be\\n\\nbound by the terms of the Settlement Agreement, as completed by the\\n\\ninformation contained in this Agreement Schedule.” Joint App. 99. Below this\\n\\ntext, there are two open lines marked with “/s/” symbols. Id.\\n\\n\\n 6\\n\\n B. The District Court’s Vacatur Order\\n\\n Soon after the Republic posted the Proposal, it reached settlement\\n\\nagreements with several bondholders. Thereafter, on February 11, 2016, the\\n\\nRepublic moved to vacate the pari passu injunctions. The district court lacked\\n\\njurisdiction to lift some of the injunctions due to a pending appeal, but, on\\n\\nFebruary 19, 2016, it issued an Indicative Ruling explaining that the district court\\n\\nwould vacate these injunctions if two conditions were met: (1) the repeal of\\n\\nlegislative obstacles to the Republic’s settlement with its bondholders and, (2)\\n\\n“full payment [by the Republic] in accordance with the specific terms of each . . .\\n\\nagreement” to “all plaintiffs that enter[ed] into agreements in principle with the\\n\\nRepublic on or before February 29, 2016.” See Indicative Ruling at 23, NML\\n\\nCapital, Ltd. v. Republic of Argentina, No. 14‐cv‐8601‐TPG, ECF No. 59 (S.D.N.Y.\\n\\nFeb. 19, 2016).\\n\\n Upon remand after the Republic voluntarily dismissed two pending\\n\\nappeals, the Republic moved the district court to enter the Indicative Ruling as\\n\\nan order and to lift all of the injunctions. In making this request, the Republic\\n\\nrepresented to the district court that it had already settled claims worth $6.2\\n\\nbillion and that “[n]egotiations with other plaintiffs are ongoing.” Joint App. 120.\\n\\n\\n\\n 7\\n\\nThe Republic also submitted seven settlement agreements in principle to\\n\\ndemonstrate its progress. Six of these agreements in principle were\\n\\ncountersigned by the Republic, but one, with Red Pines LLC, was not.\\n\\n On March 2, 2016, the district court entered an order (the “Vacatur Order”)\\n\\nimplementing its earlier Indicative Ruling and vacating all of the injunctions\\n\\nupon the occurrence of the two conditions set out in the Indicative Ruling,\\n\\nincluding that the Republic make full payments to all bondholders that entered\\n\\ninto agreements in principle before February 29, 2016. See Vacatur Order at 5,\\n\\nNML Capital, Ltd. v. Republic of Argentina, No. 14‐cv‐8601‐TPG, ECF No. 76\\n\\n(S.D.N.Y. March 2, 2016).\\n\\n C. The Present Action\\n\\n Plaintiffs‐appellants in the present case are five holders of defaulted\\n\\nbonds. On or before February 29, 2016, per the Instructions, each plaintiff sent the\\n\\nRepublic an Agreement Schedule via email. The Republic acknowledged receipt\\n\\nof each plaintiff’s submission on February 29, 2016 or March 1, 2016. The\\n\\nRepublic did not countersign plaintiffs’ Agreement Schedules, and no executed\\n\\nAgreement Schedules were exchanged. On March 11, 2016, the Republic\\n\\ninformed plaintiffs that it would not agree to their Agreement Schedules.\\n\\n\\n\\n 8\\n\\n On March 25, 2016, plaintiffs filed a Complaint seeking a declaratory\\n\\njudgment that they had entered into binding agreements in principle with the\\n\\nRepublic by February 29, 2016, such that the Republic had to pay them to lift the\\n\\npari passu injunctions under the terms of the Vacatur Order. Plaintiffs also sought\\n\\ninjunctive relief barring the Republic from notifying the district court that all\\n\\nsettling bondholders had received full payment, in satisfaction of the Vacatur\\n\\nOrder’s second condition precedent, without first paying plaintiffs. On April 6,\\n\\n2016, the Republic moved to dismiss plaintiffs’ Complaint, and the following day\\n\\nplaintiffs filed an Amended Complaint with the same claims for declaratory and\\n\\ninjunctive relief. The district court expedited briefing on the Republic’s motion to\\n\\ndismiss and, in an Opinion dated April 12, 2016, dismissed plaintiffs’ Amended\\n\\nComplaint in its entirety. The district court denied plaintiffs leave to amend their\\n\\npleadings a second time. Plaintiffs timely appealed.\\n\\n DISCUSSION\\n\\n “We review de novo a district court’s dismissal of a complaint pursuant to\\n\\nRule 12(b)(6), construing the complaint liberally, accepting all factual allegations\\n\\nin the complaint as true, and drawing all reasonable inferences in the plaintiff[s’]\\n\\nfavor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). “We review\\n\\n\\n\\n 9\\n\\nthe district court’s denial of leave to amend the complaint for abuse of\\n\\ndiscretion.” Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Secs., LLC, 797 F.3d 160,\\n\\n169 (2d Cir. 2015).\\n\\n A.\\n\\n Under New York law, “[i]t is well settled that, if the parties to an\\n\\nagreement do not intend it to be binding upon them until it is reduced to writing\\n\\nand signed by both of them, they are not bound and may not be held liable until it\\n\\nhas been written out and signed.” Scheck v. Francis, 260 N.E.2d 493, 494 (N.Y.\\n\\n1970) (emphasis added); see Jim Bouton Corp. v. Wm. Wrigley Jr. Co., 902 F.2d 1074,\\n\\n1081 (2d Cir. 1990) (“New York follows the generally accepted rule that when\\n\\nparties negotiating a proposed contract express an intent not to be bound until\\n\\ntheir negotiations have culminated in the execution of a formal contract, they\\n\\ncannot be held bound until that event has occurred.”) (collecting cases, including\\n\\nScheck). “The point of these rules is to give parties the power to contract as they\\n\\nplease, so that they may, if they like, bind themselves orally or by informal\\n\\nletters, or that they may maintain ‘complete immunity from all obligation’ until a\\n\\nwritten agreement is executed.” R.G. Grp., Inc v. Horn & Hardart Co., 751 F.2d 69,\\n\\n74 (2d Cir. 1984) (quoting 1 A. Corbin, Corbin on Contracts § 30, at 98 (1963)).\\n\\n\\n\\n 10\\n\\n This Court has set out four factors\\n\\n that help determine whether the parties intended to be bound in the\\n absence of a document executed by both sides. The court is to consider\\n (1) whether there has been an express reservation of the right not to\\n be bound in the absence of a writing; (2) whether there has been\\n partial performance of the contract; (3) whether all of the terms of the\\n alleged contract have been agreed upon; and (4) whether the\\n agreement at issue is the type of contract that is usually committed to\\n writing.\\n\\nWinston v. Mediafare Entm’t Corp., 777 F.2d 78, 80 (2d Cir. 1985). In the present\\n\\ncase, each of these factors weighs in the Republic’s favor.\\n\\n First, “indications in the proposed settlement agreement that the parties\\n\\ndid not intend to bind themselves until the settlement had been signed” must be\\n\\ngiven “considerable weight.” Ciaramella v. Reader’s Digest Ass’n, 131 F.3d 320, 324\\n\\n(2d Cir. 1997). The text of the Instructions, Master Settlement Agreement, and\\n\\nAgreement Schedule unambiguously require the Republic’s countersignature\\n\\nand exchange of executed copies of an Agreement Schedule before either party is\\n\\nbound.2 The Instructions state that “[h]olders may become a party to a Settlement\\n\\n\\n\\n2For this reason, we disagree with the dissent’s contention that these various\\nwritings collectively constituted an offer to enter into a unilateral contract. “A\\nmanifestation of willingness to enter into a bargain is not an offer if the person to\\nwhom it is addressed knows or has reason to know that the person making it\\ndoes not intend to conclude a bargain until he has made a further manifestation\\nof assent.” Restatement (Second) of Contracts § 26 (Am. Law Inst. 1981); see also\\n\\n 11\\n\\nAgreement by executing and exchanging with the Republic a completed\\n\\nAgreement Schedule. . . . [An] Agreement Schedule, when countersigned by the\\n\\nRepublic, shall constitute a binding agreement between the parties . . . .” Joint\\n\\nApp. 90–91. The Agreement Schedule states that “[b]y executing counterparts of\\n\\nthis Agreement Schedule in the space provided below and exchanging those\\n\\ncounterparts, the parties agree to be bound by the terms of the Settlement\\n\\nAgreement . . . .” Joint App. 99. An Agreement Schedule must be signed by the\\n\\nRepublic to identify the parties to any Master Settlement Agreement, which is\\n\\n“made . . . between [the Republic] and the Holder identified in item (i) of the\\n\\nAgreement Schedule signed by the parties in connection with this Agreement\\n\\n(such Agreement Schedule, when executed and exchanged by the Republic and\\n\\nthe Holder, being an integral part of this Settlement Agreement).” Joint App. 92.\\n\\nBy their own express terms, the unexecuted agreements between the Republic\\n\\n\\n\\n\\nLeonard v. Pepsico, Inc., 88 F. Supp. 2d 116, 123 (S.D.N.Y. 1999), aff’d, 210 F.3d 88\\n(2d Cir. 2000) (per curiam). If the surrounding circumstances indicate otherwise,\\neven “the word ‘offer’ does not necessarily mean that an offer is intended.”\\nRestatement, supra, § 26 cmt. c. Here, the express requirement that the Republic\\ncountersign the Agreement Schedule before either party would be bound gave\\nplaintiffs “reason to know” that the writings did not constitute an offer.\\n\\n 12\\n\\nand plaintiffs were not binding contracts.3\\n\\n The second Winston factor concerns “whether there has been partial\\n\\nperformance of the contract.” Winston, 777 F.2d at 80. Plaintiffs argue that they\\n\\npartially performed the contract by representing to the district court that they\\n\\nhad reached agreements in principle with the Republic and that the Republic\\n\\npartially performed the contract by representing to the district court that it had\\n\\nsettled with other parties and seeking vacatur of the pari passu injunctions. These\\n\\nactions do not amount to partial performance of the settlement agreements.\\n\\nRegardless of their representations to the district court, plaintiffs did not\\n\\nwithdraw their claims against the Republic. The Republic did not make any\\n\\npayments to plaintiffs, and neither its settlements with other bondholders nor its\\n\\nefforts to vacate the pari passi injunctions bear on its intentions with respect to\\n\\nplaintiffs. The second Winston factor thus weighs against plaintiffs.4\\n\\n\\n3 The Republic’s submission to the district court of its agreement with Red Pines\\nLLC as an example of an agreement in principle, even though it had not\\ncountersigned the agreement, does not bear on the Republic’s intentions vis‐à‐vis\\nthe present plaintiffs‐appellants. In addition, the submission of an agreement\\nlacking a countersignature does not affect the unambiguous language of the\\nagreements.\\n4 Our dissenting colleague concludes otherwise based on Teachers Insurance &\\n\\nAnnuity Ass’n of America v. Tribune Co., 670 F. Supp. 491, 502 (S.D.N.Y. 1987), in\\nwhich the district court held that allocation of funds for a loan agreement\\n\\n 13\\n\\n We have framed the third Winston factor as “whether there was ‘literally\\n\\nnothing left to negotiate.’” Winston, 777 F.2d at 82 (quoting R.G. Grp., 751 F.2d at\\n\\n76). Plaintiffs argue that there was nothing left to negotiate because the terms of\\n\\nthe settlement were already set in the Proposal and were never open to\\n\\nnegotiation. However, before plaintiffs emailed their Agreement Schedules, the\\n\\nRepublic was not aware of how much money plaintiffs believed they should be\\n\\npaid or which bonds would be covered by any agreement. Once the Republic did\\n\\nsee plaintiffs’ submissions, it disagreed with them about these essential terms.\\n\\nAccordingly, there was still much left to negotiate.\\n\\n The fourth Winston factor asks “whether the agreement at issue here was\\n\\nthe type of contract that was usually put in writing.” Winston, 777 F.2d at 83.\\n\\nPlaintiffs concede that settlement agreements are the type of contract that is\\n\\nusually put into writing. See, e.g., Ciaramella, 131 F.3d at 326 (“Settlements of any\\n\\nclaim are generally required to be in writing or, at a minimum, made on the\\n\\n\\n\\n\\nconstituted partial performance. But that case involved a single contract between\\ntwo parties, rather than—as here—a multitude of similar contracts between the\\nRepublic and various bondholders. It is one thing to say that allocating funds to\\nbe loaned to a particular party constitutes partial performance of an agreement\\nwith that party. It does not follow, however, that by paying other bondholders\\nwith whom the Republic had executed binding contracts, the Republic partially\\nperformed its obligations towards plaintiffs.\\n 14\\n\\nrecord in open court.”). However, plaintiffs insist that the alleged settlement\\n\\nagreements here were put into writing. Plaintiffs ignore the fact that the written\\n\\nagreements were not signed by the Republic. Because the agreements required\\n\\ncountersignatures to be effective, there were no complete written agreements. As\\n\\nwe have observed, “[w]ith [millions of dollars] at stake, a requirement that [an]\\n\\nagreement be in writing and signed simply cannot be a surprise to anyone.” R.G.\\n\\nGrp., 751 F.2d at 77.\\n\\n In sum, the parties intended not to bind themselves to any settlement\\n\\nagreement until the relevant documents were executed by both parties and\\n\\nexchanged. Because the Republic did not countersign the agreements, there were\\n\\nno binding settlement agreements between plaintiffs and the Republic.5 The\\n\\ndistrict court was correct to dismiss plaintiffs’ Amended Complaint on these\\n\\ngrounds.\\n\\n\\n\\n\\n5Because no binding settlement agreements existed between plaintiffs and the\\nRepublic, we need not reach plaintiffs’ further arguments that depend on the\\nexistence of such agreements.\\n 15\\n\\n B.\\n\\n Plaintiffs also argue that the Republic made an irrevocable offer, or\\n\\n“option contract,” through its Proposal. New York General Obligations Law\\n\\n§ 5‐1109 controls irrevocable offers made without consideration:\\n\\n when an offer to enter into a contract is made in a writing signed by\\n the offeror, or by his agent, which states that the offer is irrevocable\\n during a period set forth or until a time fixed, the offer shall not be\\n revocable during such period or until such time because of the\\n absence of consideration for the assurance of irrevocability. When\\n such a writing states that the offer is irrevocable but does not state any\\n period or time of irrevocability, it shall be construed to state that the\\n offer is irrevocable for a reasonable time.\\n\\nPlaintiffs acknowledge that this provision governs the creation of any alleged\\n\\nagreements between plaintiffs and the Republic. However, the purported\\n\\nirrevocable offers were not signed by the offeror, the Republic. In addition, the\\n\\nProposal, Instructions, Master Settlement Agreement and Agreement Schedule\\n\\ndo not state that they are irrevocable.\\n\\n Nonetheless, plaintiffs argue that the Republic rendered its offers\\n\\nirrevocable by asking the district court to vacate the pari passu injunctions subject\\n\\nto the condition that the Republic make payment to all plaintiffs that settled by\\n\\nFebruary 29, 2016. Even assuming that the Vacatur Order, or any briefing that\\n\\ndiscussed it, could alter the terms of the Republic’s offers, the Vacatur Order\\n\\n\\n 16\\n\\nmerely requires the Republic to make payments to all plaintiffs that entered into\\n\\nagreements in principle on or before February 29, 2016. See Vacatur Order at 5,\\n\\nNML Capital, Ltd. v. Republic of Argentina, No. 14‐cv‐8601‐TPG, ECF No. 76\\n\\n(S.D.N.Y. March 2, 2016). It does not require that the Republic accept all\\n\\nAgreement Schedules emailed to it by that date without negotiation. Id. The\\n\\nRepublic never made irrevocable offers to plaintiffs.\\n\\n C.\\n\\n Federal Rule of Civil Procedure 15(a)(2) states that “court[s] should freely\\n\\ngive leave [to amend] when justice so requires.” We have upheld Rule 15(a)(2)’s\\n\\n“liberal standard” as “consistent with our strong preference for resolving\\n\\ndisputes on the merits.” Loreley Fin., 797 F.3d at 190 (quoting Williams v. Citigroup\\n\\nInc., 659 F.3d 208, 212–13 (2d Cir. 2011) (per curiam)). We have been particularly\\n\\nskeptical of denials of requests to amend when a plaintiff did not previously\\n\\nhave a district court’s ruling on a relevant issue, reasoning that “[w]ithout the\\n\\nbenefit of a ruling, many a plaintiff will not see the necessity of amendment or be\\n\\nin a position to weigh the practicality and possible means of curing specific\\n\\ndeficiencies.” Id. However, denial of leave to amend is proper if amendment\\n\\nwould be futile. Id. In particular, “[a] plaintiff need not be given leave to amend\\n\\n\\n\\n 17\\n\\nif it fails to specify either to the district court or to the court of appeals how\\n\\namendment would cure the pleading deficiencies in its complaint.” TechnoMarine\\n\\nSA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014).\\n\\n The district court did not abuse its discretion when it denied plaintiffs\\n\\nleave to amend. Although plaintiffs did not have an opportunity to amend after\\n\\nreceiving the district court’s ruling granting the Republic’s motion to dismiss,\\n\\nplaintiffs have not offered specific changes they could make to their Amended\\n\\nComplaint to cure its deficiencies. In particular, plaintiffs do not represent that\\n\\nthey could add an allegation that countersigned settlement agreements existed\\n\\nbetween plaintiffs and the Republic. As such, amendment would be futile. Id.\\n\\n CONCLUSION\\n\\n For the foregoing reasons, we AFFIRM the judgment of the district court.\\n\\n\\n\\n\\n 18\\n\\n 1 Attestor Value Fund v. Argentina, #16-1124\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4448003/\", \"author_raw\": \"KATZMANN, Chief Judge, WINTER, Circuit Judge, and STEIN, District Judge\"}, {\"author\": \"2 WINTER, RALPH K., Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"2 WINTER, RALPH K., Circuit Judge, dissenting:\\n\\n 3 I would remand for a determination by the district court regarding\\n\\n 4 whether the bonds owned by appellants are eligible to accept the Republic of\\n\\n 5 Argentina’s offer of settlement of litigation. My colleagues avoid this issue,\\n\\n 6 which is minor in the overall context of this protracted litigation but at the heart\\n\\n 7 of the present appeal, by broadly and adventurously holding that the detailed\\n\\n 8 “offer,” as labeled by the Republic itself, was not an “offer” but rather merely an\\n\\n 9 invitation to bondholders to each make their own offer, each of which the\\n\\n10 Republic was free to accept or refuse.\\n\\n11 a) Summary\\n\\n12 The contract before us is not uncommon in contract law. It is known in\\n\\n13 academic writings as a unilateral contract. See ARTHUR L. CORBIN, CORBIN ON\\n\\n14 CONTRACTS § 1.23 (Joseph E. Murray, Jr. ed., 2018) (“A unilateral contract consists\\n\\n15 of a promise or group of promises made by one of the contracting parties only,\\n\\n16 usually assented to by the other.”). As relevant here, such a contract involves an\\n\\n17 offer by a promisor to confer a benefit on a promisee who accepts by a specified\\n\\n18 performance. See Wachovia Bank of Georgia, N.A. v. Apex Tech of Georgia, Inc., 144\\n\\n\\n 1\\n\\n 1 B.R. 649, 654 (S.D.N.Y. 1992). Such an offer is binding and enforceable, I. & I.\\n\\n 2 Holding Corp. v. Gainsburg, 276 N.Y. 427, 434 (N.Y. 1938), even though there is no\\n\\n 3 meeting of the minds as in a bilateral contract, although the promisor can\\n\\n 4 challenge the adequacy of the requisite performance. An offer of a specified\\n\\n 5 reward for finding a fugitive is enforceable, even though the promisor can claim\\n\\n 6 that the wrong person was discovered and refuse the benefit, subject to a judicial\\n\\n 7 adjudication. See, e.g., Carlill v. Carbolic Smoke Ball Co., 1 Q.B. 256 (Court of\\n\\n 8 Appeal, 1892); Shuey v. United States, 92 U.S. 73 (1875).\\n\\n 9 My colleagues hold that the Republic’s “offer” was not binding because it\\n\\n10 did not meet the Winston v. Medialive Entertainment Corp., 777 F.2d 78 (2d Cir.\\n\\n11 1985), test showing a meeting of the minds. But Winston does not apply to the\\n\\n12 enforceability of unilateral contracts, which does not require a meeting of the\\n\\n13 minds.\\n\\n14 Here, a promisor, the Republic of Argentina, made a detailed “offer” -- its\\n\\n15 chosen word -- to certain known and unknown holders of Argentine bonds on\\n\\n16 which the Republic had defaulted. The offer contained mathematical formulae\\n\\n17 for determining the settlement amount and details regarding payment. The offer\\n\\n18 stated that its effectiveness was conditioned only upon the passage of\\n\\n\\n 2\\n\\n 1 Argentinean legislation allowing the payments and the lifting by the federal\\n\\n 2 courts of pari passu1 injunctions that had the effect of denying the Republic of\\n\\n 3 Argentina access to international financial markets.\\n\\n 4 Each bondholder could accept the offer by establishing its eligibility as a\\n\\n 5 designated promisee. To that end, bondholders had to fill out an application\\n\\n 6 expressly limited by the offer to information concerning: (i) each applicant’s\\n\\n 7 ownership of certain Argentina-issued bonds, (ii) the identified bond’s eligibility\\n\\n 8 status under the Republic’s offer of settlement, and (iii) the calculation of the cash\\n\\n 9 due under the offer on the eligible bonds. The promisor could dispute the\\n\\n10 eligibility of a party to accept the offer but, if eligibility was shown, the offer\\n\\n11 would be binding.\\n\\n12 The offer stated that a bondholder’s signed showing of eligibility to\\n\\n13 participate in the settlement had to be countersigned by the Republic. My\\n\\n14 colleagues hold that this countersignature requirement authorized the Republic\\n\\n15 to repudiate its offer in its entirety by withholding the countersignature and\\n\\n\\n 1\\n In 2012, the District Court entered the first of several injunctions, ordering that, pursuant\\n to contractual provisions analogous to most “most favored nation” clauses, Argentina make\\n ratable payments to other debt holders whenever it paid on so-called “Exchange Bonds.”\\n Additional injunctions issued in 2015. These injunctions made it impossible for Argentina to\\n access the international capital markets. See, e.g., Complaint at ¶¶ 39, 48, NML Capital Ltd. v.\\n The Republic of Argentina, 14-8601 Dkt. No. 1 (March 25, 2016).\\n\\n 3\\n\\n 1 leaving eligible bondholders free only to make their own offer to settle. As\\n\\n 2 demonstrated infra, this ruling is contrary to the plain language of the offer. It\\n\\n 3 also renders written page after page and written provision after provision of the\\n\\n 4 Republic’s offer irrelevant nullities, disregarding the fundamental principle of\\n\\n 5 contact interpretation that every provision be given meaning. Muzak Corp. v.\\n\\n 6 Hotel Taft Corp., 1 N.Y.2d 42, 46 (N.Y. 1956). Moreover, the nullification ignores\\n\\n 7 the facts that these writings were the product of a federal court’s mandating of\\n\\n 8 negotiations and that the creation of the writings was supervised by a federal\\n\\n 9 judicial officer, a Special Master. It also ignores the fact that the Special Master,2\\n\\n10 the Republic,3 and the district court4 all described the writings as constituting a\\n\\n11 binding “offer” that bondholders could “accept.” The district court even set a\\n\\n12 terminal date for “acceptance.”\\n\\n\\n\\n 2\\n See Daniel A. Pollack, Statement of Daniel A. Pollack, Special Master in Argentina Debt\\n Litigation, PR NEWSWIRE, (Feb. 5, 2016, 10:40 PM), https://www.prnewswire.com/news-\\n releases/statement-of-daniel-a-pollack-special-master-in-argentina-debt-litigation-feb-5-2016-\\n 300216208.html (last accessed: July 23, 2018) (“Argentina today has released a proposal to settle\\n with and pay the many defaulted Bondholders with cases in the Federal Court of New York\\n pending before Hon. Thomas P. Griesa.”).\\n 3\\n See, e.g., translated Proposal (February 5, 2016) and Settlement Offer Instructions\\n (February 17, 2016).\\n 4\\n See Indicative Ruling at 22, NML Capital, Ltd. v. Republic of Argentina, 14-08601, Dkt.\\n No. 59 (February 19, 2016) (“Until February 29, 2016, all FAA bondholders have the right to\\n accept the terms of the Republic’s Proposal, and they are certainly free to make counteroffers.”).\\n\\n 4\\n\\n 1 The writings contained now-nullified provisions in which the Republic\\n\\n 2 promised to pay a specific percentage of either the monetary judgment amount\\n\\n 3 or accrued claim value of designated bonds on which it had defaulted. The\\n\\n 4 writings also specifically stated that disputes over the settlement agreement were\\n\\n 5 to be resolved by the district court. These provisions make no sense whatsoever\\n\\n 6 if no binding offer exists.\\n\\n 7 Moreover, the enforceability of these writings was the explicit basis for the\\n\\n 8 district court’s lifting of the injunction, see Rule 62.1 Indicative Ruling at 13, NML\\n\\n 9 Capital Ltd. v. The Republic of Argentina, 14-8601 Dkt. No. 59 (Feb. 19, 2016),\\n\\n10 and for this court’s affirming of that lifting, see Mandate of the U.S. Court of\\n\\n11 Appeals for the Second Circuit, 14-8601 Dkt. No. 61 (Feb. 24, 2016). No issue as\\n\\n12 to the enforceability of these provisions was raised until after the injunction was\\n\\n13 lifted. No mention of the countersignature requirement was even made before\\n\\n14 the injunction was lifted except for one occasion when it was explained as a\\n\\n15 requirement to reflect the Republic’s agreement as to the eligibility of an\\n\\n16 application. The issue in this case, as originally posed by appellees, was quite\\n\\n17 narrow: Are the bonds in question eligible under the settlement offer given the\\n\\n\\n\\n 5\\n\\n 1 fact that the bonds by their own terms were time-barred from enforceability?\\n\\n 2 Indeed, the Republic’s performance under the agreement reflects its intent\\n\\n 3 to bind itself. The requisite legislation was passed, and the Republic paid $6.2\\n\\n 4 billion to bondholders who demonstrated eligibility. On the present record it\\n\\n 5 appears that every bondholder that owned indisputably eligible bonds and\\n\\n 6 accurately applied the offer’s mathematical formulae was paid by the Republic.\\n\\n 7 To hold that payment of $6.2 billion and the lifting of an injunction barring a\\n\\n 8 large nation from international capital markets is, as a matter of law, not even\\n\\n 9 part performance indicating the enforceability of written terms lacks logic but\\n\\n10 surely qualifies as a Guinness record.\\n\\n11 To hold that the countersignature requirement repudiates the offer of a\\n\\n12 binding settlement suggests a massive fraud intended by the Republic, and on, or\\n\\n13 perhaps even by, the district court. And, because the descriptions of the “offer”\\n\\n14 above were the basis aggressively argued by the Republic in successfully seeking\\n\\n15 judicial relief, my colleagues’ holding unmistakably violates the doctrines of stare\\n\\n16 decisis and judicial estoppel.\\n\\n17\\n\\n\\n\\n\\n 6\\n\\n 1 b) Background\\n\\n 2 The underlying litigation began in December 2001 with Argentina’s default\\n\\n 3 on over $80 billion in external debt. Appellants are holders of bonds issued by\\n\\n 4 Argentina between 1994 and 2001. In 2012, due to continuing violations of the\\n\\n 5 equal treatment provision of the Fiscal Agency Agreement,5 the district court\\n\\n 6 began entering injunctions ordering that Argentina make ratable payments to\\n\\n 7 other debtholders when it paid on so-called “Exchange Bonds.” Because no bank\\n\\n 8 could process payments without risking contempt proceedings, by late 2015, the\\n\\n 9 injunctions made it extremely difficult, actually impossible, for Argentina to\\n\\n10 access fully international capital markets. The district court ordered negotiations\\n\\n11 between the parties that were supervised and facilitated by a Special Master\\n\\n12 appointed by the court.\\n\\n13\\n\\n\\n\\n 5\\n In issuing bonds under the October 19, 1994 Fiscal Agency Agreement (“FAA”),\\n Argentina pledged that it would protect holders of NY-law FAA bonds from subordination and\\n guaranteed equal treatment with respect to payment thereof. The FAA had a provision which\\n stated that “[t]he[se] Securities will constitute . . . direct, unconditional, unsecured and\\n unsubordinated obligations of the Republic and shall at all times rank pari passu and without any\\n preference among themselves. The payment obligations of the Republic under the Securities\\n shall at all times rank at least equally with all its other present and future unsecured and\\n unsubordinated External Indebtedness . . . .” See Complaint at ¶ 32, NML Capital Ltd. v. The\\n Republic of Argentina, 14-8601 Dkt. No. 1 (March 25, 2016).\\n\\n 7\\n\\n 1 In late 2015, Mauricio Macri was elected President of the Republic of\\n\\n 2 Argentina and resolved to end the debt crisis. In order to accomplish this, he\\n\\n 3 needed an infusion of international capital from new bond financing, but could\\n\\n 4 not obtain it without relief from the pari passu injunctions. Complaint at ¶ 48,\\n\\n 5 NML Capital Ltd. v. The Republic of Argentina, 14-8601 Dkt. No. 1 (March 25,\\n\\n 6 2016). Therefore, on February 5, 2016, Argentina issued a Spanish press release\\n\\n 7 (“Propuesta” or “Proposal”) laying out a proposed framework for settling the\\n\\n 8 claims of holders of defaulted bonds. This framework was the product of the\\n\\n 9 negotiations ordered by the district court and facilitated by the Special Master.\\n\\n10 On February 17, the Republic supplemented the Proposal by publishing three\\n\\n11 documents on its website: (a) a “Master Settlement Agreement”; (b) the\\n\\n12 “Instructions for Bondholders to Accept its Settlement Proposal”; and ( c) an\\n\\n13 “Agreement Schedule.” Some bondholders were expected to use this procedure\\n\\n14 to settle their dispute with the Republic, while others were expected to seek more\\n\\n15 favorable terms by making counterproposals. Complaint at ¶ 57. Because it was\\n\\n16 unknown whether the acceptance of the offer would be sufficiently widespread\\n\\n17 to justify vacatur of the injunction, the Republic stated its willingness to consider\\n\\n18 counteroffers if necessary.\\n\\n\\n 8\\n\\n 1 c) The Writings\\n\\n 2 The plain language -- and the very titles -- of the multiple writings\\n\\n 3 constituting the settlement agreement indicate beyond any doubt the specificity\\n\\n 4 of the terms of the settlement offer and its intended enforceability.\\n\\n 5 The purpose of the “Proposal,” as stated by the Republic, was to\\n\\n 6 “propose[] a settlement to all holders of the Republic’s default bonds.” The\\n\\n 7 designated bonds were described as the “defaulted bonds in which a ‘pari passu’\\n\\n 8 injunction” was issued by the district court and which had the effect of denying\\n\\n 9 access to international capital markets by the Republic. The Proposal stated that\\n\\n10 holders of such bonds could settle by agreeing\\n\\n11 to receive (i) in the case of such bonds for which a\\n12 monetary judgment less a discount of 30%, and\\n13 (ii) in the case of such bonds for which no\\n14 monetary judgment has been rendered prior to\\n15 February 1, 2016, the current accrued value of the\\n16 claims less a discount of 30%. The discounts\\n17 referred to in (i) and (ii) will be reduced to 27.5%\\n18 on settlement agreements in principle executed\\n19 through February 19, 2016.\\n20\\n21 The “Proposal” was subject to only two conditions. It stated:\\n\\n22 This proposal is subject to the approval of the\\n23 Argentine Congress as well as a decision of the\\n24 U.S. District Court of the Southern District of\\n\\n\\n 9\\n\\n 1 New York to lift the pari passu injunction\\n 2 following such approval by the Argentine\\n 3 Congress.\\n 4\\n 5 The countersignature requirement was not mentioned in the Proposal.\\n\\n 6 On February 16, 2016, the Republic issued a long document entitled\\n\\n 7 “Republic of Argentina Master Settlement Agreement.” Like the Proposal, it\\n\\n 8 stated terms of the proposed settlement. Section 2 stated “Subject to satisfaction\\n\\n 9 of the conditions set out in Section 6 below, on the Closing Date the Republic\\n\\n10 shall pay to the Holder, in full settlement of the Holder’s claims under the Bonds,\\n\\n11 the Settlement Amount.” Section 6 is entitled “Conditions.” It read:\\n\\n12 The settlement and release contemplated by\\n13 Sections 2 and 3 above are subject to:\\n14\\n15 (i) The repeal or abridgement of Law\\n16 26,017 (the “Lock Law”) and the\\n17 approval of the terms and conditions\\n18 of this Agreement by the Argentine\\n19 Congress.\\n20 (ii) The U.S. District Court of the\\n21 Southern District of New York\\n22 having permanently lifted all pari\\n23 passu injunctions granted to certain\\n24 holders of defaulted Argentine\\n25 bonds.\\n26 (iii) No action shall have been taken and\\n27 no statute, rule, regulation or judicial\\n28 order shall have been enacted,\\n\\n\\n 10\\n\\n 1 adopted or issued by any\\n 2 government or regulatory authority\\n 3 that would, as of the Closing Date,\\n 4 prevent any of the actions set forth in\\n 5 this Settlement Agreement from\\n 6 taking place.\\n 7\\n 8 In the event that the above conditions are\\n 9 not satisfied during the Closing Period, a closing\\n10 shall not occur, this Settlement Agreement shall\\n11 terminate, and the parties shall have no further\\n12 obligations to each other under this Settlement\\n13 Agreement.\\n14\\n15 Section 6 made no mention of the Republic’s retention of any discretion to\\n\\n16 reject an acceptance of the settlement proposal by holders of eligible bonds so\\n\\n17 long as the specified conditions are met. The Republic’s countersignature was\\n\\n18 not such a condition.\\n\\n19 A third document, entitled “Instructions for Bond Holders to Accept its\\n\\n20 Settlement Proposal,” was issued by the Republic of Argentina’s Ministry of\\n\\n21 Finance and Public Credit. This related to a document attached to the Master\\n\\n22 Settlement Agreement entitled “Agreement Schedule” to be “signed by the\\n\\n23 parties in connection with this Agreement.” A form, Agreement Schedule, was\\n\\n24 attached to the Master Settlement Agreement. It required that owners of bonds\\n\\n25 identify themselves, provide specifics as to the bonds held, and calculate the\\n\\n\\n 11\\n\\n 1 “Settlement Amount.” In that regard, the Instructions stated:\\n\\n 2 The holder must provide the Republic with (i) the\\n 3 information about its bonds called for by the\\n 4 attachment to the forms of Agreement Schedule\\n 5 contained in the Master Settlement Agreement\\n 6 and (ii) the holder’s calculation of the Settlement\\n 7 Amount for its bonds as called for by item 5\\n 8 below.\\n 9\\n10 Section 5 states:\\n11\\n12 Injunction Bond Holders that execute and deliver\\n13 to the email address included hereby an\\n14 Agreement Schedule prior to 5:00 pm New York\\n15 time on February 19, 2016 will have the\\n16 Settlement Amount under options (ii) and (iii) of\\n17 Section 4 above calculated using a discount of\\n18 27.5%. Those Injunction Bond Holders that\\n19 execute and deliver to the email address below an\\n20 Agreement Schedule after 5:00 pm New York\\n21 time on February 19, 2016 will have the\\n22 Settlement Amount under options (ii) and (iii) of\\n23 Section 4 above calculated using a discount of\\n24 30%.\\n25\\n26 The holder must “complete, sign, and send the\\n27 Agreement Schedule to the Republic including\\n28 the information set forth for in item 3 above. That\\n29 Agreement Schedule, when countersigned by the\\n30 Republic, shall constitute a binding agreement\\n31 between the parties to settle all claims in respect\\n32 of the bonds on the terms contained in the Master\\n33 Settlement Agreement.\\n34\\n\\n\\n 12\\n\\n 1 Section 4 of the Instructions states:\\n 2\\n 3 If the holder is an Injunction Bond Holder, it should\\n 4 also indicate how it wishes the Settlement\\n 5 Amount for its Injunction Offer Bonds to be\\n 6 calculated. As described in the February 5, 2016\\n 7 Proposal, the options of such a holder are:\\n 8\\n 9 (i) the Standard Offer (150% of the\\n10 original principal amount of its\\n11 bonds but not exceeding the value of\\n12 any monetary judgment rendered by\\n13 a court in respect of those bonds,\\n14 determined as of January 31, 2016),\\n15\\n16 (ii) if a monetary judgment has been\\n17 entered in respect of its bonds, the\\n18 original amount of that monetary\\n19 judgment updated by any applicable\\n20 post-judgment interest rate accrued\\n21 through January 31, 2016, less a\\n22 discount of 30%, and\\n23\\n24 (iii) if a monetary judgment has not been\\n25 entered in respect of the bonds, the\\n26 current accrued value of the claims\\n27 (calculated through January 31, 2016)\\n28 less a discount of 30%.\\n29\\n30 The plain language, therefore, of the relevant documents stated very\\n\\n31 specific terms for settlement. The term “Settlement Amount” in the agreement\\n\\n32 settlement documents did not, as my colleagues assert, allow an applicant to offer\\n\\n\\n 13\\n\\n 1 any amount that it desired. Rather, the “Instructions,” stated that that amount is\\n\\n 2 “the holder’s calculation of the settlement amount . . . as called for by item 5” in\\n\\n 3 the “instructions.” Section 5 contained the formula for the settlement and is\\n\\n 4 quoted above. The “Settlement Amount,” therefore, was limited to a\\n\\n 5 mathematical calculation based on the offer. Indeed, the first paragraph of\\n\\n 6 Section 5 sets dates for acceptance of the offer by submitting an Agreement\\n\\n 7 Schedule based on the mathematical formulae set out in the offer.\\n\\n 8 The Agreement Schedule contained spaces for the bondholder’s signature\\n\\n 9 and the Republic’s countersignature just below a statement that the signatures\\n\\n10 bind the signatories to the Settlement Agreement “as completed by the\\n\\n11 information [regarding ownership, eligibility of the bonds, and mathematical\\n\\n12 calculation of the settlement] contained in this Agreement Schedule.”\\n\\n13 The countersignature requirement is, therefore, found only in a document\\n\\n14 issued by the Republic entitled “Instructions for Bondholders to Accept its\\n\\n15 Settlement Proposal.” The Agreement Schedule was necessary to identify\\n\\n16 relevant bondholders, to verify the eligibility of their bonds, and to accurately\\n\\n17 apply the settlement formulae to those bonds. The Schedule explicitly states that\\n\\n18 the countersignature requirement is intended to bind the Republic to the\\n\\n 14\\n\\n 1 “Settlement Agreement, as completed by the information contained in this\\n\\n 2 Agreement Schedule.” The countersignature requirement was, therefore,\\n\\n 3 intended only to reflect the Republic’s agreement with “the information\\n\\n 4 contained” in the relevant document, not the intention of the Republic to be\\n\\n 5 bound by the offer. The Republic had the right to dispute the eligibility of the\\n\\n 6 bonds described in a Schedule, to dispute the claims of ownership, and to\\n\\n 7 challenge the application’s math with regard to the mathematical formulae. The\\n\\n 8 writings explicitly provided that such disputes were to be resolved by the district\\n\\n 9 court. Until the pari passu injunction was lifted, no one on the planet, so far as I\\n\\n10 can tell, stated the settlement offer to be anything but enforceable. Indeed, the\\n\\n11 countersignature requirement was of such a limited nature that, in seeking to lift\\n\\n12 the pari passu injunction, the Republic’s motion was supported by an exhibit\\n\\n13 reflecting a purportedly successful settlement with an Agreement Schedule that\\n\\n14 had not been countersigned.\\n\\n15 Clearly, the requirement of a countersignature by the Republic of\\n\\n16 Argentina did not reflect its discretionary power to accept a holder’s offer of\\n\\n17 what the holder believed to be a fair settlement. Rather, the countersignature\\n\\n18 simply reflected the Republic’s agreement with regard to the “information”\\n\\n 15\\n\\n 1 provided as to the ownership of the bonds specified in the agreement schedule,\\n\\n 2 their eligibility under -- inclusion within -- the settlement offer, and the accuracy\\n\\n 3 of the mathematical calculation of the amount according to the formulae quoted\\n\\n 4 above in the instructions.\\n\\n 5 There is also a record as to the meaning of the countersignature\\n\\n 6 requirement. On February 29, 2018, the Republic of Argentina submitted a\\n\\n 7 supplemental memorandum in support of its motion, by order to show cause, to\\n\\n 8 vacate the pari passu injunctions. NML Capital v. The Republic of Argentina, 14-\\n\\n 9 8601, Dkt. No. 71 (Feb. 29, 2016). Along with this memorandum, the Republic\\n\\n10 submitted a Second Supplemental Declaration of Argentina’s Undersecretary of\\n\\n11 Finance, Santiago Bausili, dated February 29, 2016. NML Capital v. The Republic\\n\\n12 of Argentina, 14-8601, Dkt. No. 71(2) (Feb. 29, 2016).\\n\\n13 The declaration stated: “As a result of the negotiation process overseen by\\n\\n14 the Special Master, the Republic has entered into agreements in principle to settle\\n\\n15 claims made by numerous bondholders.” Id. at ¶ 6. He then went on to append\\n\\n16 several such “agreements in principle” as exhibits. Specifically, he stated,\\n\\n17 “Attached as exhibit 9 is a true and correct copy of the Agreement in Principle\\n\\n18 between Red Pines LLC and the Republic of Argentina, executed as of February\\n\\n 16\\n\\n 1 28, 2016.” Id. at ¶ 13. This document bore the signature of Red Pines, dated\\n\\n 2 February 28, 2016, but lacked a countersignature. NML Capital v. The Republic\\n\\n 3 of Argentina, 14-8601, Dkt. No. 71(11) (Feb. 29, 2016). The Republic explained:\\n\\n 4 On February 29, 2016, the Republic mistakenly\\n 5 included in the list of settlements provided to the\\n 6 district court that it had reached an agreement in\\n 7 principle with Red Pines LLC. In fact, while Red\\n 8 Pines signed a form of agreement, which it\\n 9 submitted to the Republic on February 28, 2016\\n10 (see A-2017-25), the Republic subsequently\\n11 determined that the submitted agreement\\n12 provided for payment with respect to claims that\\n13 are timebarred. The Republic therefore did not\\n14 countersign the agreement.\\n15\\n16 The sole ground asserted at that time -- the indicative ruling promising the lifting\\n\\n17 of the injunction had not occurred -- concerned only the eligibility of the bonds in\\n\\n18 question.\\n\\n19 d) Contract Law\\n\\n20 The plain language of the writings themselves is sufficient to establish the\\n\\n21 enforceability of the settlement offer. They were also accompanied by many\\n\\n\\n\\n\\n 17\\n\\n 1 statements of the Republic,6 of the Special Master7, and of the district court8\\n\\n 2 indicating that the writings constituted a binding offer to settle. The very titles --\\n\\n 3 “Proposal,” “Instructions for Bondholders to Accept the Offer of Settlement” --\\n\\n 4 establish the nature of the documents. Given my colleagues’ ruling, the titles\\n\\n 5 should be changed to “Irrelevant Nullity” and “Invitation to Bondholders to\\n\\n 6 Make an Offer of Settlement.”\\n\\n 7 Pursuant to the court-supervised settlement, on February 11, 2016, the\\n\\n 8 Republic filed its translated Proposal with the district court. See Paskin Decl.,\\n\\n 9 NML Capital Ltd. v. Republic of Argentina, 14-8601 Dkt. No. 47(1) Ex. J. Both\\n\\n10 Special Master Daniel A. Pollack and Judge Thomas Griesa treated the Proposal\\n\\n11 as the end-result of extensive court-supervised settlement negotiations. See\\n\\n12 Statement of Daniel A. Pollack, Special Master in Argentina Debt Litigation, PR\\n\\n 6\\n See, e.g., translated Proposal (February 5, 2016) and Settlement Offer Instructions\\n (February 17, 2016).\\n 7\\n See Daniel A. Pollack, Statement of Daniel A. Pollack, Special Master in Argentina Debt\\n Litigation, PR NEWSWIRE, (Feb. 5, 2016, 10:40 PM), https://www.prnewswire.com/news-\\n releases/statement-of-daniel-a-pollack-special-master-in-argentina-debt-litigation-feb-5-2016-\\n 300216208.html (last accessed: July 23, 2018) (“Argentina today has released a proposal to settle\\n with and pay the many defaulted Bondholders with cases in the Federal Court of New York\\n pending before Hon. Thomas P. Griesa.”).\\n 8\\n See Indicative Ruling at 22, NML Capital, Ltd. v. Republic of Argentina, 14-08601, Dkt.\\n No. 59 (February 19, 2016) (“Until February 29, 2016, all FAA bondholders have the right to\\n accept the terms of the Republic’s Proposal, and they are certainly free to make counteroffers.”).\\n\\n 18\\n\\n 1 NEWSWIRE (Feb. 5, 2016, 10:40 PM), available at\\n\\n 2 https://www.prnewswire.com/news-releases/statement-of-Daniel-a-pollack-\\n\\n 3 special-master-in-Argentina-debt-litigation-Feb-5–2016-300216208.html (last\\n\\n 4 accessed July 11, 2018) (calling the Republic’s proposal a “historic breakthrough”)\\n\\n 5 and Rule 62.1 Indicative Ruling at 13, NML Capital Ltd. v. The Republic of\\n\\n 6 Argentina, 14-8601 (Feb. 19, 2016) (recognizing the proposal as a “[s]ignificantly\\n\\n 7 changed circumstance[]” that warranted removal of the pari passu injunctions.)\\n\\n 8 My colleagues rely heavily upon Winston v. Medialive Entertainment Corp.,\\n\\n 9 777 F.2d 78 (2d Cir. 1985). Even though it is plain that the Winston factors\\n\\n10 support the enforceability of the Republic’s “offer” (its chosen word), Winston’s\\n\\n11 teachings are expressly limited to determining a meeting of the minds in a\\n\\n12 bilateral contract setting. See id. at 83 (“[W]e hold that the parties never entered\\n\\n13 into a binding settlement agreement. Our conclusion is supported by the\\n\\n14 writings and acts of the parties, by the language of the drafts of the agreement,\\n\\n15 and by the nature of the agreement itself.”). Winston is most useful in\\n\\n16 determining whether two parties have reached an unwritten agreement; it\\n\\n17 simply has no relevance to the unilateral offer of settlement made after court-\\n\\n\\n\\n 19\\n\\n 1 mandated negotiations supervised by a special master. Powell v. Omnicom, 497\\n\\n 2 F.3d 124, 129 (2d Cir. 2007) (holding a settlement agreement entered into on the\\n\\n 3 record in open court is enforceable, even if never reduced to writing).\\n\\n 4 But even when the Winston factors are considered, all four favor the\\n\\n 5 appellants’ position and demonstrate that an enforceable offer of settlement\\n\\n 6 existed.\\n\\n 7 (i) Express Reservation\\n\\n 8 Winston holds that “if either party communicates an intent not to be bound\\n\\n 9 until he achieves a fully executed document” then a contract will not have been\\n\\n10 formed until the written agreement is executed. 777 F.2d at 80. True enough, but\\n\\n11 that general proposition hardly settles the issue before us. The Republic clearly\\n\\n12 intended to be bound by the explicit terms of the proposed settlement, if the\\n\\n13 conditions of Argentinean legislation and judicial lifting of the pari passu\\n\\n14 injunction were fulfilled. The documents clearly establish that. Indeed, the\\n\\n15 writings make no sense except as a binding offer. Conspicuous by its absence in\\n\\n16 my colleagues’ opinion is an explanation of the meaning or impact of the\\n\\n17 mathematical formulae and varying dates for acceptance, if the Republic was not\\n\\n18 bound to accept such offers from eligible bondholders. Muzak Corp. v. Hotel Taft\\n\\n 20\\n\\n 1 Corp., 1 N.Y.2d 42, 46 (N.Y. 1956) (“The rules of construction of contracts require\\n\\n 2 us to adopt an interpretation which gives meaning to every provision of a\\n\\n 3 contract or, in the negative, no provision of a contract should be left without force\\n\\n 4 and effect.”).\\n\\n 5 Of course, the fact that the offer is binding does not mean that anyone can\\n\\n 6 walk in off the street and get money from the Argentine treasury. Eligibility to\\n\\n 7 accept the offer must be shown, and the showing’s sufficiency can be challenged,\\n\\n 8 but the offer is still binding. There is no indication in any of these materials that\\n\\n 9 the Republic had discretion not to countersign an Agreement Schedule accurately\\n\\n10 establishing ownership of bonds, the bonds’ eligibility to be part of the\\n\\n11 settlement, and accurately applying the mathematical formulae to those bonds.\\n\\n12 What is at issue is the familiar circumstance of a binding unilateral offer to\\n\\n13 multiple offerees who must individually accept.\\n\\n14 (ii) Partial Performance\\n\\n15 The second Winston factor is whether one party has begun to perform\\n\\n16 under the agreement. 777 F.2d at 82. This is critical because “partial\\n\\n17 performance is an unmistakable signal that one party believes there is a contract;\\n\\n18 and the party who accepts performance signals, by that act, that it also\\n\\n 21\\n\\n 1 understands a contract to be in effect.” R.G. Group, Inc. v. Horn & Hardat Co., 751\\n\\n 2 F.2d 69, 75-76 (2d Cir. 1984).\\n\\n 3 In Teachers Ins. & Annuity Ass’n of America v. Tribune Co., 670 F. Supp. 491,\\n\\n 4 502 (S.D.N.Y., 1987), the mere act of informally allocating funds for use in a loan\\n\\n 5 agreement constituted partial performance under this prong of the Winston test,\\n\\n 6 resulting in enforcement of a loan agreement against a lender. The performance\\n\\n 7 here was not only far beyond that in Tribune but also constituted virtually full\\n\\n 8 performance. Vacating the pari passu injunctions was one condition to the\\n\\n 9 enforceability of the offer. With the support of many bondholders, Argentina\\n\\n10 moved the district court to vacate those injunctions on the basis of the agreement.\\n\\n11 Memorandum of Law in Support of Order to Show Cause, NML Capital, Ltd. v.\\n\\n12 Republic of Argentina, 14-8601 Dkt. No. 46 Feb 11, 2016). The district court issued\\n\\n13 an indicative ruling that the injunctions would be lifted on payments by the\\n\\n14 Republic pursuant to the offer.9 As of March 2, 2016, the Republic had reached\\n\\n15 settlements based on the agreement documents with bondholders resolving over\\n\\n16 85% of the claims held by parties with injunctions. Op. & Order at 4, NML\\n\\n\\n\\n 9\\n Rule 62.1 Indicative Ruling at 13, NML Capital Ltd. v. The Republic of Argentina, 14-\\n 8601 Dkt. No. 59 (Feb. 19, 2016).\\n 22\\n\\n 1 Capital, Ltd. v. Republic of Argentina, 14-8601, Dkt. No. 76 (Mar. 2, 2016). The\\n\\n 2 Republic paid $6.2 billion pursuant to those settlements. On the present record,\\n\\n 3 the Republic paid the full amount required under the writings to every applicant\\n\\n 4 who showed unchallenged ownership of eligible bonds and an accurate\\n\\n 5 application of the mathematical formula to those bonds. The second factor thus\\n\\n 6 weighs decisively in favor of appellants.\\n\\n 7 (iii) Agreement to All Material Terms\\n\\n 8 “[I]f the parties to an agreement do not intend it to be binding upon them\\n\\n 9 until it is reduced to writing and signed by both of them, they are not bound”\\n\\n10 until it has been written out and signed. Scheck v. Francis, 260 N.E.2d 493, 494\\n\\n11 (N.Y. 1970). “This rule yields, however, when the parties have agreed on all\\n\\n12 contractual terms and have only to commit them to writing.” Municipal\\n\\n13 Consultants & Publishers, Inc. v. Town of Ramapo, 390 N.E.2d 1143, 1144 (N.Y. 1979)\\n\\n14 (holding town supervisor had no discretion not to sign an agreement, where a\\n\\n15 provision of the town laws provided that contracts “[s]hall be executed by the\\n\\n16 supervisor in the name of the town after approval by the town board.” Id. at 1145\\n\\n17 (emphasis added)). Where “[a]ll the terms of the contract had been negotiated\\n\\n18 and agreed upon” and all that remains is the “ministerial” act of counter-signing\\n\\n 23\\n\\n 1 a contract, a contract is enforceable even though it was not fully executed. Id.\\n\\n 2 Here, all the terms of the Republic’s “offer” had already been negotiated\\n\\n 3 and finalized during the Special Master negotiations. The procedure for\\n\\n 4 accepting the Republic’s proposal provided all terms, including the settlement\\n\\n 5 amount, were established. Of course, it was expected that some bondholders\\n\\n 6 would find the settlement offer inadequate and that further negotiations with\\n\\n 7 them might be needed to achieve the vacatur of the injunctions. That expectation\\n\\n 8 did not alter the offer. While my colleagues suggest that further negotiations\\n\\n 9 might be needed, such negotiations were contemplated only in the case of\\n\\n10 bondholders that refused the offer.\\n\\n11 As discussed extensively above, the countersignature requirement does not\\n\\n12 alter this conclusion. By its very terms, it goes only to the information\\n\\n13 establishing eligibility, as discussed above. Indeed, any such requirement relates\\n\\n14 only to the contents of the document involved.\\n\\n15 (iv) The Customary Form for Such Transactions\\n\\n16 The fourth factor mentioned by Winston is “whether the agreement at issue\\n\\n17 is the type of contract that is usually committed to writing.” 777 F.2d at 80.\\n\\n18 Unlike in Winston, the contract here was in writing. Here, the unilateral offer was\\n\\n 24\\n\\n 1 filed with the district court. This fourth factor also weighs in favor of\\n\\n 2 enforceability.\\n\\n 3 e) Judical Estoppel and Stare Decisis\\n\\n 4 My colleagues’ opinion ignores the fact that the enforceability of the\\n\\n 5 Republic’s offer has been before the district court and our court before and the\\n\\n 6 subject of rulings in each case. The enforceability of that offer was the basis of\\n\\n 7 the vacatur of the pari passu injunctions at the request of the Republic.\\n\\n 8 The Republic, in seeking a vacatur of the pari passu injunctions, relied\\n\\n 9 heavily upon its intent to be bound by the “offer of settlement” with regard to\\n\\n10 owners of eligible bonds. The district court, see Rule 62.1 Indicative Ruling at 13,\\n\\n11 NML Capital Ltd. v. The Republic of Argentina, 14-8601 Dkt. No. 59 (Feb. 19,\\n\\n12 2016), and our court, see Mandate of the U.S. Court of Appeals for the Second\\n\\n13 Circuit, NML Capital Ltd. v. The Republic of Argentina,14-8601 Dkt. No. 61 (Feb.\\n\\n14 24, 2016), relied upon these arguments in granting the vacatur. As a result, the\\n\\n15 doctrines of judicial estoppel and stare decisis bar the Republic’s dramatic shift\\n\\n16 of position and my colleagues’ holding.\\n\\n17 The application of the doctrine of judicial estoppel is governed by three\\n\\n18 factors: “(1) that a party’s new position is ‘clearly inconsistent’ with its earlier\\n\\n 25\\n\\n 1 position, (2) that the party seeking to assert this new position previously\\n\\n 2 persuaded a court to accept its earlier position, and (3) that the party ‘would\\n\\n 3 derive an unfair advantage or impose an unfair detriment on the opposing party\\n\\n 4 if not estopped.’” Intellivision v. Microsoft Corp., 484 Fed. App’s. 616 at **2 (2d Cir.\\n\\n 5 June 11, 2012) (citing New Hampshire v. Maine, 532 U.S. 742, 750-751 (2001).\\n\\n 6 “‘[C]ourts have uniformly recognized’ that the purpose of the doctrine ‘is to\\n\\n 7 protect the integrity of the judicial process by prohibiting parties from\\n\\n 8 deliberately changing positions according to the exigencies of the moment,’ and\\n\\n 9 because judicial estoppel is designed ‘to prevent improper use of judicial\\n\\n10 machinery,’ it is ‘an equitable doctrine invoked by a court at its discretion.’” Id.\\n\\n11 (quoting New Hampshire, 532 U.S. at 750).\\n\\n12 In support of the motion to vacate the pari passu injunctions, Argentina\\n\\n13 aggressively represented to the district court that the Proposal was an “offer”\\n\\n14 available to eligible bondholders to “accept.” For example, Argentina’s\\n\\n15 Undersecretary of Finance, Santiago Bausili, submitted in support of the motion a\\n\\n16 declaration to the district court stating:\\n\\n17 1. Discussions with the Special Master and the\\n18 Republic’s creditors also have resulted in a\\n19 comprehensive proposal of the Government’s\\n 26\\n\\n 1 intention, upon receiving legislative authority to\\n 2 settle the claims of all outstanding holders of any\\n 3 defaulted bonds.\\n 4\\n 5 2. The Government believes the proposal is both\\n 6 fair to the Republic’s creditors and consistent with\\n 7 the Republic’s capacity to pay.\\n 8\\n 9 3. Under the proposal, all holders of defaulted\\n10 bonds will receive the full principal amount of\\n11 the debt that they hold, plus certain amounts in\\n12 respect of accrued interest (the “Standard\\n13 Proposal”). Additionally, under the proposal,\\n14 holders of defaulted bonds that are subject to the\\n15 pari passu injunction issued by the U.S. District\\n16 Court for the Southern District of New York may\\n17 elect, in lieu of the Standard Proposal, to receive\\n18 (I) with respect to any bonds as to which a\\n19 monetary judgment has been rendered, 100% of\\n20 the original amount of that monetary judgment\\n21 less a discount of 27.5% or 30% depending on\\n22 when they execute the agreements in principle\\n23 necessary to participate in the proposal, and (ii)\\n24 with respect to any bonds as to which no\\n25 monetary judgment has been rendered, the\\n26 current accrued value of their claims less a\\n27 discount of 27.5% or 30% also depending on\\n28 when they execute those agreements in principle.\\n29\\n30 4. If all bondholders with pari passu injunctions\\n31 were to accept the terms of the proposal it would\\n32 result in a total payment to them of\\n33 approximately $6.5 billion against claims of\\n34 approximately $9 billion.\\n 27\\n\\n 1 Declaration of Santiago Bausili at 17, NML Capital Ltd. v. Argentina, 14-8601,\\n\\n 2 Dkt. No. 48 (Feb. 11, 2016) (emphases added). These statements expressly state\\n\\n 3 that the proposal was an offer available to “all bondholders” to “accept,” and\\n\\n 4 moreover, that the payment provided to bondholders would be determined on\\n\\n 5 when “they” -- the bondholders -- executed the Agreement Schedule. The\\n\\n 6 countersignature requirement was not even mentioned. The position taken by\\n\\n 7 the Republic is clearly inconsistent with the position it now takes.\\n\\n 8 The district court clearly relied upon the enforceability of the Republic’s\\n\\n 9 order. It issued its indicative ruling on February 19, 2016, endorsing the\\n\\n10 settlement provisions described above as a “[s]ignificantly changed\\n\\n11 circumstance[]” warranting removal of the pari passu injunctions. See Rule 62.1\\n\\n12 Indicative Ruling at 13, NML Capital Ltd. v. The Republic of Argentina, 14-8601,\\n\\n13 Dkt. No. 59 (Feb. 19, 2016).\\n\\n14 Later, the district court heard arguments about whether it should enter its\\n\\n15 indicative ruling as a final ruling. As part of the submissions, the court\\n\\n16 considered a supplementary declaration by Argentina’s Undersecretary of\\n\\n17 Finance, Santiago Bausili, dated February 29, 2016, which stated the following:\\n\\n18 Over the past several weeks, I have participated,\\n19 both personally and through counsel, in\\n 28\\n\\n 1 numerous negotiations with holders of defaulted\\n 2 Argentine debt.\\n 3 · I am familiar with the course, status and\\n 4 outcomes, to date, of those negotiations.\\n 5 As a result of the negotiation process\\n 6 overseen by the Special Master, the\\n 7 Republic has entered into agreements in\\n 8 principle to settle claims made by\\n 9 numerous bondholders.\\n10 Attached as Exhibit 9 is a true and correct copy of\\n11 the Agreement in Principle between Red Pines\\n12 LLC and the Republic of Argentina, executed as\\n13 of February 28, 2016.\\n14 In aggregate the agreements in principle\\n15 reached to date represent a commitment by\\n16 the Republic to pay approximately $6.2\\n17 billion to plaintiffs in the cases where this\\n18 Court has issued injunctions.\\n19 Negotiations with other plaintiffs are\\n20 ongoing. I have personally had discussions\\n21 with a number of plaintiffs, including . . .\\n22 Attestor Master Value Fund LP.\\n23\\n24 NML Capital v. The Republic of Argentina, 14-8601, ECF 71(2) (Feb. 29, 2016).\\n\\n25 The declaration appended the Red Pines agreement schedule, which was not\\n\\n26 countersigned. NML Capital v. The Republic of Argentina, 14-8601, ECF 71(11)\\n\\n27 (Feb. 29, 2016). On March 2, 2016, the court entered a text order lifting the pari\\n\\n28 passu injunctions, stating:\\n\\n29 The court appreciates the arguments presented by\\n30 all parties who spoke at yesterday’s hearing. And\\n 29\\n\\n 1 the court does not take lightly the decision to lift\\n 2 the injunctions. But ultimately, circumstances\\n 3 have changed so significantly as to render the\\n 4 injunctions inequitable and detrimental to the\\n 5 public interest. For the reasons outlined in the\\n 6 indicative Ruling and this order, the court grants\\n 7 the Republic’s motions to vacate the injunctions in\\n 8 all actions upon the occurrence of the two\\n 9 conditions precedent: (1) The Republic repeals all\\n10 legislative obstacles to settlement with the FAA\\n11 bondholders, including the Lock Law and the\\n12 Sovereign Payment Law; (2) For all plaintiffs that\\n13 entered into agreements in principle with the\\n14 Republic on or before February 29, 2016, the\\n15 Republic must make full payment in accordance\\n16 with the specific terms of each such agreement.\\n17 The Republic must also notify the court once\\n18 those plaintiffs have all received full payment.\\n19\\n\\n20 This statement emphasizes the fact that the Republic had represented that\\n\\n21 it intended to be bound by its “offer” and the court’s reliance upon that statement\\n\\n22 of intent in its vacatur of the pari passu injunction. The injustice of my\\n\\n23 colleagues’ adopting the Republic’s reversal of its position is clear.\\n\\n24 e) Conclusion\\n\\n25 I therefore dissent. I would remand for a determination on the eligibility of\\n\\n26 appellants’ bonds to accept the Republic’s offer of settlement. This issue cannot\\n\\n27 be resolved as a matter of law, at least in the Republic’s favor, because it accepted\\n\\n\\n 30\\n\\n1 some bonds similar to those of appellant as eligible and also is alleged to have\\n\\n2 stated that appellants’ bonds are eligible.\\n\\n3\\n\\n4\\n\\n5\\n\\n6\\n\\n7\\n\\n\\n\\n\\n 31\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4448003/\", \"author_raw\": \"2 WINTER, RALPH K., Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"KATZMANN"},"judge2":{"kind":"string","value":"WINTER"},"judge3":{"kind":"string","value":"STEIN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4670750/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Attestor Value v. Republic of Argentina\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-10-18\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n16-1124\nAttestor Value v. Republic of Argentina\n\n\n UNITED STATES COURT OF APPEALS\n\n FOR THE SECOND CIRCUIT\n\n _______________\n\n August Term, 2016\n\n (Submitted: November 21, 2016 Decided: October 18, 2019)\n\n Docket No. 16‐1124\n\n _______________\n\n ATTESTOR VALUE MASTER FUND, BYBROOK CAPITAL MASTER FUND LP, BYBROOK\n CAPITAL HAZLETON MASTER FUND LP, TRINITY INVESTMENTS LIMITED, WHITE\n HAWTHORNE, LLC,\n\n Plaintiffs‐Appellants,\n\n ARAG‐A LIMITED, ARAG‐O LIMITED, ARAG‐T LIMITED, ARAG‐V LIMITED, MCHA\n HOLDINGS, LLC, HONERO FUND I, LLC, RED PINES LLC, SPINNAKER GLOBAL\n EMERGING MARKETS FUND LTD, SPINNAKER GLOBAL SPECIAL SITUATIONS FUND\n LP, YELLOW CRANE HOLDINGS, L.L.C., WHITE HAWTHORNE II, LLC,\n\n Plaintiffs,\n\n —v.—\n\n REPUBLIC OF ARGENTINA,\n\n Defendant‐Appellee.\n _______________\n\nB e f o r e:\n\n KATZMANN, Chief Judge, WINTER, Circuit Judge, and STEIN, District Judge. 1\n\n _______________\n\n Appeal from a final judgment, entered on April 13, 2016, in the United\nStates District Court for the Southern District of New York (Griesa, J.), granting\ndefendant Republic of Argentina’s motion to dismiss with prejudice pursuant to\nFed. R. Civ. P. 12(b)(6) and denying as moot plaintiffs’ motion for injunctive\nrelief and expedited discovery. The district court dismissed plaintiffs’ Amended\nComplaint because plaintiffs failed to allege that they had entered into valid,\ncountersigned contracts with defendant. The language of the purported contracts\nexpressly required the defendant’s countersignature for the contracts to be\nbinding, but defendants never signed the contracts. We hold under this Court’s\nprecedents and New York state law that, when an agreement expressly requires\na party’s countersignature to be binding and the factors set out in Winston v.\nMediafare Entertainment Corp., 777 F.2d 78, 80 (2d Cir. 1985) otherwise indicate\nthat the parties did not intend to be bound, no valid contract exists in the absence\nof a party’s countersignature.\n\nAccordingly, we AFFIRM the judgment of the district court.\n\nJudge Winter dissents in a separate opinion.\n\n _______________\n\n Peter Sabin Willet (Kenneth I. Schacter, on the brief), Morgan, Lewis & Bockius\n LLP, Boston, MA and New York, NY, for Plaintiffs‐Appellants.\n\nCarmine D. Boccuzzi, Jr., Cleary Gottlieb Steen & Hamilton LLP, New York, NY\n (Michael A. Paskin, Daniel Slifkin, and Damaris Hernández, Cravath,\n Swaine & Moore LLP, New York, NY, on the brief), for Defendant‐Appellee.\n _______________\n\n1Judge Sidney H. Stein of the United States District Court for the Southern\nDistrict of New York, sitting by designation.\n 2\n\nPER CURIAM:\n\n After more than a decade of litigation, defendant‐appellee the Republic of\n\nArgentina (the “Republic”) sought to settle with certain holders of its defaulted\n\nbonds. Plaintiffs‐appellants hold defaulted bonds and claim that they entered\n\ninto binding settlement agreements with the Republic. The Republic responds\n\nthat it was not bound by the purported agreements because it did not\n\ncountersign them. There is no dispute that the Republic never signed the\n\nagreements. The question before us is whether the unexecuted agreements were\n\nnonetheless binding.\n\n Our precedents and those of the New York Court of Appeals supply a\n\nclear answer: “[I]f the parties to an agreement do not intend it to be binding upon\n\nthem until it is reduced to writing and signed by both of them, they are not\n\nbound and may not be held liable until it has been written out and signed.”\n\nScheck v. Francis, 260 N.E.2d 493, 494 (N.Y. 1970). We generally look to the four\n\nfactors set out in Winston v. Mediafare Entertainment Corp., 777 F.2d 78, 80 (2d Cir.\n\n1985), to determine whether parties intended not to be bound until the\n\nformalities of execution were satisfied. In the present case, the first factor is most\n\nprominent. The purported agreements between plaintiffs and the Republic\n\n\n\n 3\n\nexpressly require the Republic’s countersignature before binding the parties. The\n\nother Winston factors also indicate that the parties did not intend to be bound in\n\nthe absence of a countersigned agreement. Accordingly, we affirm the judgment\n\nof the district court (Griesa, J.).\n\n BACKGROUND\n\n A. The Republic’s Settlement Proposal\n\n In 2001, the Republic defaulted on bonds issued pursuant to a 1994 Fiscal\n\nAgency Agreement. The Republic’s default spawned extensive litigation. See, e.g.,\n\nNML Capital, Ltd. v. Republic of Argentina, 727 F.3d 230 (2d Cir. 2013); NML\n\nCapital, Ltd. v. Republic of Argentina, 699 F.3d 246 (2d Cir. 2012). As part of this\n\nlitigation, the district court entered pari passu injunctions barring the Republic\n\nfrom making payments on certain other bonds unless it also made payments on\n\nits defaulted bonds.\n\n On February 5, 2016, the Republic published a settlement proposal (the\n\n“Proposal”) to holders of its defaulted debt. The Proposal presented two offers to\n\nholders of defaulted bonds. Bondholders without pari passu injunctions could\n\nreceive the amount of their original principal plus 50% of that principal.\n\nBondholders with pari passu injunctions could receive payment of any money\n\n\n\n 4\n\njudgment or accrued claim against the Republic, less a discount of 30%; if\n\nbondholders with pari passu injunctions settled by February 19, 2016, this\n\ndiscount would be reduced to 27.5%. The Proposal states that it is “subject . . . to\n\nthe judicial decision ordering the lifting of the Pari Passu Injunctions.” Joint App.\n\n218 (boldface omitted).\n\n On February 17, 2016, the Republic supplemented the initial Proposal with\n\nthree documents: a set of Instructions for Bondholders to Accept its Settlement\n\nProposal (the “Instructions”), a Master Settlement Agreement, and an Agreement\n\nSchedule. The basic plan, as set forth in the Instructions, was for bondholders to\n\ncomplete an Agreement Schedule specific to their holdings, including\n\ninformation about their bonds and the particular amount of money to be paid.\n\nOnce executed and exchanged, this bespoke Agreement Schedule would become\n\npart of a Master Settlement Agreement, which contained standard terms for all\n\nbondholders. Specifically, the Instructions state as follows:\n\n Holders may become a party to a Settlement Agreement by executing\n and exchanging with the Republic a completed Agreement Schedule\n . . . . The holder must complete, sign and send the Agreement\n Schedule to the Republic . . . . That Agreement Schedule, when\n countersigned by the Republic, shall constitute a binding agreement\n between the parties to settle all claims in respect of the bonds on the\n terms contained in the Master Settlement Agreement.\n\nJoint App. 90–91.\n\n 5\n\n The language of the Master Settlement Agreement and Agreement\n\nSchedule confirms the plan set out in the Instructions. The Master Settlement\n\nAgreement contains standard provisions applicable to all settling bondholders,\n\nincluding a provision that New York state law governs the agreement. The\n\nMaster Settlement Agreement also states:\n\n This Master Settlement Agreement . . . is made, in accordance with\n the terms of the Proposal . . . , between [the Republic] and the Holder\n identified in item (i) of the Agreement Schedule signed by the parties\n in connection with this Agreement (such Agreement Schedule, when\n executed and exchanged by the Republic and the Holder, being an\n integral part of this Settlement Agreement).\n\nJoint App. 92. The Agreement Schedule contains blanks for bondholders to\n\nprovide personal information and various details about their bonds. It also\n\ncontains a blank for the monetary settlement amount above a statement that\n\n“[t]his Settlement Amount has been reconciled between the Republic and the\n\nHolder.” Joint App. 97–98. The signature page of the Agreement Schedule states\n\nin its entirety: “By executing counterparts of this Agreement Schedule in the\n\nspace provided below and exchanging those counterparts, the parties agree to be\n\nbound by the terms of the Settlement Agreement, as completed by the\n\ninformation contained in this Agreement Schedule.” Joint App. 99. Below this\n\ntext, there are two open lines marked with “/s/” symbols. Id.\n\n\n 6\n\n B. The District Court’s Vacatur Order\n\n Soon after the Republic posted the Proposal, it reached settlement\n\nagreements with several bondholders. Thereafter, on February 11, 2016, the\n\nRepublic moved to vacate the pari passu injunctions. The district court lacked\n\njurisdiction to lift some of the injunctions due to a pending appeal, but, on\n\nFebruary 19, 2016, it issued an Indicative Ruling explaining that the district court\n\nwould vacate these injunctions if two conditions were met: (1) the repeal of\n\nlegislative obstacles to the Republic’s settlement with its bondholders and, (2)\n\n“full payment [by the Republic] in accordance with the specific terms of each . . .\n\nagreement” to “all plaintiffs that enter[ed] into agreements in principle with the\n\nRepublic on or before February 29, 2016.” See Indicative Ruling at 23, NML\n\nCapital, Ltd. v. Republic of Argentina, No. 14‐cv‐8601‐TPG, ECF No. 59 (S.D.N.Y.\n\nFeb. 19, 2016).\n\n Upon remand after the Republic voluntarily dismissed two pending\n\nappeals, the Republic moved the district court to enter the Indicative Ruling as\n\nan order and to lift all of the injunctions. In making this request, the Republic\n\nrepresented to the district court that it had already settled claims worth $6.2\n\nbillion and that “[n]egotiations with other plaintiffs are ongoing.” Joint App. 120.\n\n\n\n 7\n\nThe Republic also submitted seven settlement agreements in principle to\n\ndemonstrate its progress. Six of these agreements in principle were\n\ncountersigned by the Republic, but one, with Red Pines LLC, was not.\n\n On March 2, 2016, the district court entered an order (the “Vacatur Order”)\n\nimplementing its earlier Indicative Ruling and vacating all of the injunctions\n\nupon the occurrence of the two conditions set out in the Indicative Ruling,\n\nincluding that the Republic make full payments to all bondholders that entered\n\ninto agreements in principle before February 29, 2016. See Vacatur Order at 5,\n\nNML Capital, Ltd. v. Republic of Argentina, No. 14‐cv‐8601‐TPG, ECF No. 76\n\n(S.D.N.Y. March 2, 2016).\n\n C. The Present Action\n\n Plaintiffs‐appellants in the present case are five holders of defaulted\n\nbonds. On or before February 29, 2016, per the Instructions, each plaintiff sent the\n\nRepublic an Agreement Schedule via email. The Republic acknowledged receipt\n\nof each plaintiff’s submission on February 29, 2016 or March 1, 2016. The\n\nRepublic did not countersign plaintiffs’ Agreement Schedules, and no executed\n\nAgreement Schedules were exchanged. On March 11, 2016, the Republic\n\ninformed plaintiffs that it would not agree to their Agreement Schedules.\n\n\n\n 8\n\n On March 25, 2016, plaintiffs filed a Complaint seeking a declaratory\n\njudgment that they had entered into binding agreements in principle with the\n\nRepublic by February 29, 2016, such that the Republic had to pay them to lift the\n\npari passu injunctions under the terms of the Vacatur Order. Plaintiffs also sought\n\ninjunctive relief barring the Republic from notifying the district court that all\n\nsettling bondholders had received full payment, in satisfaction of the Vacatur\n\nOrder’s second condition precedent, without first paying plaintiffs. On April 6,\n\n2016, the Republic moved to dismiss plaintiffs’ Complaint, and the following day\n\nplaintiffs filed an Amended Complaint with the same claims for declaratory and\n\ninjunctive relief. The district court expedited briefing on the Republic’s motion to\n\ndismiss and, in an Opinion dated April 12, 2016, dismissed plaintiffs’ Amended\n\nComplaint in its entirety. The district court denied plaintiffs leave to amend their\n\npleadings a second time. Plaintiffs timely appealed.\n\n DISCUSSION\n\n “We review de novo a district court’s dismissal of a complaint pursuant to\n\nRule 12(b)(6), construing the complaint liberally, accepting all factual allegations\n\nin the complaint as true, and drawing all reasonable inferences in the plaintiff[s’]\n\nfavor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). “We review\n\n\n\n 9\n\nthe district court’s denial of leave to amend the complaint for abuse of\n\ndiscretion.” Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Secs., LLC, 797 F.3d 160,\n\n169 (2d Cir. 2015).\n\n A.\n\n Under New York law, “[i]t is well settled that, if the parties to an\n\nagreement do not intend it to be binding upon them until it is reduced to writing\n\nand signed by both of them, they are not bound and may not be held liable until it\n\nhas been written out and signed.” Scheck v. Francis, 260 N.E.2d 493, 494 (N.Y.\n\n1970) (emphasis added); see Jim Bouton Corp. v. Wm. Wrigley Jr. Co., 902 F.2d 1074,\n\n1081 (2d Cir. 1990) (“New York follows the generally accepted rule that when\n\nparties negotiating a proposed contract express an intent not to be bound until\n\ntheir negotiations have culminated in the execution of a formal contract, they\n\ncannot be held bound until that event has occurred.”) (collecting cases, including\n\nScheck). “The point of these rules is to give parties the power to contract as they\n\nplease, so that they may, if they like, bind themselves orally or by informal\n\nletters, or that they may maintain ‘complete immunity from all obligation’ until a\n\nwritten agreement is executed.” R.G. Grp., Inc v. Horn & Hardart Co., 751 F.2d 69,\n\n74 (2d Cir. 1984) (quoting 1 A. Corbin, Corbin on Contracts § 30, at 98 (1963)).\n\n\n\n 10\n\n This Court has set out four factors\n\n that help determine whether the parties intended to be bound in the\n absence of a document executed by both sides. The court is to consider\n (1) whether there has been an express reservation of the right not to\n be bound in the absence of a writing; (2) whether there has been\n partial performance of the contract; (3) whether all of the terms of the\n alleged contract have been agreed upon; and (4) whether the\n agreement at issue is the type of contract that is usually committed to\n writing.\n\nWinston v. Mediafare Entm’t Corp., 777 F.2d 78, 80 (2d Cir. 1985). In the present\n\ncase, each of these factors weighs in the Republic’s favor.\n\n First, “indications in the proposed settlement agreement that the parties\n\ndid not intend to bind themselves until the settlement had been signed” must be\n\ngiven “considerable weight.” Ciaramella v. Reader’s Digest Ass’n, 131 F.3d 320, 324\n\n(2d Cir. 1997). The text of the Instructions, Master Settlement Agreement, and\n\nAgreement Schedule unambiguously require the Republic’s countersignature\n\nand exchange of executed copies of an Agreement Schedule before either party is\n\nbound.2 The Instructions state that “[h]olders may become a party to a Settlement\n\n\n\n2For this reason, we disagree with the dissent’s contention that these various\nwritings collectively constituted an offer to enter into a unilateral contract. “A\nmanifestation of willingness to enter into a bargain is not an offer if the person to\nwhom it is addressed knows or has reason to know that the person making it\ndoes not intend to conclude a bargain until he has made a further manifestation\nof assent.” Restatement (Second) of Contracts § 26 (Am. Law Inst. 1981); see also\n\n 11\n\nAgreement by executing and exchanging with the Republic a completed\n\nAgreement Schedule. . . . [An] Agreement Schedule, when countersigned by the\n\nRepublic, shall constitute a binding agreement between the parties . . . .” Joint\n\nApp. 90–91. The Agreement Schedule states that “[b]y executing counterparts of\n\nthis Agreement Schedule in the space provided below and exchanging those\n\ncounterparts, the parties agree to be bound by the terms of the Settlement\n\nAgreement . . . .” Joint App. 99. An Agreement Schedule must be signed by the\n\nRepublic to identify the parties to any Master Settlement Agreement, which is\n\n“made . . . between [the Republic] and the Holder identified in item (i) of the\n\nAgreement Schedule signed by the parties in connection with this Agreement\n\n(such Agreement Schedule, when executed and exchanged by the Republic and\n\nthe Holder, being an integral part of this Settlement Agreement).” Joint App. 92.\n\nBy their own express terms, the unexecuted agreements between the Republic\n\n\n\n\nLeonard v. Pepsico, Inc., 88 F. Supp. 2d 116, 123 (S.D.N.Y. 1999), aff’d, 210 F.3d 88\n(2d Cir. 2000) (per curiam). If the surrounding circumstances indicate otherwise,\neven “the word ‘offer’ does not necessarily mean that an offer is intended.”\nRestatement, supra, § 26 cmt. c. Here, the express requirement that the Republic\ncountersign the Agreement Schedule before either party would be bound gave\nplaintiffs “reason to know” that the writings did not constitute an offer.\n\n 12\n\nand plaintiffs were not binding contracts.3\n\n The second Winston factor concerns “whether there has been partial\n\nperformance of the contract.” Winston, 777 F.2d at 80. Plaintiffs argue that they\n\npartially performed the contract by representing to the district court that they\n\nhad reached agreements in principle with the Republic and that the Republic\n\npartially performed the contract by representing to the district court that it had\n\nsettled with other parties and seeking vacatur of the pari passu injunctions. These\n\nactions do not amount to partial performance of the settlement agreements.\n\nRegardless of their representations to the district court, plaintiffs did not\n\nwithdraw their claims against the Republic. The Republic did not make any\n\npayments to plaintiffs, and neither its settlements with other bondholders nor its\n\nefforts to vacate the pari passi injunctions bear on its intentions with respect to\n\nplaintiffs. The second Winston factor thus weighs against plaintiffs.4\n\n\n3 The Republic’s submission to the district court of its agreement with Red Pines\nLLC as an example of an agreement in principle, even though it had not\ncountersigned the agreement, does not bear on the Republic’s intentions vis‐à‐vis\nthe present plaintiffs‐appellants. In addition, the submission of an agreement\nlacking a countersignature does not affect the unambiguous language of the\nagreements.\n4 Our dissenting colleague concludes otherwise based on Teachers Insurance &\n\nAnnuity Ass’n of America v. Tribune Co., 670 F. Supp. 491, 502 (S.D.N.Y. 1987), in\nwhich the district court held that allocation of funds for a loan agreement\n\n 13\n\n We have framed the third Winston factor as “whether there was ‘literally\n\nnothing left to negotiate.’” Winston, 777 F.2d at 82 (quoting R.G. Grp., 751 F.2d at\n\n76). Plaintiffs argue that there was nothing left to negotiate because the terms of\n\nthe settlement were already set in the Proposal and were never open to\n\nnegotiation. However, before plaintiffs emailed their Agreement Schedules, the\n\nRepublic was not aware of how much money plaintiffs believed they should be\n\npaid or which bonds would be covered by any agreement. Once the Republic did\n\nsee plaintiffs’ submissions, it disagreed with them about these essential terms.\n\nAccordingly, there was still much left to negotiate.\n\n The fourth Winston factor asks “whether the agreement at issue here was\n\nthe type of contract that was usually put in writing.” Winston, 777 F.2d at 83.\n\nPlaintiffs concede that settlement agreements are the type of contract that is\n\nusually put into writing. See, e.g., Ciaramella, 131 F.3d at 326 (“Settlements of any\n\nclaim are generally required to be in writing or, at a minimum, made on the\n\n\n\n\nconstituted partial performance. But that case involved a single contract between\ntwo parties, rather than—as here—a multitude of similar contracts between the\nRepublic and various bondholders. It is one thing to say that allocating funds to\nbe loaned to a particular party constitutes partial performance of an agreement\nwith that party. It does not follow, however, that by paying other bondholders\nwith whom the Republic had executed binding contracts, the Republic partially\nperformed its obligations towards plaintiffs.\n 14\n\nrecord in open court.”). However, plaintiffs insist that the alleged settlement\n\nagreements here were put into writing. Plaintiffs ignore the fact that the written\n\nagreements were not signed by the Republic. Because the agreements required\n\ncountersignatures to be effective, there were no complete written agreements. As\n\nwe have observed, “[w]ith [millions of dollars] at stake, a requirement that [an]\n\nagreement be in writing and signed simply cannot be a surprise to anyone.” R.G.\n\nGrp., 751 F.2d at 77.\n\n In sum, the parties intended not to bind themselves to any settlement\n\nagreement until the relevant documents were executed by both parties and\n\nexchanged. Because the Republic did not countersign the agreements, there were\n\nno binding settlement agreements between plaintiffs and the Republic.5 The\n\ndistrict court was correct to dismiss plaintiffs’ Amended Complaint on these\n\ngrounds.\n\n\n\n\n5Because no binding settlement agreements existed between plaintiffs and the\nRepublic, we need not reach plaintiffs’ further arguments that depend on the\nexistence of such agreements.\n 15\n\n B.\n\n Plaintiffs also argue that the Republic made an irrevocable offer, or\n\n“option contract,” through its Proposal. New York General Obligations Law\n\n§ 5‐1109 controls irrevocable offers made without consideration:\n\n when an offer to enter into a contract is made in a writing signed by\n the offeror, or by his agent, which states that the offer is irrevocable\n during a period set forth or until a time fixed, the offer shall not be\n revocable during such period or until such time because of the\n absence of consideration for the assurance of irrevocability. When\n such a writing states that the offer is irrevocable but does not state any\n period or time of irrevocability, it shall be construed to state that the\n offer is irrevocable for a reasonable time.\n\nPlaintiffs acknowledge that this provision governs the creation of any alleged\n\nagreements between plaintiffs and the Republic. However, the purported\n\nirrevocable offers were not signed by the offeror, the Republic. In addition, the\n\nProposal, Instructions, Master Settlement Agreement and Agreement Schedule\n\ndo not state that they are irrevocable.\n\n Nonetheless, plaintiffs argue that the Republic rendered its offers\n\nirrevocable by asking the district court to vacate the pari passu injunctions subject\n\nto the condition that the Republic make payment to all plaintiffs that settled by\n\nFebruary 29, 2016. Even assuming that the Vacatur Order, or any briefing that\n\ndiscussed it, could alter the terms of the Republic’s offers, the Vacatur Order\n\n\n 16\n\nmerely requires the Republic to make payments to all plaintiffs that entered into\n\nagreements in principle on or before February 29, 2016. See Vacatur Order at 5,\n\nNML Capital, Ltd. v. Republic of Argentina, No. 14‐cv‐8601‐TPG, ECF No. 76\n\n(S.D.N.Y. March 2, 2016). It does not require that the Republic accept all\n\nAgreement Schedules emailed to it by that date without negotiation. Id. The\n\nRepublic never made irrevocable offers to plaintiffs.\n\n C.\n\n Federal Rule of Civil Procedure 15(a)(2) states that “court[s] should freely\n\ngive leave [to amend] when justice so requires.” We have upheld Rule 15(a)(2)’s\n\n“liberal standard” as “consistent with our strong preference for resolving\n\ndisputes on the merits.” Loreley Fin., 797 F.3d at 190 (quoting Williams v. Citigroup\n\nInc., 659 F.3d 208, 212–13 (2d Cir. 2011) (per curiam)). We have been particularly\n\nskeptical of denials of requests to amend when a plaintiff did not previously\n\nhave a district court’s ruling on a relevant issue, reasoning that “[w]ithout the\n\nbenefit of a ruling, many a plaintiff will not see the necessity of amendment or be\n\nin a position to weigh the practicality and possible means of curing specific\n\ndeficiencies.” Id. However, denial of leave to amend is proper if amendment\n\nwould be futile. Id. In particular, “[a] plaintiff need not be given leave to amend\n\n\n\n 17\n\nif it fails to specify either to the district court or to the court of appeals how\n\namendment would cure the pleading deficiencies in its complaint.” TechnoMarine\n\nSA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014).\n\n The district court did not abuse its discretion when it denied plaintiffs\n\nleave to amend. Although plaintiffs did not have an opportunity to amend after\n\nreceiving the district court’s ruling granting the Republic’s motion to dismiss,\n\nplaintiffs have not offered specific changes they could make to their Amended\n\nComplaint to cure its deficiencies. In particular, plaintiffs do not represent that\n\nthey could add an allegation that countersigned settlement agreements existed\n\nbetween plaintiffs and the Republic. As such, amendment would be futile. Id.\n\n CONCLUSION\n\n For the foregoing reasons, we AFFIRM the judgment of the district court.\n\n\n\n\n 18\n\n 1 Attestor Value Fund v. Argentina, #16-1124\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Attestor Value v. Republic of Argentina\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-10-18\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n16-1124\\nAttestor Value v. Republic of Argentina\\n\\n\\n UNITED STATES COURT OF APPEALS\\n\\n FOR THE SECOND CIRCUIT\\n\\n _______________\\n\\n August Term, 2016\\n\\n (Submitted: November 21, 2016 Decided: October 18, 2019)\\n\\n Docket No. 16‐1124\\n\\n _______________\\n\\n ATTESTOR VALUE MASTER FUND, BYBROOK CAPITAL MASTER FUND LP, BYBROOK\\n CAPITAL HAZLETON MASTER FUND LP, TRINITY INVESTMENTS LIMITED, WHITE\\n HAWTHORNE, LLC,\\n\\n Plaintiffs‐Appellants,\\n\\n ARAG‐A LIMITED, ARAG‐O LIMITED, ARAG‐T LIMITED, ARAG‐V LIMITED, MCHA\\n HOLDINGS, LLC, HONERO FUND I, LLC, RED PINES LLC, SPINNAKER GLOBAL\\n EMERGING MARKETS FUND LTD, SPINNAKER GLOBAL SPECIAL SITUATIONS FUND\\n LP, YELLOW CRANE HOLDINGS, L.L.C., WHITE HAWTHORNE II, LLC,\\n\\n Plaintiffs,\\n\\n —v.—\\n\\n REPUBLIC OF ARGENTINA,\\n\\n Defendant‐Appellee.\\n _______________\\n\\nB e f o r e:\\n\\n KATZMANN, Chief Judge, WINTER, Circuit Judge, and STEIN, District Judge. 1\\n\\n _______________\\n\\n Appeal from a final judgment, entered on April 13, 2016, in the United\\nStates District Court for the Southern District of New York (Griesa, J.), granting\\ndefendant Republic of Argentina’s motion to dismiss with prejudice pursuant to\\nFed. R. Civ. P. 12(b)(6) and denying as moot plaintiffs’ motion for injunctive\\nrelief and expedited discovery. The district court dismissed plaintiffs’ Amended\\nComplaint because plaintiffs failed to allege that they had entered into valid,\\ncountersigned contracts with defendant. The language of the purported contracts\\nexpressly required the defendant’s countersignature for the contracts to be\\nbinding, but defendants never signed the contracts. We hold under this Court’s\\nprecedents and New York state law that, when an agreement expressly requires\\na party’s countersignature to be binding and the factors set out in Winston v.\\nMediafare Entertainment Corp., 777 F.2d 78, 80 (2d Cir. 1985) otherwise indicate\\nthat the parties did not intend to be bound, no valid contract exists in the absence\\nof a party’s countersignature.\\n\\nAccordingly, we AFFIRM the judgment of the district court.\\n\\nJudge Winter dissents in a separate opinion.\\n\\n _______________\\n\\n Peter Sabin Willet (Kenneth I. Schacter, on the brief), Morgan, Lewis & Bockius\\n LLP, Boston, MA and New York, NY, for Plaintiffs‐Appellants.\\n\\nCarmine D. Boccuzzi, Jr., Cleary Gottlieb Steen & Hamilton LLP, New York, NY\\n (Michael A. Paskin, Daniel Slifkin, and Damaris Hernández, Cravath,\\n Swaine & Moore LLP, New York, NY, on the brief), for Defendant‐Appellee.\\n _______________\\n\\n1Judge Sidney H. Stein of the United States District Court for the Southern\\nDistrict of New York, sitting by designation.\\n 2\\n\\nPER CURIAM:\\n\\n After more than a decade of litigation, defendant‐appellee the Republic of\\n\\nArgentina (the “Republic”) sought to settle with certain holders of its defaulted\\n\\nbonds. Plaintiffs‐appellants hold defaulted bonds and claim that they entered\\n\\ninto binding settlement agreements with the Republic. The Republic responds\\n\\nthat it was not bound by the purported agreements because it did not\\n\\ncountersign them. There is no dispute that the Republic never signed the\\n\\nagreements. The question before us is whether the unexecuted agreements were\\n\\nnonetheless binding.\\n\\n Our precedents and those of the New York Court of Appeals supply a\\n\\nclear answer: “[I]f the parties to an agreement do not intend it to be binding upon\\n\\nthem until it is reduced to writing and signed by both of them, they are not\\n\\nbound and may not be held liable until it has been written out and signed.”\\n\\nScheck v. Francis, 260 N.E.2d 493, 494 (N.Y. 1970). We generally look to the four\\n\\nfactors set out in Winston v. Mediafare Entertainment Corp., 777 F.2d 78, 80 (2d Cir.\\n\\n1985), to determine whether parties intended not to be bound until the\\n\\nformalities of execution were satisfied. In the present case, the first factor is most\\n\\nprominent. The purported agreements between plaintiffs and the Republic\\n\\n\\n\\n 3\\n\\nexpressly require the Republic’s countersignature before binding the parties. The\\n\\nother Winston factors also indicate that the parties did not intend to be bound in\\n\\nthe absence of a countersigned agreement. Accordingly, we affirm the judgment\\n\\nof the district court (Griesa, J.).\\n\\n BACKGROUND\\n\\n A. The Republic’s Settlement Proposal\\n\\n In 2001, the Republic defaulted on bonds issued pursuant to a 1994 Fiscal\\n\\nAgency Agreement. The Republic’s default spawned extensive litigation. See, e.g.,\\n\\nNML Capital, Ltd. v. Republic of Argentina, 727 F.3d 230 (2d Cir. 2013); NML\\n\\nCapital, Ltd. v. Republic of Argentina, 699 F.3d 246 (2d Cir. 2012). As part of this\\n\\nlitigation, the district court entered pari passu injunctions barring the Republic\\n\\nfrom making payments on certain other bonds unless it also made payments on\\n\\nits defaulted bonds.\\n\\n On February 5, 2016, the Republic published a settlement proposal (the\\n\\n“Proposal”) to holders of its defaulted debt. The Proposal presented two offers to\\n\\nholders of defaulted bonds. Bondholders without pari passu injunctions could\\n\\nreceive the amount of their original principal plus 50% of that principal.\\n\\nBondholders with pari passu injunctions could receive payment of any money\\n\\n\\n\\n 4\\n\\njudgment or accrued claim against the Republic, less a discount of 30%; if\\n\\nbondholders with pari passu injunctions settled by February 19, 2016, this\\n\\ndiscount would be reduced to 27.5%. The Proposal states that it is “subject . . . to\\n\\nthe judicial decision ordering the lifting of the Pari Passu Injunctions.” Joint App.\\n\\n218 (boldface omitted).\\n\\n On February 17, 2016, the Republic supplemented the initial Proposal with\\n\\nthree documents: a set of Instructions for Bondholders to Accept its Settlement\\n\\nProposal (the “Instructions”), a Master Settlement Agreement, and an Agreement\\n\\nSchedule. The basic plan, as set forth in the Instructions, was for bondholders to\\n\\ncomplete an Agreement Schedule specific to their holdings, including\\n\\ninformation about their bonds and the particular amount of money to be paid.\\n\\nOnce executed and exchanged, this bespoke Agreement Schedule would become\\n\\npart of a Master Settlement Agreement, which contained standard terms for all\\n\\nbondholders. Specifically, the Instructions state as follows:\\n\\n Holders may become a party to a Settlement Agreement by executing\\n and exchanging with the Republic a completed Agreement Schedule\\n . . . . The holder must complete, sign and send the Agreement\\n Schedule to the Republic . . . . That Agreement Schedule, when\\n countersigned by the Republic, shall constitute a binding agreement\\n between the parties to settle all claims in respect of the bonds on the\\n terms contained in the Master Settlement Agreement.\\n\\nJoint App. 90–91.\\n\\n 5\\n\\n The language of the Master Settlement Agreement and Agreement\\n\\nSchedule confirms the plan set out in the Instructions. The Master Settlement\\n\\nAgreement contains standard provisions applicable to all settling bondholders,\\n\\nincluding a provision that New York state law governs the agreement. The\\n\\nMaster Settlement Agreement also states:\\n\\n This Master Settlement Agreement . . . is made, in accordance with\\n the terms of the Proposal . . . , between [the Republic] and the Holder\\n identified in item (i) of the Agreement Schedule signed by the parties\\n in connection with this Agreement (such Agreement Schedule, when\\n executed and exchanged by the Republic and the Holder, being an\\n integral part of this Settlement Agreement).\\n\\nJoint App. 92. The Agreement Schedule contains blanks for bondholders to\\n\\nprovide personal information and various details about their bonds. It also\\n\\ncontains a blank for the monetary settlement amount above a statement that\\n\\n“[t]his Settlement Amount has been reconciled between the Republic and the\\n\\nHolder.” Joint App. 97–98. The signature page of the Agreement Schedule states\\n\\nin its entirety: “By executing counterparts of this Agreement Schedule in the\\n\\nspace provided below and exchanging those counterparts, the parties agree to be\\n\\nbound by the terms of the Settlement Agreement, as completed by the\\n\\ninformation contained in this Agreement Schedule.” Joint App. 99. Below this\\n\\ntext, there are two open lines marked with “/s/” symbols. Id.\\n\\n\\n 6\\n\\n B. The District Court’s Vacatur Order\\n\\n Soon after the Republic posted the Proposal, it reached settlement\\n\\nagreements with several bondholders. Thereafter, on February 11, 2016, the\\n\\nRepublic moved to vacate the pari passu injunctions. The district court lacked\\n\\njurisdiction to lift some of the injunctions due to a pending appeal, but, on\\n\\nFebruary 19, 2016, it issued an Indicative Ruling explaining that the district court\\n\\nwould vacate these injunctions if two conditions were met: (1) the repeal of\\n\\nlegislative obstacles to the Republic’s settlement with its bondholders and, (2)\\n\\n“full payment [by the Republic] in accordance with the specific terms of each . . .\\n\\nagreement” to “all plaintiffs that enter[ed] into agreements in principle with the\\n\\nRepublic on or before February 29, 2016.” See Indicative Ruling at 23, NML\\n\\nCapital, Ltd. v. Republic of Argentina, No. 14‐cv‐8601‐TPG, ECF No. 59 (S.D.N.Y.\\n\\nFeb. 19, 2016).\\n\\n Upon remand after the Republic voluntarily dismissed two pending\\n\\nappeals, the Republic moved the district court to enter the Indicative Ruling as\\n\\nan order and to lift all of the injunctions. In making this request, the Republic\\n\\nrepresented to the district court that it had already settled claims worth $6.2\\n\\nbillion and that “[n]egotiations with other plaintiffs are ongoing.” Joint App. 120.\\n\\n\\n\\n 7\\n\\nThe Republic also submitted seven settlement agreements in principle to\\n\\ndemonstrate its progress. Six of these agreements in principle were\\n\\ncountersigned by the Republic, but one, with Red Pines LLC, was not.\\n\\n On March 2, 2016, the district court entered an order (the “Vacatur Order”)\\n\\nimplementing its earlier Indicative Ruling and vacating all of the injunctions\\n\\nupon the occurrence of the two conditions set out in the Indicative Ruling,\\n\\nincluding that the Republic make full payments to all bondholders that entered\\n\\ninto agreements in principle before February 29, 2016. See Vacatur Order at 5,\\n\\nNML Capital, Ltd. v. Republic of Argentina, No. 14‐cv‐8601‐TPG, ECF No. 76\\n\\n(S.D.N.Y. March 2, 2016).\\n\\n C. The Present Action\\n\\n Plaintiffs‐appellants in the present case are five holders of defaulted\\n\\nbonds. On or before February 29, 2016, per the Instructions, each plaintiff sent the\\n\\nRepublic an Agreement Schedule via email. The Republic acknowledged receipt\\n\\nof each plaintiff’s submission on February 29, 2016 or March 1, 2016. The\\n\\nRepublic did not countersign plaintiffs’ Agreement Schedules, and no executed\\n\\nAgreement Schedules were exchanged. On March 11, 2016, the Republic\\n\\ninformed plaintiffs that it would not agree to their Agreement Schedules.\\n\\n\\n\\n 8\\n\\n On March 25, 2016, plaintiffs filed a Complaint seeking a declaratory\\n\\njudgment that they had entered into binding agreements in principle with the\\n\\nRepublic by February 29, 2016, such that the Republic had to pay them to lift the\\n\\npari passu injunctions under the terms of the Vacatur Order. Plaintiffs also sought\\n\\ninjunctive relief barring the Republic from notifying the district court that all\\n\\nsettling bondholders had received full payment, in satisfaction of the Vacatur\\n\\nOrder’s second condition precedent, without first paying plaintiffs. On April 6,\\n\\n2016, the Republic moved to dismiss plaintiffs’ Complaint, and the following day\\n\\nplaintiffs filed an Amended Complaint with the same claims for declaratory and\\n\\ninjunctive relief. The district court expedited briefing on the Republic’s motion to\\n\\ndismiss and, in an Opinion dated April 12, 2016, dismissed plaintiffs’ Amended\\n\\nComplaint in its entirety. The district court denied plaintiffs leave to amend their\\n\\npleadings a second time. Plaintiffs timely appealed.\\n\\n DISCUSSION\\n\\n “We review de novo a district court’s dismissal of a complaint pursuant to\\n\\nRule 12(b)(6), construing the complaint liberally, accepting all factual allegations\\n\\nin the complaint as true, and drawing all reasonable inferences in the plaintiff[s’]\\n\\nfavor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). “We review\\n\\n\\n\\n 9\\n\\nthe district court’s denial of leave to amend the complaint for abuse of\\n\\ndiscretion.” Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Secs., LLC, 797 F.3d 160,\\n\\n169 (2d Cir. 2015).\\n\\n A.\\n\\n Under New York law, “[i]t is well settled that, if the parties to an\\n\\nagreement do not intend it to be binding upon them until it is reduced to writing\\n\\nand signed by both of them, they are not bound and may not be held liable until it\\n\\nhas been written out and signed.” Scheck v. Francis, 260 N.E.2d 493, 494 (N.Y.\\n\\n1970) (emphasis added); see Jim Bouton Corp. v. Wm. Wrigley Jr. Co., 902 F.2d 1074,\\n\\n1081 (2d Cir. 1990) (“New York follows the generally accepted rule that when\\n\\nparties negotiating a proposed contract express an intent not to be bound until\\n\\ntheir negotiations have culminated in the execution of a formal contract, they\\n\\ncannot be held bound until that event has occurred.”) (collecting cases, including\\n\\nScheck). “The point of these rules is to give parties the power to contract as they\\n\\nplease, so that they may, if they like, bind themselves orally or by informal\\n\\nletters, or that they may maintain ‘complete immunity from all obligation’ until a\\n\\nwritten agreement is executed.” R.G. Grp., Inc v. Horn & Hardart Co., 751 F.2d 69,\\n\\n74 (2d Cir. 1984) (quoting 1 A. Corbin, Corbin on Contracts § 30, at 98 (1963)).\\n\\n\\n\\n 10\\n\\n This Court has set out four factors\\n\\n that help determine whether the parties intended to be bound in the\\n absence of a document executed by both sides. The court is to consider\\n (1) whether there has been an express reservation of the right not to\\n be bound in the absence of a writing; (2) whether there has been\\n partial performance of the contract; (3) whether all of the terms of the\\n alleged contract have been agreed upon; and (4) whether the\\n agreement at issue is the type of contract that is usually committed to\\n writing.\\n\\nWinston v. Mediafare Entm’t Corp., 777 F.2d 78, 80 (2d Cir. 1985). In the present\\n\\ncase, each of these factors weighs in the Republic’s favor.\\n\\n First, “indications in the proposed settlement agreement that the parties\\n\\ndid not intend to bind themselves until the settlement had been signed” must be\\n\\ngiven “considerable weight.” Ciaramella v. Reader’s Digest Ass’n, 131 F.3d 320, 324\\n\\n(2d Cir. 1997). The text of the Instructions, Master Settlement Agreement, and\\n\\nAgreement Schedule unambiguously require the Republic’s countersignature\\n\\nand exchange of executed copies of an Agreement Schedule before either party is\\n\\nbound.2 The Instructions state that “[h]olders may become a party to a Settlement\\n\\n\\n\\n2For this reason, we disagree with the dissent’s contention that these various\\nwritings collectively constituted an offer to enter into a unilateral contract. “A\\nmanifestation of willingness to enter into a bargain is not an offer if the person to\\nwhom it is addressed knows or has reason to know that the person making it\\ndoes not intend to conclude a bargain until he has made a further manifestation\\nof assent.” Restatement (Second) of Contracts § 26 (Am. Law Inst. 1981); see also\\n\\n 11\\n\\nAgreement by executing and exchanging with the Republic a completed\\n\\nAgreement Schedule. . . . [An] Agreement Schedule, when countersigned by the\\n\\nRepublic, shall constitute a binding agreement between the parties . . . .” Joint\\n\\nApp. 90–91. The Agreement Schedule states that “[b]y executing counterparts of\\n\\nthis Agreement Schedule in the space provided below and exchanging those\\n\\ncounterparts, the parties agree to be bound by the terms of the Settlement\\n\\nAgreement . . . .” Joint App. 99. An Agreement Schedule must be signed by the\\n\\nRepublic to identify the parties to any Master Settlement Agreement, which is\\n\\n“made . . . between [the Republic] and the Holder identified in item (i) of the\\n\\nAgreement Schedule signed by the parties in connection with this Agreement\\n\\n(such Agreement Schedule, when executed and exchanged by the Republic and\\n\\nthe Holder, being an integral part of this Settlement Agreement).” Joint App. 92.\\n\\nBy their own express terms, the unexecuted agreements between the Republic\\n\\n\\n\\n\\nLeonard v. Pepsico, Inc., 88 F. Supp. 2d 116, 123 (S.D.N.Y. 1999), aff’d, 210 F.3d 88\\n(2d Cir. 2000) (per curiam). If the surrounding circumstances indicate otherwise,\\neven “the word ‘offer’ does not necessarily mean that an offer is intended.”\\nRestatement, supra, § 26 cmt. c. Here, the express requirement that the Republic\\ncountersign the Agreement Schedule before either party would be bound gave\\nplaintiffs “reason to know” that the writings did not constitute an offer.\\n\\n 12\\n\\nand plaintiffs were not binding contracts.3\\n\\n The second Winston factor concerns “whether there has been partial\\n\\nperformance of the contract.” Winston, 777 F.2d at 80. Plaintiffs argue that they\\n\\npartially performed the contract by representing to the district court that they\\n\\nhad reached agreements in principle with the Republic and that the Republic\\n\\npartially performed the contract by representing to the district court that it had\\n\\nsettled with other parties and seeking vacatur of the pari passu injunctions. These\\n\\nactions do not amount to partial performance of the settlement agreements.\\n\\nRegardless of their representations to the district court, plaintiffs did not\\n\\nwithdraw their claims against the Republic. The Republic did not make any\\n\\npayments to plaintiffs, and neither its settlements with other bondholders nor its\\n\\nefforts to vacate the pari passi injunctions bear on its intentions with respect to\\n\\nplaintiffs. The second Winston factor thus weighs against plaintiffs.4\\n\\n\\n3 The Republic’s submission to the district court of its agreement with Red Pines\\nLLC as an example of an agreement in principle, even though it had not\\ncountersigned the agreement, does not bear on the Republic’s intentions vis‐à‐vis\\nthe present plaintiffs‐appellants. In addition, the submission of an agreement\\nlacking a countersignature does not affect the unambiguous language of the\\nagreements.\\n4 Our dissenting colleague concludes otherwise based on Teachers Insurance &\\n\\nAnnuity Ass’n of America v. Tribune Co., 670 F. Supp. 491, 502 (S.D.N.Y. 1987), in\\nwhich the district court held that allocation of funds for a loan agreement\\n\\n 13\\n\\n We have framed the third Winston factor as “whether there was ‘literally\\n\\nnothing left to negotiate.’” Winston, 777 F.2d at 82 (quoting R.G. Grp., 751 F.2d at\\n\\n76). Plaintiffs argue that there was nothing left to negotiate because the terms of\\n\\nthe settlement were already set in the Proposal and were never open to\\n\\nnegotiation. However, before plaintiffs emailed their Agreement Schedules, the\\n\\nRepublic was not aware of how much money plaintiffs believed they should be\\n\\npaid or which bonds would be covered by any agreement. Once the Republic did\\n\\nsee plaintiffs’ submissions, it disagreed with them about these essential terms.\\n\\nAccordingly, there was still much left to negotiate.\\n\\n The fourth Winston factor asks “whether the agreement at issue here was\\n\\nthe type of contract that was usually put in writing.” Winston, 777 F.2d at 83.\\n\\nPlaintiffs concede that settlement agreements are the type of contract that is\\n\\nusually put into writing. See, e.g., Ciaramella, 131 F.3d at 326 (“Settlements of any\\n\\nclaim are generally required to be in writing or, at a minimum, made on the\\n\\n\\n\\n\\nconstituted partial performance. But that case involved a single contract between\\ntwo parties, rather than—as here—a multitude of similar contracts between the\\nRepublic and various bondholders. It is one thing to say that allocating funds to\\nbe loaned to a particular party constitutes partial performance of an agreement\\nwith that party. It does not follow, however, that by paying other bondholders\\nwith whom the Republic had executed binding contracts, the Republic partially\\nperformed its obligations towards plaintiffs.\\n 14\\n\\nrecord in open court.”). However, plaintiffs insist that the alleged settlement\\n\\nagreements here were put into writing. Plaintiffs ignore the fact that the written\\n\\nagreements were not signed by the Republic. Because the agreements required\\n\\ncountersignatures to be effective, there were no complete written agreements. As\\n\\nwe have observed, “[w]ith [millions of dollars] at stake, a requirement that [an]\\n\\nagreement be in writing and signed simply cannot be a surprise to anyone.” R.G.\\n\\nGrp., 751 F.2d at 77.\\n\\n In sum, the parties intended not to bind themselves to any settlement\\n\\nagreement until the relevant documents were executed by both parties and\\n\\nexchanged. Because the Republic did not countersign the agreements, there were\\n\\nno binding settlement agreements between plaintiffs and the Republic.5 The\\n\\ndistrict court was correct to dismiss plaintiffs’ Amended Complaint on these\\n\\ngrounds.\\n\\n\\n\\n\\n5Because no binding settlement agreements existed between plaintiffs and the\\nRepublic, we need not reach plaintiffs’ further arguments that depend on the\\nexistence of such agreements.\\n 15\\n\\n B.\\n\\n Plaintiffs also argue that the Republic made an irrevocable offer, or\\n\\n“option contract,” through its Proposal. New York General Obligations Law\\n\\n§ 5‐1109 controls irrevocable offers made without consideration:\\n\\n when an offer to enter into a contract is made in a writing signed by\\n the offeror, or by his agent, which states that the offer is irrevocable\\n during a period set forth or until a time fixed, the offer shall not be\\n revocable during such period or until such time because of the\\n absence of consideration for the assurance of irrevocability. When\\n such a writing states that the offer is irrevocable but does not state any\\n period or time of irrevocability, it shall be construed to state that the\\n offer is irrevocable for a reasonable time.\\n\\nPlaintiffs acknowledge that this provision governs the creation of any alleged\\n\\nagreements between plaintiffs and the Republic. However, the purported\\n\\nirrevocable offers were not signed by the offeror, the Republic. In addition, the\\n\\nProposal, Instructions, Master Settlement Agreement and Agreement Schedule\\n\\ndo not state that they are irrevocable.\\n\\n Nonetheless, plaintiffs argue that the Republic rendered its offers\\n\\nirrevocable by asking the district court to vacate the pari passu injunctions subject\\n\\nto the condition that the Republic make payment to all plaintiffs that settled by\\n\\nFebruary 29, 2016. Even assuming that the Vacatur Order, or any briefing that\\n\\ndiscussed it, could alter the terms of the Republic’s offers, the Vacatur Order\\n\\n\\n 16\\n\\nmerely requires the Republic to make payments to all plaintiffs that entered into\\n\\nagreements in principle on or before February 29, 2016. See Vacatur Order at 5,\\n\\nNML Capital, Ltd. v. Republic of Argentina, No. 14‐cv‐8601‐TPG, ECF No. 76\\n\\n(S.D.N.Y. March 2, 2016). It does not require that the Republic accept all\\n\\nAgreement Schedules emailed to it by that date without negotiation. Id. The\\n\\nRepublic never made irrevocable offers to plaintiffs.\\n\\n C.\\n\\n Federal Rule of Civil Procedure 15(a)(2) states that “court[s] should freely\\n\\ngive leave [to amend] when justice so requires.” We have upheld Rule 15(a)(2)’s\\n\\n“liberal standard” as “consistent with our strong preference for resolving\\n\\ndisputes on the merits.” Loreley Fin., 797 F.3d at 190 (quoting Williams v. Citigroup\\n\\nInc., 659 F.3d 208, 212–13 (2d Cir. 2011) (per curiam)). We have been particularly\\n\\nskeptical of denials of requests to amend when a plaintiff did not previously\\n\\nhave a district court’s ruling on a relevant issue, reasoning that “[w]ithout the\\n\\nbenefit of a ruling, many a plaintiff will not see the necessity of amendment or be\\n\\nin a position to weigh the practicality and possible means of curing specific\\n\\ndeficiencies.” Id. However, denial of leave to amend is proper if amendment\\n\\nwould be futile. Id. In particular, “[a] plaintiff need not be given leave to amend\\n\\n\\n\\n 17\\n\\nif it fails to specify either to the district court or to the court of appeals how\\n\\namendment would cure the pleading deficiencies in its complaint.” TechnoMarine\\n\\nSA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014).\\n\\n The district court did not abuse its discretion when it denied plaintiffs\\n\\nleave to amend. Although plaintiffs did not have an opportunity to amend after\\n\\nreceiving the district court’s ruling granting the Republic’s motion to dismiss,\\n\\nplaintiffs have not offered specific changes they could make to their Amended\\n\\nComplaint to cure its deficiencies. In particular, plaintiffs do not represent that\\n\\nthey could add an allegation that countersigned settlement agreements existed\\n\\nbetween plaintiffs and the Republic. As such, amendment would be futile. Id.\\n\\n CONCLUSION\\n\\n For the foregoing reasons, we AFFIRM the judgment of the district court.\\n\\n\\n\\n\\n 18\\n\\n 1 Attestor Value Fund v. Argentina, #16-1124\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4551,"cells":{"id":{"kind":"number","value":4671450,"string":"4,671,450"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Moran"},"decision_date":{"kind":"string","value":"2019-10-22"},"docket_number":{"kind":"string","value":"17-4121-cr"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: CALABRESI, CABRANES, AND CHIN, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"CHIN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17-4121-cr\\nUnited States v. Moran\\n\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n\\n August Term 2018\\n\\n (Submitted: January 28, 2019 Decided: October 22, 2019)\\n\\n Docket No. 17-4121-cr\\n\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellee,\\n\\n v.\\n\\n DENNIS PRISTELL, AKA D, AKA DP,\\n DAVID YOUNG, AKA KAREEM, AKA REEM,\\n WILLIAM PARKER, AKA SHAH, MICHAEL SINGLETARY,\\n Defendants,\\n\\n\\n LAMONT MORAN, AKA L, AKA L-SPARKS, AKA GUDDA,\\n Defendant-Appellant.\\n\\n\\n ON APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE EASTERN DISTRICT OF NEW YORK\\n\\nBefore:\\n CALABRESI, CABRANES, AND CHIN, Circuit Judges.\\n\\n\\n\\n Appeal from a judgment of the United States District Court for the\\n\\nEastern District of New York (Glasser, J.) convicting defendant-appellant, upon\\n\\nhis guilty plea, of conspiring to distribute and possess with intent to distribute\\n\\nheroin, and sentencing him principally to 84 months' imprisonment. Defendant-\\n\\nappellant contends that the district court erred by applying two sentencing\\n\\nenhancements under the United States Sentencing Guidelines: (1) three levels for\\n\\nrole in the offense and (2) two levels for committing an offense as part of criminal\\n\\nconduct engaged in as a livelihood.\\n\\n AFFIRMED.\\n\\n Judge CALABRESI concurs in a separate opinion.\\n\\n\\n\\n\\n MATTHEW JACOBS, Assistant United States Attorney\\n (Susan Corkery, Assistant United States Attorney,\\n on the brief), for Richard P. Donoghue, United\\n States Attorney for the Eastern District of New\\n York, Brooklyn, New York, for Appellee.\\n\\n JOYCE C. LONDON, Joyce C. London, P.C., New York,\\n New York; Megan Wolfe Benett, Kreindler &\\n\\n\\n\\n -2-\\n\\n Kreindler LLP, New York, New York, for\\n Defendant-Appellant.\\n ___________\\n\\nCHIN, Circuit Judge:\\n\\n Defendant-appellant Lamont Moran appeals from a judgment\\n\\nentered December 21, 2017, following his guilty plea, convicting him of\\n\\nconspiring to distribute and possess with intent to distribute 100 grams or more\\n\\nof heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. He was\\n\\nsentenced principally to 84 months' imprisonment. On appeal, Moran challenges\\n\\nhis sentence solely on procedural grounds, arguing that the district court\\n\\nerroneously applied a three-level enhancement for his role as a manager or\\n\\nsupervisor of criminal activity that involved five or more participants or was\\n\\notherwise extensive, pursuant to U.S.S.G. § 3B.1.1(b), and a two-level\\n\\nenhancement for the commission of an offense as part of a pattern of criminal\\n\\nconduct engaged in as a livelihood, pursuant to U.S.S.G. § 2D1.1(b)(16)(E). 1 For\\n\\nthe reasons set forth below, the judgment of the district court is affirmed.\\n\\n\\n\\n\\n1\\n In the Guidelines edition effective at the time of Moran's sentencing, the criminal\\nlivelihood enhancement appeared in U.S.S.G. § 2D1.1(b)(15)(E) (2016). In 2018, § 2D1.1\\nwas amended, and the relevant enhancement now appears in § 2D1.1(b)(16)(E) (2018).\\n -3-\\n\\n BACKGROUND\\n\\nA. The Facts\\n\\n The facts, as set forth in the presentence report (the \\\"PSR\\\") and\\n\\nadopted by the district court, may be summarized as follows:\\n\\n In early 2016, the Federal Bureau of Investigation (the \\\"FBI\\\") and the\\n\\nNew York City Police Department began an investigation into gang-related\\n\\ncrimes and heroin trafficking in Jamaica, Queens, principally focused on\\n\\nmembers of the gang \\\"Get it in Stacks\\\" (\\\"GI$\\\").\\n\\n During the course of the investigation, the FBI intercepted\\n\\ncommunications relating to heroin trafficking from two cellphones associated\\n\\nwith Moran. Between March 2016 and August 2016, law enforcement conducted\\n\\ncontrolled purchases of heroin from Moran on over a dozen occasions, and on at\\n\\nleast one occasion Moran also sold the Confidential Source (\\\"CS\\\") fentanyl. The\\n\\npurchased packets were often labeled with Moran's brand names. The NYPD\\n\\nobtained additional evidence of Moran's criminal conduct in February 2016 from\\n\\na cellphone seized during the arrest of GI$ member Joclyn Bridges, which\\n\\nrevealed conversations between Moran and Bridges related to heroin trafficking.\\n\\n\\n\\n\\n -4-\\n\\nFinally, photographs found on Moran's phones showed him holding a handgun\\n\\nand large amounts of cash.\\n\\n The court-authorized intercepts revealed that a number of persons\\n\\nparticipated in Moran's drug-trafficking operation. Moran supervised co-\\n\\ndefendants Dennis Pristell and David Young, who sold heroin in Queens, and\\n\\nWilliam Parker, who obtained heroin from Moran several times a week to sell on\\n\\nLong Island. Parker in turn supplied co-defendant Michael Singletary, and\\n\\nworked with him to sell their supply. Moran also directed unindicted co-\\n\\nconspirator Bridges to monitor Young's drug sales. Between March 2016 and\\n\\nSeptember 2016, Moran, Pristell, Young and Parker sold heroin almost every day.\\n\\n Intercepted conversations between Moran and Pristell and Moran\\n\\nand Young demonstrated that Moran provided them heroin to sell and\\n\\nmonitored their sales activity. For example, Moran discussed heroin trafficking\\n\\nwith Young in an intercepted conversation on July 13, 2016:\\n\\n YOUNG: Yo, L . . . I got somebody that's willing to do\\n the foot running, and I got my own spot right now. . . . I\\n want to get back on board. I don't ever want to stop\\n making money. I felt that what we had was damn\\n good.\\n\\n ...\\n\\n\\n\\n -5-\\n\\n MORAN: . . . All you got to do is when your customers\\n call you, you call me and I will send my people to them\\n to see them and I will give you something for doing\\n that.\\n\\nApp'x at 62.\\n\\n There is evidence that Moran and Young were in regular contact, as\\n\\npen registers revealed hundreds of communications over less than two months\\n\\nbetween Moran and a telephone number a confidential informant used to contact\\n\\nYoung.\\n\\n Moran also regularly discussed heroin trafficking with Pristell,\\n\\ncommunicating with him more than 100 times during a two-month period. For\\n\\nexample, on June 27, 2016, Pristell informed Moran that he had flushed some\\n\\nquantity of heroin down the toilet to avoid arrest, and Moran responded \\\"Oh, ok,\\n\\nyou got to eat that shit.\\\" App'x at 55. Less than a month later, Moran chastised\\n\\nPristell for turning off his cellphone, thereby missing a number of calls:\\n\\n PRISTELL: My phone was off. . . .\\n\\n MORAN: Why in the hell would you do that? The\\n money supposed to wake you up.\\n\\n ...\\n\\n PRISTELL: I know what happened. I didn't charge my\\n damn phone.\\n\\n -6-\\n\\n MORAN: Come on D what kind of business are you\\n running man?\\n\\nApp'x at 58-59.\\n\\n On September 8, 2016, Moran was arrested on his way to meet a CS\\n\\nfor a controlled delivery. During a search incident to Moran's arrest, FBI agents\\n\\nseized packets of heroin on Moran's person and in his car, as well as a cellphone,\\n\\nwhich revealed photos of him with GI$ gang members and counting money.\\n\\nMoran told the officers transporting him to the courthouse that he sold heroin to\\n\\nfeed his family, saying \\\"I don't view [heroin] as drugs, I view it as money.\\\"\\n\\nApp'x at 175. Though he admitted to selling heroin, he noted that he was small\\n\\ntime and not a kingpin.\\n\\n\\nB. Proceedings Below\\n\\n On April 24, 2017, Moran pleaded guilty to Count One of a three-\\n\\ncount superseding indictment, which charged conspiracy to distribute and\\n\\npossess with intent to distribute 100 grams or more of heroin, in violation of 21\\n\\nU.S.C. § 841(a)(1), 841(b)(1)(B)(i), and 846. The PSR indicated that Moran was\\n\\naccountable for at least 700 grams of heroin and 4.37 grams of fentanyl, which\\n\\nresulted in a base offense level of 28. The PSR named Pristell, Young, Parker,\\n\\nand Singletary as participants in Moran's criminal activity. The PSR\\n\\n -7-\\n\\nrecommended several offense level enhancements, including a two-level increase\\n\\nbecause the offense was \\\"part of a pattern of criminal conduct engaged in as a\\n\\nlivelihood,\\\" a two-level increase for possession of a firearm, and a three-level\\n\\nincrease for Moran's role as a manager or supervisor. After a three-level\\n\\nreduction for acceptance of responsibility, Moran's total offense level was 32.\\n\\nTogether with a criminal history category of I, the resulting Guidelines range was\\n\\n121 to 151 months' imprisonment. The PSR further noted that Moran was\\n\\nemployed as a part-time counselor, mentor, and activity specialist at Jacob Riis\\n\\nSettlement House between November 2011 and April 2016, and had started a\\n\\nnew part-time position as a counselor at St. John's Residence for Boys the day\\n\\nbefore his September 2016 arrest.\\n\\n Prior to the sentencing hearing, Moran objected to the PSR,\\n\\nchallenging the managerial/supervisory role and criminal livelihood\\n\\nenhancements. As to the aggravating role adjustment, Moran argued that the\\n\\nindividuals described as participants were merely customers who purchased\\n\\nsmall quantities partly for their own use and partly to sell to fund their next\\n\\npurchase. As to the criminal livelihood enhancement, Moran argued that his\\n\\nconduct did not meet the requirements for the enhancement and that his drug\\n\\n\\n\\n -8-\\n\\nactivities could not be considered his livelihood. 2 The probation office affirmed\\n\\nthe appropriateness of the managerial/supervisory role adjustment, but agreed\\n\\nwith Moran that the criminal livelihood adjustment was inapplicable. As a\\n\\nresult, the probation department issued an addendum to the PSR revising\\n\\nMoran's total offense level to 30, and recommending a Guidelines range of 97 to\\n\\n121 months' imprisonment.\\n\\n At sentencing, Moran renewed his objections to the two\\n\\nenhancements. The district court, however, overruled Moran's objections and\\n\\nadopted the Guidelines calculation set forth in the original PSR, which set forth a\\n\\nrange of 121-151 months, but not the recommendations in the addendum.\\n\\nFinding that whether the original or revised Guidelines range applied would\\n\\n\\\"not [] make a great deal of difference\\\" in the final analysis, because it was \\\"not\\n\\ngoing to sentence [Moran] to 121 months or 97 months,\\\" the district court\\n\\nsentenced Moran to 84 months' imprisonment, to be followed by four years of\\n\\nsupervised release. App'x at 176, 197. This appeal followed.\\n\\n\\n\\n2\\n For a defendant to have engaged in criminal activity as a livelihood, he or she\\nmust have \\\"derived income from the pattern of criminal conduct that in any twelve-\\nmonth period exceeded 2,000 times the then existing hourly minimum wage under\\nfederal law.\\\" U.S.S.G. § 4B1.3 cmt. n.2. The minimum wage during the relevant time\\nperiod was $7.25, see 29 U.S.C. § 206, and so the income derived would have to exceed\\n$14,500 for the prior twelve months.\\n -9-\\n\\n STANDARD OF REVIEW\\n\\n In reviewing a sentence for procedural reasonableness, we apply a\\n\\ndeferential abuse-of-discretion standard. United States v. Cavera, 550 F.3d 180, 189\\n\\n(2d Cir. 2008) (en banc). We review a district court's interpretation and\\n\\napplication of the Guidelines de novo, see United States v. Adler, 52 F.3d 20, 21 (2d\\n\\nCir. 1995) (per curiam), and its factual findings for clear error, see United States v.\\n\\nMulder, 273 F.3d 91, 116 (2d Cir. 2001). Procedural error occurs when, for\\n\\nexample, the district court fails to calculate the Guidelines range or is mistaken in\\n\\nits calculation of the range. See United States v. Johnson, 567 F.3d 40, 51 (2d Cir.\\n\\n2009). 3\\n\\n \\\"The Government bears the burden of proving the facts supporting\\n\\nthe application of a Guidelines provision, and it must do so by a preponderance\\n\\nof the evidence.\\\" United States v. Kent, 821 F.3d 362, 368 (2d Cir. 2016). \\\"If we\\n\\nidentify procedural error in a sentence, but the record indicates clearly that the\\n\\ndistrict court would have imposed the same sentence in any event, the error may\\n\\n\\n\\n\\n3 In searching for error, we keep in mind the Supreme Court’s instruction that the\\nGuidelines merely \\\"guide district courts in exercising their [sentencing] discretion . . . ,\\nbut they do not constrain that discretion.\\\" Beckles v. United States, ---- U.S. -----, 137 S. Ct.\\n886, 894 (2017) (internal quotation marks and alterations omitted).\\n\\n - 10 -\\n\\nbe deemed harmless, avoiding the need to vacate the sentence and to remand the\\n\\ncase for resentencing.\\\" United States v. Mandell, 752 F.3d 544, 553 (2d Cir. 2014)\\n\\n(per curiam) (internal quotation marks omitted).\\n\\n DISCUSSION\\n\\n Moran appeals the sentence on procedural grounds, arguing that the\\n\\ncourt erred in calculating the applicable range under the Guidelines by wrongly\\n\\napplying two sentencing enhancements: a three-level increase for his role in the\\n\\nconspiracy as a manager or supervisor under U.S.S.G. § 3B1.1(b), and a two-level\\n\\nenhancement because the offense was part of a pattern of criminal conduct\\n\\nengaged in as a livelihood under U.S.S.G. § 2D1.1(b)(16)(E). We discuss the two\\n\\nprocedural challenges in turn.\\n\\nI. Aggravating Role Enhancement\\n\\n Moran argues that the evidence failed to support the district court's\\n\\nfindings that he exercised the requisite control and authority over others to\\n\\nqualify as a manager or supervisor, and that the criminal activity involved five or\\n\\nmore participants or was otherwise extensive. Both findings are necessary to\\n\\napply the aggravating role enhancement, and we discuss each in turn.\\n\\n\\n\\n\\n - 11 -\\n\\n A. Applicable Law\\n\\n Pursuant to U.S.S.G. § 3B1.1(b), a three-level enhancement is\\n\\nappropriate when \\\"the defendant was a manager or supervisor (but not an\\n\\norganizer or leader) and the criminal activity involved five or more participants\\n\\nor was otherwise extensive.\\\" Once its factual predicates have been established,\\n\\nthe managerial role enhancement under § 3B1.1 is \\\"mandatory.\\\" United States v.\\n\\nJiminez, 68 F.3d 49, 51-52 (2d Cir. 1995). To qualify for the enhancement, a\\n\\ndefendant need only manage or supervise one other participant, and may\\n\\nproperly be considered a manager or supervisor \\\"if he exercised some degree of\\n\\ncontrol over others involved in the commission of the offense.\\\" United States v.\\n\\nBirkin, 366 F.3d 95, 101 (2d Cir. 2004) (alterations and internal quotation marks\\n\\nomitted). When determining if an enhancement is applicable, the district court\\n\\nuses the preponderance of the evidence standard. United States v. Salazar, 489\\n\\nF.3d 555, 558 (2d Cir. 2007) (per curiam). The district court must make specific\\n\\nfactual findings when enhancing a defendant's sentence based on his role in the\\n\\noffense, as such findings are necessary for appellate review. See United States v.\\n\\nStevens, 985 F.2d 1175, 1184 (2d Cir. 1993).\\n\\n\\n\\n\\n - 12 -\\n\\n In addition to the role requirement, the criminal activity must\\n\\ninvolve five or more participants or be otherwise extensive. A \\\"participant\\\" is\\n\\ndefined as \\\"a person who is criminally responsible for the commission of the\\n\\noffense, but need not have been convicted.\\\" U.S.S.G. § 3B1.1 cmt. n. 1. \\\"In\\n\\nassessing whether an organization is 'otherwise extensive,' all persons involved\\n\\nduring the course of the entire offense are to be considered,\\\" including the\\n\\ndefendant himself. Id. at cmt. 1 n. 3. Thus, a crime that \\\"involved only three\\n\\nparticipants but used the unknowing services of many outsiders could be\\n\\nconsidered extensive.\\\" U.S.S.G. § 3B1.1 cmt. n. 3. While a district court's findings\\n\\nshould be sufficient to permit meaningful appellate review, courts \\\"should be\\n\\ngiven latitude concerning their supervisory role findings, even when their\\n\\nfindings were not as precise as they might have been.\\\" United States v. Napoli, 179\\n\\nF.3d 1, 14 (2d Cir. 1999) (internal quotation marks omitted).\\n\\n B. Application\\n\\n The district court found that the role enhancement applied because\\n\\nMoran played a supervisory or managerial role and there were at least five\\n\\nparticipants in the criminal activity.\\n\\n\\n\\n\\n - 13 -\\n\\n 1. Supervisory or Managerial Role\\n\\n The content of the intercepted conversations between Moran and his\\n\\nco-defendants, as well as the sheer volume of communications between them,\\n\\nsupport a finding that Moran managed or supervised at least one of his co-\\n\\ndefendants. For example, in one conversation when Pristell told Moran that he\\n\\nhad to discard heroin in the toilet, Moran told him that he would be responsible\\n\\nfor the discarded drugs. In another conversation, Moran chastised Pristell for\\n\\noversleeping and turning his phone off. In yet another phone call, Moran\\n\\ncomplained that Pristell was hurting business by going on vacation without\\n\\ntelling him. Similarly, wiretap evidence shows that Moran also had a\\n\\nsupervisory or managerial role over Young who, upon his release from prison,\\n\\ntold Moran that he wanted to \\\"get back on track . . . back onboard. I don't ever\\n\\nwant to stop making money. I felt that what we had was damn good.\\\" App'x at\\n\\n104.\\n\\n Moran argues that the intercepted conversations show him to be a\\n\\nsupplier who sold small amounts of heroin to his co-defendants for their\\n\\npersonal use. But the district court did not clearly err in holding that the\\n\\n\\n\\n\\n - 14 -\\n\\nintercepted conversations and text messages showed that Moran was a manager\\n\\nor supervisor and not a mere vendor.\\n\\n Finally, Moran cites to a list of \\\"relevant factors\\\" to consider when\\n\\napplying the enhancement. The factors are inapposite, however, as they are\\n\\nintended to distinguish leaders and organizers of criminal enterprises from\\n\\nmanagers and supervisors while the enhancement sought here relates to a\\n\\nmanager rather than a leader. See U.S.S.G. § 3B1.1 cmt. n. 4. Accordingly, we\\n\\nconclude that the sentencing court did not clearly err in holding that Moran was\\n\\na supervisor or manager.\\n\\n 2. Five or more participants in the criminal activity\\n\\n The role enhancement also requires that there be five or more\\n\\nparticipants in the criminal activity or that the activity be otherwise extensive.\\n\\nSee U.S.S.G. § 3B1.1(b). The PSR identified five participants -- Moran, Pristell,\\n\\nYoung, Parker, and Singletary -- each of whom pleaded guilty to either\\n\\nconspiracy to distribute heroin or heroin distribution.\\n\\n A sentencing court may fulfill its obligation to make findings by\\n\\nadopting the PSR, provided the PSR states enough facts to permit meaningful\\n\\nappellate review. See United States v. Ware, 577 F.3d 442, 452 (2d Cir. 2009). Here,\\n\\n\\n\\n - 15 -\\n\\nthe sentencing court adopted the PSR, and the PSR (1) described Singletary's role\\n\\nin Moran's drug-trafficking organization as neither \\\"minimal [nor] minor\\\"; (2)\\n\\ndiscussed numerous intercepted communications between Moran and Pristell\\n\\nand Moran and Young concerning narcotics trafficking; and (3) reported that\\n\\nParker admitted his participation in the instant offense in statements subsequent\\n\\nto his arrest. Indeed, the sentencing court explicitly identified Pristell, Young,\\n\\nParker, and Singletary as participants in the drug trafficking operation, working\\n\\nwith Moran. 4 Accordingly, we affirm the application of the aggravating role\\n\\nenhancement.\\n\\nII. Criminal Livelihood Enhancement\\n\\n Moran argues that the criminal livelihood enhancement was\\n\\nerroneously applied because he did not qualify for an aggravating role\\n\\nenhancement, which is a precondition for the criminal livelihood enhancement,\\n\\nU.S.S.G. § 2D1.1(b)(16), and, even if he did qualify for the role enhancement, his\\n\\nconduct did not meet the requirements of the criminal livelihood enhancement.\\n\\n\\n\\n\\n4 The government contended that Joclyn Bridges was an additional participant as\\nan unindicted co-conspirator. Moran contends that because the PSR was silent as to\\nBridges, he cannot be considered a participant. We need not decide the question as\\nthere were five participants even without Bridges.\\n - 16 -\\n\\n A. Applicable Law\\n\\n Pursuant to U.S.S.G. § 2D1.1(b)(16)(E), a two-level enhancement is\\n\\nappropriate when a defendant receives an adjustment for an aggravating role\\n\\nunder § 3B1.1 and the defendant committed the offense \\\"as part of a pattern of\\n\\ncriminal conduct engaged in as a livelihood.\\\" The section commentary at § 2D.1\\n\\ncmt. n. 20(C) adopts the definitions of \\\"pattern of criminal conduct\\\" and\\n\\n\\\"engaged in as a livelihood\\\" found in Section 4B1.3:\\n\\n \\\"Pattern of criminal conduct\\\" means planned criminal\\n acts occurring over a substantial period of time. Such\\n acts may involve a single course of conduct or\\n independent offenses.\\n\\n \\\"Engaged in as livelihood\\\" means that (A) the defendant\\n derived income from the pattern of criminal conduct\\n that in any twelve-month period exceeded 2,000 times\\n the then existing hourly minimum wage under federal\\n law; and (B) the totality of circumstances shows that\\n such criminal conduct was the defendant's primary\\n occupation in that twelve-month period (e.g., the\\n defendant engaged in criminal conduct rather than\\n regular, legitimate employment; or the defendant's\\n legitimate employment was merely a front for the\\n defendant's criminal conduct).\\n\\nU.S.S.G. § 4B1.3 cmt. ns. 1 & 2.\\n\\n While this Court has not discussed the purpose of the criminal\\n\\nlivelihood enhancement, other circuits have written that the \\\"object [of the\\n\\n - 17 -\\n\\nenhancement] is to distinguish the professional from the amateur criminal and\\n\\npunish the former more heavily.\\\" United States v. Taylor, 45 F.3d 1104, 1106 (7th\\n\\nCir. 1995). \\\"[T]here is no doubt that the guideline's raison d'être was to deter\\n\\nprofessional criminals . . . .\\\" United States v. Gordon, 852 F.3d 126, 139 (1st Cir.\\n\\n2017). Distinguishing the professional criminal from the mere dabbler in crime,\\n\\nthe heightened punishment of the criminal livelihood enhancement effectively\\n\\ntargets the former.\\n\\n B. Application\\n\\n Once a defendant qualifies for an aggravating role enhancement, the\\n\\nSentencing Guidelines provide a two-pronged test for distinguishing career from\\n\\namateur criminals: the defendant must (1) commit the offense as part of a pattern\\n\\nof criminal conduct occurring over a substantial period of time, and (2) engage in\\n\\nthe conduct as a livelihood. The second prong has two elements: an income\\n\\nthreshold and a requirement that the criminal conduct be the defendant's\\n\\nprimary occupation. See U.S.S.G. § 4B1.3.\\n\\n 1. Substantial Period of Time\\n\\n The first prong of § 4B1.3 asks if the defendant committed the\\n\\noffense as a pattern of criminal conduct that occurred over \\\"a substantial period\\n\\n\\n\\n - 18 -\\n\\nof time.\\\" See U.S.S.G. § 4B1.3 cmt. n. 1. The Guidelines do not define the phrase\\n\\n\\\"substantial period of time,\\\" nor has this Court defined it in the context of this\\n\\nenhancement. Moran argues that the reference to a twelve-month period in the\\n\\ncommentary defining \\\"engaged as a livelihood\\\" cabins the contextual meaning of\\n\\nthe phrase \\\"substantial period of time\\\" to a period of no less than twelve months.\\n\\nAccordingly, he contends that the district court erred in applying the criminal\\n\\nlivelihood enhancement because he was engaged in criminal conduct for no\\n\\nmore than nine months. We review de novo the district court's interpretation of\\n\\nthe Guidelines.\\n\\n We find Moran's arguments unpersuasive both as a matter of textual\\n\\ninterpretation and in light of the holdings of other circuits. First, in the context\\n\\nhere, six months is consistent with the plain meaning of the phrase \\\"substantial\\n\\nperiod of time.\\\" Moreover, though the phrase \\\"twelve-month period\\\" appears\\n\\ntwice in the commentary to § 4B1.3, it does so only in the context of the second\\n\\nprong of the enhancement. Simply because twelve months is identified as the\\n\\noperative time period for the second prong does not compel us to apply it to the\\n\\nfirst. Indeed, had the sentencing commission intended to define \\\"substantial\\n\\nperiod of time\\\" as no less than twelve months, it could have chosen to do so, but\\n\\n\\n\\n - 19 -\\n\\ndid not. See See United States v. Zukerman, 897 F.3d 423, 431 (2d Cir. 2018) (noting\\n\\nthat \\\"the presumption of consistent usage and meaningful variation, and the\\n\\ntextual [canon] of expressio unius est exclusio alterius[,] suggest that the presence of\\n\\na phrase applicable to one factor makes clear that the phrase's omission\\n\\nelsewhere was deliberate\\\" (alterations and internal quotation marks omitted)\\n\\n(citing Novella v. Westchester Cty., 661 F.3d 128, 142 (2d Cir. 2011)).\\n\\n Second, the circuits that have considered what constitutes \\\"a\\n\\nsubstantial period of time\\\" for purposes of § 4B1.3 have found that periods as\\n\\nshort as five months are sufficient. See United States v. Irvin, 906 F.2d 1424, 1426\\n\\n(10th Cir. 1990) (\\\"We interpret the phrase 'a substantial period of time' . . . to\\n\\nrequire more than a short, quick, one-time offense. In this case [the conduct\\n\\noccurred for] almost five months.\\\"); cf. United States v. Hearrin, 892 F.2d 756, 758\\n\\n(8th Cir. 1990) (\\\"extensive\\\" criminal conduct over eight months); United States v.\\n\\nReed, 951 F.2d 97, 101 (6th Cir. 1991) (seven months); United States v. Cryer, 925\\n\\nF.2d 828, 830 (5th Cir. 1991) (less than one year). Moreover, when considering\\n\\nwhether a given span of time constitutes a \\\"substantial period,\\\" courts have taken\\n\\nnote when the criminal conduct was \\\"a well-organized criminal venture.\\\" See\\n\\nIrvin, 906 F.2d at 1426.\\n\\n\\n\\n - 20 -\\n\\n Here, Moran was charged with conduct that occurred between\\n\\nMarch 2016 and September 2016, a six-month period. The government contends\\n\\nthat Moran's criminal conduct dated back to at least December 2015, citing text\\n\\nconversations between Moran and unindicted co-conspirator Joclyn Bridges\\n\\nconcerning drug-trafficking. Indeed, at sentencing, Moran's counsel referred to\\n\\n\\\"this nine-month period of selling heroin.\\\" App'x at 185. Even setting aside the\\n\\nalleged criminal conduct with Bridges, the six months in which Moran regularly\\n\\nengaged in heroin trafficking demonstrates that his criminal activity was not a\\n\\n\\\"short, quick, one-time offense,\\\" but rather a sustained enterprise. The\\n\\nintercepted communications between Moran and his co-defendants moreover\\n\\nreveal a well-organized drug-trafficking venture in which Moran directly\\n\\noversaw a number of participants. See, e.g., App'x at 58-59, 62. Accordingly, we\\n\\nconclude that the sentencing court's finding that six months constituted a\\n\\nsubstantial period of time is consistent with the plain meaning of the words \\\"a\\n\\nsubstantial period of time.\\\" It is also consistent with the purpose of § 4B1.3,\\n\\nnamely to distinguish amateur from professional criminals, and the\\n\\ninterpretation of § 4B1.3 by other circuits.\\n\\n\\n\\n\\n - 21 -\\n\\n 2. Criminal Livelihood\\n\\n The second prong of § 4B1.3 considers whether the defendant\\n\\nengaged in the criminal conduct as a livelihood and has two elements: an income\\n\\nthreshold and a requirement that the criminal conduct be the defendant's\\n\\nprimary occupation.\\n\\n a. Income Threshold\\n\\n For the income threshold to be met, the court must find that Moran\\n\\nderived income in excess of $14,500 in any twelve-month period. Moran argues\\n\\nthat the government did not establish that he made at least $14,500 from the\\n\\ncriminal conduct over a twelve-month period. We review for clear error the\\n\\ndistrict court's determination of the extent of Moran's income from criminal\\n\\nconduct. 5\\n\\n We note, as a threshold matter, that the district court did not\\n\\nexplicitly find that Moran earned at least $14,500 from his criminal conduct. But\\n\\nthe district court made that finding implicitly. In the district court, the\\n\\ngovernment argued that Moran met the income threshold and Moran twice\\n\\ndeclined to challenge the amount, though he challenged the application of the\\n\\n\\n5\\n The government argues that the appropriate standard is plain error review, but\\nwe need not decide the question as we find no clear error, much less plain error.\\n - 22 -\\n\\nenhancement on other grounds. The district court overruled Moran's objection\\n\\nand applied the enhancement.\\n\\n A district court is entitled to infer a defendant's financial gain from\\n\\nthe direct and circumstantial evidence in the record. See, e.g., United States v.\\n\\nBurgess, 180 F.3d 37, 42 (2d Cir. 1999) (district court is entitled to infer that\\n\\ndefendant met income threshold when he disclosed that he had a monthly\\n\\nincome of $3,000 and monthly expenses of $2,000, had large sums of money\\n\\nstashed in foreign banks, and no legitimate employment during relevant twelve-\\n\\nmonth period); Taylor, 45 F.3d at 1106-07 (district court entitled to infer the\\n\\ndefendant met the income threshold because the defendant's drug habit required\\n\\nmore than the minimum annual income to maintain and he had no legitimate\\n\\nincome during the relevant period).\\n\\n Here, as the government notes, there was ample evidence in the\\n\\nrecord to show that Moran had earned more than $14,500 in income from\\n\\ncriminal conduct in the prior twelve months. The PSR found that Moran sold\\n\\nbetween 700 and 1,000 grams over six months, with each gram selling for as little\\n\\n\\n\\n\\n - 23 -\\n\\nas $14 per gram and as much as $17.50 per gram. 6 Moreover, the range of 700-\\n\\n1,000 grams applied to his sales over six months, and, as he conceded below,\\n\\nMoran sold heroin for at least nine months. A single customer, the CS,\\n\\naccounted for nearly $10,000 in sales. Numerous intercepted conversations\\n\\nbetween Moran and multiple co-defendants in which, for example, Moran\\n\\nchastises a co-defendant for being unavailable to customers and hurting\\n\\nbusiness, support an inference that there were many other transactions and\\n\\ncustomers. Finally, Moran did not argue below that he did not meet the income\\n\\nthreshold, and even on appeal does not deny that he earned the requisite $14,500,\\n\\nbut instead merely faults the PSR and the district court for failing to make\\n\\nexplicit findings. Thus, we conclude that the district court did not clearly err in\\n\\nfinding that Moran met the threshold.\\n\\n Moran principally argues that the government must show that he\\n\\nmade $14,500 in net, as opposed to gross, income over the relevant period.\\n\\nAlthough this Court has not addressed this question, among the circuits that\\n\\nhave, the \\\"majority approach\\\" is to use gross income. United States v. Gordon, 852\\n\\n\\n\\n\\n6 In intercepted conversations, Moran negotiated the sale of a bundle of heroin for $70, with a\\nbundle containing between four and five grams of heroin. Moran sold between 700 and 1,000 grams,\\nwhich is income of between $9,800 and $17,500.\\n\\n - 24 -\\n\\nF.3d 126, 132 (1st Cir. 2017); see, e.g., United States v. Berry, 930 F.3d 997, 999 (8th\\n\\nCir. 2019); Reed, 951 F.2d at 101-02; Cryer, 925 F.2d at 830. We agree that using\\n\\ngross income is appropriate because the \\\"guideline's income threshold is\\n\\ndesigned to approximate the annual income of an employee earning the federal\\n\\nminimum wage, which is a gross figure.\\\" Gordon, 852 F.3d at 131. Further, the\\n\\nGuidelines are silent as to how to calculate net income or to allocate the burden\\n\\nof proving a defendant's net income, an additional indication that gross income\\n\\nis to be used. Id.\\n\\n Finally, the cases Moran cites in support of using net income rely on\\n\\na materially different, earlier version of the Guidelines that looked only at\\n\\nwhether a defendant derived a substantial portion of his income from criminal\\n\\nactivity, rather than the Guidelines' current two-pronged analysis. See, e.g., Lee v.\\n\\nUnited States, 939 F.2d 503, 504 (7th Cir. 1991). Lee is inapposite, however, as\\n\\nunder the current Guidelines a court must first determine whether the defendant\\n\\nderived income in excess of a particular amount, and then whether criminal\\n\\nconduct was the defendant's primary occupation. See § 4B1.3 cmt. n. 2. Because\\n\\nthe current Guidelines provide a formula for calculating the income threshold,\\n\\n\\\"the relative predominance of a defendant's criminal and legitimate income . . . is\\n\\n\\n\\n - 25 -\\n\\nrelevant, if at all, only to the prong-two question of whether criminal activity was\\n\\nthe defendant's primary occupation.\\\" Gordon, 85 F.3d at 133. Accordingly, we\\n\\nfind that the district court did not err when it used Moran's gross income in\\n\\ndetermining his eligibility for the criminal livelihood enhancement.\\n\\n b. Primary Occupation\\n\\n The second element of the second prong asks whether the defendant\\n\\nengaged in the criminal conduct as his primary occupation. To satisfy this\\n\\nelement, the court must find that \\\"the totality of circumstances shows that such\\n\\ncriminal conduct was the defendant's primary occupation in that twelve-month\\n\\nperiod (e.g., the defendant engaged in criminal conduct rather than regular,\\n\\nlegitimate employment; or the defendant's legitimate employment was merely a\\n\\nfront for the defendant's criminal conduct).\\\" U.S.S.G. § 4B1.3 cmt. n. 2.\\n\\n This Circuit has directly addressed this element only once, finding\\n\\nthat the element was satisfied by the defendant's admission that he earned his\\n\\nliving through his criminal conduct. See Burgess, 180 F.3d at 41. Other circuits\\n\\nhave considered the proportion of income a defendant derived from criminal as\\n\\nopposed to legitimate sources to determine whether the defendant's primary\\n\\noccupation was criminal conduct. See, e.g., Reed, 951 F.2d at 101-02 (finding\\n\\n\\n\\n - 26 -\\n\\nprimary occupation where criminal conduct in seven-month period yielded over\\n\\n$17,000 compared with $350 from legitimate sources); United States v. Salazar, 909\\n\\nF.2d 1447, 1449 (10th Cir. 1990) (between $13,500 and $27,000 from criminal\\n\\nconduct and $2,100 to $2,400 from legitimate activity over seven to eight\\n\\nmonths); United States v. Luster, 889 F.2d 1523, 1531 (6th Cir. 1989) ($8,223.58 from\\n\\ncriminal activity compared with $500 from legitimate sources over three\\n\\nmonths). Courts have also considered other factors, such as a defendant's\\n\\ninability to verify purported legitimate employment. See United States v.\\n\\nQuertermous, 946 F.2d 375, 378 (5th Cir. 1991).\\n\\n Here, Moran was employed as a part-time youth counselor during\\n\\nsome of the time that he was also engaged in criminal conduct. He left a part-\\n\\ntime job at the Jacob Riis Settlement House in mid-April 2016 where he had been\\n\\nearning $14 an hour, and began a new job at St. John's Residence for Boys one\\n\\nday before his arrest on September 7, 2016. His former employers wrote\\n\\nsupportive letters to the court on his behalf, confirming his employment. Moran\\n\\nthus was employed in a legitimate occupation for approximately half the time he\\n\\nwas engaged in criminal conduct if his criminal conduct is dated to December\\n\\n2015. While there is no evidence of how much Moran earned from his legitimate\\n\\n\\n\\n - 27 -\\n\\nemployment in 2016, according to the PSR his adjusted gross income between\\n\\n2012 and 2015, the years he was working at Jacob Riis Settlement House, ranged\\n\\nfrom $9,848 to $12,319. Given that Moran earned at least $14,500 from heroin\\n\\ntrafficking over a twelve-month period, it is apparent that he derived more\\n\\nincome from his criminal conduct than from his legitimate employment.\\n\\n Moran reportedly left his job in April 2016 because his family was\\n\\n\\\"pressed for cash\\\" and, as he told law enforcement officers during transport to\\n\\nthe courthouse, he sold heroin to feed his family. Though the sentencing court\\n\\ndirectly referenced only Moran's statements that he sold drugs to feed his family\\n\\nto support its finding that criminal conduct was his primary occupation,\\n\\nadditional evidence in the record supports the finding. For example, Moran\\n\\nreported that he left his job in April 2016 because of his drug-trafficking work,\\n\\nsaying \\\"I resigned from the Jacob Riis because I was not giving that job my full\\n\\nattention. I became caught up with the devil's work.\\\" App'x at 93. Moran also\\n\\nconceded that he made daily deliveries of heroin; he communicated regularly\\n\\nwith his co-conspirators regarding drug sales; and he chastised one co-defendant\\n\\nfor hurting the business when he did not respond promptly to his calls.\\n\\nAccordingly, that Moran was legitimately employed during some portion of the\\n\\n\\n\\n - 28 -\\n\\ntime that he was also engaged in drug-trafficking does not undermine the\\n\\ndetermination that his criminal conduct was his primary occupation.\\n\\nConsidering the totality of the circumstances, we conclude that the sentencing\\n\\ncourt did not clearly err when it found that Moran's criminal conduct was his\\n\\nprimary occupation.\\n\\n Finally, even if the application of the enhancement was\\n\\ninappropriate, the district court noted on the record that whether the original or\\n\\nrevised Guidelines range applied would \\\"not [] make a great deal of difference\\\"\\n\\nin the final analysis because it was \\\"not going to sentence [Moran] to 121 months\\n\\nor 97 months.\\\" App'x at 176, 197; see also Mandell, 752 F.3d at 553 (\\\"If we identify\\n\\nprocedural error in a sentence, but the record indicates clearly that the district\\n\\nwould have imposed the same sentence in any event, the error may be deemed\\n\\nharmless, avoiding the need to vacate the sentence and to remand the case for\\n\\nresentencing.\\\") (internal quotation marks omitted). Indeed, the 84-month\\n\\n\\n\\n\\n - 29 -\\n\\nsentence imposed by the district court was a below-Guidelines sentence even\\n\\nwith the lower range of 97-121 months.\\n\\n CONCLUSION\\n\\n For the reasons set forth above, the judgment of the district court is\\n\\nAFFIRMED.\\n\\n\\n\\n\\n - 30 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4448703/\", \"author_raw\": \"CHIN, Circuit Judge:\"}, {\"author\": \"GUIDO CALABRESI, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"GUIDO CALABRESI, Circuit Judge, concurring:\\n\\n I agree with the majority that the Defendant's sentence should be\\n\\naffirmed, and I join Part I of the Court's opinion in its entirety. I believe,\\n\\nhowever—consistent with the majority's statement, Maj. Op. 29—that the district\\n\\ncourt made clear that it would have given the same sentence regardless of\\n\\nwhether the criminal livelihood enhancement applied. That, under our holding\\n\\nin United States v. Mandell, 752 F.3d 544, 553 (2d Cir. 2014), makes the discussion\\n\\nof the criminal livelihood enhancement unnecessary to the Court's result. For\\n\\nthis reason, I prefer not to join Part II of the Court's opinion, and respectfully\\n\\nconcur in the result as to that Part.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4448703/\", \"author_raw\": \"GUIDO CALABRESI, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"CALABRESI"},"judge2":{"kind":"string","value":"CABRANES"},"judge3":{"kind":"string","value":"CHIN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"CALABRESI\": \", Circuit\", \"CABRANES\": \", Circuit\", \"CHIN\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4671450/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Moran\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-10-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\n17-4121-cr\nUnited States v. Moran\n\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n\n August Term 2018\n\n (Submitted: January 28, 2019 Decided: October 22, 2019)\n\n Docket No. 17-4121-cr\n\n\n UNITED STATES OF AMERICA,\n\n Appellee,\n\n v.\n\n DENNIS PRISTELL, AKA D, AKA DP,\n DAVID YOUNG, AKA KAREEM, AKA REEM,\n WILLIAM PARKER, AKA SHAH, MICHAEL SINGLETARY,\n Defendants,\n\n\n LAMONT MORAN, AKA L, AKA L-SPARKS, AKA GUDDA,\n Defendant-Appellant.\n\n\n ON APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE EASTERN DISTRICT OF NEW YORK\n\nBefore:\n CALABRESI, CABRANES, AND CHIN, Circuit Judges.\n\n\n\n Appeal from a judgment of the United States District Court for the\n\nEastern District of New York (Glasser, J.) convicting defendant-appellant, upon\n\nhis guilty plea, of conspiring to distribute and possess with intent to distribute\n\nheroin, and sentencing him principally to 84 months' imprisonment. Defendant-\n\nappellant contends that the district court erred by applying two sentencing\n\nenhancements under the United States Sentencing Guidelines: (1) three levels for\n\nrole in the offense and (2) two levels for committing an offense as part of criminal\n\nconduct engaged in as a livelihood.\n\n AFFIRMED.\n\n Judge CALABRESI concurs in a separate opinion.\n\n\n\n\n MATTHEW JACOBS, Assistant United States Attorney\n (Susan Corkery, Assistant United States Attorney,\n on the brief), for Richard P. Donoghue, United\n States Attorney for the Eastern District of New\n York, Brooklyn, New York, for Appellee.\n\n JOYCE C. LONDON, Joyce C. London, P.C., New York,\n New York; Megan Wolfe Benett, Kreindler &\n\n\n\n -2-\n\n Kreindler LLP, New York, New York, for\n Defendant-Appellant.\n ___________\n\nCHIN, Circuit Judge:\n\n Defendant-appellant Lamont Moran appeals from a judgment\n\nentered December 21, 2017, following his guilty plea, convicting him of\n\nconspiring to distribute and possess with intent to distribute 100 grams or more\n\nof heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. He was\n\nsentenced principally to 84 months' imprisonment. On appeal, Moran challenges\n\nhis sentence solely on procedural grounds, arguing that the district court\n\nerroneously applied a three-level enhancement for his role as a manager or\n\nsupervisor of criminal activity that involved five or more participants or was\n\notherwise extensive, pursuant to U.S.S.G. § 3B.1.1(b), and a two-level\n\nenhancement for the commission of an offense as part of a pattern of criminal\n\nconduct engaged in as a livelihood, pursuant to U.S.S.G. § 2D1.1(b)(16)(E). 1 For\n\nthe reasons set forth below, the judgment of the district court is affirmed.\n\n\n\n\n1\n In the Guidelines edition effective at the time of Moran's sentencing, the criminal\nlivelihood enhancement appeared in U.S.S.G. § 2D1.1(b)(15)(E) (2016). In 2018, § 2D1.1\nwas amended, and the relevant enhancement now appears in § 2D1.1(b)(16)(E) (2018).\n -3-\n\n BACKGROUND\n\nA. The Facts\n\n The facts, as set forth in the presentence report (the \"PSR\") and\n\nadopted by the district court, may be summarized as follows:\n\n In early 2016, the Federal Bureau of Investigation (the \"FBI\") and the\n\nNew York City Police Department began an investigation into gang-related\n\ncrimes and heroin trafficking in Jamaica, Queens, principally focused on\n\nmembers of the gang \"Get it in Stacks\" (\"GI$\").\n\n During the course of the investigation, the FBI intercepted\n\ncommunications relating to heroin trafficking from two cellphones associated\n\nwith Moran. Between March 2016 and August 2016, law enforcement conducted\n\ncontrolled purchases of heroin from Moran on over a dozen occasions, and on at\n\nleast one occasion Moran also sold the Confidential Source (\"CS\") fentanyl. The\n\npurchased packets were often labeled with Moran's brand names. The NYPD\n\nobtained additional evidence of Moran's criminal conduct in February 2016 from\n\na cellphone seized during the arrest of GI$ member Joclyn Bridges, which\n\nrevealed conversations between Moran and Bridges related to heroin trafficking.\n\n\n\n\n -4-\n\nFinally, photographs found on Moran's phones showed him holding a handgun\n\nand large amounts of cash.\n\n The court-authorized intercepts revealed that a number of persons\n\nparticipated in Moran's drug-trafficking operation. Moran supervised co-\n\ndefendants Dennis Pristell and David Young, who sold heroin in Queens, and\n\nWilliam Parker, who obtained heroin from Moran several times a week to sell on\n\nLong Island. Parker in turn supplied co-defendant Michael Singletary, and\n\nworked with him to sell their supply. Moran also directed unindicted co-\n\nconspirator Bridges to monitor Young's drug sales. Between March 2016 and\n\nSeptember 2016, Moran, Pristell, Young and Parker sold heroin almost every day.\n\n Intercepted conversations between Moran and Pristell and Moran\n\nand Young demonstrated that Moran provided them heroin to sell and\n\nmonitored their sales activity. For example, Moran discussed heroin trafficking\n\nwith Young in an intercepted conversation on July 13, 2016:\n\n YOUNG: Yo, L . . . I got somebody that's willing to do\n the foot running, and I got my own spot right now. . . . I\n want to get back on board. I don't ever want to stop\n making money. I felt that what we had was damn\n good.\n\n ...\n\n\n\n -5-\n\n MORAN: . . . All you got to do is when your customers\n call you, you call me and I will send my people to them\n to see them and I will give you something for doing\n that.\n\nApp'x at 62.\n\n There is evidence that Moran and Young were in regular contact, as\n\npen registers revealed hundreds of communications over less than two months\n\nbetween Moran and a telephone number a confidential informant used to contact\n\nYoung.\n\n Moran also regularly discussed heroin trafficking with Pristell,\n\ncommunicating with him more than 100 times during a two-month period. For\n\nexample, on June 27, 2016, Pristell informed Moran that he had flushed some\n\nquantity of heroin down the toilet to avoid arrest, and Moran responded \"Oh, ok,\n\nyou got to eat that shit.\" App'x at 55. Less than a month later, Moran chastised\n\nPristell for turning off his cellphone, thereby missing a number of calls:\n\n PRISTELL: My phone was off. . . .\n\n MORAN: Why in the hell would you do that? The\n money supposed to wake you up.\n\n ...\n\n PRISTELL: I know what happened. I didn't charge my\n damn phone.\n\n -6-\n\n MORAN: Come on D what kind of business are you\n running man?\n\nApp'x at 58-59.\n\n On September 8, 2016, Moran was arrested on his way to meet a CS\n\nfor a controlled delivery. During a search incident to Moran's arrest, FBI agents\n\nseized packets of heroin on Moran's person and in his car, as well as a cellphone,\n\nwhich revealed photos of him with GI$ gang members and counting money.\n\nMoran told the officers transporting him to the courthouse that he sold heroin to\n\nfeed his family, saying \"I don't view [heroin] as drugs, I view it as money.\"\n\nApp'x at 175. Though he admitted to selling heroin, he noted that he was small\n\ntime and not a kingpin.\n\n\nB. Proceedings Below\n\n On April 24, 2017, Moran pleaded guilty to Count One of a three-\n\ncount superseding indictment, which charged conspiracy to distribute and\n\npossess with intent to distribute 100 grams or more of heroin, in violation of 21\n\nU.S.C. § 841(a)(1), 841(b)(1)(B)(i), and 846. The PSR indicated that Moran was\n\naccountable for at least 700 grams of heroin and 4.37 grams of fentanyl, which\n\nresulted in a base offense level of 28. The PSR named Pristell, Young, Parker,\n\nand Singletary as participants in Moran's criminal activity. The PSR\n\n -7-\n\nrecommended several offense level enhancements, including a two-level increase\n\nbecause the offense was \"part of a pattern of criminal conduct engaged in as a\n\nlivelihood,\" a two-level increase for possession of a firearm, and a three-level\n\nincrease for Moran's role as a manager or supervisor. After a three-level\n\nreduction for acceptance of responsibility, Moran's total offense level was 32.\n\nTogether with a criminal history category of I, the resulting Guidelines range was\n\n121 to 151 months' imprisonment. The PSR further noted that Moran was\n\nemployed as a part-time counselor, mentor, and activity specialist at Jacob Riis\n\nSettlement House between November 2011 and April 2016, and had started a\n\nnew part-time position as a counselor at St. John's Residence for Boys the day\n\nbefore his September 2016 arrest.\n\n Prior to the sentencing hearing, Moran objected to the PSR,\n\nchallenging the managerial/supervisory role and criminal livelihood\n\nenhancements. As to the aggravating role adjustment, Moran argued that the\n\nindividuals described as participants were merely customers who purchased\n\nsmall quantities partly for their own use and partly to sell to fund their next\n\npurchase. As to the criminal livelihood enhancement, Moran argued that his\n\nconduct did not meet the requirements for the enhancement and that his drug\n\n\n\n -8-\n\nactivities could not be considered his livelihood. 2 The probation office affirmed\n\nthe appropriateness of the managerial/supervisory role adjustment, but agreed\n\nwith Moran that the criminal livelihood adjustment was inapplicable. As a\n\nresult, the probation department issued an addendum to the PSR revising\n\nMoran's total offense level to 30, and recommending a Guidelines range of 97 to\n\n121 months' imprisonment.\n\n At sentencing, Moran renewed his objections to the two\n\nenhancements. The district court, however, overruled Moran's objections and\n\nadopted the Guidelines calculation set forth in the original PSR, which set forth a\n\nrange of 121-151 months, but not the recommendations in the addendum.\n\nFinding that whether the original or revised Guidelines range applied would\n\n\"not [] make a great deal of difference\" in the final analysis, because it was \"not\n\ngoing to sentence [Moran] to 121 months or 97 months,\" the district court\n\nsentenced Moran to 84 months' imprisonment, to be followed by four years of\n\nsupervised release. App'x at 176, 197. This appeal followed.\n\n\n\n2\n For a defendant to have engaged in criminal activity as a livelihood, he or she\nmust have \"derived income from the pattern of criminal conduct that in any twelve-\nmonth period exceeded 2,000 times the then existing hourly minimum wage under\nfederal law.\" U.S.S.G. § 4B1.3 cmt. n.2. The minimum wage during the relevant time\nperiod was $7.25, see 29 U.S.C. § 206, and so the income derived would have to exceed\n$14,500 for the prior twelve months.\n -9-\n\n STANDARD OF REVIEW\n\n In reviewing a sentence for procedural reasonableness, we apply a\n\ndeferential abuse-of-discretion standard. United States v. Cavera, 550 F.3d 180, 189\n\n(2d Cir. 2008) (en banc). We review a district court's interpretation and\n\napplication of the Guidelines de novo, see United States v. Adler, 52 F.3d 20, 21 (2d\n\nCir. 1995) (per curiam), and its factual findings for clear error, see United States v.\n\nMulder, 273 F.3d 91, 116 (2d Cir. 2001). Procedural error occurs when, for\n\nexample, the district court fails to calculate the Guidelines range or is mistaken in\n\nits calculation of the range. See United States v. Johnson, 567 F.3d 40, 51 (2d Cir.\n\n2009). 3\n\n \"The Government bears the burden of proving the facts supporting\n\nthe application of a Guidelines provision, and it must do so by a preponderance\n\nof the evidence.\" United States v. Kent, 821 F.3d 362, 368 (2d Cir. 2016). \"If we\n\nidentify procedural error in a sentence, but the record indicates clearly that the\n\ndistrict court would have imposed the same sentence in any event, the error may\n\n\n\n\n3 In searching for error, we keep in mind the Supreme Court’s instruction that the\nGuidelines merely \"guide district courts in exercising their [sentencing] discretion . . . ,\nbut they do not constrain that discretion.\" Beckles v. United States, ---- U.S. -----, 137 S. Ct.\n886, 894 (2017) (internal quotation marks and alterations omitted).\n\n - 10 -\n\nbe deemed harmless, avoiding the need to vacate the sentence and to remand the\n\ncase for resentencing.\" United States v. Mandell, 752 F.3d 544, 553 (2d Cir. 2014)\n\n(per curiam) (internal quotation marks omitted).\n\n DISCUSSION\n\n Moran appeals the sentence on procedural grounds, arguing that the\n\ncourt erred in calculating the applicable range under the Guidelines by wrongly\n\napplying two sentencing enhancements: a three-level increase for his role in the\n\nconspiracy as a manager or supervisor under U.S.S.G. § 3B1.1(b), and a two-level\n\nenhancement because the offense was part of a pattern of criminal conduct\n\nengaged in as a livelihood under U.S.S.G. § 2D1.1(b)(16)(E). We discuss the two\n\nprocedural challenges in turn.\n\nI. Aggravating Role Enhancement\n\n Moran argues that the evidence failed to support the district court's\n\nfindings that he exercised the requisite control and authority over others to\n\nqualify as a manager or supervisor, and that the criminal activity involved five or\n\nmore participants or was otherwise extensive. Both findings are necessary to\n\napply the aggravating role enhancement, and we discuss each in turn.\n\n\n\n\n - 11 -\n\n A. Applicable Law\n\n Pursuant to U.S.S.G. § 3B1.1(b), a three-level enhancement is\n\nappropriate when \"the defendant was a manager or supervisor (but not an\n\norganizer or leader) and the criminal activity involved five or more participants\n\nor was otherwise extensive.\" Once its factual predicates have been established,\n\nthe managerial role enhancement under § 3B1.1 is \"mandatory.\" United States v.\n\nJiminez, 68 F.3d 49, 51-52 (2d Cir. 1995). To qualify for the enhancement, a\n\ndefendant need only manage or supervise one other participant, and may\n\nproperly be considered a manager or supervisor \"if he exercised some degree of\n\ncontrol over others involved in the commission of the offense.\" United States v.\n\nBirkin, 366 F.3d 95, 101 (2d Cir. 2004) (alterations and internal quotation marks\n\nomitted). When determining if an enhancement is applicable, the district court\n\nuses the preponderance of the evidence standard. United States v. Salazar, 489\n\nF.3d 555, 558 (2d Cir. 2007) (per curiam). The district court must make specific\n\nfactual findings when enhancing a defendant's sentence based on his role in the\n\noffense, as such findings are necessary for appellate review. See United States v.\n\nStevens, 985 F.2d 1175, 1184 (2d Cir. 1993).\n\n\n\n\n - 12 -\n\n In addition to the role requirement, the criminal activity must\n\ninvolve five or more participants or be otherwise extensive. A \"participant\" is\n\ndefined as \"a person who is criminally responsible for the commission of the\n\noffense, but need not have been convicted.\" U.S.S.G. § 3B1.1 cmt. n. 1. \"In\n\nassessing whether an organization is 'otherwise extensive,' all persons involved\n\nduring the course of the entire offense are to be considered,\" including the\n\ndefendant himself. Id. at cmt. 1 n. 3. Thus, a crime that \"involved only three\n\nparticipants but used the unknowing services of many outsiders could be\n\nconsidered extensive.\" U.S.S.G. § 3B1.1 cmt. n. 3. While a district court's findings\n\nshould be sufficient to permit meaningful appellate review, courts \"should be\n\ngiven latitude concerning their supervisory role findings, even when their\n\nfindings were not as precise as they might have been.\" United States v. Napoli, 179\n\nF.3d 1, 14 (2d Cir. 1999) (internal quotation marks omitted).\n\n B. Application\n\n The district court found that the role enhancement applied because\n\nMoran played a supervisory or managerial role and there were at least five\n\nparticipants in the criminal activity.\n\n\n\n\n - 13 -\n\n 1. Supervisory or Managerial Role\n\n The content of the intercepted conversations between Moran and his\n\nco-defendants, as well as the sheer volume of communications between them,\n\nsupport a finding that Moran managed or supervised at least one of his co-\n\ndefendants. For example, in one conversation when Pristell told Moran that he\n\nhad to discard heroin in the toilet, Moran told him that he would be responsible\n\nfor the discarded drugs. In another conversation, Moran chastised Pristell for\n\noversleeping and turning his phone off. In yet another phone call, Moran\n\ncomplained that Pristell was hurting business by going on vacation without\n\ntelling him. Similarly, wiretap evidence shows that Moran also had a\n\nsupervisory or managerial role over Young who, upon his release from prison,\n\ntold Moran that he wanted to \"get back on track . . . back onboard. I don't ever\n\nwant to stop making money. I felt that what we had was damn good.\" App'x at\n\n104.\n\n Moran argues that the intercepted conversations show him to be a\n\nsupplier who sold small amounts of heroin to his co-defendants for their\n\npersonal use. But the district court did not clearly err in holding that the\n\n\n\n\n - 14 -\n\nintercepted conversations and text messages showed that Moran was a manager\n\nor supervisor and not a mere vendor.\n\n Finally, Moran cites to a list of \"relevant factors\" to consider when\n\napplying the enhancement. The factors are inapposite, however, as they are\n\nintended to distinguish leaders and organizers of criminal enterprises from\n\nmanagers and supervisors while the enhancement sought here relates to a\n\nmanager rather than a leader. See U.S.S.G. § 3B1.1 cmt. n. 4. Accordingly, we\n\nconclude that the sentencing court did not clearly err in holding that Moran was\n\na supervisor or manager.\n\n 2. Five or more participants in the criminal activity\n\n The role enhancement also requires that there be five or more\n\nparticipants in the criminal activity or that the activity be otherwise extensive.\n\nSee U.S.S.G. § 3B1.1(b). The PSR identified five participants -- Moran, Pristell,\n\nYoung, Parker, and Singletary -- each of whom pleaded guilty to either\n\nconspiracy to distribute heroin or heroin distribution.\n\n A sentencing court may fulfill its obligation to make findings by\n\nadopting the PSR, provided the PSR states enough facts to permit meaningful\n\nappellate review. See United States v. Ware, 577 F.3d 442, 452 (2d Cir. 2009). Here,\n\n\n\n - 15 -\n\nthe sentencing court adopted the PSR, and the PSR (1) described Singletary's role\n\nin Moran's drug-trafficking organization as neither \"minimal [nor] minor\"; (2)\n\ndiscussed numerous intercepted communications between Moran and Pristell\n\nand Moran and Young concerning narcotics trafficking; and (3) reported that\n\nParker admitted his participation in the instant offense in statements subsequent\n\nto his arrest. Indeed, the sentencing court explicitly identified Pristell, Young,\n\nParker, and Singletary as participants in the drug trafficking operation, working\n\nwith Moran. 4 Accordingly, we affirm the application of the aggravating role\n\nenhancement.\n\nII. Criminal Livelihood Enhancement\n\n Moran argues that the criminal livelihood enhancement was\n\nerroneously applied because he did not qualify for an aggravating role\n\nenhancement, which is a precondition for the criminal livelihood enhancement,\n\nU.S.S.G. § 2D1.1(b)(16), and, even if he did qualify for the role enhancement, his\n\nconduct did not meet the requirements of the criminal livelihood enhancement.\n\n\n\n\n4 The government contended that Joclyn Bridges was an additional participant as\nan unindicted co-conspirator. Moran contends that because the PSR was silent as to\nBridges, he cannot be considered a participant. We need not decide the question as\nthere were five participants even without Bridges.\n - 16 -\n\n A. Applicable Law\n\n Pursuant to U.S.S.G. § 2D1.1(b)(16)(E), a two-level enhancement is\n\nappropriate when a defendant receives an adjustment for an aggravating role\n\nunder § 3B1.1 and the defendant committed the offense \"as part of a pattern of\n\ncriminal conduct engaged in as a livelihood.\" The section commentary at § 2D.1\n\ncmt. n. 20(C) adopts the definitions of \"pattern of criminal conduct\" and\n\n\"engaged in as a livelihood\" found in Section 4B1.3:\n\n \"Pattern of criminal conduct\" means planned criminal\n acts occurring over a substantial period of time. Such\n acts may involve a single course of conduct or\n independent offenses.\n\n \"Engaged in as livelihood\" means that (A) the defendant\n derived income from the pattern of criminal conduct\n that in any twelve-month period exceeded 2,000 times\n the then existing hourly minimum wage under federal\n law; and (B) the totality of circumstances shows that\n such criminal conduct was the defendant's primary\n occupation in that twelve-month period (e.g., the\n defendant engaged in criminal conduct rather than\n regular, legitimate employment; or the defendant's\n legitimate employment was merely a front for the\n defendant's criminal conduct).\n\nU.S.S.G. § 4B1.3 cmt. ns. 1 & 2.\n\n While this Court has not discussed the purpose of the criminal\n\nlivelihood enhancement, other circuits have written that the \"object [of the\n\n - 17 -\n\nenhancement] is to distinguish the professional from the amateur criminal and\n\npunish the former more heavily.\" United States v. Taylor, 45 F.3d 1104, 1106 (7th\n\nCir. 1995). \"[T]here is no doubt that the guideline's raison d'être was to deter\n\nprofessional criminals . . . .\" United States v. Gordon, 852 F.3d 126, 139 (1st Cir.\n\n2017). Distinguishing the professional criminal from the mere dabbler in crime,\n\nthe heightened punishment of the criminal livelihood enhancement effectively\n\ntargets the former.\n\n B. Application\n\n Once a defendant qualifies for an aggravating role enhancement, the\n\nSentencing Guidelines provide a two-pronged test for distinguishing career from\n\namateur criminals: the defendant must (1) commit the offense as part of a pattern\n\nof criminal conduct occurring over a substantial period of time, and (2) engage in\n\nthe conduct as a livelihood. The second prong has two elements: an income\n\nthreshold and a requirement that the criminal conduct be the defendant's\n\nprimary occupation. See U.S.S.G. § 4B1.3.\n\n 1. Substantial Period of Time\n\n The first prong of § 4B1.3 asks if the defendant committed the\n\noffense as a pattern of criminal conduct that occurred over \"a substantial period\n\n\n\n - 18 -\n\nof time.\" See U.S.S.G. § 4B1.3 cmt. n. 1. The Guidelines do not define the phrase\n\n\"substantial period of time,\" nor has this Court defined it in the context of this\n\nenhancement. Moran argues that the reference to a twelve-month period in the\n\ncommentary defining \"engaged as a livelihood\" cabins the contextual meaning of\n\nthe phrase \"substantial period of time\" to a period of no less than twelve months.\n\nAccordingly, he contends that the district court erred in applying the criminal\n\nlivelihood enhancement because he was engaged in criminal conduct for no\n\nmore than nine months. We review de novo the district court's interpretation of\n\nthe Guidelines.\n\n We find Moran's arguments unpersuasive both as a matter of textual\n\ninterpretation and in light of the holdings of other circuits. First, in the context\n\nhere, six months is consistent with the plain meaning of the phrase \"substantial\n\nperiod of time.\" Moreover, though the phrase \"twelve-month period\" appears\n\ntwice in the commentary to § 4B1.3, it does so only in the context of the second\n\nprong of the enhancement. Simply because twelve months is identified as the\n\noperative time period for the second prong does not compel us to apply it to the\n\nfirst. Indeed, had the sentencing commission intended to define \"substantial\n\nperiod of time\" as no less than twelve months, it could have chosen to do so, but\n\n\n\n - 19 -\n\ndid not. See See United States v. Zukerman, 897 F.3d 423, 431 (2d Cir. 2018) (noting\n\nthat \"the presumption of consistent usage and meaningful variation, and the\n\ntextual [canon] of expressio unius est exclusio alterius[,] suggest that the presence of\n\na phrase applicable to one factor makes clear that the phrase's omission\n\nelsewhere was deliberate\" (alterations and internal quotation marks omitted)\n\n(citing Novella v. Westchester Cty., 661 F.3d 128, 142 (2d Cir. 2011)).\n\n Second, the circuits that have considered what constitutes \"a\n\nsubstantial period of time\" for purposes of § 4B1.3 have found that periods as\n\nshort as five months are sufficient. See United States v. Irvin, 906 F.2d 1424, 1426\n\n(10th Cir. 1990) (\"We interpret the phrase 'a substantial period of time' . . . to\n\nrequire more than a short, quick, one-time offense. In this case [the conduct\n\noccurred for] almost five months.\"); cf. United States v. Hearrin, 892 F.2d 756, 758\n\n(8th Cir. 1990) (\"extensive\" criminal conduct over eight months); United States v.\n\nReed, 951 F.2d 97, 101 (6th Cir. 1991) (seven months); United States v. Cryer, 925\n\nF.2d 828, 830 (5th Cir. 1991) (less than one year). Moreover, when considering\n\nwhether a given span of time constitutes a \"substantial period,\" courts have taken\n\nnote when the criminal conduct was \"a well-organized criminal venture.\" See\n\nIrvin, 906 F.2d at 1426.\n\n\n\n - 20 -\n\n Here, Moran was charged with conduct that occurred between\n\nMarch 2016 and September 2016, a six-month period. The government contends\n\nthat Moran's criminal conduct dated back to at least December 2015, citing text\n\nconversations between Moran and unindicted co-conspirator Joclyn Bridges\n\nconcerning drug-trafficking. Indeed, at sentencing, Moran's counsel referred to\n\n\"this nine-month period of selling heroin.\" App'x at 185. Even setting aside the\n\nalleged criminal conduct with Bridges, the six months in which Moran regularly\n\nengaged in heroin trafficking demonstrates that his criminal activity was not a\n\n\"short, quick, one-time offense,\" but rather a sustained enterprise. The\n\nintercepted communications between Moran and his co-defendants moreover\n\nreveal a well-organized drug-trafficking venture in which Moran directly\n\noversaw a number of participants. See, e.g., App'x at 58-59, 62. Accordingly, we\n\nconclude that the sentencing court's finding that six months constituted a\n\nsubstantial period of time is consistent with the plain meaning of the words \"a\n\nsubstantial period of time.\" It is also consistent with the purpose of § 4B1.3,\n\nnamely to distinguish amateur from professional criminals, and the\n\ninterpretation of § 4B1.3 by other circuits.\n\n\n\n\n - 21 -\n\n 2. Criminal Livelihood\n\n The second prong of § 4B1.3 considers whether the defendant\n\nengaged in the criminal conduct as a livelihood and has two elements: an income\n\nthreshold and a requirement that the criminal conduct be the defendant's\n\nprimary occupation.\n\n a. Income Threshold\n\n For the income threshold to be met, the court must find that Moran\n\nderived income in excess of $14,500 in any twelve-month period. Moran argues\n\nthat the government did not establish that he made at least $14,500 from the\n\ncriminal conduct over a twelve-month period. We review for clear error the\n\ndistrict court's determination of the extent of Moran's income from criminal\n\nconduct. 5\n\n We note, as a threshold matter, that the district court did not\n\nexplicitly find that Moran earned at least $14,500 from his criminal conduct. But\n\nthe district court made that finding implicitly. In the district court, the\n\ngovernment argued that Moran met the income threshold and Moran twice\n\ndeclined to challenge the amount, though he challenged the application of the\n\n\n5\n The government argues that the appropriate standard is plain error review, but\nwe need not decide the question as we find no clear error, much less plain error.\n - 22 -\n\nenhancement on other grounds. The district court overruled Moran's objection\n\nand applied the enhancement.\n\n A district court is entitled to infer a defendant's financial gain from\n\nthe direct and circumstantial evidence in the record. See, e.g., United States v.\n\nBurgess, 180 F.3d 37, 42 (2d Cir. 1999) (district court is entitled to infer that\n\ndefendant met income threshold when he disclosed that he had a monthly\n\nincome of $3,000 and monthly expenses of $2,000, had large sums of money\n\nstashed in foreign banks, and no legitimate employment during relevant twelve-\n\nmonth period); Taylor, 45 F.3d at 1106-07 (district court entitled to infer the\n\ndefendant met the income threshold because the defendant's drug habit required\n\nmore than the minimum annual income to maintain and he had no legitimate\n\nincome during the relevant period).\n\n Here, as the government notes, there was ample evidence in the\n\nrecord to show that Moran had earned more than $14,500 in income from\n\ncriminal conduct in the prior twelve months. The PSR found that Moran sold\n\nbetween 700 and 1,000 grams over six months, with each gram selling for as little\n\n\n\n\n - 23 -\n\nas $14 per gram and as much as $17.50 per gram. 6 Moreover, the range of 700-\n\n1,000 grams applied to his sales over six months, and, as he conceded below,\n\nMoran sold heroin for at least nine months. A single customer, the CS,\n\naccounted for nearly $10,000 in sales. Numerous intercepted conversations\n\nbetween Moran and multiple co-defendants in which, for example, Moran\n\nchastises a co-defendant for being unavailable to customers and hurting\n\nbusiness, support an inference that there were many other transactions and\n\ncustomers. Finally, Moran did not argue below that he did not meet the income\n\nthreshold, and even on appeal does not deny that he earned the requisite $14,500,\n\nbut instead merely faults the PSR and the district court for failing to make\n\nexplicit findings. Thus, we conclude that the district court did not clearly err in\n\nfinding that Moran met the threshold.\n\n Moran principally argues that the government must show that he\n\nmade $14,500 in net, as opposed to gross, income over the relevant period.\n\nAlthough this Court has not addressed this question, among the circuits that\n\nhave, the \"majority approach\" is to use gross income. United States v. Gordon, 852\n\n\n\n\n6 In intercepted conversations, Moran negotiated the sale of a bundle of heroin for $70, with a\nbundle containing between four and five grams of heroin. Moran sold between 700 and 1,000 grams,\nwhich is income of between $9,800 and $17,500.\n\n - 24 -\n\nF.3d 126, 132 (1st Cir. 2017); see, e.g., United States v. Berry, 930 F.3d 997, 999 (8th\n\nCir. 2019); Reed, 951 F.2d at 101-02; Cryer, 925 F.2d at 830. We agree that using\n\ngross income is appropriate because the \"guideline's income threshold is\n\ndesigned to approximate the annual income of an employee earning the federal\n\nminimum wage, which is a gross figure.\" Gordon, 852 F.3d at 131. Further, the\n\nGuidelines are silent as to how to calculate net income or to allocate the burden\n\nof proving a defendant's net income, an additional indication that gross income\n\nis to be used. Id.\n\n Finally, the cases Moran cites in support of using net income rely on\n\na materially different, earlier version of the Guidelines that looked only at\n\nwhether a defendant derived a substantial portion of his income from criminal\n\nactivity, rather than the Guidelines' current two-pronged analysis. See, e.g., Lee v.\n\nUnited States, 939 F.2d 503, 504 (7th Cir. 1991). Lee is inapposite, however, as\n\nunder the current Guidelines a court must first determine whether the defendant\n\nderived income in excess of a particular amount, and then whether criminal\n\nconduct was the defendant's primary occupation. See § 4B1.3 cmt. n. 2. Because\n\nthe current Guidelines provide a formula for calculating the income threshold,\n\n\"the relative predominance of a defendant's criminal and legitimate income . . . is\n\n\n\n - 25 -\n\nrelevant, if at all, only to the prong-two question of whether criminal activity was\n\nthe defendant's primary occupation.\" Gordon, 85 F.3d at 133. Accordingly, we\n\nfind that the district court did not err when it used Moran's gross income in\n\ndetermining his eligibility for the criminal livelihood enhancement.\n\n b. Primary Occupation\n\n The second element of the second prong asks whether the defendant\n\nengaged in the criminal conduct as his primary occupation. To satisfy this\n\nelement, the court must find that \"the totality of circumstances shows that such\n\ncriminal conduct was the defendant's primary occupation in that twelve-month\n\nperiod (e.g., the defendant engaged in criminal conduct rather than regular,\n\nlegitimate employment; or the defendant's legitimate employment was merely a\n\nfront for the defendant's criminal conduct).\" U.S.S.G. § 4B1.3 cmt. n. 2.\n\n This Circuit has directly addressed this element only once, finding\n\nthat the element was satisfied by the defendant's admission that he earned his\n\nliving through his criminal conduct. See Burgess, 180 F.3d at 41. Other circuits\n\nhave considered the proportion of income a defendant derived from criminal as\n\nopposed to legitimate sources to determine whether the defendant's primary\n\noccupation was criminal conduct. See, e.g., Reed, 951 F.2d at 101-02 (finding\n\n\n\n - 26 -\n\nprimary occupation where criminal conduct in seven-month period yielded over\n\n$17,000 compared with $350 from legitimate sources); United States v. Salazar, 909\n\nF.2d 1447, 1449 (10th Cir. 1990) (between $13,500 and $27,000 from criminal\n\nconduct and $2,100 to $2,400 from legitimate activity over seven to eight\n\nmonths); United States v. Luster, 889 F.2d 1523, 1531 (6th Cir. 1989) ($8,223.58 from\n\ncriminal activity compared with $500 from legitimate sources over three\n\nmonths). Courts have also considered other factors, such as a defendant's\n\ninability to verify purported legitimate employment. See United States v.\n\nQuertermous, 946 F.2d 375, 378 (5th Cir. 1991).\n\n Here, Moran was employed as a part-time youth counselor during\n\nsome of the time that he was also engaged in criminal conduct. He left a part-\n\ntime job at the Jacob Riis Settlement House in mid-April 2016 where he had been\n\nearning $14 an hour, and began a new job at St. John's Residence for Boys one\n\nday before his arrest on September 7, 2016. His former employers wrote\n\nsupportive letters to the court on his behalf, confirming his employment. Moran\n\nthus was employed in a legitimate occupation for approximately half the time he\n\nwas engaged in criminal conduct if his criminal conduct is dated to December\n\n2015. While there is no evidence of how much Moran earned from his legitimate\n\n\n\n - 27 -\n\nemployment in 2016, according to the PSR his adjusted gross income between\n\n2012 and 2015, the years he was working at Jacob Riis Settlement House, ranged\n\nfrom $9,848 to $12,319. Given that Moran earned at least $14,500 from heroin\n\ntrafficking over a twelve-month period, it is apparent that he derived more\n\nincome from his criminal conduct than from his legitimate employment.\n\n Moran reportedly left his job in April 2016 because his family was\n\n\"pressed for cash\" and, as he told law enforcement officers during transport to\n\nthe courthouse, he sold heroin to feed his family. Though the sentencing court\n\ndirectly referenced only Moran's statements that he sold drugs to feed his family\n\nto support its finding that criminal conduct was his primary occupation,\n\nadditional evidence in the record supports the finding. For example, Moran\n\nreported that he left his job in April 2016 because of his drug-trafficking work,\n\nsaying \"I resigned from the Jacob Riis because I was not giving that job my full\n\nattention. I became caught up with the devil's work.\" App'x at 93. Moran also\n\nconceded that he made daily deliveries of heroin; he communicated regularly\n\nwith his co-conspirators regarding drug sales; and he chastised one co-defendant\n\nfor hurting the business when he did not respond promptly to his calls.\n\nAccordingly, that Moran was legitimately employed during some portion of the\n\n\n\n - 28 -\n\ntime that he was also engaged in drug-trafficking does not undermine the\n\ndetermination that his criminal conduct was his primary occupation.\n\nConsidering the totality of the circumstances, we conclude that the sentencing\n\ncourt did not clearly err when it found that Moran's criminal conduct was his\n\nprimary occupation.\n\n Finally, even if the application of the enhancement was\n\ninappropriate, the district court noted on the record that whether the original or\n\nrevised Guidelines range applied would \"not [] make a great deal of difference\"\n\nin the final analysis because it was \"not going to sentence [Moran] to 121 months\n\nor 97 months.\" App'x at 176, 197; see also Mandell, 752 F.3d at 553 (\"If we identify\n\nprocedural error in a sentence, but the record indicates clearly that the district\n\nwould have imposed the same sentence in any event, the error may be deemed\n\nharmless, avoiding the need to vacate the sentence and to remand the case for\n\nresentencing.\") (internal quotation marks omitted). Indeed, the 84-month\n\n\n\n\n - 29 -\n\nsentence imposed by the district court was a below-Guidelines sentence even\n\nwith the lower range of 97-121 months.\n\n CONCLUSION\n\n For the reasons set forth above, the judgment of the district court is\n\nAFFIRMED.\n\n\n\n\n - 30 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Moran\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-10-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17-4121-cr\\nUnited States v. Moran\\n\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n\\n August Term 2018\\n\\n (Submitted: January 28, 2019 Decided: October 22, 2019)\\n\\n Docket No. 17-4121-cr\\n\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellee,\\n\\n v.\\n\\n DENNIS PRISTELL, AKA D, AKA DP,\\n DAVID YOUNG, AKA KAREEM, AKA REEM,\\n WILLIAM PARKER, AKA SHAH, MICHAEL SINGLETARY,\\n Defendants,\\n\\n\\n LAMONT MORAN, AKA L, AKA L-SPARKS, AKA GUDDA,\\n Defendant-Appellant.\\n\\n\\n ON APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE EASTERN DISTRICT OF NEW YORK\\n\\nBefore:\\n CALABRESI, CABRANES, AND CHIN, Circuit Judges.\\n\\n\\n\\n Appeal from a judgment of the United States District Court for the\\n\\nEastern District of New York (Glasser, J.) convicting defendant-appellant, upon\\n\\nhis guilty plea, of conspiring to distribute and possess with intent to distribute\\n\\nheroin, and sentencing him principally to 84 months' imprisonment. Defendant-\\n\\nappellant contends that the district court erred by applying two sentencing\\n\\nenhancements under the United States Sentencing Guidelines: (1) three levels for\\n\\nrole in the offense and (2) two levels for committing an offense as part of criminal\\n\\nconduct engaged in as a livelihood.\\n\\n AFFIRMED.\\n\\n Judge CALABRESI concurs in a separate opinion.\\n\\n\\n\\n\\n MATTHEW JACOBS, Assistant United States Attorney\\n (Susan Corkery, Assistant United States Attorney,\\n on the brief), for Richard P. Donoghue, United\\n States Attorney for the Eastern District of New\\n York, Brooklyn, New York, for Appellee.\\n\\n JOYCE C. LONDON, Joyce C. London, P.C., New York,\\n New York; Megan Wolfe Benett, Kreindler &\\n\\n\\n\\n -2-\\n\\n Kreindler LLP, New York, New York, for\\n Defendant-Appellant.\\n ___________\\n\\nCHIN, Circuit Judge:\\n\\n Defendant-appellant Lamont Moran appeals from a judgment\\n\\nentered December 21, 2017, following his guilty plea, convicting him of\\n\\nconspiring to distribute and possess with intent to distribute 100 grams or more\\n\\nof heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. He was\\n\\nsentenced principally to 84 months' imprisonment. On appeal, Moran challenges\\n\\nhis sentence solely on procedural grounds, arguing that the district court\\n\\nerroneously applied a three-level enhancement for his role as a manager or\\n\\nsupervisor of criminal activity that involved five or more participants or was\\n\\notherwise extensive, pursuant to U.S.S.G. § 3B.1.1(b), and a two-level\\n\\nenhancement for the commission of an offense as part of a pattern of criminal\\n\\nconduct engaged in as a livelihood, pursuant to U.S.S.G. § 2D1.1(b)(16)(E). 1 For\\n\\nthe reasons set forth below, the judgment of the district court is affirmed.\\n\\n\\n\\n\\n1\\n In the Guidelines edition effective at the time of Moran's sentencing, the criminal\\nlivelihood enhancement appeared in U.S.S.G. § 2D1.1(b)(15)(E) (2016). In 2018, § 2D1.1\\nwas amended, and the relevant enhancement now appears in § 2D1.1(b)(16)(E) (2018).\\n -3-\\n\\n BACKGROUND\\n\\nA. The Facts\\n\\n The facts, as set forth in the presentence report (the \\\"PSR\\\") and\\n\\nadopted by the district court, may be summarized as follows:\\n\\n In early 2016, the Federal Bureau of Investigation (the \\\"FBI\\\") and the\\n\\nNew York City Police Department began an investigation into gang-related\\n\\ncrimes and heroin trafficking in Jamaica, Queens, principally focused on\\n\\nmembers of the gang \\\"Get it in Stacks\\\" (\\\"GI$\\\").\\n\\n During the course of the investigation, the FBI intercepted\\n\\ncommunications relating to heroin trafficking from two cellphones associated\\n\\nwith Moran. Between March 2016 and August 2016, law enforcement conducted\\n\\ncontrolled purchases of heroin from Moran on over a dozen occasions, and on at\\n\\nleast one occasion Moran also sold the Confidential Source (\\\"CS\\\") fentanyl. The\\n\\npurchased packets were often labeled with Moran's brand names. The NYPD\\n\\nobtained additional evidence of Moran's criminal conduct in February 2016 from\\n\\na cellphone seized during the arrest of GI$ member Joclyn Bridges, which\\n\\nrevealed conversations between Moran and Bridges related to heroin trafficking.\\n\\n\\n\\n\\n -4-\\n\\nFinally, photographs found on Moran's phones showed him holding a handgun\\n\\nand large amounts of cash.\\n\\n The court-authorized intercepts revealed that a number of persons\\n\\nparticipated in Moran's drug-trafficking operation. Moran supervised co-\\n\\ndefendants Dennis Pristell and David Young, who sold heroin in Queens, and\\n\\nWilliam Parker, who obtained heroin from Moran several times a week to sell on\\n\\nLong Island. Parker in turn supplied co-defendant Michael Singletary, and\\n\\nworked with him to sell their supply. Moran also directed unindicted co-\\n\\nconspirator Bridges to monitor Young's drug sales. Between March 2016 and\\n\\nSeptember 2016, Moran, Pristell, Young and Parker sold heroin almost every day.\\n\\n Intercepted conversations between Moran and Pristell and Moran\\n\\nand Young demonstrated that Moran provided them heroin to sell and\\n\\nmonitored their sales activity. For example, Moran discussed heroin trafficking\\n\\nwith Young in an intercepted conversation on July 13, 2016:\\n\\n YOUNG: Yo, L . . . I got somebody that's willing to do\\n the foot running, and I got my own spot right now. . . . I\\n want to get back on board. I don't ever want to stop\\n making money. I felt that what we had was damn\\n good.\\n\\n ...\\n\\n\\n\\n -5-\\n\\n MORAN: . . . All you got to do is when your customers\\n call you, you call me and I will send my people to them\\n to see them and I will give you something for doing\\n that.\\n\\nApp'x at 62.\\n\\n There is evidence that Moran and Young were in regular contact, as\\n\\npen registers revealed hundreds of communications over less than two months\\n\\nbetween Moran and a telephone number a confidential informant used to contact\\n\\nYoung.\\n\\n Moran also regularly discussed heroin trafficking with Pristell,\\n\\ncommunicating with him more than 100 times during a two-month period. For\\n\\nexample, on June 27, 2016, Pristell informed Moran that he had flushed some\\n\\nquantity of heroin down the toilet to avoid arrest, and Moran responded \\\"Oh, ok,\\n\\nyou got to eat that shit.\\\" App'x at 55. Less than a month later, Moran chastised\\n\\nPristell for turning off his cellphone, thereby missing a number of calls:\\n\\n PRISTELL: My phone was off. . . .\\n\\n MORAN: Why in the hell would you do that? The\\n money supposed to wake you up.\\n\\n ...\\n\\n PRISTELL: I know what happened. I didn't charge my\\n damn phone.\\n\\n -6-\\n\\n MORAN: Come on D what kind of business are you\\n running man?\\n\\nApp'x at 58-59.\\n\\n On September 8, 2016, Moran was arrested on his way to meet a CS\\n\\nfor a controlled delivery. During a search incident to Moran's arrest, FBI agents\\n\\nseized packets of heroin on Moran's person and in his car, as well as a cellphone,\\n\\nwhich revealed photos of him with GI$ gang members and counting money.\\n\\nMoran told the officers transporting him to the courthouse that he sold heroin to\\n\\nfeed his family, saying \\\"I don't view [heroin] as drugs, I view it as money.\\\"\\n\\nApp'x at 175. Though he admitted to selling heroin, he noted that he was small\\n\\ntime and not a kingpin.\\n\\n\\nB. Proceedings Below\\n\\n On April 24, 2017, Moran pleaded guilty to Count One of a three-\\n\\ncount superseding indictment, which charged conspiracy to distribute and\\n\\npossess with intent to distribute 100 grams or more of heroin, in violation of 21\\n\\nU.S.C. § 841(a)(1), 841(b)(1)(B)(i), and 846. The PSR indicated that Moran was\\n\\naccountable for at least 700 grams of heroin and 4.37 grams of fentanyl, which\\n\\nresulted in a base offense level of 28. The PSR named Pristell, Young, Parker,\\n\\nand Singletary as participants in Moran's criminal activity. The PSR\\n\\n -7-\\n\\nrecommended several offense level enhancements, including a two-level increase\\n\\nbecause the offense was \\\"part of a pattern of criminal conduct engaged in as a\\n\\nlivelihood,\\\" a two-level increase for possession of a firearm, and a three-level\\n\\nincrease for Moran's role as a manager or supervisor. After a three-level\\n\\nreduction for acceptance of responsibility, Moran's total offense level was 32.\\n\\nTogether with a criminal history category of I, the resulting Guidelines range was\\n\\n121 to 151 months' imprisonment. The PSR further noted that Moran was\\n\\nemployed as a part-time counselor, mentor, and activity specialist at Jacob Riis\\n\\nSettlement House between November 2011 and April 2016, and had started a\\n\\nnew part-time position as a counselor at St. John's Residence for Boys the day\\n\\nbefore his September 2016 arrest.\\n\\n Prior to the sentencing hearing, Moran objected to the PSR,\\n\\nchallenging the managerial/supervisory role and criminal livelihood\\n\\nenhancements. As to the aggravating role adjustment, Moran argued that the\\n\\nindividuals described as participants were merely customers who purchased\\n\\nsmall quantities partly for their own use and partly to sell to fund their next\\n\\npurchase. As to the criminal livelihood enhancement, Moran argued that his\\n\\nconduct did not meet the requirements for the enhancement and that his drug\\n\\n\\n\\n -8-\\n\\nactivities could not be considered his livelihood. 2 The probation office affirmed\\n\\nthe appropriateness of the managerial/supervisory role adjustment, but agreed\\n\\nwith Moran that the criminal livelihood adjustment was inapplicable. As a\\n\\nresult, the probation department issued an addendum to the PSR revising\\n\\nMoran's total offense level to 30, and recommending a Guidelines range of 97 to\\n\\n121 months' imprisonment.\\n\\n At sentencing, Moran renewed his objections to the two\\n\\nenhancements. The district court, however, overruled Moran's objections and\\n\\nadopted the Guidelines calculation set forth in the original PSR, which set forth a\\n\\nrange of 121-151 months, but not the recommendations in the addendum.\\n\\nFinding that whether the original or revised Guidelines range applied would\\n\\n\\\"not [] make a great deal of difference\\\" in the final analysis, because it was \\\"not\\n\\ngoing to sentence [Moran] to 121 months or 97 months,\\\" the district court\\n\\nsentenced Moran to 84 months' imprisonment, to be followed by four years of\\n\\nsupervised release. App'x at 176, 197. This appeal followed.\\n\\n\\n\\n2\\n For a defendant to have engaged in criminal activity as a livelihood, he or she\\nmust have \\\"derived income from the pattern of criminal conduct that in any twelve-\\nmonth period exceeded 2,000 times the then existing hourly minimum wage under\\nfederal law.\\\" U.S.S.G. § 4B1.3 cmt. n.2. The minimum wage during the relevant time\\nperiod was $7.25, see 29 U.S.C. § 206, and so the income derived would have to exceed\\n$14,500 for the prior twelve months.\\n -9-\\n\\n STANDARD OF REVIEW\\n\\n In reviewing a sentence for procedural reasonableness, we apply a\\n\\ndeferential abuse-of-discretion standard. United States v. Cavera, 550 F.3d 180, 189\\n\\n(2d Cir. 2008) (en banc). We review a district court's interpretation and\\n\\napplication of the Guidelines de novo, see United States v. Adler, 52 F.3d 20, 21 (2d\\n\\nCir. 1995) (per curiam), and its factual findings for clear error, see United States v.\\n\\nMulder, 273 F.3d 91, 116 (2d Cir. 2001). Procedural error occurs when, for\\n\\nexample, the district court fails to calculate the Guidelines range or is mistaken in\\n\\nits calculation of the range. See United States v. Johnson, 567 F.3d 40, 51 (2d Cir.\\n\\n2009). 3\\n\\n \\\"The Government bears the burden of proving the facts supporting\\n\\nthe application of a Guidelines provision, and it must do so by a preponderance\\n\\nof the evidence.\\\" United States v. Kent, 821 F.3d 362, 368 (2d Cir. 2016). \\\"If we\\n\\nidentify procedural error in a sentence, but the record indicates clearly that the\\n\\ndistrict court would have imposed the same sentence in any event, the error may\\n\\n\\n\\n\\n3 In searching for error, we keep in mind the Supreme Court’s instruction that the\\nGuidelines merely \\\"guide district courts in exercising their [sentencing] discretion . . . ,\\nbut they do not constrain that discretion.\\\" Beckles v. United States, ---- U.S. -----, 137 S. Ct.\\n886, 894 (2017) (internal quotation marks and alterations omitted).\\n\\n - 10 -\\n\\nbe deemed harmless, avoiding the need to vacate the sentence and to remand the\\n\\ncase for resentencing.\\\" United States v. Mandell, 752 F.3d 544, 553 (2d Cir. 2014)\\n\\n(per curiam) (internal quotation marks omitted).\\n\\n DISCUSSION\\n\\n Moran appeals the sentence on procedural grounds, arguing that the\\n\\ncourt erred in calculating the applicable range under the Guidelines by wrongly\\n\\napplying two sentencing enhancements: a three-level increase for his role in the\\n\\nconspiracy as a manager or supervisor under U.S.S.G. § 3B1.1(b), and a two-level\\n\\nenhancement because the offense was part of a pattern of criminal conduct\\n\\nengaged in as a livelihood under U.S.S.G. § 2D1.1(b)(16)(E). We discuss the two\\n\\nprocedural challenges in turn.\\n\\nI. Aggravating Role Enhancement\\n\\n Moran argues that the evidence failed to support the district court's\\n\\nfindings that he exercised the requisite control and authority over others to\\n\\nqualify as a manager or supervisor, and that the criminal activity involved five or\\n\\nmore participants or was otherwise extensive. Both findings are necessary to\\n\\napply the aggravating role enhancement, and we discuss each in turn.\\n\\n\\n\\n\\n - 11 -\\n\\n A. Applicable Law\\n\\n Pursuant to U.S.S.G. § 3B1.1(b), a three-level enhancement is\\n\\nappropriate when \\\"the defendant was a manager or supervisor (but not an\\n\\norganizer or leader) and the criminal activity involved five or more participants\\n\\nor was otherwise extensive.\\\" Once its factual predicates have been established,\\n\\nthe managerial role enhancement under § 3B1.1 is \\\"mandatory.\\\" United States v.\\n\\nJiminez, 68 F.3d 49, 51-52 (2d Cir. 1995). To qualify for the enhancement, a\\n\\ndefendant need only manage or supervise one other participant, and may\\n\\nproperly be considered a manager or supervisor \\\"if he exercised some degree of\\n\\ncontrol over others involved in the commission of the offense.\\\" United States v.\\n\\nBirkin, 366 F.3d 95, 101 (2d Cir. 2004) (alterations and internal quotation marks\\n\\nomitted). When determining if an enhancement is applicable, the district court\\n\\nuses the preponderance of the evidence standard. United States v. Salazar, 489\\n\\nF.3d 555, 558 (2d Cir. 2007) (per curiam). The district court must make specific\\n\\nfactual findings when enhancing a defendant's sentence based on his role in the\\n\\noffense, as such findings are necessary for appellate review. See United States v.\\n\\nStevens, 985 F.2d 1175, 1184 (2d Cir. 1993).\\n\\n\\n\\n\\n - 12 -\\n\\n In addition to the role requirement, the criminal activity must\\n\\ninvolve five or more participants or be otherwise extensive. A \\\"participant\\\" is\\n\\ndefined as \\\"a person who is criminally responsible for the commission of the\\n\\noffense, but need not have been convicted.\\\" U.S.S.G. § 3B1.1 cmt. n. 1. \\\"In\\n\\nassessing whether an organization is 'otherwise extensive,' all persons involved\\n\\nduring the course of the entire offense are to be considered,\\\" including the\\n\\ndefendant himself. Id. at cmt. 1 n. 3. Thus, a crime that \\\"involved only three\\n\\nparticipants but used the unknowing services of many outsiders could be\\n\\nconsidered extensive.\\\" U.S.S.G. § 3B1.1 cmt. n. 3. While a district court's findings\\n\\nshould be sufficient to permit meaningful appellate review, courts \\\"should be\\n\\ngiven latitude concerning their supervisory role findings, even when their\\n\\nfindings were not as precise as they might have been.\\\" United States v. Napoli, 179\\n\\nF.3d 1, 14 (2d Cir. 1999) (internal quotation marks omitted).\\n\\n B. Application\\n\\n The district court found that the role enhancement applied because\\n\\nMoran played a supervisory or managerial role and there were at least five\\n\\nparticipants in the criminal activity.\\n\\n\\n\\n\\n - 13 -\\n\\n 1. Supervisory or Managerial Role\\n\\n The content of the intercepted conversations between Moran and his\\n\\nco-defendants, as well as the sheer volume of communications between them,\\n\\nsupport a finding that Moran managed or supervised at least one of his co-\\n\\ndefendants. For example, in one conversation when Pristell told Moran that he\\n\\nhad to discard heroin in the toilet, Moran told him that he would be responsible\\n\\nfor the discarded drugs. In another conversation, Moran chastised Pristell for\\n\\noversleeping and turning his phone off. In yet another phone call, Moran\\n\\ncomplained that Pristell was hurting business by going on vacation without\\n\\ntelling him. Similarly, wiretap evidence shows that Moran also had a\\n\\nsupervisory or managerial role over Young who, upon his release from prison,\\n\\ntold Moran that he wanted to \\\"get back on track . . . back onboard. I don't ever\\n\\nwant to stop making money. I felt that what we had was damn good.\\\" App'x at\\n\\n104.\\n\\n Moran argues that the intercepted conversations show him to be a\\n\\nsupplier who sold small amounts of heroin to his co-defendants for their\\n\\npersonal use. But the district court did not clearly err in holding that the\\n\\n\\n\\n\\n - 14 -\\n\\nintercepted conversations and text messages showed that Moran was a manager\\n\\nor supervisor and not a mere vendor.\\n\\n Finally, Moran cites to a list of \\\"relevant factors\\\" to consider when\\n\\napplying the enhancement. The factors are inapposite, however, as they are\\n\\nintended to distinguish leaders and organizers of criminal enterprises from\\n\\nmanagers and supervisors while the enhancement sought here relates to a\\n\\nmanager rather than a leader. See U.S.S.G. § 3B1.1 cmt. n. 4. Accordingly, we\\n\\nconclude that the sentencing court did not clearly err in holding that Moran was\\n\\na supervisor or manager.\\n\\n 2. Five or more participants in the criminal activity\\n\\n The role enhancement also requires that there be five or more\\n\\nparticipants in the criminal activity or that the activity be otherwise extensive.\\n\\nSee U.S.S.G. § 3B1.1(b). The PSR identified five participants -- Moran, Pristell,\\n\\nYoung, Parker, and Singletary -- each of whom pleaded guilty to either\\n\\nconspiracy to distribute heroin or heroin distribution.\\n\\n A sentencing court may fulfill its obligation to make findings by\\n\\nadopting the PSR, provided the PSR states enough facts to permit meaningful\\n\\nappellate review. See United States v. Ware, 577 F.3d 442, 452 (2d Cir. 2009). Here,\\n\\n\\n\\n - 15 -\\n\\nthe sentencing court adopted the PSR, and the PSR (1) described Singletary's role\\n\\nin Moran's drug-trafficking organization as neither \\\"minimal [nor] minor\\\"; (2)\\n\\ndiscussed numerous intercepted communications between Moran and Pristell\\n\\nand Moran and Young concerning narcotics trafficking; and (3) reported that\\n\\nParker admitted his participation in the instant offense in statements subsequent\\n\\nto his arrest. Indeed, the sentencing court explicitly identified Pristell, Young,\\n\\nParker, and Singletary as participants in the drug trafficking operation, working\\n\\nwith Moran. 4 Accordingly, we affirm the application of the aggravating role\\n\\nenhancement.\\n\\nII. Criminal Livelihood Enhancement\\n\\n Moran argues that the criminal livelihood enhancement was\\n\\nerroneously applied because he did not qualify for an aggravating role\\n\\nenhancement, which is a precondition for the criminal livelihood enhancement,\\n\\nU.S.S.G. § 2D1.1(b)(16), and, even if he did qualify for the role enhancement, his\\n\\nconduct did not meet the requirements of the criminal livelihood enhancement.\\n\\n\\n\\n\\n4 The government contended that Joclyn Bridges was an additional participant as\\nan unindicted co-conspirator. Moran contends that because the PSR was silent as to\\nBridges, he cannot be considered a participant. We need not decide the question as\\nthere were five participants even without Bridges.\\n - 16 -\\n\\n A. Applicable Law\\n\\n Pursuant to U.S.S.G. § 2D1.1(b)(16)(E), a two-level enhancement is\\n\\nappropriate when a defendant receives an adjustment for an aggravating role\\n\\nunder § 3B1.1 and the defendant committed the offense \\\"as part of a pattern of\\n\\ncriminal conduct engaged in as a livelihood.\\\" The section commentary at § 2D.1\\n\\ncmt. n. 20(C) adopts the definitions of \\\"pattern of criminal conduct\\\" and\\n\\n\\\"engaged in as a livelihood\\\" found in Section 4B1.3:\\n\\n \\\"Pattern of criminal conduct\\\" means planned criminal\\n acts occurring over a substantial period of time. Such\\n acts may involve a single course of conduct or\\n independent offenses.\\n\\n \\\"Engaged in as livelihood\\\" means that (A) the defendant\\n derived income from the pattern of criminal conduct\\n that in any twelve-month period exceeded 2,000 times\\n the then existing hourly minimum wage under federal\\n law; and (B) the totality of circumstances shows that\\n such criminal conduct was the defendant's primary\\n occupation in that twelve-month period (e.g., the\\n defendant engaged in criminal conduct rather than\\n regular, legitimate employment; or the defendant's\\n legitimate employment was merely a front for the\\n defendant's criminal conduct).\\n\\nU.S.S.G. § 4B1.3 cmt. ns. 1 & 2.\\n\\n While this Court has not discussed the purpose of the criminal\\n\\nlivelihood enhancement, other circuits have written that the \\\"object [of the\\n\\n - 17 -\\n\\nenhancement] is to distinguish the professional from the amateur criminal and\\n\\npunish the former more heavily.\\\" United States v. Taylor, 45 F.3d 1104, 1106 (7th\\n\\nCir. 1995). \\\"[T]here is no doubt that the guideline's raison d'être was to deter\\n\\nprofessional criminals . . . .\\\" United States v. Gordon, 852 F.3d 126, 139 (1st Cir.\\n\\n2017). Distinguishing the professional criminal from the mere dabbler in crime,\\n\\nthe heightened punishment of the criminal livelihood enhancement effectively\\n\\ntargets the former.\\n\\n B. Application\\n\\n Once a defendant qualifies for an aggravating role enhancement, the\\n\\nSentencing Guidelines provide a two-pronged test for distinguishing career from\\n\\namateur criminals: the defendant must (1) commit the offense as part of a pattern\\n\\nof criminal conduct occurring over a substantial period of time, and (2) engage in\\n\\nthe conduct as a livelihood. The second prong has two elements: an income\\n\\nthreshold and a requirement that the criminal conduct be the defendant's\\n\\nprimary occupation. See U.S.S.G. § 4B1.3.\\n\\n 1. Substantial Period of Time\\n\\n The first prong of § 4B1.3 asks if the defendant committed the\\n\\noffense as a pattern of criminal conduct that occurred over \\\"a substantial period\\n\\n\\n\\n - 18 -\\n\\nof time.\\\" See U.S.S.G. § 4B1.3 cmt. n. 1. The Guidelines do not define the phrase\\n\\n\\\"substantial period of time,\\\" nor has this Court defined it in the context of this\\n\\nenhancement. Moran argues that the reference to a twelve-month period in the\\n\\ncommentary defining \\\"engaged as a livelihood\\\" cabins the contextual meaning of\\n\\nthe phrase \\\"substantial period of time\\\" to a period of no less than twelve months.\\n\\nAccordingly, he contends that the district court erred in applying the criminal\\n\\nlivelihood enhancement because he was engaged in criminal conduct for no\\n\\nmore than nine months. We review de novo the district court's interpretation of\\n\\nthe Guidelines.\\n\\n We find Moran's arguments unpersuasive both as a matter of textual\\n\\ninterpretation and in light of the holdings of other circuits. First, in the context\\n\\nhere, six months is consistent with the plain meaning of the phrase \\\"substantial\\n\\nperiod of time.\\\" Moreover, though the phrase \\\"twelve-month period\\\" appears\\n\\ntwice in the commentary to § 4B1.3, it does so only in the context of the second\\n\\nprong of the enhancement. Simply because twelve months is identified as the\\n\\noperative time period for the second prong does not compel us to apply it to the\\n\\nfirst. Indeed, had the sentencing commission intended to define \\\"substantial\\n\\nperiod of time\\\" as no less than twelve months, it could have chosen to do so, but\\n\\n\\n\\n - 19 -\\n\\ndid not. See See United States v. Zukerman, 897 F.3d 423, 431 (2d Cir. 2018) (noting\\n\\nthat \\\"the presumption of consistent usage and meaningful variation, and the\\n\\ntextual [canon] of expressio unius est exclusio alterius[,] suggest that the presence of\\n\\na phrase applicable to one factor makes clear that the phrase's omission\\n\\nelsewhere was deliberate\\\" (alterations and internal quotation marks omitted)\\n\\n(citing Novella v. Westchester Cty., 661 F.3d 128, 142 (2d Cir. 2011)).\\n\\n Second, the circuits that have considered what constitutes \\\"a\\n\\nsubstantial period of time\\\" for purposes of § 4B1.3 have found that periods as\\n\\nshort as five months are sufficient. See United States v. Irvin, 906 F.2d 1424, 1426\\n\\n(10th Cir. 1990) (\\\"We interpret the phrase 'a substantial period of time' . . . to\\n\\nrequire more than a short, quick, one-time offense. In this case [the conduct\\n\\noccurred for] almost five months.\\\"); cf. United States v. Hearrin, 892 F.2d 756, 758\\n\\n(8th Cir. 1990) (\\\"extensive\\\" criminal conduct over eight months); United States v.\\n\\nReed, 951 F.2d 97, 101 (6th Cir. 1991) (seven months); United States v. Cryer, 925\\n\\nF.2d 828, 830 (5th Cir. 1991) (less than one year). Moreover, when considering\\n\\nwhether a given span of time constitutes a \\\"substantial period,\\\" courts have taken\\n\\nnote when the criminal conduct was \\\"a well-organized criminal venture.\\\" See\\n\\nIrvin, 906 F.2d at 1426.\\n\\n\\n\\n - 20 -\\n\\n Here, Moran was charged with conduct that occurred between\\n\\nMarch 2016 and September 2016, a six-month period. The government contends\\n\\nthat Moran's criminal conduct dated back to at least December 2015, citing text\\n\\nconversations between Moran and unindicted co-conspirator Joclyn Bridges\\n\\nconcerning drug-trafficking. Indeed, at sentencing, Moran's counsel referred to\\n\\n\\\"this nine-month period of selling heroin.\\\" App'x at 185. Even setting aside the\\n\\nalleged criminal conduct with Bridges, the six months in which Moran regularly\\n\\nengaged in heroin trafficking demonstrates that his criminal activity was not a\\n\\n\\\"short, quick, one-time offense,\\\" but rather a sustained enterprise. The\\n\\nintercepted communications between Moran and his co-defendants moreover\\n\\nreveal a well-organized drug-trafficking venture in which Moran directly\\n\\noversaw a number of participants. See, e.g., App'x at 58-59, 62. Accordingly, we\\n\\nconclude that the sentencing court's finding that six months constituted a\\n\\nsubstantial period of time is consistent with the plain meaning of the words \\\"a\\n\\nsubstantial period of time.\\\" It is also consistent with the purpose of § 4B1.3,\\n\\nnamely to distinguish amateur from professional criminals, and the\\n\\ninterpretation of § 4B1.3 by other circuits.\\n\\n\\n\\n\\n - 21 -\\n\\n 2. Criminal Livelihood\\n\\n The second prong of § 4B1.3 considers whether the defendant\\n\\nengaged in the criminal conduct as a livelihood and has two elements: an income\\n\\nthreshold and a requirement that the criminal conduct be the defendant's\\n\\nprimary occupation.\\n\\n a. Income Threshold\\n\\n For the income threshold to be met, the court must find that Moran\\n\\nderived income in excess of $14,500 in any twelve-month period. Moran argues\\n\\nthat the government did not establish that he made at least $14,500 from the\\n\\ncriminal conduct over a twelve-month period. We review for clear error the\\n\\ndistrict court's determination of the extent of Moran's income from criminal\\n\\nconduct. 5\\n\\n We note, as a threshold matter, that the district court did not\\n\\nexplicitly find that Moran earned at least $14,500 from his criminal conduct. But\\n\\nthe district court made that finding implicitly. In the district court, the\\n\\ngovernment argued that Moran met the income threshold and Moran twice\\n\\ndeclined to challenge the amount, though he challenged the application of the\\n\\n\\n5\\n The government argues that the appropriate standard is plain error review, but\\nwe need not decide the question as we find no clear error, much less plain error.\\n - 22 -\\n\\nenhancement on other grounds. The district court overruled Moran's objection\\n\\nand applied the enhancement.\\n\\n A district court is entitled to infer a defendant's financial gain from\\n\\nthe direct and circumstantial evidence in the record. See, e.g., United States v.\\n\\nBurgess, 180 F.3d 37, 42 (2d Cir. 1999) (district court is entitled to infer that\\n\\ndefendant met income threshold when he disclosed that he had a monthly\\n\\nincome of $3,000 and monthly expenses of $2,000, had large sums of money\\n\\nstashed in foreign banks, and no legitimate employment during relevant twelve-\\n\\nmonth period); Taylor, 45 F.3d at 1106-07 (district court entitled to infer the\\n\\ndefendant met the income threshold because the defendant's drug habit required\\n\\nmore than the minimum annual income to maintain and he had no legitimate\\n\\nincome during the relevant period).\\n\\n Here, as the government notes, there was ample evidence in the\\n\\nrecord to show that Moran had earned more than $14,500 in income from\\n\\ncriminal conduct in the prior twelve months. The PSR found that Moran sold\\n\\nbetween 700 and 1,000 grams over six months, with each gram selling for as little\\n\\n\\n\\n\\n - 23 -\\n\\nas $14 per gram and as much as $17.50 per gram. 6 Moreover, the range of 700-\\n\\n1,000 grams applied to his sales over six months, and, as he conceded below,\\n\\nMoran sold heroin for at least nine months. A single customer, the CS,\\n\\naccounted for nearly $10,000 in sales. Numerous intercepted conversations\\n\\nbetween Moran and multiple co-defendants in which, for example, Moran\\n\\nchastises a co-defendant for being unavailable to customers and hurting\\n\\nbusiness, support an inference that there were many other transactions and\\n\\ncustomers. Finally, Moran did not argue below that he did not meet the income\\n\\nthreshold, and even on appeal does not deny that he earned the requisite $14,500,\\n\\nbut instead merely faults the PSR and the district court for failing to make\\n\\nexplicit findings. Thus, we conclude that the district court did not clearly err in\\n\\nfinding that Moran met the threshold.\\n\\n Moran principally argues that the government must show that he\\n\\nmade $14,500 in net, as opposed to gross, income over the relevant period.\\n\\nAlthough this Court has not addressed this question, among the circuits that\\n\\nhave, the \\\"majority approach\\\" is to use gross income. United States v. Gordon, 852\\n\\n\\n\\n\\n6 In intercepted conversations, Moran negotiated the sale of a bundle of heroin for $70, with a\\nbundle containing between four and five grams of heroin. Moran sold between 700 and 1,000 grams,\\nwhich is income of between $9,800 and $17,500.\\n\\n - 24 -\\n\\nF.3d 126, 132 (1st Cir. 2017); see, e.g., United States v. Berry, 930 F.3d 997, 999 (8th\\n\\nCir. 2019); Reed, 951 F.2d at 101-02; Cryer, 925 F.2d at 830. We agree that using\\n\\ngross income is appropriate because the \\\"guideline's income threshold is\\n\\ndesigned to approximate the annual income of an employee earning the federal\\n\\nminimum wage, which is a gross figure.\\\" Gordon, 852 F.3d at 131. Further, the\\n\\nGuidelines are silent as to how to calculate net income or to allocate the burden\\n\\nof proving a defendant's net income, an additional indication that gross income\\n\\nis to be used. Id.\\n\\n Finally, the cases Moran cites in support of using net income rely on\\n\\na materially different, earlier version of the Guidelines that looked only at\\n\\nwhether a defendant derived a substantial portion of his income from criminal\\n\\nactivity, rather than the Guidelines' current two-pronged analysis. See, e.g., Lee v.\\n\\nUnited States, 939 F.2d 503, 504 (7th Cir. 1991). Lee is inapposite, however, as\\n\\nunder the current Guidelines a court must first determine whether the defendant\\n\\nderived income in excess of a particular amount, and then whether criminal\\n\\nconduct was the defendant's primary occupation. See § 4B1.3 cmt. n. 2. Because\\n\\nthe current Guidelines provide a formula for calculating the income threshold,\\n\\n\\\"the relative predominance of a defendant's criminal and legitimate income . . . is\\n\\n\\n\\n - 25 -\\n\\nrelevant, if at all, only to the prong-two question of whether criminal activity was\\n\\nthe defendant's primary occupation.\\\" Gordon, 85 F.3d at 133. Accordingly, we\\n\\nfind that the district court did not err when it used Moran's gross income in\\n\\ndetermining his eligibility for the criminal livelihood enhancement.\\n\\n b. Primary Occupation\\n\\n The second element of the second prong asks whether the defendant\\n\\nengaged in the criminal conduct as his primary occupation. To satisfy this\\n\\nelement, the court must find that \\\"the totality of circumstances shows that such\\n\\ncriminal conduct was the defendant's primary occupation in that twelve-month\\n\\nperiod (e.g., the defendant engaged in criminal conduct rather than regular,\\n\\nlegitimate employment; or the defendant's legitimate employment was merely a\\n\\nfront for the defendant's criminal conduct).\\\" U.S.S.G. § 4B1.3 cmt. n. 2.\\n\\n This Circuit has directly addressed this element only once, finding\\n\\nthat the element was satisfied by the defendant's admission that he earned his\\n\\nliving through his criminal conduct. See Burgess, 180 F.3d at 41. Other circuits\\n\\nhave considered the proportion of income a defendant derived from criminal as\\n\\nopposed to legitimate sources to determine whether the defendant's primary\\n\\noccupation was criminal conduct. See, e.g., Reed, 951 F.2d at 101-02 (finding\\n\\n\\n\\n - 26 -\\n\\nprimary occupation where criminal conduct in seven-month period yielded over\\n\\n$17,000 compared with $350 from legitimate sources); United States v. Salazar, 909\\n\\nF.2d 1447, 1449 (10th Cir. 1990) (between $13,500 and $27,000 from criminal\\n\\nconduct and $2,100 to $2,400 from legitimate activity over seven to eight\\n\\nmonths); United States v. Luster, 889 F.2d 1523, 1531 (6th Cir. 1989) ($8,223.58 from\\n\\ncriminal activity compared with $500 from legitimate sources over three\\n\\nmonths). Courts have also considered other factors, such as a defendant's\\n\\ninability to verify purported legitimate employment. See United States v.\\n\\nQuertermous, 946 F.2d 375, 378 (5th Cir. 1991).\\n\\n Here, Moran was employed as a part-time youth counselor during\\n\\nsome of the time that he was also engaged in criminal conduct. He left a part-\\n\\ntime job at the Jacob Riis Settlement House in mid-April 2016 where he had been\\n\\nearning $14 an hour, and began a new job at St. John's Residence for Boys one\\n\\nday before his arrest on September 7, 2016. His former employers wrote\\n\\nsupportive letters to the court on his behalf, confirming his employment. Moran\\n\\nthus was employed in a legitimate occupation for approximately half the time he\\n\\nwas engaged in criminal conduct if his criminal conduct is dated to December\\n\\n2015. While there is no evidence of how much Moran earned from his legitimate\\n\\n\\n\\n - 27 -\\n\\nemployment in 2016, according to the PSR his adjusted gross income between\\n\\n2012 and 2015, the years he was working at Jacob Riis Settlement House, ranged\\n\\nfrom $9,848 to $12,319. Given that Moran earned at least $14,500 from heroin\\n\\ntrafficking over a twelve-month period, it is apparent that he derived more\\n\\nincome from his criminal conduct than from his legitimate employment.\\n\\n Moran reportedly left his job in April 2016 because his family was\\n\\n\\\"pressed for cash\\\" and, as he told law enforcement officers during transport to\\n\\nthe courthouse, he sold heroin to feed his family. Though the sentencing court\\n\\ndirectly referenced only Moran's statements that he sold drugs to feed his family\\n\\nto support its finding that criminal conduct was his primary occupation,\\n\\nadditional evidence in the record supports the finding. For example, Moran\\n\\nreported that he left his job in April 2016 because of his drug-trafficking work,\\n\\nsaying \\\"I resigned from the Jacob Riis because I was not giving that job my full\\n\\nattention. I became caught up with the devil's work.\\\" App'x at 93. Moran also\\n\\nconceded that he made daily deliveries of heroin; he communicated regularly\\n\\nwith his co-conspirators regarding drug sales; and he chastised one co-defendant\\n\\nfor hurting the business when he did not respond promptly to his calls.\\n\\nAccordingly, that Moran was legitimately employed during some portion of the\\n\\n\\n\\n - 28 -\\n\\ntime that he was also engaged in drug-trafficking does not undermine the\\n\\ndetermination that his criminal conduct was his primary occupation.\\n\\nConsidering the totality of the circumstances, we conclude that the sentencing\\n\\ncourt did not clearly err when it found that Moran's criminal conduct was his\\n\\nprimary occupation.\\n\\n Finally, even if the application of the enhancement was\\n\\ninappropriate, the district court noted on the record that whether the original or\\n\\nrevised Guidelines range applied would \\\"not [] make a great deal of difference\\\"\\n\\nin the final analysis because it was \\\"not going to sentence [Moran] to 121 months\\n\\nor 97 months.\\\" App'x at 176, 197; see also Mandell, 752 F.3d at 553 (\\\"If we identify\\n\\nprocedural error in a sentence, but the record indicates clearly that the district\\n\\nwould have imposed the same sentence in any event, the error may be deemed\\n\\nharmless, avoiding the need to vacate the sentence and to remand the case for\\n\\nresentencing.\\\") (internal quotation marks omitted). Indeed, the 84-month\\n\\n\\n\\n\\n - 29 -\\n\\nsentence imposed by the district court was a below-Guidelines sentence even\\n\\nwith the lower range of 97-121 months.\\n\\n CONCLUSION\\n\\n For the reasons set forth above, the judgment of the district court is\\n\\nAFFIRMED.\\n\\n\\n\\n\\n - 30 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4552,"cells":{"id":{"kind":"number","value":4672974,"string":"4,672,974"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Cugini v. City of New York, Palazzola"},"decision_date":{"kind":"string","value":"2019-10-25"},"docket_number":{"kind":"string","value":"18-1378"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: SACK, HALL, AND DRONEY, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"SACK, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"18‐1378\\nCugini v. City of New York, Palazzola\\n\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n August Term, 2019\\n (Argued: March 29, 2019 Decided: October 25, 2019)\\n Docket No. 18‐1378\\n\\n\\n\\n DONNA CUGINI,\\n Plaintiff‐Appellant,\\n\\n v.\\n\\n CITY OF NEW YORK, CHRISTOPHER PALAZZOLA,\\n Defendants‐Appellees.\\n\\n\\nBefore: SACK, HALL, AND DRONEY, Circuit Judges.\\n\\n The plaintiff‐appellant, Donna Cugini, brought a civil rights action in the\\n\\nUnited States District Court for the Eastern District of New York against the City\\n\\nof New York and Officer Christopher Palazzola in his individual capacity. She\\n\\nalleged a federal claim for excessive force against Palazzola, under the Fourth\\n\\nand Fourteenth Amendments pursuant to 42 U.S.C. § 1983, and state law claims\\n\\nagainst the City for assault and battery and negligence. As relevant to this\\n\\nappeal, she alleged that Palazzola used excessive force in placing her in\\n\\nhandcuffs while she was in custody, thereby causing her to suffer, among other\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nthings, permanent nerve damage to her wrist. On the defendantsʹ motion for\\n\\nsummary judgment, the district court (Sterling Johnson, Jr., Judge) assumed\\n\\nwithout deciding that the plaintiff had established her constitutional claim. It\\n\\ngranted the defendantsʹ motion for summary judgment, however, on the ground\\n\\nthat Palazzola was entitled to qualified immunity because his behavior did not\\n\\nconstitute a violation of a clearly established constitutional right. Because it\\n\\ndismissed the plaintiffʹs federal claim against Palazzola individually, the court\\n\\ndeclined to exercise supplemental jurisdiction over the plaintiffʹs state law claims\\n\\nagainst the City. We conclude that the plaintiff sufficiently established her\\n\\nconstitutional claim for excessive force for purposes of surviving a motion for\\n\\nsummary judgment. However, because at the time of the plaintiffʹs arrest\\n\\nPalazzolaʹs actions did not violate clearly established constitutional law, the\\n\\ndistrict court correctly concluded that his actions were protected by qualified\\n\\nimmunity and granted summary judgment on that basis. Accordingly, the\\n\\ndistrict courtʹs judgment is:\\n\\n\\n AFFIRMED.\\n\\n\\n SCOTT A. KORENBAUM (Jason Leventhal,\\n Leventhal Law Group, P.C., Brooklyn, NY,\\n\\n\\n\\n 2\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n on the brief), New York, NY, for Plaintiff‐\\n Appellant.\\n DIANA LAWLESS (Zachary W. Carter,\\n Richard Dearing, Scott Shorr, on the brief),\\n Corporation Counsel of the City of New\\n York, New York, NY, for Defendants‐\\n Appellees.\\nSACK, Circuit Judge:\\n\\n On June 26, 2014, the plaintiff‐appellant Donna Cugini voluntarily\\n\\nsurrendered to police custody in Staten Island, New York, in connection with a\\n\\nmisdemeanor complaint of domestic stalking and harassment filed against her by\\n\\nher estranged sister. During her subsequent temporary detention, she was\\n\\nhandcuffed, suffering serious bodily injury as a result. She brought this action in\\n\\nthe United States District Court for the Eastern District of New York against the\\n\\nCity of New York and the police officer who physically restrained her while she\\n\\nwas in custody, Officer Christopher Palazzola, in his individual capacity. She\\n\\nasserted a federal claim against Palazzola, under the Fourth and Fourteenth\\n\\nAmendments pursuant to 42 U.S.C. § 1983, alleging that he used excessive force\\n\\nwhen handcuffing her, thereby causing her to suffer, among other things,\\n\\npermanent nerve damage to her wrist. She also made supplemental state law\\n\\nclaims of assault and battery and negligence against the City of New York.\\n\\n\\n\\n\\n 3\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n On the defendantsʹ motion for summary judgment, the district court\\n\\n(Sterling Johnson, Jr., Judge) assumed without deciding that Cugini had\\n\\nestablished her constitutional claim. The court concluded, however, that\\n\\nPalazzolaʹs actions did not violate a clearly established constitutional right, in\\n\\npart because Cugini gave only brief physical and non‐verbal manifestations of\\n\\nher discomfort while handcuffed, and thus failed to alert Palazzola sufficiently to\\n\\nher distress. The district court concluded that Palazzola was therefore entitled to\\n\\nqualified immunity and granted summary judgment on that basis. After\\n\\ndismissing Cuginiʹs federal claim, the district court declined to exercise\\n\\nsupplemental jurisdiction over her state law claims against the City.\\n\\n\\n On appeal, Cugini argues that the district court thus erred. She contends\\n\\nthat Palazzola violated her clearly established constitutional right by using force\\n\\nagainst her that was excessive within the meaning of the Fourth Amendment.\\n\\nShe also asserts that because she has demonstrated that her federal law claim\\n\\nwas wrongly dismissed, she should be permitted to pursue her state law claims\\n\\nagainst the City in federal court.\\n\\n\\n Under Graham v. Connor, 490 U.S. 386 (1989), we review a plaintiffʹs\\n\\nexcessive force claim under the Fourth Amendment standard of objective\\n\\n\\n 4\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nreasonableness to assess whether an officerʹs conduct was appropriate in light of\\n\\nthe facts and circumstances confronting him. Id. at 397. To determine whether\\n\\nthe amount of force an officer used was reasonable, we balance an individualʹs\\n\\nFourth Amendment interests against countervailing governmental interests,\\n\\nincluding the severity of the crime and whether the suspect poses a safety or\\n\\nflight risk or resists arrest. Id. at 396. A plaintiff must also demonstrate that the\\n\\nofficer was made reasonably aware that the force used was excessive. See\\n\\nKingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (objective reasonableness\\n\\ndetermination must be made ʺfrom the perspective of a reasonable officer on the\\n\\nscene, including what the officer knew at the time.ʺ) A plaintiff satisfies this\\n\\nrequirement if either the unreasonableness of the force used was apparent under\\n\\nthe circumstances, or the plaintiff signaled her distress, verbally or otherwise,\\n\\nsuch that a reasonable officer would have been aware of her pain, or both. See id.\\n\\n\\n We conclude that the plaintiff has sufficiently established her\\n\\nconstitutional claim for purposes of surviving a motion for summary judgment.\\n\\nA reasonable jury could find that Palazzolaʹs actions were objectively\\n\\nunreasonable in light of, inter alia, the minor nature of the plaintiffʹs alleged\\n\\ncrime, the circumstances of her arrest, and the fact that the plaintiff posed no\\n\\n\\n 5\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\napparent risk of flight or physical threat to the police or others. The defendant\\n\\nwas also reasonably made aware of the plaintiffʹs pain, both as a result of her\\n\\nsigns of distress—her repeated audible, if not verbal, expressions of pain—and\\n\\nbecause the unreasonableness of the force used by the defendant was apparent\\n\\nunder the circumstances.\\n\\n\\n Nevertheless, because at the time of the defendantʹs actions it was not\\n\\nclearly established law that a plaintiff who did not verbally complain or request\\n\\nto have her handcuffs adjusted or removed, or both, could nevertheless recover\\n\\non a handcuffing‐based excessive force claim, the defendant was entitled to\\n\\nqualified immunity. The district court therefore correctly granted the\\n\\ndefendantsʹ motion for summary judgment on that ground.\\n\\n\\n Factual Background\\n\\n\\n We summarize the facts of this case ʺresolving all ambiguities and drawing\\n\\nall factual inferences in plaintiff[ʹs] favor as the non‐moving party,ʺ as we must in\\n\\nreviewing the grant of a motion for summary judgment. Anthony v. City of New\\n\\nYork, 339 F.3d 129, 134 (2d Cir. 2003) (citation omitted).\\n\\n\\n\\n\\n 6\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n The plaintiff‐appellant, Donna Cugini, was at all relevant times a 58‐year\\n\\nold nursing coordinator residing in Staten Island (Richmond County), New York.\\n\\nThe defendant‐appellee, Officer Christopher Palazzola, was at all relevant times\\n\\na domestic violence prevention officer for the New York City Police Department\\n\\nassigned to the 121st Precinct on Staten Island.\\n\\n\\n On June 26, 2014, Cugini voluntarily surrendered to police custody at the\\n\\n121st Precinct, as arranged by her attorney, in connection with a misdemeanor\\n\\ncomplaint of domestic stalking and harassment filed by her estranged sister.\\n\\nWhen Cugini arrived at the precinct, Palazzola handcuffed her, processed her\\n\\narrest, and led her to a holding cell, where he removed her handcuffs.1\\n\\n\\n Some two hours later, Palazzola returned to the plaintiffʹs holding cell to\\n\\nmove her to Staten Island Central Booking located inside the 120th Precinct\\n\\nstationhouse (ʺCentral Bookingʺ). He instructed her to step out of her cell and\\n\\nplace her hands behind her back. Although she readily complied, Palazzola\\n\\ngrabbed her arms, twisted her wrists into a ʺweird position,ʺ and handcuffed her\\n\\nʺvery tight.ʺ Cugini Dep. June 7, 2016 (ʺCugini Dep.ʺ), 13‐14, J. App. 55‐56. She\\n\\n\\n\\n1 Cugini asserts no claims in this litigation based on her initial handcuffing.\\n\\n\\n 7\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nsaid ʺouch,ʺ and her body shuddered. Id. at 14, J. App. 56. In response,\\n\\nPalazzola threatened her—ʺdonʹt make me hurt youʺ—and tightened her\\n\\nhandcuffs further. Id. at 15‐18, J. App. 57‐60. The plaintiff again reacted, either\\n\\nexclaiming ʺowʺ or uttering a ʺcry.ʺ Id. at 18, J. App. 60. Once the plaintiff was\\n\\nhandcuffed, Palazzola moved her to the rear of a police car and drove her to\\n\\nCentral Booking. Approximately 40 minutes elapsed between the time Palazzola\\n\\nhandcuffed Cugini and their arrival at Central Booking. During that time, the\\n\\nplaintiff did not otherwise inform Palazzola that her handcuffs were causing her\\n\\npain or ask that they be adjusted, refraining from doing so, she testified, because\\n\\nshe was ʺtoo scared.ʺ Cugini Examination Aug. 31, 2015, 37, J. App. 187.\\n\\n\\n Once they arrived at Central Booking, Palazzola attempted to remove\\n\\nCuginiʹs handcuffs. She felt Palazzola ʺrip the cuffsʺ and continue to tighten,\\n\\nrather than loosen, them. Cugini Dep. 24‐25, J. App. 66‐67. A nearby officer saw\\n\\nthat Palazzola had put the handcuffs on backwards. Palazzola continued to\\n\\nʺfiddl[e] around with themʺ and to make the handcuffs ʺtighter and tighter.ʺ Id.\\n\\nat 25, J. App. 67. The other officer called for someone else to remove them.\\n\\n\\n Immediately upon removal of her handcuffs, Cugini felt pain in her wrists.\\n\\nWhen she was released from custody later that day, she went directly to the\\n\\n\\n 8\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nemergency room at Richmond University Medical Center. Soon thereafter, she\\n\\nnevertheless began experiencing pain, numbness, and twitching in her arms.\\n\\nShe continues to suffer from what has been diagnosed as permanent nerve\\n\\ndamage to her right wrist, and has lost the ability to perform many basic\\n\\nhousehold functions as a result.\\n\\n\\n In January 2015, all of the charges against the plaintiff were dismissed by\\n\\nNew York State for lack of evidence.\\n\\n\\n Procedural History\\n\\n\\n On September 23, 2015, the plaintiff filed a complaint in the United States\\n\\nDistrict Court for the Eastern District of New York against Officer Palazzola (the\\n\\nʺdefendantʺ) in his individual capacity and the City of New York (the ʺCityʺ;\\n\\ntogether with the defendant, the ʺdefendantsʺ). She alleged a federal claim for\\n\\nexcessive force under the Fourth and Fourteenth Amendments pursuant to 42\\n\\nU.S.C. § 1983 against Palazzola. She also alleged supplemental state law claims\\n\\nfor assault and battery and negligence against the City.\\n\\n\\n On February 2, 2018, the defendants moved for summary judgment. They\\n\\nargued that the plaintiff could not recover on her excessive force claim against\\n\\n\\n\\n\\n 9\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nPalazzola because she lacked proof that she had complained about her handcuffs\\n\\nat the time or requested that they be adjusted. And they asserted that even if the\\n\\nplaintiffʹs constitutional rights had been violated, Palazzola was entitled to\\n\\nqualified immunity because a reasonable officer could conclude that he acted\\n\\nproperly under the circumstances. Finally, they argued that because the\\n\\nplaintiffʹs federal law claim should be dismissed, the district court should decline\\n\\nto exercise supplemental jurisdiction over her state law claims against the City.\\n\\nThe plaintiff opposed the motion, contending that her shudders and utterances\\n\\nof ʺouchʺ and ʺowʺ as her handcuffs were being tightened were ʺobvious and\\n\\nclear expressions of pain and made [Palazzola] aware that [her] handcuffs were\\n\\ntoo tight and were needlessly causing pain and injury.ʺ Pl. Mem. of Law in Opp.\\n\\nto Sum. J., Feb. 2, 2018, at 8 (Dkt. #30), J. App. 6. She argued that Palazzola\\n\\nshould not be entitled to qualified immunity solely on the basis of her failure to\\n\\nverbalize her pain because he ʺcaused [her] silence by intimidating [her] with [a]\\n\\nthreat.ʺ Id. at 9.2\\n\\n\\n\\n\\n2 In her opposition to summary judgment, Cugini also voluntarily dismissed her state‐\\nlaw negligence claim against the City.\\n\\n\\n 10\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n On April 10, 2018, the district court granted the defendantsʹ motion for\\n\\nsummary judgment. As a preliminary matter, the court briefly addressed the\\n\\nsubstance of the plaintiffʹs constitutional claim. In response to the defendantsʹ\\n\\nargument that the plaintiff could not prevail on her claim because ʺshe never\\n\\nasked that the handcuffs be loosened, or otherwise clearly communicated that\\n\\nthey were causing her pain,ʺ the court wrote that such a proposition\\n\\nʺoversimplifies the inquiry.ʺ Cugini v. City of New York, No. 15‐CV‐5517 (SJ) (ST),\\n\\n2018 WL 1730334, at *2 n.1, 2018 U.S. Dist. LEXIS 60741, at *5 n.1 (E.D.N.Y. Apr.\\n\\n10, 2018) (internal quotation marks omitted). It further noted that it was ʺreticent\\n\\nto impose a standard that would deny a plaintiff her day in court simply because\\n\\nshe did not utter the magic words.ʺ Id. ʺSuch a result,ʺ the court reasoned, ʺis\\n\\nnot in the spirit of the fact‐specific inquiry the Fourth Amendment necessitates.ʺ\\n\\nId. For purposes of its qualified immunity analysis, however, the district court\\n\\nassumed without deciding that the plaintiff had suffered a Fourth Amendment\\n\\ninjury and did not address the issue further.\\n\\n\\n The district court then concluded that Palazzola was entitled to summary\\n\\njudgment on the ground of qualified immunity. ʺNothing in the facts indicates\\n\\nthat [Palazzola] used force beyond that which was necessary to handcuff an\\n\\n\\n 11\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\narrestee.ʺ Cugini, 2018 WL 1730334, at *3, 2018 U.S. Dist. LEXIS 60741, at *6.\\n\\nMoreover, the plaintiffʹs ʺbrief physical and verbal manifestations of tepid\\n\\ndiscomfort were followed by a prolonged period free from any such\\n\\nexpressions.ʺ Id. Under these circumstances, the court thought, reasonable\\n\\nofficers could differ as to the legality of the defendantʹs conduct. The court\\n\\ntherefore concluded that Palazzola was entitled to qualified immunity and\\n\\ngranted summary judgment with respect to the plaintiffʹs excessive force claim\\n\\nagainst him. After dismissing the plaintiffʹs only federal claim, the district court\\n\\ndeclined to exercise supplemental jurisdiction over her state law claims against\\n\\nthe City.\\n\\n\\n Cugini argues on appeal that the district court erred by granting Palazzola\\n\\nqualified immunity because a reasonable jury could conclude that the defendant\\n\\nviolated her clearly established Fourth Amendment rights by applying her\\n\\nhandcuffs with excessive force, while aware that he was doing so, resulting in\\n\\npermanent nerve damage to her wrist. The plaintiff also contends that because\\n\\nher federal law claim against Palazzola is viable, she should be permitted to\\n\\npursue her state law claims against the City in federal district court.\\n\\n\\n DISCUSSION\\n\\n\\n 12\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n I. Standard of Review\\n\\n\\n ʺWe review a district courtʹs grant of summary judgment de novo to\\n\\ndetermine whether the district court properly concluded that there was no\\n\\ngenuine dispute as to any material fact, such that the moving party was entitled\\n\\nto judgment as a matter of law.ʺ Myers v. Patterson, 819 F.3d 625, 632 (2d Cir.\\n\\n2016). We do so ʺresolving all ambiguities and drawing all factual inferences in\\n\\nplaintiff[ʹs] favor as the non‐moving party.ʺ Anthony, 339 F.3d at 134.\\n\\n\\n When a public official such as Palazzola invokes qualified immunity at the\\n\\nsummary judgment stage, we ʺmust consider two questions: (1) whether the\\n\\nevidence, viewed in the light most favorable to the plaintiff, makes out a\\n\\nviolation of a statutory or constitutional right, and (2) whether that right was\\n\\nclearly established at the time of the alleged violation.ʺ Tracy v. Freshwater, 623\\n\\nF.3d 90, 96 (2d Cir. 2010).3 In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme\\n\\nCourt concluded that we must conduct these inquiries sequentially. Id. at 201.4\\n\\n\\n\\n3We sometimes discuss the doctrine of qualified immunity, as we did in Tracy, in terms\\nof the ʺviolation of a statutory or constitutional right.ʺ 623 F.3d at 96 (emphasis added).\\nOn this appeal, it is the constitutional rights of the plaintiff that are at issue.\\n\\n4 The Saucier test was later described by the Supreme Court thus:\\n\\n\\n\\n\\n 13\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nIn Pearson v. Callahan, 555 U.S. 223 (2009), however, it modified the Saucier two‐\\n\\nstep procedure so that we are now ʺpermitted to exercise [our] sound discretion\\n\\nin deciding which of these two prongs of the qualified immunity analysis should\\n\\nbe addressed first in light of the circumstances in the particular case at hand.ʺ Id.\\n\\nat 236. Here, we address them consecutively because the case involves\\n\\nʺquestions that do not frequently arise in cases in which a qualified immunity\\n\\ndefense is unavailable.ʺ Id.; see also Berg v. Kelly, 897 F.3d 99, 106 (2d Cir. 2018)\\n\\n(commenting that it is ʺworthwhileʺ to exercise discretion in addressing both\\n\\nprongs of the qualified immunity analysis under similar circumstances (quoting\\n\\nPearson, 555 U.S. at 242)). Accordingly, we first ask whether, taking the facts in\\n\\nthe light most favorable to the plaintiff, she has sufficiently established a\\n\\nconstitutional claim of excessive force.\\n\\n\\n II. Excessive Force\\n\\n\\n\\n In Saucier [v. Katz, 533 U.S. 194 (2001)], this Court mandated a two‐step\\n sequence for resolving government officialsʹ qualified immunity claims.\\n First, a court must decide whether the facts that a plaintiff has alleged . . .\\n or shown . . . make out a violation of a constitutional right. 533 U.S.[] at\\n 201. Second, if the plaintiff has satisfied this first step, the court must\\n decide whether the right at issue was ʹclearly establishedʹ at the time of\\n defendantʹs alleged misconduct. [Id.]\\n\\nPearson v. Callahan, 555 U.S. 223, 232 (2009).\\n\\n\\n 14\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n The plaintiff asserts that Palazzola violated her constitutional rights by\\n\\nusing excessive force in handcuffing her while she was in custody. The district\\n\\ncourt declined to decide the plaintiffʹs constitutional claim, moving directly to its\\n\\nanalysis of qualified immunity instead. Addressing that issue on review\\n\\nnonetheless, as we are permitted to do under Pearson, we conclude that the\\n\\nplaintiff has sufficiently established a constitutional claim for excessive force.\\n\\n\\n 1. Legal Standard\\n\\n\\n In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court concluded\\n\\nthat where a claim for excessive force ʺarises in the context of an arrest or\\n\\ninvestigatory stop of a free citizen, it is most properly characterized as one\\n\\ninvoking the protections of the Fourth Amendment.ʺ Id. at 394. It is therefore\\n\\nanalyzed under the Fourth Amendmentʹs ʺreasonablenessʺ standard, rather than\\n\\nunder the subjective ʺsubstantive due processʺ approach, id. at 396‐97, ʺwhich\\n\\nrequires consideration of whether the individual officers acted in good faith or\\n\\nmaliciously and sadistically for the very purpose of causing harm,ʺ id. at 397\\n\\n(internal quotation marks omitted). Because ʺthe right to make an arrest or\\n\\ninvestigatory stop necessarily carries with it the right to use some degree of\\n\\nphysical coercion or threat thereof to effect it,ʺ determining whether the amount\\n\\n\\n 15\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nof force an officer used is reasonable ʺrequires a careful balancing of the nature\\n\\nand quality of the intrusion on the individualʹs Fourth Amendment interests\\n\\nagainst the countervailing governmental interests at stake.ʺ Id. at 396 (citations\\n\\nand internal quotation marks omitted). The proper application of the\\n\\nreasonableness standard, according to the Graham Court, ʺrequires careful\\n\\nattention to the facts and circumstances of each particular case, includingʺ (1)\\n\\nʺthe severity of the crime at issue,ʺ (2) ʺwhether the suspect poses an immediate\\n\\nthreat to the safety of the officers or others,ʺ and (3) ʺwhether [the suspect] is\\n\\nactively resisting arrest or attempting to evade arrest by flight.ʺ Id. And the\\n\\nCourt reiterated that the reasonableness inquiry is an ʺobjective one.ʺ Id. at 397.\\n\\nIt requires a court to view officersʹ actions ʺin light of the facts and circumstances\\n\\nconfronting them, without regard to their underlying intent or motivationʺ or\\n\\nʺthe 20/20 vision of hindsight.ʺ Id. at 396‐97 (citation omitted).\\n\\n\\n Graham thus stands for the proposition that a government officer may not\\n\\nintrude on a personʹs Fourth Amendment rights by employing a degree of force\\n\\nbeyond that which is warranted by the objective circumstances of an arrest. And\\n\\nwe decided long ago that the objective reasonableness standard established in\\n\\nGraham applies to actions taken with respect to a person who asserts, as does the\\n\\n\\n 16\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nplaintiff here, a claim for excessive force after she has been arrested and\\n\\ndetained, but ʺprior to the time when [she] is arraigned or formally charged, and\\n\\nremains in the custody (sole or joint) of the arresting officer.ʺ Powell v. Gardner,\\n\\n891 F.2d 1039, 1044 (2d Cir. 1989).\\n\\n\\n In Esmont v. City of New York, 371 F. Supp. 2d 202 (E.D.N.Y. 2005), the\\n\\nUnited States District Court for the Eastern District of New York concluded that\\n\\nplacing handcuffs on an arrestee in a manner that causes injury may ʺconstitute\\n\\nexcessive force in violation of the Fourth Amendment.ʺ Id. at 215 (citation\\n\\nomitted). And it provided three evidentiary factors for courts to consider in\\n\\nevaluating the reasonableness of a handcuffing: that ʺ(1) the [arresteeʹs]\\n\\nhandcuffs were unreasonably tight; (2) the defendants ignored the arresteeʹs\\n\\npleas that the handcuffs were too tight; and (3) the degree of injury to the\\n\\n[arresteeʹs] wrists.ʺ Id. at 215. Following Esmont, evidence of these factors has\\n\\noften been employed by other district courts in this Circuit to determine whether\\n\\na plaintiff has sufficiently alleged a claim for excessive force in the process of\\n\\nhandcuffing.5\\n\\n\\n\\n5See, e.g., Pizarro v. Ponte, No. 17 Civ. 4412 (LGS), 2019 WL 568875, at *6, 2019 U.S. Dist.\\nLEXIS 22767, at *13‐14 (S.D.N.Y. Feb. 11, 2019); Othman v. City of New York, No. 13 Civ.\\n\\n\\n\\n 17\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n These evidentiary factors may, indeed, prove useful to a district court in\\n\\nassessing the soundness of a handcuffing‐based excessive force claim. The ʺtest\\n\\nof reasonableness under the Fourth Amendment,ʺ however, ʺis not capable of\\n\\nprecise definition or mechanical application.ʺ Graham, 490 U.S. at 396 (internal\\n\\nquotation marks omitted). A courtʹs reasonableness analysis is not limited to a\\n\\nfactual checklist; it must instead be guided by a ʺcareful balanc[e]ʺ between the\\n\\nʺnature and quality of the intrusionʺ and the ʺcountervailing government\\n\\ninterests at stakeʺ under the circumstances. Id. (citation and internal quotation\\n\\nmarks omitted).\\n\\n Thus a plaintiff asserting a claim for excessive force need not always\\n\\nestablish that she alerted an officer to the fact that her handcuffs were too tight or\\n\\ncausing pain. The question is more broadly whether an officer reasonably\\n\\nshould have known during handcuffing that his use of force was excessive. A\\n\\nplaintiff satisfies this requirement if either the unreasonableness of the force used\\n\\n\\n\\n\\n4771, 2018 WL 1701930, at *7, 2018 U.S. Dist. LEXIS 59967, at *21 (E.D.N.Y. Mar. 31,\\n2018); Ali v. Ramos, No. 16‐CV‐01994 (ALC), 2018 WL 1353210, at *5, 2018 U.S. Dist.\\nLEXIS 42489, at *10‐12 (S.D.N.Y. Mar. 14, 2018); Lloyd v. City of New York, 246 F. Supp. 3d\\n704, 724 (S.D.N.Y. 2017); Case v. City of New York, 233 F. Supp. 3d 372, 385 (S.D.N.Y.\\n2017); Barcomb v. Kraeger, No. 14‐CV‐1159 (JBA), 2016 WL 2644885, at *5, 2016 U.S. Dist.\\nLEXIS 60536, at *14‐17 (D. Conn. May 5, 2016).\\n\\n\\n 18\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nwas apparent under the circumstances, or the plaintiff signaled her distress,\\n\\nverbally or otherwise, such that a reasonable officer would have been aware of\\n\\nher pain, or both. See Stainback v. Dixon, 569 F.3d 767, 772 (7th Cir. 2009) (ʺ[I]n\\n\\nsome cases, the fact that an act will cause pain or injury will be clear from the\\n\\nnature of the act itself.ʺ); Cortez v. McCauley, 478 F.3d 1108, 1129 (10th Cir. 2007)\\n\\n(en banc) (noting that the plaintiff must allege that ʺan officer ignored [her] timely\\n\\ncomplaints (or was otherwise made aware) that the handcuffs were too tightʺ)\\n\\n(emphasis added); Liiv v. City of Coeur DʹAlene, 130 F. Appʹx 848, 852 (9th Cir.\\n\\n2005) (recognizing excessive force claims may arise where ʺplaintiffs either\\n\\nsuffered damage to their wrists as a consequence of the handcuffs or the plaintiffs\\n\\ncomplained to the officers about the handcuffs being too tightʺ) (emphasis\\n\\nadded). And, as with all aspects of a Fourth Amendment inquiry, an officerʹs\\n\\nawareness is ʺjudged from the perspective of a reasonable officer on the scene.ʺ\\n\\nGraham, 490 U.S. at 396 (citation omitted).\\n\\n We conclude that where an officerʹs use of force in handcuffing is plainly\\n\\nunreasonable under the circumstances or where a plaintiff manifests clear signs\\n\\nof her distress—verbally or otherwise—a fact finder may decide that the officer\\n\\n\\n\\n\\n 19\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nreasonably should have known that his use of force was excessive for purposes\\n\\nof establishing a Fourth Amendment violation.\\n\\n 2. Application\\n\\n\\n We conclude that each of the Graham factors weighs decidedly in the\\n\\nplaintiffʹs favor here. First, the crime at issue was a relatively minor one: the\\n\\nmisdemeanor offense of stalking and harassing a family member from whom she\\n\\nwas estranged. Second, there is no indication that the plaintiff posed a safety\\n\\nthreat, immediate or otherwise, to Palazzola or anyone else. To the contrary, she\\n\\nvoluntarily surrendered to police custody at her local precinct as instructed by\\n\\nher attorney. Third, she did not try to flee or resist Palazzolaʹs attempt to\\n\\nhandcuff her. She was in police custody at the time of his alleged abuse and\\n\\ncomplied with all of his directives while there. Under these circumstances, a\\n\\nreasonable jury could find that the severity of Palazzolaʹs intrusion—continuing\\n\\nto tighten the plaintiffʹs handcuffs after she expressed physical pain and using\\n\\nforce strong enough to cause her permanent injury—was unjustified. See, e.g.,\\n\\nPayne v. Pauley, 337 F.3d 767, 778–79 (7th Cir. 2003) (finding that officerʹs ʺforce in\\n\\narresting a woman who was not threatening to harm the police officer or anyone\\n\\nelse at the scene, was not resisting or evading arrest, was not attempting to flee,\\n\\n\\n 20\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nand was charged with such minor offenses, was not objectively reasonableʺ);\\n\\nKopec v. Tate, 361 F.3d 772, 777‐78 (3d Cir. 2004) (deciding that overly tight\\n\\nhandcuffing of arrestee for ten minutes leading to permanent wrist injury was\\n\\nunreasonable under ʺbenign circumstancesʺ); Saunders v. Duke, 766 F.3d 1262,\\n\\n1264 (11th Cir. 2014) (ʺ[A] police officer violates the Fourth Amendment . . . if he\\n\\nor she uses gratuitous and excessive force against a suspect who is under control,\\n\\nnot resisting, and obeying commands.ʺ)\\n\\n\\n A reasonable officer on the scene should have known that the force used\\n\\nwas excessive. A reasonable jury could find that the degree of force employed by\\n\\nPalazzola was, objectively considered, disproportionate and unwarranted under\\n\\nthe circumstances. Moreover, Cugini directly communicated her distress to\\n\\nPalazzola through her pained utterances and bodily shudders while he was\\n\\nhandcuffing her. The defendant responded by threatening further harm—ʺdonʹt\\n\\n\\n\\n\\n 21\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nmake me hurt youʺ6—with the likely goal of silencing her complaints.7 He then\\n\\ncontinued to tighten her handcuffs, and Cugini again evidenced her physical\\n\\ndiscomfort. Under these circumstances, the defendant should reasonably have\\n\\nknown that his use of force was excessive, both because the plaintiff clearly\\n\\nsignaled her distress and because the excessive nature of the force used was\\n\\n\\n6 The defendant argues that Cugini should not be permitted to rely on the threat that\\nshe alleges he made in asserting her excessive force claim because doing so would\\nrequire the court to assess his subjective motivation. We are indeed not permitted to\\ntake Palazzolaʹs ʺunderlying intent or motivationʺ simpliciter into account in our\\nanalysis of the plaintiffʹs constitutional claim. Graham, 490 U.S. at 397. But neither are\\nwe permitted to ignore ʺthe facts and circumstances of [this] particular case.ʺ Id.\\nViewed in the light most favorable to Cugini, the facts here include a law enforcement\\nofficerʹs threat to the plaintiff with the apparent goal, and ultimate effect, of silencing\\nher cries of distress, and a realization of that threat through the subsequent tightening\\nof the plaintiffʹs handcuffs. A reasonable jury could find that Palazzolaʹs threatened\\nharm reflected not only his subjective motivation, but also, objectively, whether the\\nforce used was excessive and whether he was reasonably made aware of the plaintiffʹs\\npain. A reasonable jury could also find that it was unreasonable for Palazzola to\\nassume that the plaintiff was all right based on her silence following the handcuffing, in\\nlight of the fact that the plaintiff may only have remained silent because of Palazzolaʹs\\nthreat of further pain. It may therefore to that extent be considered.\\n\\n7Other courts have noted the risk that officer intimidation may suppress the complaints\\nof an arrested person. See Warren v. Williams, No. Civ.A. 304CV537 (JCH), 2006 WL\\n860998, at *37, 2006 U.S. Dist. LEXIS 18900, at *113‐14 (D. Conn. Mar. 31, 2006) (where\\nofficers made threats of further force, and plaintiff failed to complain out of fear,\\nʺgeneral complaints about the handcuffs [from others] could have reasonably put the\\ndefendants on notice that they should check and adjust the cuffs of the occupantsʺ); see\\nalso Fry v. Smoker, No. Civ.A. 11‐3015, 2012 WL 1622656, at *6, 2012 U.S. Dist. LEXIS\\n64939, at *16‐17 (E.D. Pa. May 9, 2012) (noting that there are ʺnumerous reasons why\\narrestees may not complain to arresting officers that their handcuffs are too tight, such\\nas intimidation by the officerʺ).\\n\\n\\n 22\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\napparent.\\n\\n We conclude, then, that a reasonable jury could find that the defendantʹs\\n\\nactions were objectively unreasonable under the circumstances and that Cugini\\n\\nhas therefore established a Fourth Amendment violation for present purposes.\\n\\n\\n III. Qualified Immunity\\n\\n\\n The district court granted summary judgment on the ground that\\n\\nirrespective of whether Palazzola violated a constitutional right of the plaintiff,\\n\\nhe was entitled to qualified immunity. On appeal, the plaintiff argues that there\\n\\nwas clearly established law at the time of the relevant events that ʺthe use of\\n\\nentirely gratuitous force against a restrained and unresisting arrestee by an\\n\\nofficer is unreasonable, and therefore, excessive within the meaning of the Fourth\\n\\nAmendment.ʺ Pl. Br. 18. The defendant responds that the facts as the plaintiff\\n\\nalleges them did not constitute a violation of clearly established law because,\\n\\naccording to the allegations, she ʺdid not alert [him] that he could not tighten, or\\n\\nhad to loosen, [her] handcuffs.ʺ Def. Br. 7.\\n\\n\\n To determine whether a defendant officer is entitled to qualified immunity\\n\\nfrom a Fourth Amendment claim against him on a motion for summary\\n\\njudgment, we are to assess whether ʺunder clearly established law, every\\n\\n 23\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nreasonable officer would have concluded that [the defendantʹs] actions violated\\n\\n[the plaintiffʹs] Fourth Amendment rights in the particular circumstance\\n\\npresented by the uncontested facts and the facts presumed in [the plaintiffʹs]\\n\\nfavor.ʺ Brown v. City of New York, 862 F.3d 182, 190 (2d Cir. 2017). In other\\n\\nwords, summary judgment for the defendant is required where ʺthe only\\n\\nconclusion a rational jury could reach is that reasonable officers would disagree\\n\\nabout the legality of the [defendantʹs] conduct under the circumstances.ʺ Lennon\\n\\nv. Miller, 66 F.3d 416, 421 (2d Cir. 1995). As a general rule, to determine whether\\n\\na right is clearly established, we consider ʺSupreme Court decisions, our own\\n\\ndecisions, and decisions from other circuit courts.ʺ Simon v. City of New York, 893\\n\\nF.3d 83, 92 (2d Cir. 2018); see also Ashcroft v. al‐Kidd, 563 U.S. 731, 746 (2011)\\n\\n(ʺ[Q]ualified immunity is lost when plaintiffs point either to cases of controlling\\n\\nauthority in their jurisdiction at the time of the incident or to a consensus of cases\\n\\nof persuasive authority such that a reasonable officer could not have believed\\n\\nthat his actions were lawful.ʺ) (internal quotation marks omitted). That is not to\\n\\nsay, however, that courts ʺrequire a case directly on point, but existing precedent\\n\\nmust have placed the statutory or constitutional question beyond debate.ʺ al‐\\n\\nKidd, 563 U.S. at 741.\\n\\n\\n\\n 24\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n At the time of the plaintiffʹs arrest, the use of excessive force in\\n\\nhandcuffing was prohibited by clearly established constitutional law. While we\\n\\nhad yet to formally hold that a defendant may violate a plaintiffʹs Fourth\\n\\nAmendment rights in a handcuffing‐based excessive force claim, we had long\\n\\nrejected the principle that handcuffing is ʺper se reasonable.ʺ Soares v. State of\\n\\nConn., 8 F.3d 917, 921 (2d Cir. 1993); see Johnson v. Turnbill, 715 F. Appʹx 84, 85 (2d\\n\\nCir. 2018) (summary order) (recognizing that ʺexcessively tight handcuffing that\\n\\ncauses injury can constitute excessive forceʺ under the Fourth Amendment\\n\\n(quoting Shamir v. City of New York, 804 F.3d 553, 557 (2d Cir. 2015)). And a\\n\\nconsensus existed among our sister circuits that unduly tight handcuffing can\\n\\nconstitute excessive force in violation of the Fourth Amendment.8 That was\\n\\nenough to clearly establish in this Circuit that an officerʹs use of excessive force\\n\\n\\n\\n\\n8See, e.g., Calvi v. Knox Cty., 470 F.3d 422, 428 (1st Cir. 2006); Kopec, 361 F.3d at 777‐78\\n(3d Cir. 2004); Heitschmidt v. City of Houston, 161 F.3d 834, 839‐40 (5th Cir. 1998); Lyons v.\\nCity of Xenia, 417 F.3d 565, 575‐76 (6th Cir. 2005); Herzog v. Vill. of Winnetka, 309 F.3d\\n1041, 1043 (7th Cir. 2002); Hanig v. Lee, 415 F.3d 822, 824 (8th Cir. 2005); Liiv, 130 F.\\nAppʹx at 852 (9th Cir. 2005); Vondrak v. City of Las Cruces, 535 F.3d 1198, 1208‐09 (10th\\nCir. 2008). But see Brown v. Gilmore, 278 F.3d 362, 369 (4th Cir. 2002) (ʺ[A] standard\\nprocedure such as handcuffing would rarely constitute excessive force where the\\nofficers were justified . . . in effecting the underlying arrest.ʺ).\\n\\n\\n\\n\\n 25\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nduring handcuffing could give rise to a Fourth Amendment claim for excessive\\n\\nforce.9\\n\\n Even assuming that the right to be free from excessive force during\\n\\nhandcuffing was then clearly established, however, we cannot rest our ultimate\\n\\nconclusion as to immunity on a right that was clearly established only at ʺa high\\n\\nlevel of generality.ʺ al‐Kidd, 563 U.S. at 742. Our analysis must instead be\\n\\nʺparticularizedʺ to the facts of the case. Anderson v. Creighton, 483 U.S. 635, 640\\n\\n(1987). We must therefore focus more narrowly on whether, at the time of\\n\\nCuginiʹs arrest, clearly established law required an officer to respond to a\\n\\ncomplaint by a person under arrest where, as here, that person exhibited only\\n\\nnon‐verbal aural and physical manifestations of her discomfort.\\n\\n We conclude that at the time of the plaintiffʹs arrest, there was no such\\n\\nclearly established law. It remained an open question in this Circuit whether a\\n\\nplaintiff asserting an excessive force claim was required to show evidence that an\\n\\n\\n\\n9See al‐Kidd, 563 U.S. at 746 (noting that consensus of cases of persuasive authority may\\ncreate clearly established law); Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010) (noting\\nthat even where this court has ʺnot explicitly held a law or course of conduct to be\\nunconstitutional, the unconstitutionality of that law or course of conduct will\\nnonetheless be treated as clearly established if decisions by this or other courts clearly\\nforeshadow a particular ruling on the issue, even if those decisions come from courts in\\nother circuitsʺ) (citation and internal quotation marks omitted).\\n\\n 26\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nofficer was made reasonably aware of her pain by means of an explicit verbal\\n\\ncomplaint. And our limited case law on the subject appeared to look to the\\n\\npresence or absence of such a complaint as a significant factor, if not a\\n\\nprerequisite to liability, in our Fourth Amendment analysis. See Shamir, 804 F.3d\\n\\nat 555, 557 (inferring a handcuffing‐based excessive force claim from a complaint\\n\\nwhere the complaint alleged that the plaintiff did make verbal complaints,\\n\\nrepeatedly asked that the handcuffs be loosened, complained that the handcuffs\\n\\nwere ʺreally tightʺ and ʺreally hurt,ʺ and showed police officers his ʺreally\\n\\ndiscolored,ʺ ʺreally swollenʺ hands); cf. Arroyo v. City of New York, 683 F. Appʹx\\n\\n73, 75 (2d Cir. 2017) (summary order) (affirming grant of summary judgment for\\n\\ndefendants on handcuffing‐based excessive force claim where plaintiff ʺalleged\\n\\nno physical injury and never asked for the handcuffs to be removedʺ). Similarly,\\n\\nthere was no such consensus in federal circuits outside ours whether a verbal\\n\\ncomplaint was necessary, so we need not—we cannot—come to a conclusion as\\n\\nto the consequences of any such consensus had indeed there been one.10\\n\\n\\n\\n10Some circuit courts required that a plaintiff make a formal complaint to establish an\\nexcessive force claim. See Lyons, 417 F.3d at 575‐76 (ʺIn order to reach a jury on [an\\nexcessive force] claim, the plaintiff . . . must show that officers ignored plaintiffʹs\\ncomplaints that the handcuffs were too tightʺ); Rodriguez v. Farrell, 294 F.3d 1276, 1279\\n\\n\\n\\n 27\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n Before today, then, the law at least left room for reasonable debate as to\\n\\nwhether the plaintiff was required to alert the defendant to her pain, and, if so,\\n\\nwhether her non‐verbal behavior was sufficient to do so. Lennon, 66 F.3d at 421.\\n\\nAlthough the plaintiff has persuasively argued that the defendant used undue\\n\\nforce in handcuffing her, a reasonable officer under these circumstances could\\n\\nhave concluded at the time of her arrest that he was not required to respond to her\\n\\nnon‐verbal indications of discomfort and pain. We therefore conclude that the\\n\\nplaintiff has failed to establish that the defendant violated a clearly established\\n\\nconstitutional right and that the district court therefore correctly granted the\\n\\ndefendantsʹ motion for summary judgment on that basis.11 We also conclude,\\n\\nhowever, that officers can no longer claim, as the defendant did here, that they\\n\\nare immune from liability for using plainly unreasonable force in handcuffing a\\n\\n\\n\\n\\nn.4 (11th Cir. 2002) (tight handcuffing claim failed where plaintiff ʺmoaned or gruntedʺ\\nin pain while in transport to the police station but never asked officer to adjust his\\nhandcuffs). Others, as discussed above, permitted an excessive force claim to reach a\\njury, so long as the officer was otherwise made aware that the handcuffs of the person\\nunder arrest were too tight. See Stainback, 569 F.3d at 772; Cortez, 478 F.3d at 1129; Liiv,\\n130 F. Appʹx at 852.\\n\\n Because we conclude that the plaintiffʹs federal law claim was properly dismissed, we\\n11\\n\\ndecline to reinstate her state law claims against the City.\\n\\n\\n\\n\\n 28\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nperson or using force that they should know is unreasonable based on the\\n\\narresteeʹs manifestation of signs of distress on the grounds that the law is not\\n\\nʺclearly established.ʺ12\\n\\n\\n\\n\\n12We acknowledge the presence of an ʺelephant in the room.ʺ The plaintiff testified\\nthat, at the time of her arrest, she and Palazzola already had a hostile personal\\nrelationship. Cugini further testified that there had been a months‐long ʺintimateʺ\\nrelationship between her daughter and Palazzola that ended when Palazzola treated\\nher violently. Cugini Dep. 37‐38, J. App. 79‐80. Palazzolaʹs mother and the plaintiffʹs\\nestranged sister—the woman who filed the current complaint against the plaintiff—\\nwere friends. And shortly before Cuginiʹs arrest, Palazzola trespassed on her property\\nwhile shouting her daughterʹs name. Cugini further testified that when she arrived at\\nCentral Booking, Palazzola, for no apparent reason, removed her prescription glasses\\nwhile she was on the steps outside the precinct. Id. at 22, J. App. 64. She could barely\\nsee without them. Id. After another officer, observing the encounter, reprimanded\\nPalazzola for doing so, he returned Cuginiʹs glasses to her. Id. at 23, J. App. 65.\\nPalazzola testified to the contrary that he never had a romantic relationship with\\nCuginiʹs daughter; was unaware of his motherʹs relationship with Cuginiʹs sister; and\\nconducted only regular ʺhome visitsʺ to Cuginiʹs dwelling prior to her arrest, during\\nwhich he had a cordial conversation with her daughter. Palazzola Dep. June 2, 2016, 7,\\n53‐56, J. App. 269, 316‐18.\\n\\nThese serious, even tawdry, accusations and denials seem a far cry from those that may\\nbe expected to emerge in a typical confrontation between a law enforcement official and\\na person whom he is seeking to restrain. But their truth or falsity does not ultimately\\naffect the outcome of this appeal. As we have explained, the subjective aspects of the\\ndefendantʹs behavior, his ʺunderlying intent or motivation,ʺ do not matter for purposes\\nof assessing whether his behavior violated the plaintiffʹs Fourth Amendment rights.\\nGraham, 490 U.S. at 397. We therefore conclude, as indeed the plaintiff has effectively\\nconceded in her presentation of this case on appeal, that they are not relevant to our\\nlegal assessment of the defendantʹs conduct.\\n\\n\\n 29\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n CONCLUSION\\n\\n While we recognize that the plaintiff has sufficiently demonstrated, for\\n\\npurposes of surviving a motion for summary judgment, a violation of her\\n\\nconstitutional right to be free from excessive force during handcuffing, we\\n\\nconclude that she has failed to establish that the defendant violated law that was\\n\\nclearly established at the time of her arrest. The defendant was therefore entitled\\n\\nto the protection of qualified immunity. Because we conclude that the plaintiffʹs\\n\\nfederal law claim was properly dismissed, we decline to reinstate her state law\\n\\nclaims. We have considered the partiesʹ remaining arguments on appeal and\\n\\nconclude that they are without merit. The judgment of the district court is\\n\\ntherefore AFFIRMED.\\n\\n\\n\\n\\n 30\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4450227/\", \"author_raw\": \"SACK, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"SACK"},"judge2":{"kind":"string","value":"HALL"},"judge3":{"kind":"string","value":"DRONEY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"SACK\": \", Circuit\", \"HALL\": \", Circuit\", \"DRONEY\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4672974/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Cugini v. City of New York, Palazzola\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-10-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n18‐1378\nCugini v. City of New York, Palazzola\n\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n August Term, 2019\n (Argued: March 29, 2019 Decided: October 25, 2019)\n Docket No. 18‐1378\n\n\n\n DONNA CUGINI,\n Plaintiff‐Appellant,\n\n v.\n\n CITY OF NEW YORK, CHRISTOPHER PALAZZOLA,\n Defendants‐Appellees.\n\n\nBefore: SACK, HALL, AND DRONEY, Circuit Judges.\n\n The plaintiff‐appellant, Donna Cugini, brought a civil rights action in the\n\nUnited States District Court for the Eastern District of New York against the City\n\nof New York and Officer Christopher Palazzola in his individual capacity. She\n\nalleged a federal claim for excessive force against Palazzola, under the Fourth\n\nand Fourteenth Amendments pursuant to 42 U.S.C. § 1983, and state law claims\n\nagainst the City for assault and battery and negligence. As relevant to this\n\nappeal, she alleged that Palazzola used excessive force in placing her in\n\nhandcuffs while she was in custody, thereby causing her to suffer, among other\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\nthings, permanent nerve damage to her wrist. On the defendantsʹ motion for\n\nsummary judgment, the district court (Sterling Johnson, Jr., Judge) assumed\n\nwithout deciding that the plaintiff had established her constitutional claim. It\n\ngranted the defendantsʹ motion for summary judgment, however, on the ground\n\nthat Palazzola was entitled to qualified immunity because his behavior did not\n\nconstitute a violation of a clearly established constitutional right. Because it\n\ndismissed the plaintiffʹs federal claim against Palazzola individually, the court\n\ndeclined to exercise supplemental jurisdiction over the plaintiffʹs state law claims\n\nagainst the City. We conclude that the plaintiff sufficiently established her\n\nconstitutional claim for excessive force for purposes of surviving a motion for\n\nsummary judgment. However, because at the time of the plaintiffʹs arrest\n\nPalazzolaʹs actions did not violate clearly established constitutional law, the\n\ndistrict court correctly concluded that his actions were protected by qualified\n\nimmunity and granted summary judgment on that basis. Accordingly, the\n\ndistrict courtʹs judgment is:\n\n\n AFFIRMED.\n\n\n SCOTT A. KORENBAUM (Jason Leventhal,\n Leventhal Law Group, P.C., Brooklyn, NY,\n\n\n\n 2\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\n on the brief), New York, NY, for Plaintiff‐\n Appellant.\n DIANA LAWLESS (Zachary W. Carter,\n Richard Dearing, Scott Shorr, on the brief),\n Corporation Counsel of the City of New\n York, New York, NY, for Defendants‐\n Appellees.\nSACK, Circuit Judge:\n\n On June 26, 2014, the plaintiff‐appellant Donna Cugini voluntarily\n\nsurrendered to police custody in Staten Island, New York, in connection with a\n\nmisdemeanor complaint of domestic stalking and harassment filed against her by\n\nher estranged sister. During her subsequent temporary detention, she was\n\nhandcuffed, suffering serious bodily injury as a result. She brought this action in\n\nthe United States District Court for the Eastern District of New York against the\n\nCity of New York and the police officer who physically restrained her while she\n\nwas in custody, Officer Christopher Palazzola, in his individual capacity. She\n\nasserted a federal claim against Palazzola, under the Fourth and Fourteenth\n\nAmendments pursuant to 42 U.S.C. § 1983, alleging that he used excessive force\n\nwhen handcuffing her, thereby causing her to suffer, among other things,\n\npermanent nerve damage to her wrist. She also made supplemental state law\n\nclaims of assault and battery and negligence against the City of New York.\n\n\n\n\n 3\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\n On the defendantsʹ motion for summary judgment, the district court\n\n(Sterling Johnson, Jr., Judge) assumed without deciding that Cugini had\n\nestablished her constitutional claim. The court concluded, however, that\n\nPalazzolaʹs actions did not violate a clearly established constitutional right, in\n\npart because Cugini gave only brief physical and non‐verbal manifestations of\n\nher discomfort while handcuffed, and thus failed to alert Palazzola sufficiently to\n\nher distress. The district court concluded that Palazzola was therefore entitled to\n\nqualified immunity and granted summary judgment on that basis. After\n\ndismissing Cuginiʹs federal claim, the district court declined to exercise\n\nsupplemental jurisdiction over her state law claims against the City.\n\n\n On appeal, Cugini argues that the district court thus erred. She contends\n\nthat Palazzola violated her clearly established constitutional right by using force\n\nagainst her that was excessive within the meaning of the Fourth Amendment.\n\nShe also asserts that because she has demonstrated that her federal law claim\n\nwas wrongly dismissed, she should be permitted to pursue her state law claims\n\nagainst the City in federal court.\n\n\n Under Graham v. Connor, 490 U.S. 386 (1989), we review a plaintiffʹs\n\nexcessive force claim under the Fourth Amendment standard of objective\n\n\n 4\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\nreasonableness to assess whether an officerʹs conduct was appropriate in light of\n\nthe facts and circumstances confronting him. Id. at 397. To determine whether\n\nthe amount of force an officer used was reasonable, we balance an individualʹs\n\nFourth Amendment interests against countervailing governmental interests,\n\nincluding the severity of the crime and whether the suspect poses a safety or\n\nflight risk or resists arrest. Id. at 396. A plaintiff must also demonstrate that the\n\nofficer was made reasonably aware that the force used was excessive. See\n\nKingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (objective reasonableness\n\ndetermination must be made ʺfrom the perspective of a reasonable officer on the\n\nscene, including what the officer knew at the time.ʺ) A plaintiff satisfies this\n\nrequirement if either the unreasonableness of the force used was apparent under\n\nthe circumstances, or the plaintiff signaled her distress, verbally or otherwise,\n\nsuch that a reasonable officer would have been aware of her pain, or both. See id.\n\n\n We conclude that the plaintiff has sufficiently established her\n\nconstitutional claim for purposes of surviving a motion for summary judgment.\n\nA reasonable jury could find that Palazzolaʹs actions were objectively\n\nunreasonable in light of, inter alia, the minor nature of the plaintiffʹs alleged\n\ncrime, the circumstances of her arrest, and the fact that the plaintiff posed no\n\n\n 5\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\napparent risk of flight or physical threat to the police or others. The defendant\n\nwas also reasonably made aware of the plaintiffʹs pain, both as a result of her\n\nsigns of distress—her repeated audible, if not verbal, expressions of pain—and\n\nbecause the unreasonableness of the force used by the defendant was apparent\n\nunder the circumstances.\n\n\n Nevertheless, because at the time of the defendantʹs actions it was not\n\nclearly established law that a plaintiff who did not verbally complain or request\n\nto have her handcuffs adjusted or removed, or both, could nevertheless recover\n\non a handcuffing‐based excessive force claim, the defendant was entitled to\n\nqualified immunity. The district court therefore correctly granted the\n\ndefendantsʹ motion for summary judgment on that ground.\n\n\n Factual Background\n\n\n We summarize the facts of this case ʺresolving all ambiguities and drawing\n\nall factual inferences in plaintiff[ʹs] favor as the non‐moving party,ʺ as we must in\n\nreviewing the grant of a motion for summary judgment. Anthony v. City of New\n\nYork, 339 F.3d 129, 134 (2d Cir. 2003) (citation omitted).\n\n\n\n\n 6\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\n The plaintiff‐appellant, Donna Cugini, was at all relevant times a 58‐year\n\nold nursing coordinator residing in Staten Island (Richmond County), New York.\n\nThe defendant‐appellee, Officer Christopher Palazzola, was at all relevant times\n\na domestic violence prevention officer for the New York City Police Department\n\nassigned to the 121st Precinct on Staten Island.\n\n\n On June 26, 2014, Cugini voluntarily surrendered to police custody at the\n\n121st Precinct, as arranged by her attorney, in connection with a misdemeanor\n\ncomplaint of domestic stalking and harassment filed by her estranged sister.\n\nWhen Cugini arrived at the precinct, Palazzola handcuffed her, processed her\n\narrest, and led her to a holding cell, where he removed her handcuffs.1\n\n\n Some two hours later, Palazzola returned to the plaintiffʹs holding cell to\n\nmove her to Staten Island Central Booking located inside the 120th Precinct\n\nstationhouse (ʺCentral Bookingʺ). He instructed her to step out of her cell and\n\nplace her hands behind her back. Although she readily complied, Palazzola\n\ngrabbed her arms, twisted her wrists into a ʺweird position,ʺ and handcuffed her\n\nʺvery tight.ʺ Cugini Dep. June 7, 2016 (ʺCugini Dep.ʺ), 13‐14, J. App. 55‐56. She\n\n\n\n1 Cugini asserts no claims in this litigation based on her initial handcuffing.\n\n\n 7\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\nsaid ʺouch,ʺ and her body shuddered. Id. at 14, J. App. 56. In response,\n\nPalazzola threatened her—ʺdonʹt make me hurt youʺ—and tightened her\n\nhandcuffs further. Id. at 15‐18, J. App. 57‐60. The plaintiff again reacted, either\n\nexclaiming ʺowʺ or uttering a ʺcry.ʺ Id. at 18, J. App. 60. Once the plaintiff was\n\nhandcuffed, Palazzola moved her to the rear of a police car and drove her to\n\nCentral Booking. Approximately 40 minutes elapsed between the time Palazzola\n\nhandcuffed Cugini and their arrival at Central Booking. During that time, the\n\nplaintiff did not otherwise inform Palazzola that her handcuffs were causing her\n\npain or ask that they be adjusted, refraining from doing so, she testified, because\n\nshe was ʺtoo scared.ʺ Cugini Examination Aug. 31, 2015, 37, J. App. 187.\n\n\n Once they arrived at Central Booking, Palazzola attempted to remove\n\nCuginiʹs handcuffs. She felt Palazzola ʺrip the cuffsʺ and continue to tighten,\n\nrather than loosen, them. Cugini Dep. 24‐25, J. App. 66‐67. A nearby officer saw\n\nthat Palazzola had put the handcuffs on backwards. Palazzola continued to\n\nʺfiddl[e] around with themʺ and to make the handcuffs ʺtighter and tighter.ʺ Id.\n\nat 25, J. App. 67. The other officer called for someone else to remove them.\n\n\n Immediately upon removal of her handcuffs, Cugini felt pain in her wrists.\n\nWhen she was released from custody later that day, she went directly to the\n\n\n 8\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\nemergency room at Richmond University Medical Center. Soon thereafter, she\n\nnevertheless began experiencing pain, numbness, and twitching in her arms.\n\nShe continues to suffer from what has been diagnosed as permanent nerve\n\ndamage to her right wrist, and has lost the ability to perform many basic\n\nhousehold functions as a result.\n\n\n In January 2015, all of the charges against the plaintiff were dismissed by\n\nNew York State for lack of evidence.\n\n\n Procedural History\n\n\n On September 23, 2015, the plaintiff filed a complaint in the United States\n\nDistrict Court for the Eastern District of New York against Officer Palazzola (the\n\nʺdefendantʺ) in his individual capacity and the City of New York (the ʺCityʺ;\n\ntogether with the defendant, the ʺdefendantsʺ). She alleged a federal claim for\n\nexcessive force under the Fourth and Fourteenth Amendments pursuant to 42\n\nU.S.C. § 1983 against Palazzola. She also alleged supplemental state law claims\n\nfor assault and battery and negligence against the City.\n\n\n On February 2, 2018, the defendants moved for summary judgment. They\n\nargued that the plaintiff could not recover on her excessive force claim against\n\n\n\n\n 9\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\nPalazzola because she lacked proof that she had complained about her handcuffs\n\nat the time or requested that they be adjusted. And they asserted that even if the\n\nplaintiffʹs constitutional rights had been violated, Palazzola was entitled to\n\nqualified immunity because a reasonable officer could conclude that he acted\n\nproperly under the circumstances. Finally, they argued that because the\n\nplaintiffʹs federal law claim should be dismissed, the district court should decline\n\nto exercise supplemental jurisdiction over her state law claims against the City.\n\nThe plaintiff opposed the motion, contending that her shudders and utterances\n\nof ʺouchʺ and ʺowʺ as her handcuffs were being tightened were ʺobvious and\n\nclear expressions of pain and made [Palazzola] aware that [her] handcuffs were\n\ntoo tight and were needlessly causing pain and injury.ʺ Pl. Mem. of Law in Opp.\n\nto Sum. J., Feb. 2, 2018, at 8 (Dkt. #30), J. App. 6. She argued that Palazzola\n\nshould not be entitled to qualified immunity solely on the basis of her failure to\n\nverbalize her pain because he ʺcaused [her] silence by intimidating [her] with [a]\n\nthreat.ʺ Id. at 9.2\n\n\n\n\n2 In her opposition to summary judgment, Cugini also voluntarily dismissed her state‐\nlaw negligence claim against the City.\n\n\n 10\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\n On April 10, 2018, the district court granted the defendantsʹ motion for\n\nsummary judgment. As a preliminary matter, the court briefly addressed the\n\nsubstance of the plaintiffʹs constitutional claim. In response to the defendantsʹ\n\nargument that the plaintiff could not prevail on her claim because ʺshe never\n\nasked that the handcuffs be loosened, or otherwise clearly communicated that\n\nthey were causing her pain,ʺ the court wrote that such a proposition\n\nʺoversimplifies the inquiry.ʺ Cugini v. City of New York, No. 15‐CV‐5517 (SJ) (ST),\n\n2018 WL 1730334, at *2 n.1, 2018 U.S. Dist. LEXIS 60741, at *5 n.1 (E.D.N.Y. Apr.\n\n10, 2018) (internal quotation marks omitted). It further noted that it was ʺreticent\n\nto impose a standard that would deny a plaintiff her day in court simply because\n\nshe did not utter the magic words.ʺ Id. ʺSuch a result,ʺ the court reasoned, ʺis\n\nnot in the spirit of the fact‐specific inquiry the Fourth Amendment necessitates.ʺ\n\nId. For purposes of its qualified immunity analysis, however, the district court\n\nassumed without deciding that the plaintiff had suffered a Fourth Amendment\n\ninjury and did not address the issue further.\n\n\n The district court then concluded that Palazzola was entitled to summary\n\njudgment on the ground of qualified immunity. ʺNothing in the facts indicates\n\nthat [Palazzola] used force beyond that which was necessary to handcuff an\n\n\n 11\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\narrestee.ʺ Cugini, 2018 WL 1730334, at *3, 2018 U.S. Dist. LEXIS 60741, at *6.\n\nMoreover, the plaintiffʹs ʺbrief physical and verbal manifestations of tepid\n\ndiscomfort were followed by a prolonged period free from any such\n\nexpressions.ʺ Id. Under these circumstances, the court thought, reasonable\n\nofficers could differ as to the legality of the defendantʹs conduct. The court\n\ntherefore concluded that Palazzola was entitled to qualified immunity and\n\ngranted summary judgment with respect to the plaintiffʹs excessive force claim\n\nagainst him. After dismissing the plaintiffʹs only federal claim, the district court\n\ndeclined to exercise supplemental jurisdiction over her state law claims against\n\nthe City.\n\n\n Cugini argues on appeal that the district court erred by granting Palazzola\n\nqualified immunity because a reasonable jury could conclude that the defendant\n\nviolated her clearly established Fourth Amendment rights by applying her\n\nhandcuffs with excessive force, while aware that he was doing so, resulting in\n\npermanent nerve damage to her wrist. The plaintiff also contends that because\n\nher federal law claim against Palazzola is viable, she should be permitted to\n\npursue her state law claims against the City in federal district court.\n\n\n DISCUSSION\n\n\n 12\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\n I. Standard of Review\n\n\n ʺWe review a district courtʹs grant of summary judgment de novo to\n\ndetermine whether the district court properly concluded that there was no\n\ngenuine dispute as to any material fact, such that the moving party was entitled\n\nto judgment as a matter of law.ʺ Myers v. Patterson, 819 F.3d 625, 632 (2d Cir.\n\n2016). We do so ʺresolving all ambiguities and drawing all factual inferences in\n\nplaintiff[ʹs] favor as the non‐moving party.ʺ Anthony, 339 F.3d at 134.\n\n\n When a public official such as Palazzola invokes qualified immunity at the\n\nsummary judgment stage, we ʺmust consider two questions: (1) whether the\n\nevidence, viewed in the light most favorable to the plaintiff, makes out a\n\nviolation of a statutory or constitutional right, and (2) whether that right was\n\nclearly established at the time of the alleged violation.ʺ Tracy v. Freshwater, 623\n\nF.3d 90, 96 (2d Cir. 2010).3 In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme\n\nCourt concluded that we must conduct these inquiries sequentially. Id. at 201.4\n\n\n\n3We sometimes discuss the doctrine of qualified immunity, as we did in Tracy, in terms\nof the ʺviolation of a statutory or constitutional right.ʺ 623 F.3d at 96 (emphasis added).\nOn this appeal, it is the constitutional rights of the plaintiff that are at issue.\n\n4 The Saucier test was later described by the Supreme Court thus:\n\n\n\n\n 13\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\nIn Pearson v. Callahan, 555 U.S. 223 (2009), however, it modified the Saucier two‐\n\nstep procedure so that we are now ʺpermitted to exercise [our] sound discretion\n\nin deciding which of these two prongs of the qualified immunity analysis should\n\nbe addressed first in light of the circumstances in the particular case at hand.ʺ Id.\n\nat 236. Here, we address them consecutively because the case involves\n\nʺquestions that do not frequently arise in cases in which a qualified immunity\n\ndefense is unavailable.ʺ Id.; see also Berg v. Kelly, 897 F.3d 99, 106 (2d Cir. 2018)\n\n(commenting that it is ʺworthwhileʺ to exercise discretion in addressing both\n\nprongs of the qualified immunity analysis under similar circumstances (quoting\n\nPearson, 555 U.S. at 242)). Accordingly, we first ask whether, taking the facts in\n\nthe light most favorable to the plaintiff, she has sufficiently established a\n\nconstitutional claim of excessive force.\n\n\n II. Excessive Force\n\n\n\n In Saucier [v. Katz, 533 U.S. 194 (2001)], this Court mandated a two‐step\n sequence for resolving government officialsʹ qualified immunity claims.\n First, a court must decide whether the facts that a plaintiff has alleged . . .\n or shown . . . make out a violation of a constitutional right. 533 U.S.[] at\n 201. Second, if the plaintiff has satisfied this first step, the court must\n decide whether the right at issue was ʹclearly establishedʹ at the time of\n defendantʹs alleged misconduct. [Id.]\n\nPearson v. Callahan, 555 U.S. 223, 232 (2009).\n\n\n 14\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\n The plaintiff asserts that Palazzola violated her constitutional rights by\n\nusing excessive force in handcuffing her while she was in custody. The district\n\ncourt declined to decide the plaintiffʹs constitutional claim, moving directly to its\n\nanalysis of qualified immunity instead. Addressing that issue on review\n\nnonetheless, as we are permitted to do under Pearson, we conclude that the\n\nplaintiff has sufficiently established a constitutional claim for excessive force.\n\n\n 1. Legal Standard\n\n\n In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court concluded\n\nthat where a claim for excessive force ʺarises in the context of an arrest or\n\ninvestigatory stop of a free citizen, it is most properly characterized as one\n\ninvoking the protections of the Fourth Amendment.ʺ Id. at 394. It is therefore\n\nanalyzed under the Fourth Amendmentʹs ʺreasonablenessʺ standard, rather than\n\nunder the subjective ʺsubstantive due processʺ approach, id. at 396‐97, ʺwhich\n\nrequires consideration of whether the individual officers acted in good faith or\n\nmaliciously and sadistically for the very purpose of causing harm,ʺ id. at 397\n\n(internal quotation marks omitted). Because ʺthe right to make an arrest or\n\ninvestigatory stop necessarily carries with it the right to use some degree of\n\nphysical coercion or threat thereof to effect it,ʺ determining whether the amount\n\n\n 15\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\nof force an officer used is reasonable ʺrequires a careful balancing of the nature\n\nand quality of the intrusion on the individualʹs Fourth Amendment interests\n\nagainst the countervailing governmental interests at stake.ʺ Id. at 396 (citations\n\nand internal quotation marks omitted). The proper application of the\n\nreasonableness standard, according to the Graham Court, ʺrequires careful\n\nattention to the facts and circumstances of each particular case, includingʺ (1)\n\nʺthe severity of the crime at issue,ʺ (2) ʺwhether the suspect poses an immediate\n\nthreat to the safety of the officers or others,ʺ and (3) ʺwhether [the suspect] is\n\nactively resisting arrest or attempting to evade arrest by flight.ʺ Id. And the\n\nCourt reiterated that the reasonableness inquiry is an ʺobjective one.ʺ Id. at 397.\n\nIt requires a court to view officersʹ actions ʺin light of the facts and circumstances\n\nconfronting them, without regard to their underlying intent or motivationʺ or\n\nʺthe 20/20 vision of hindsight.ʺ Id. at 396‐97 (citation omitted).\n\n\n Graham thus stands for the proposition that a government officer may not\n\nintrude on a personʹs Fourth Amendment rights by employing a degree of force\n\nbeyond that which is warranted by the objective circumstances of an arrest. And\n\nwe decided long ago that the objective reasonableness standard established in\n\nGraham applies to actions taken with respect to a person who asserts, as does the\n\n\n 16\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\nplaintiff here, a claim for excessive force after she has been arrested and\n\ndetained, but ʺprior to the time when [she] is arraigned or formally charged, and\n\nremains in the custody (sole or joint) of the arresting officer.ʺ Powell v. Gardner,\n\n891 F.2d 1039, 1044 (2d Cir. 1989).\n\n\n In Esmont v. City of New York, 371 F. Supp. 2d 202 (E.D.N.Y. 2005), the\n\nUnited States District Court for the Eastern District of New York concluded that\n\nplacing handcuffs on an arrestee in a manner that causes injury may ʺconstitute\n\nexcessive force in violation of the Fourth Amendment.ʺ Id. at 215 (citation\n\nomitted). And it provided three evidentiary factors for courts to consider in\n\nevaluating the reasonableness of a handcuffing: that ʺ(1) the [arresteeʹs]\n\nhandcuffs were unreasonably tight; (2) the defendants ignored the arresteeʹs\n\npleas that the handcuffs were too tight; and (3) the degree of injury to the\n\n[arresteeʹs] wrists.ʺ Id. at 215. Following Esmont, evidence of these factors has\n\noften been employed by other district courts in this Circuit to determine whether\n\na plaintiff has sufficiently alleged a claim for excessive force in the process of\n\nhandcuffing.5\n\n\n\n5See, e.g., Pizarro v. Ponte, No. 17 Civ. 4412 (LGS), 2019 WL 568875, at *6, 2019 U.S. Dist.\nLEXIS 22767, at *13‐14 (S.D.N.Y. Feb. 11, 2019); Othman v. City of New York, No. 13 Civ.\n\n\n\n 17\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\n These evidentiary factors may, indeed, prove useful to a district court in\n\nassessing the soundness of a handcuffing‐based excessive force claim. The ʺtest\n\nof reasonableness under the Fourth Amendment,ʺ however, ʺis not capable of\n\nprecise definition or mechanical application.ʺ Graham, 490 U.S. at 396 (internal\n\nquotation marks omitted). A courtʹs reasonableness analysis is not limited to a\n\nfactual checklist; it must instead be guided by a ʺcareful balanc[e]ʺ between the\n\nʺnature and quality of the intrusionʺ and the ʺcountervailing government\n\ninterests at stakeʺ under the circumstances. Id. (citation and internal quotation\n\nmarks omitted).\n\n Thus a plaintiff asserting a claim for excessive force need not always\n\nestablish that she alerted an officer to the fact that her handcuffs were too tight or\n\ncausing pain. The question is more broadly whether an officer reasonably\n\nshould have known during handcuffing that his use of force was excessive. A\n\nplaintiff satisfies this requirement if either the unreasonableness of the force used\n\n\n\n\n4771, 2018 WL 1701930, at *7, 2018 U.S. Dist. LEXIS 59967, at *21 (E.D.N.Y. Mar. 31,\n2018); Ali v. Ramos, No. 16‐CV‐01994 (ALC), 2018 WL 1353210, at *5, 2018 U.S. Dist.\nLEXIS 42489, at *10‐12 (S.D.N.Y. Mar. 14, 2018); Lloyd v. City of New York, 246 F. Supp. 3d\n704, 724 (S.D.N.Y. 2017); Case v. City of New York, 233 F. Supp. 3d 372, 385 (S.D.N.Y.\n2017); Barcomb v. Kraeger, No. 14‐CV‐1159 (JBA), 2016 WL 2644885, at *5, 2016 U.S. Dist.\nLEXIS 60536, at *14‐17 (D. Conn. May 5, 2016).\n\n\n 18\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\nwas apparent under the circumstances, or the plaintiff signaled her distress,\n\nverbally or otherwise, such that a reasonable officer would have been aware of\n\nher pain, or both. See Stainback v. Dixon, 569 F.3d 767, 772 (7th Cir. 2009) (ʺ[I]n\n\nsome cases, the fact that an act will cause pain or injury will be clear from the\n\nnature of the act itself.ʺ); Cortez v. McCauley, 478 F.3d 1108, 1129 (10th Cir. 2007)\n\n(en banc) (noting that the plaintiff must allege that ʺan officer ignored [her] timely\n\ncomplaints (or was otherwise made aware) that the handcuffs were too tightʺ)\n\n(emphasis added); Liiv v. City of Coeur DʹAlene, 130 F. Appʹx 848, 852 (9th Cir.\n\n2005) (recognizing excessive force claims may arise where ʺplaintiffs either\n\nsuffered damage to their wrists as a consequence of the handcuffs or the plaintiffs\n\ncomplained to the officers about the handcuffs being too tightʺ) (emphasis\n\nadded). And, as with all aspects of a Fourth Amendment inquiry, an officerʹs\n\nawareness is ʺjudged from the perspective of a reasonable officer on the scene.ʺ\n\nGraham, 490 U.S. at 396 (citation omitted).\n\n We conclude that where an officerʹs use of force in handcuffing is plainly\n\nunreasonable under the circumstances or where a plaintiff manifests clear signs\n\nof her distress—verbally or otherwise—a fact finder may decide that the officer\n\n\n\n\n 19\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\nreasonably should have known that his use of force was excessive for purposes\n\nof establishing a Fourth Amendment violation.\n\n 2. Application\n\n\n We conclude that each of the Graham factors weighs decidedly in the\n\nplaintiffʹs favor here. First, the crime at issue was a relatively minor one: the\n\nmisdemeanor offense of stalking and harassing a family member from whom she\n\nwas estranged. Second, there is no indication that the plaintiff posed a safety\n\nthreat, immediate or otherwise, to Palazzola or anyone else. To the contrary, she\n\nvoluntarily surrendered to police custody at her local precinct as instructed by\n\nher attorney. Third, she did not try to flee or resist Palazzolaʹs attempt to\n\nhandcuff her. She was in police custody at the time of his alleged abuse and\n\ncomplied with all of his directives while there. Under these circumstances, a\n\nreasonable jury could find that the severity of Palazzolaʹs intrusion—continuing\n\nto tighten the plaintiffʹs handcuffs after she expressed physical pain and using\n\nforce strong enough to cause her permanent injury—was unjustified. See, e.g.,\n\nPayne v. Pauley, 337 F.3d 767, 778–79 (7th Cir. 2003) (finding that officerʹs ʺforce in\n\narresting a woman who was not threatening to harm the police officer or anyone\n\nelse at the scene, was not resisting or evading arrest, was not attempting to flee,\n\n\n 20\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\nand was charged with such minor offenses, was not objectively reasonableʺ);\n\nKopec v. Tate, 361 F.3d 772, 777‐78 (3d Cir. 2004) (deciding that overly tight\n\nhandcuffing of arrestee for ten minutes leading to permanent wrist injury was\n\nunreasonable under ʺbenign circumstancesʺ); Saunders v. Duke, 766 F.3d 1262,\n\n1264 (11th Cir. 2014) (ʺ[A] police officer violates the Fourth Amendment . . . if he\n\nor she uses gratuitous and excessive force against a suspect who is under control,\n\nnot resisting, and obeying commands.ʺ)\n\n\n A reasonable officer on the scene should have known that the force used\n\nwas excessive. A reasonable jury could find that the degree of force employed by\n\nPalazzola was, objectively considered, disproportionate and unwarranted under\n\nthe circumstances. Moreover, Cugini directly communicated her distress to\n\nPalazzola through her pained utterances and bodily shudders while he was\n\nhandcuffing her. The defendant responded by threatening further harm—ʺdonʹt\n\n\n\n\n 21\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\nmake me hurt youʺ6—with the likely goal of silencing her complaints.7 He then\n\ncontinued to tighten her handcuffs, and Cugini again evidenced her physical\n\ndiscomfort. Under these circumstances, the defendant should reasonably have\n\nknown that his use of force was excessive, both because the plaintiff clearly\n\nsignaled her distress and because the excessive nature of the force used was\n\n\n6 The defendant argues that Cugini should not be permitted to rely on the threat that\nshe alleges he made in asserting her excessive force claim because doing so would\nrequire the court to assess his subjective motivation. We are indeed not permitted to\ntake Palazzolaʹs ʺunderlying intent or motivationʺ simpliciter into account in our\nanalysis of the plaintiffʹs constitutional claim. Graham, 490 U.S. at 397. But neither are\nwe permitted to ignore ʺthe facts and circumstances of [this] particular case.ʺ Id.\nViewed in the light most favorable to Cugini, the facts here include a law enforcement\nofficerʹs threat to the plaintiff with the apparent goal, and ultimate effect, of silencing\nher cries of distress, and a realization of that threat through the subsequent tightening\nof the plaintiffʹs handcuffs. A reasonable jury could find that Palazzolaʹs threatened\nharm reflected not only his subjective motivation, but also, objectively, whether the\nforce used was excessive and whether he was reasonably made aware of the plaintiffʹs\npain. A reasonable jury could also find that it was unreasonable for Palazzola to\nassume that the plaintiff was all right based on her silence following the handcuffing, in\nlight of the fact that the plaintiff may only have remained silent because of Palazzolaʹs\nthreat of further pain. It may therefore to that extent be considered.\n\n7Other courts have noted the risk that officer intimidation may suppress the complaints\nof an arrested person. See Warren v. Williams, No. Civ.A. 304CV537 (JCH), 2006 WL\n860998, at *37, 2006 U.S. Dist. LEXIS 18900, at *113‐14 (D. Conn. Mar. 31, 2006) (where\nofficers made threats of further force, and plaintiff failed to complain out of fear,\nʺgeneral complaints about the handcuffs [from others] could have reasonably put the\ndefendants on notice that they should check and adjust the cuffs of the occupantsʺ); see\nalso Fry v. Smoker, No. Civ.A. 11‐3015, 2012 WL 1622656, at *6, 2012 U.S. Dist. LEXIS\n64939, at *16‐17 (E.D. Pa. May 9, 2012) (noting that there are ʺnumerous reasons why\narrestees may not complain to arresting officers that their handcuffs are too tight, such\nas intimidation by the officerʺ).\n\n\n 22\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\napparent.\n\n We conclude, then, that a reasonable jury could find that the defendantʹs\n\nactions were objectively unreasonable under the circumstances and that Cugini\n\nhas therefore established a Fourth Amendment violation for present purposes.\n\n\n III. Qualified Immunity\n\n\n The district court granted summary judgment on the ground that\n\nirrespective of whether Palazzola violated a constitutional right of the plaintiff,\n\nhe was entitled to qualified immunity. On appeal, the plaintiff argues that there\n\nwas clearly established law at the time of the relevant events that ʺthe use of\n\nentirely gratuitous force against a restrained and unresisting arrestee by an\n\nofficer is unreasonable, and therefore, excessive within the meaning of the Fourth\n\nAmendment.ʺ Pl. Br. 18. The defendant responds that the facts as the plaintiff\n\nalleges them did not constitute a violation of clearly established law because,\n\naccording to the allegations, she ʺdid not alert [him] that he could not tighten, or\n\nhad to loosen, [her] handcuffs.ʺ Def. Br. 7.\n\n\n To determine whether a defendant officer is entitled to qualified immunity\n\nfrom a Fourth Amendment claim against him on a motion for summary\n\njudgment, we are to assess whether ʺunder clearly established law, every\n\n 23\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\nreasonable officer would have concluded that [the defendantʹs] actions violated\n\n[the plaintiffʹs] Fourth Amendment rights in the particular circumstance\n\npresented by the uncontested facts and the facts presumed in [the plaintiffʹs]\n\nfavor.ʺ Brown v. City of New York, 862 F.3d 182, 190 (2d Cir. 2017). In other\n\nwords, summary judgment for the defendant is required where ʺthe only\n\nconclusion a rational jury could reach is that reasonable officers would disagree\n\nabout the legality of the [defendantʹs] conduct under the circumstances.ʺ Lennon\n\nv. Miller, 66 F.3d 416, 421 (2d Cir. 1995). As a general rule, to determine whether\n\na right is clearly established, we consider ʺSupreme Court decisions, our own\n\ndecisions, and decisions from other circuit courts.ʺ Simon v. City of New York, 893\n\nF.3d 83, 92 (2d Cir. 2018); see also Ashcroft v. al‐Kidd, 563 U.S. 731, 746 (2011)\n\n(ʺ[Q]ualified immunity is lost when plaintiffs point either to cases of controlling\n\nauthority in their jurisdiction at the time of the incident or to a consensus of cases\n\nof persuasive authority such that a reasonable officer could not have believed\n\nthat his actions were lawful.ʺ) (internal quotation marks omitted). That is not to\n\nsay, however, that courts ʺrequire a case directly on point, but existing precedent\n\nmust have placed the statutory or constitutional question beyond debate.ʺ al‐\n\nKidd, 563 U.S. at 741.\n\n\n\n 24\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\n At the time of the plaintiffʹs arrest, the use of excessive force in\n\nhandcuffing was prohibited by clearly established constitutional law. While we\n\nhad yet to formally hold that a defendant may violate a plaintiffʹs Fourth\n\nAmendment rights in a handcuffing‐based excessive force claim, we had long\n\nrejected the principle that handcuffing is ʺper se reasonable.ʺ Soares v. State of\n\nConn., 8 F.3d 917, 921 (2d Cir. 1993); see Johnson v. Turnbill, 715 F. Appʹx 84, 85 (2d\n\nCir. 2018) (summary order) (recognizing that ʺexcessively tight handcuffing that\n\ncauses injury can constitute excessive forceʺ under the Fourth Amendment\n\n(quoting Shamir v. City of New York, 804 F.3d 553, 557 (2d Cir. 2015)). And a\n\nconsensus existed among our sister circuits that unduly tight handcuffing can\n\nconstitute excessive force in violation of the Fourth Amendment.8 That was\n\nenough to clearly establish in this Circuit that an officerʹs use of excessive force\n\n\n\n\n8See, e.g., Calvi v. Knox Cty., 470 F.3d 422, 428 (1st Cir. 2006); Kopec, 361 F.3d at 777‐78\n(3d Cir. 2004); Heitschmidt v. City of Houston, 161 F.3d 834, 839‐40 (5th Cir. 1998); Lyons v.\nCity of Xenia, 417 F.3d 565, 575‐76 (6th Cir. 2005); Herzog v. Vill. of Winnetka, 309 F.3d\n1041, 1043 (7th Cir. 2002); Hanig v. Lee, 415 F.3d 822, 824 (8th Cir. 2005); Liiv, 130 F.\nAppʹx at 852 (9th Cir. 2005); Vondrak v. City of Las Cruces, 535 F.3d 1198, 1208‐09 (10th\nCir. 2008). But see Brown v. Gilmore, 278 F.3d 362, 369 (4th Cir. 2002) (ʺ[A] standard\nprocedure such as handcuffing would rarely constitute excessive force where the\nofficers were justified . . . in effecting the underlying arrest.ʺ).\n\n\n\n\n 25\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\nduring handcuffing could give rise to a Fourth Amendment claim for excessive\n\nforce.9\n\n Even assuming that the right to be free from excessive force during\n\nhandcuffing was then clearly established, however, we cannot rest our ultimate\n\nconclusion as to immunity on a right that was clearly established only at ʺa high\n\nlevel of generality.ʺ al‐Kidd, 563 U.S. at 742. Our analysis must instead be\n\nʺparticularizedʺ to the facts of the case. Anderson v. Creighton, 483 U.S. 635, 640\n\n(1987). We must therefore focus more narrowly on whether, at the time of\n\nCuginiʹs arrest, clearly established law required an officer to respond to a\n\ncomplaint by a person under arrest where, as here, that person exhibited only\n\nnon‐verbal aural and physical manifestations of her discomfort.\n\n We conclude that at the time of the plaintiffʹs arrest, there was no such\n\nclearly established law. It remained an open question in this Circuit whether a\n\nplaintiff asserting an excessive force claim was required to show evidence that an\n\n\n\n9See al‐Kidd, 563 U.S. at 746 (noting that consensus of cases of persuasive authority may\ncreate clearly established law); Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010) (noting\nthat even where this court has ʺnot explicitly held a law or course of conduct to be\nunconstitutional, the unconstitutionality of that law or course of conduct will\nnonetheless be treated as clearly established if decisions by this or other courts clearly\nforeshadow a particular ruling on the issue, even if those decisions come from courts in\nother circuitsʺ) (citation and internal quotation marks omitted).\n\n 26\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\nofficer was made reasonably aware of her pain by means of an explicit verbal\n\ncomplaint. And our limited case law on the subject appeared to look to the\n\npresence or absence of such a complaint as a significant factor, if not a\n\nprerequisite to liability, in our Fourth Amendment analysis. See Shamir, 804 F.3d\n\nat 555, 557 (inferring a handcuffing‐based excessive force claim from a complaint\n\nwhere the complaint alleged that the plaintiff did make verbal complaints,\n\nrepeatedly asked that the handcuffs be loosened, complained that the handcuffs\n\nwere ʺreally tightʺ and ʺreally hurt,ʺ and showed police officers his ʺreally\n\ndiscolored,ʺ ʺreally swollenʺ hands); cf. Arroyo v. City of New York, 683 F. Appʹx\n\n73, 75 (2d Cir. 2017) (summary order) (affirming grant of summary judgment for\n\ndefendants on handcuffing‐based excessive force claim where plaintiff ʺalleged\n\nno physical injury and never asked for the handcuffs to be removedʺ). Similarly,\n\nthere was no such consensus in federal circuits outside ours whether a verbal\n\ncomplaint was necessary, so we need not—we cannot—come to a conclusion as\n\nto the consequences of any such consensus had indeed there been one.10\n\n\n\n10Some circuit courts required that a plaintiff make a formal complaint to establish an\nexcessive force claim. See Lyons, 417 F.3d at 575‐76 (ʺIn order to reach a jury on [an\nexcessive force] claim, the plaintiff . . . must show that officers ignored plaintiffʹs\ncomplaints that the handcuffs were too tightʺ); Rodriguez v. Farrell, 294 F.3d 1276, 1279\n\n\n\n 27\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\n Before today, then, the law at least left room for reasonable debate as to\n\nwhether the plaintiff was required to alert the defendant to her pain, and, if so,\n\nwhether her non‐verbal behavior was sufficient to do so. Lennon, 66 F.3d at 421.\n\nAlthough the plaintiff has persuasively argued that the defendant used undue\n\nforce in handcuffing her, a reasonable officer under these circumstances could\n\nhave concluded at the time of her arrest that he was not required to respond to her\n\nnon‐verbal indications of discomfort and pain. We therefore conclude that the\n\nplaintiff has failed to establish that the defendant violated a clearly established\n\nconstitutional right and that the district court therefore correctly granted the\n\ndefendantsʹ motion for summary judgment on that basis.11 We also conclude,\n\nhowever, that officers can no longer claim, as the defendant did here, that they\n\nare immune from liability for using plainly unreasonable force in handcuffing a\n\n\n\n\nn.4 (11th Cir. 2002) (tight handcuffing claim failed where plaintiff ʺmoaned or gruntedʺ\nin pain while in transport to the police station but never asked officer to adjust his\nhandcuffs). Others, as discussed above, permitted an excessive force claim to reach a\njury, so long as the officer was otherwise made aware that the handcuffs of the person\nunder arrest were too tight. See Stainback, 569 F.3d at 772; Cortez, 478 F.3d at 1129; Liiv,\n130 F. Appʹx at 852.\n\n Because we conclude that the plaintiffʹs federal law claim was properly dismissed, we\n11\n\ndecline to reinstate her state law claims against the City.\n\n\n\n\n 28\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\nperson or using force that they should know is unreasonable based on the\n\narresteeʹs manifestation of signs of distress on the grounds that the law is not\n\nʺclearly established.ʺ12\n\n\n\n\n12We acknowledge the presence of an ʺelephant in the room.ʺ The plaintiff testified\nthat, at the time of her arrest, she and Palazzola already had a hostile personal\nrelationship. Cugini further testified that there had been a months‐long ʺintimateʺ\nrelationship between her daughter and Palazzola that ended when Palazzola treated\nher violently. Cugini Dep. 37‐38, J. App. 79‐80. Palazzolaʹs mother and the plaintiffʹs\nestranged sister—the woman who filed the current complaint against the plaintiff—\nwere friends. And shortly before Cuginiʹs arrest, Palazzola trespassed on her property\nwhile shouting her daughterʹs name. Cugini further testified that when she arrived at\nCentral Booking, Palazzola, for no apparent reason, removed her prescription glasses\nwhile she was on the steps outside the precinct. Id. at 22, J. App. 64. She could barely\nsee without them. Id. After another officer, observing the encounter, reprimanded\nPalazzola for doing so, he returned Cuginiʹs glasses to her. Id. at 23, J. App. 65.\nPalazzola testified to the contrary that he never had a romantic relationship with\nCuginiʹs daughter; was unaware of his motherʹs relationship with Cuginiʹs sister; and\nconducted only regular ʺhome visitsʺ to Cuginiʹs dwelling prior to her arrest, during\nwhich he had a cordial conversation with her daughter. Palazzola Dep. June 2, 2016, 7,\n53‐56, J. App. 269, 316‐18.\n\nThese serious, even tawdry, accusations and denials seem a far cry from those that may\nbe expected to emerge in a typical confrontation between a law enforcement official and\na person whom he is seeking to restrain. But their truth or falsity does not ultimately\naffect the outcome of this appeal. As we have explained, the subjective aspects of the\ndefendantʹs behavior, his ʺunderlying intent or motivation,ʺ do not matter for purposes\nof assessing whether his behavior violated the plaintiffʹs Fourth Amendment rights.\nGraham, 490 U.S. at 397. We therefore conclude, as indeed the plaintiff has effectively\nconceded in her presentation of this case on appeal, that they are not relevant to our\nlegal assessment of the defendantʹs conduct.\n\n\n 29\n\f 18‐1378\n Cugini v. City of New York, Palazzola\n\n CONCLUSION\n\n While we recognize that the plaintiff has sufficiently demonstrated, for\n\npurposes of surviving a motion for summary judgment, a violation of her\n\nconstitutional right to be free from excessive force during handcuffing, we\n\nconclude that she has failed to establish that the defendant violated law that was\n\nclearly established at the time of her arrest. The defendant was therefore entitled\n\nto the protection of qualified immunity. Because we conclude that the plaintiffʹs\n\nfederal law claim was properly dismissed, we decline to reinstate her state law\n\nclaims. We have considered the partiesʹ remaining arguments on appeal and\n\nconclude that they are without merit. The judgment of the district court is\n\ntherefore AFFIRMED.\n\n\n\n\n 30\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Cugini v. City of New York, Palazzola\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-10-25\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n18‐1378\\nCugini v. City of New York, Palazzola\\n\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n August Term, 2019\\n (Argued: March 29, 2019 Decided: October 25, 2019)\\n Docket No. 18‐1378\\n\\n\\n\\n DONNA CUGINI,\\n Plaintiff‐Appellant,\\n\\n v.\\n\\n CITY OF NEW YORK, CHRISTOPHER PALAZZOLA,\\n Defendants‐Appellees.\\n\\n\\nBefore: SACK, HALL, AND DRONEY, Circuit Judges.\\n\\n The plaintiff‐appellant, Donna Cugini, brought a civil rights action in the\\n\\nUnited States District Court for the Eastern District of New York against the City\\n\\nof New York and Officer Christopher Palazzola in his individual capacity. She\\n\\nalleged a federal claim for excessive force against Palazzola, under the Fourth\\n\\nand Fourteenth Amendments pursuant to 42 U.S.C. § 1983, and state law claims\\n\\nagainst the City for assault and battery and negligence. As relevant to this\\n\\nappeal, she alleged that Palazzola used excessive force in placing her in\\n\\nhandcuffs while she was in custody, thereby causing her to suffer, among other\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nthings, permanent nerve damage to her wrist. On the defendantsʹ motion for\\n\\nsummary judgment, the district court (Sterling Johnson, Jr., Judge) assumed\\n\\nwithout deciding that the plaintiff had established her constitutional claim. It\\n\\ngranted the defendantsʹ motion for summary judgment, however, on the ground\\n\\nthat Palazzola was entitled to qualified immunity because his behavior did not\\n\\nconstitute a violation of a clearly established constitutional right. Because it\\n\\ndismissed the plaintiffʹs federal claim against Palazzola individually, the court\\n\\ndeclined to exercise supplemental jurisdiction over the plaintiffʹs state law claims\\n\\nagainst the City. We conclude that the plaintiff sufficiently established her\\n\\nconstitutional claim for excessive force for purposes of surviving a motion for\\n\\nsummary judgment. However, because at the time of the plaintiffʹs arrest\\n\\nPalazzolaʹs actions did not violate clearly established constitutional law, the\\n\\ndistrict court correctly concluded that his actions were protected by qualified\\n\\nimmunity and granted summary judgment on that basis. Accordingly, the\\n\\ndistrict courtʹs judgment is:\\n\\n\\n AFFIRMED.\\n\\n\\n SCOTT A. KORENBAUM (Jason Leventhal,\\n Leventhal Law Group, P.C., Brooklyn, NY,\\n\\n\\n\\n 2\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n on the brief), New York, NY, for Plaintiff‐\\n Appellant.\\n DIANA LAWLESS (Zachary W. Carter,\\n Richard Dearing, Scott Shorr, on the brief),\\n Corporation Counsel of the City of New\\n York, New York, NY, for Defendants‐\\n Appellees.\\nSACK, Circuit Judge:\\n\\n On June 26, 2014, the plaintiff‐appellant Donna Cugini voluntarily\\n\\nsurrendered to police custody in Staten Island, New York, in connection with a\\n\\nmisdemeanor complaint of domestic stalking and harassment filed against her by\\n\\nher estranged sister. During her subsequent temporary detention, she was\\n\\nhandcuffed, suffering serious bodily injury as a result. She brought this action in\\n\\nthe United States District Court for the Eastern District of New York against the\\n\\nCity of New York and the police officer who physically restrained her while she\\n\\nwas in custody, Officer Christopher Palazzola, in his individual capacity. She\\n\\nasserted a federal claim against Palazzola, under the Fourth and Fourteenth\\n\\nAmendments pursuant to 42 U.S.C. § 1983, alleging that he used excessive force\\n\\nwhen handcuffing her, thereby causing her to suffer, among other things,\\n\\npermanent nerve damage to her wrist. She also made supplemental state law\\n\\nclaims of assault and battery and negligence against the City of New York.\\n\\n\\n\\n\\n 3\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n On the defendantsʹ motion for summary judgment, the district court\\n\\n(Sterling Johnson, Jr., Judge) assumed without deciding that Cugini had\\n\\nestablished her constitutional claim. The court concluded, however, that\\n\\nPalazzolaʹs actions did not violate a clearly established constitutional right, in\\n\\npart because Cugini gave only brief physical and non‐verbal manifestations of\\n\\nher discomfort while handcuffed, and thus failed to alert Palazzola sufficiently to\\n\\nher distress. The district court concluded that Palazzola was therefore entitled to\\n\\nqualified immunity and granted summary judgment on that basis. After\\n\\ndismissing Cuginiʹs federal claim, the district court declined to exercise\\n\\nsupplemental jurisdiction over her state law claims against the City.\\n\\n\\n On appeal, Cugini argues that the district court thus erred. She contends\\n\\nthat Palazzola violated her clearly established constitutional right by using force\\n\\nagainst her that was excessive within the meaning of the Fourth Amendment.\\n\\nShe also asserts that because she has demonstrated that her federal law claim\\n\\nwas wrongly dismissed, she should be permitted to pursue her state law claims\\n\\nagainst the City in federal court.\\n\\n\\n Under Graham v. Connor, 490 U.S. 386 (1989), we review a plaintiffʹs\\n\\nexcessive force claim under the Fourth Amendment standard of objective\\n\\n\\n 4\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nreasonableness to assess whether an officerʹs conduct was appropriate in light of\\n\\nthe facts and circumstances confronting him. Id. at 397. To determine whether\\n\\nthe amount of force an officer used was reasonable, we balance an individualʹs\\n\\nFourth Amendment interests against countervailing governmental interests,\\n\\nincluding the severity of the crime and whether the suspect poses a safety or\\n\\nflight risk or resists arrest. Id. at 396. A plaintiff must also demonstrate that the\\n\\nofficer was made reasonably aware that the force used was excessive. See\\n\\nKingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (objective reasonableness\\n\\ndetermination must be made ʺfrom the perspective of a reasonable officer on the\\n\\nscene, including what the officer knew at the time.ʺ) A plaintiff satisfies this\\n\\nrequirement if either the unreasonableness of the force used was apparent under\\n\\nthe circumstances, or the plaintiff signaled her distress, verbally or otherwise,\\n\\nsuch that a reasonable officer would have been aware of her pain, or both. See id.\\n\\n\\n We conclude that the plaintiff has sufficiently established her\\n\\nconstitutional claim for purposes of surviving a motion for summary judgment.\\n\\nA reasonable jury could find that Palazzolaʹs actions were objectively\\n\\nunreasonable in light of, inter alia, the minor nature of the plaintiffʹs alleged\\n\\ncrime, the circumstances of her arrest, and the fact that the plaintiff posed no\\n\\n\\n 5\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\napparent risk of flight or physical threat to the police or others. The defendant\\n\\nwas also reasonably made aware of the plaintiffʹs pain, both as a result of her\\n\\nsigns of distress—her repeated audible, if not verbal, expressions of pain—and\\n\\nbecause the unreasonableness of the force used by the defendant was apparent\\n\\nunder the circumstances.\\n\\n\\n Nevertheless, because at the time of the defendantʹs actions it was not\\n\\nclearly established law that a plaintiff who did not verbally complain or request\\n\\nto have her handcuffs adjusted or removed, or both, could nevertheless recover\\n\\non a handcuffing‐based excessive force claim, the defendant was entitled to\\n\\nqualified immunity. The district court therefore correctly granted the\\n\\ndefendantsʹ motion for summary judgment on that ground.\\n\\n\\n Factual Background\\n\\n\\n We summarize the facts of this case ʺresolving all ambiguities and drawing\\n\\nall factual inferences in plaintiff[ʹs] favor as the non‐moving party,ʺ as we must in\\n\\nreviewing the grant of a motion for summary judgment. Anthony v. City of New\\n\\nYork, 339 F.3d 129, 134 (2d Cir. 2003) (citation omitted).\\n\\n\\n\\n\\n 6\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n The plaintiff‐appellant, Donna Cugini, was at all relevant times a 58‐year\\n\\nold nursing coordinator residing in Staten Island (Richmond County), New York.\\n\\nThe defendant‐appellee, Officer Christopher Palazzola, was at all relevant times\\n\\na domestic violence prevention officer for the New York City Police Department\\n\\nassigned to the 121st Precinct on Staten Island.\\n\\n\\n On June 26, 2014, Cugini voluntarily surrendered to police custody at the\\n\\n121st Precinct, as arranged by her attorney, in connection with a misdemeanor\\n\\ncomplaint of domestic stalking and harassment filed by her estranged sister.\\n\\nWhen Cugini arrived at the precinct, Palazzola handcuffed her, processed her\\n\\narrest, and led her to a holding cell, where he removed her handcuffs.1\\n\\n\\n Some two hours later, Palazzola returned to the plaintiffʹs holding cell to\\n\\nmove her to Staten Island Central Booking located inside the 120th Precinct\\n\\nstationhouse (ʺCentral Bookingʺ). He instructed her to step out of her cell and\\n\\nplace her hands behind her back. Although she readily complied, Palazzola\\n\\ngrabbed her arms, twisted her wrists into a ʺweird position,ʺ and handcuffed her\\n\\nʺvery tight.ʺ Cugini Dep. June 7, 2016 (ʺCugini Dep.ʺ), 13‐14, J. App. 55‐56. She\\n\\n\\n\\n1 Cugini asserts no claims in this litigation based on her initial handcuffing.\\n\\n\\n 7\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nsaid ʺouch,ʺ and her body shuddered. Id. at 14, J. App. 56. In response,\\n\\nPalazzola threatened her—ʺdonʹt make me hurt youʺ—and tightened her\\n\\nhandcuffs further. Id. at 15‐18, J. App. 57‐60. The plaintiff again reacted, either\\n\\nexclaiming ʺowʺ or uttering a ʺcry.ʺ Id. at 18, J. App. 60. Once the plaintiff was\\n\\nhandcuffed, Palazzola moved her to the rear of a police car and drove her to\\n\\nCentral Booking. Approximately 40 minutes elapsed between the time Palazzola\\n\\nhandcuffed Cugini and their arrival at Central Booking. During that time, the\\n\\nplaintiff did not otherwise inform Palazzola that her handcuffs were causing her\\n\\npain or ask that they be adjusted, refraining from doing so, she testified, because\\n\\nshe was ʺtoo scared.ʺ Cugini Examination Aug. 31, 2015, 37, J. App. 187.\\n\\n\\n Once they arrived at Central Booking, Palazzola attempted to remove\\n\\nCuginiʹs handcuffs. She felt Palazzola ʺrip the cuffsʺ and continue to tighten,\\n\\nrather than loosen, them. Cugini Dep. 24‐25, J. App. 66‐67. A nearby officer saw\\n\\nthat Palazzola had put the handcuffs on backwards. Palazzola continued to\\n\\nʺfiddl[e] around with themʺ and to make the handcuffs ʺtighter and tighter.ʺ Id.\\n\\nat 25, J. App. 67. The other officer called for someone else to remove them.\\n\\n\\n Immediately upon removal of her handcuffs, Cugini felt pain in her wrists.\\n\\nWhen she was released from custody later that day, she went directly to the\\n\\n\\n 8\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nemergency room at Richmond University Medical Center. Soon thereafter, she\\n\\nnevertheless began experiencing pain, numbness, and twitching in her arms.\\n\\nShe continues to suffer from what has been diagnosed as permanent nerve\\n\\ndamage to her right wrist, and has lost the ability to perform many basic\\n\\nhousehold functions as a result.\\n\\n\\n In January 2015, all of the charges against the plaintiff were dismissed by\\n\\nNew York State for lack of evidence.\\n\\n\\n Procedural History\\n\\n\\n On September 23, 2015, the plaintiff filed a complaint in the United States\\n\\nDistrict Court for the Eastern District of New York against Officer Palazzola (the\\n\\nʺdefendantʺ) in his individual capacity and the City of New York (the ʺCityʺ;\\n\\ntogether with the defendant, the ʺdefendantsʺ). She alleged a federal claim for\\n\\nexcessive force under the Fourth and Fourteenth Amendments pursuant to 42\\n\\nU.S.C. § 1983 against Palazzola. She also alleged supplemental state law claims\\n\\nfor assault and battery and negligence against the City.\\n\\n\\n On February 2, 2018, the defendants moved for summary judgment. They\\n\\nargued that the plaintiff could not recover on her excessive force claim against\\n\\n\\n\\n\\n 9\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nPalazzola because she lacked proof that she had complained about her handcuffs\\n\\nat the time or requested that they be adjusted. And they asserted that even if the\\n\\nplaintiffʹs constitutional rights had been violated, Palazzola was entitled to\\n\\nqualified immunity because a reasonable officer could conclude that he acted\\n\\nproperly under the circumstances. Finally, they argued that because the\\n\\nplaintiffʹs federal law claim should be dismissed, the district court should decline\\n\\nto exercise supplemental jurisdiction over her state law claims against the City.\\n\\nThe plaintiff opposed the motion, contending that her shudders and utterances\\n\\nof ʺouchʺ and ʺowʺ as her handcuffs were being tightened were ʺobvious and\\n\\nclear expressions of pain and made [Palazzola] aware that [her] handcuffs were\\n\\ntoo tight and were needlessly causing pain and injury.ʺ Pl. Mem. of Law in Opp.\\n\\nto Sum. J., Feb. 2, 2018, at 8 (Dkt. #30), J. App. 6. She argued that Palazzola\\n\\nshould not be entitled to qualified immunity solely on the basis of her failure to\\n\\nverbalize her pain because he ʺcaused [her] silence by intimidating [her] with [a]\\n\\nthreat.ʺ Id. at 9.2\\n\\n\\n\\n\\n2 In her opposition to summary judgment, Cugini also voluntarily dismissed her state‐\\nlaw negligence claim against the City.\\n\\n\\n 10\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n On April 10, 2018, the district court granted the defendantsʹ motion for\\n\\nsummary judgment. As a preliminary matter, the court briefly addressed the\\n\\nsubstance of the plaintiffʹs constitutional claim. In response to the defendantsʹ\\n\\nargument that the plaintiff could not prevail on her claim because ʺshe never\\n\\nasked that the handcuffs be loosened, or otherwise clearly communicated that\\n\\nthey were causing her pain,ʺ the court wrote that such a proposition\\n\\nʺoversimplifies the inquiry.ʺ Cugini v. City of New York, No. 15‐CV‐5517 (SJ) (ST),\\n\\n2018 WL 1730334, at *2 n.1, 2018 U.S. Dist. LEXIS 60741, at *5 n.1 (E.D.N.Y. Apr.\\n\\n10, 2018) (internal quotation marks omitted). It further noted that it was ʺreticent\\n\\nto impose a standard that would deny a plaintiff her day in court simply because\\n\\nshe did not utter the magic words.ʺ Id. ʺSuch a result,ʺ the court reasoned, ʺis\\n\\nnot in the spirit of the fact‐specific inquiry the Fourth Amendment necessitates.ʺ\\n\\nId. For purposes of its qualified immunity analysis, however, the district court\\n\\nassumed without deciding that the plaintiff had suffered a Fourth Amendment\\n\\ninjury and did not address the issue further.\\n\\n\\n The district court then concluded that Palazzola was entitled to summary\\n\\njudgment on the ground of qualified immunity. ʺNothing in the facts indicates\\n\\nthat [Palazzola] used force beyond that which was necessary to handcuff an\\n\\n\\n 11\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\narrestee.ʺ Cugini, 2018 WL 1730334, at *3, 2018 U.S. Dist. LEXIS 60741, at *6.\\n\\nMoreover, the plaintiffʹs ʺbrief physical and verbal manifestations of tepid\\n\\ndiscomfort were followed by a prolonged period free from any such\\n\\nexpressions.ʺ Id. Under these circumstances, the court thought, reasonable\\n\\nofficers could differ as to the legality of the defendantʹs conduct. The court\\n\\ntherefore concluded that Palazzola was entitled to qualified immunity and\\n\\ngranted summary judgment with respect to the plaintiffʹs excessive force claim\\n\\nagainst him. After dismissing the plaintiffʹs only federal claim, the district court\\n\\ndeclined to exercise supplemental jurisdiction over her state law claims against\\n\\nthe City.\\n\\n\\n Cugini argues on appeal that the district court erred by granting Palazzola\\n\\nqualified immunity because a reasonable jury could conclude that the defendant\\n\\nviolated her clearly established Fourth Amendment rights by applying her\\n\\nhandcuffs with excessive force, while aware that he was doing so, resulting in\\n\\npermanent nerve damage to her wrist. The plaintiff also contends that because\\n\\nher federal law claim against Palazzola is viable, she should be permitted to\\n\\npursue her state law claims against the City in federal district court.\\n\\n\\n DISCUSSION\\n\\n\\n 12\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n I. Standard of Review\\n\\n\\n ʺWe review a district courtʹs grant of summary judgment de novo to\\n\\ndetermine whether the district court properly concluded that there was no\\n\\ngenuine dispute as to any material fact, such that the moving party was entitled\\n\\nto judgment as a matter of law.ʺ Myers v. Patterson, 819 F.3d 625, 632 (2d Cir.\\n\\n2016). We do so ʺresolving all ambiguities and drawing all factual inferences in\\n\\nplaintiff[ʹs] favor as the non‐moving party.ʺ Anthony, 339 F.3d at 134.\\n\\n\\n When a public official such as Palazzola invokes qualified immunity at the\\n\\nsummary judgment stage, we ʺmust consider two questions: (1) whether the\\n\\nevidence, viewed in the light most favorable to the plaintiff, makes out a\\n\\nviolation of a statutory or constitutional right, and (2) whether that right was\\n\\nclearly established at the time of the alleged violation.ʺ Tracy v. Freshwater, 623\\n\\nF.3d 90, 96 (2d Cir. 2010).3 In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme\\n\\nCourt concluded that we must conduct these inquiries sequentially. Id. at 201.4\\n\\n\\n\\n3We sometimes discuss the doctrine of qualified immunity, as we did in Tracy, in terms\\nof the ʺviolation of a statutory or constitutional right.ʺ 623 F.3d at 96 (emphasis added).\\nOn this appeal, it is the constitutional rights of the plaintiff that are at issue.\\n\\n4 The Saucier test was later described by the Supreme Court thus:\\n\\n\\n\\n\\n 13\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nIn Pearson v. Callahan, 555 U.S. 223 (2009), however, it modified the Saucier two‐\\n\\nstep procedure so that we are now ʺpermitted to exercise [our] sound discretion\\n\\nin deciding which of these two prongs of the qualified immunity analysis should\\n\\nbe addressed first in light of the circumstances in the particular case at hand.ʺ Id.\\n\\nat 236. Here, we address them consecutively because the case involves\\n\\nʺquestions that do not frequently arise in cases in which a qualified immunity\\n\\ndefense is unavailable.ʺ Id.; see also Berg v. Kelly, 897 F.3d 99, 106 (2d Cir. 2018)\\n\\n(commenting that it is ʺworthwhileʺ to exercise discretion in addressing both\\n\\nprongs of the qualified immunity analysis under similar circumstances (quoting\\n\\nPearson, 555 U.S. at 242)). Accordingly, we first ask whether, taking the facts in\\n\\nthe light most favorable to the plaintiff, she has sufficiently established a\\n\\nconstitutional claim of excessive force.\\n\\n\\n II. Excessive Force\\n\\n\\n\\n In Saucier [v. Katz, 533 U.S. 194 (2001)], this Court mandated a two‐step\\n sequence for resolving government officialsʹ qualified immunity claims.\\n First, a court must decide whether the facts that a plaintiff has alleged . . .\\n or shown . . . make out a violation of a constitutional right. 533 U.S.[] at\\n 201. Second, if the plaintiff has satisfied this first step, the court must\\n decide whether the right at issue was ʹclearly establishedʹ at the time of\\n defendantʹs alleged misconduct. [Id.]\\n\\nPearson v. Callahan, 555 U.S. 223, 232 (2009).\\n\\n\\n 14\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n The plaintiff asserts that Palazzola violated her constitutional rights by\\n\\nusing excessive force in handcuffing her while she was in custody. The district\\n\\ncourt declined to decide the plaintiffʹs constitutional claim, moving directly to its\\n\\nanalysis of qualified immunity instead. Addressing that issue on review\\n\\nnonetheless, as we are permitted to do under Pearson, we conclude that the\\n\\nplaintiff has sufficiently established a constitutional claim for excessive force.\\n\\n\\n 1. Legal Standard\\n\\n\\n In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court concluded\\n\\nthat where a claim for excessive force ʺarises in the context of an arrest or\\n\\ninvestigatory stop of a free citizen, it is most properly characterized as one\\n\\ninvoking the protections of the Fourth Amendment.ʺ Id. at 394. It is therefore\\n\\nanalyzed under the Fourth Amendmentʹs ʺreasonablenessʺ standard, rather than\\n\\nunder the subjective ʺsubstantive due processʺ approach, id. at 396‐97, ʺwhich\\n\\nrequires consideration of whether the individual officers acted in good faith or\\n\\nmaliciously and sadistically for the very purpose of causing harm,ʺ id. at 397\\n\\n(internal quotation marks omitted). Because ʺthe right to make an arrest or\\n\\ninvestigatory stop necessarily carries with it the right to use some degree of\\n\\nphysical coercion or threat thereof to effect it,ʺ determining whether the amount\\n\\n\\n 15\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nof force an officer used is reasonable ʺrequires a careful balancing of the nature\\n\\nand quality of the intrusion on the individualʹs Fourth Amendment interests\\n\\nagainst the countervailing governmental interests at stake.ʺ Id. at 396 (citations\\n\\nand internal quotation marks omitted). The proper application of the\\n\\nreasonableness standard, according to the Graham Court, ʺrequires careful\\n\\nattention to the facts and circumstances of each particular case, includingʺ (1)\\n\\nʺthe severity of the crime at issue,ʺ (2) ʺwhether the suspect poses an immediate\\n\\nthreat to the safety of the officers or others,ʺ and (3) ʺwhether [the suspect] is\\n\\nactively resisting arrest or attempting to evade arrest by flight.ʺ Id. And the\\n\\nCourt reiterated that the reasonableness inquiry is an ʺobjective one.ʺ Id. at 397.\\n\\nIt requires a court to view officersʹ actions ʺin light of the facts and circumstances\\n\\nconfronting them, without regard to their underlying intent or motivationʺ or\\n\\nʺthe 20/20 vision of hindsight.ʺ Id. at 396‐97 (citation omitted).\\n\\n\\n Graham thus stands for the proposition that a government officer may not\\n\\nintrude on a personʹs Fourth Amendment rights by employing a degree of force\\n\\nbeyond that which is warranted by the objective circumstances of an arrest. And\\n\\nwe decided long ago that the objective reasonableness standard established in\\n\\nGraham applies to actions taken with respect to a person who asserts, as does the\\n\\n\\n 16\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nplaintiff here, a claim for excessive force after she has been arrested and\\n\\ndetained, but ʺprior to the time when [she] is arraigned or formally charged, and\\n\\nremains in the custody (sole or joint) of the arresting officer.ʺ Powell v. Gardner,\\n\\n891 F.2d 1039, 1044 (2d Cir. 1989).\\n\\n\\n In Esmont v. City of New York, 371 F. Supp. 2d 202 (E.D.N.Y. 2005), the\\n\\nUnited States District Court for the Eastern District of New York concluded that\\n\\nplacing handcuffs on an arrestee in a manner that causes injury may ʺconstitute\\n\\nexcessive force in violation of the Fourth Amendment.ʺ Id. at 215 (citation\\n\\nomitted). And it provided three evidentiary factors for courts to consider in\\n\\nevaluating the reasonableness of a handcuffing: that ʺ(1) the [arresteeʹs]\\n\\nhandcuffs were unreasonably tight; (2) the defendants ignored the arresteeʹs\\n\\npleas that the handcuffs were too tight; and (3) the degree of injury to the\\n\\n[arresteeʹs] wrists.ʺ Id. at 215. Following Esmont, evidence of these factors has\\n\\noften been employed by other district courts in this Circuit to determine whether\\n\\na plaintiff has sufficiently alleged a claim for excessive force in the process of\\n\\nhandcuffing.5\\n\\n\\n\\n5See, e.g., Pizarro v. Ponte, No. 17 Civ. 4412 (LGS), 2019 WL 568875, at *6, 2019 U.S. Dist.\\nLEXIS 22767, at *13‐14 (S.D.N.Y. Feb. 11, 2019); Othman v. City of New York, No. 13 Civ.\\n\\n\\n\\n 17\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n These evidentiary factors may, indeed, prove useful to a district court in\\n\\nassessing the soundness of a handcuffing‐based excessive force claim. The ʺtest\\n\\nof reasonableness under the Fourth Amendment,ʺ however, ʺis not capable of\\n\\nprecise definition or mechanical application.ʺ Graham, 490 U.S. at 396 (internal\\n\\nquotation marks omitted). A courtʹs reasonableness analysis is not limited to a\\n\\nfactual checklist; it must instead be guided by a ʺcareful balanc[e]ʺ between the\\n\\nʺnature and quality of the intrusionʺ and the ʺcountervailing government\\n\\ninterests at stakeʺ under the circumstances. Id. (citation and internal quotation\\n\\nmarks omitted).\\n\\n Thus a plaintiff asserting a claim for excessive force need not always\\n\\nestablish that she alerted an officer to the fact that her handcuffs were too tight or\\n\\ncausing pain. The question is more broadly whether an officer reasonably\\n\\nshould have known during handcuffing that his use of force was excessive. A\\n\\nplaintiff satisfies this requirement if either the unreasonableness of the force used\\n\\n\\n\\n\\n4771, 2018 WL 1701930, at *7, 2018 U.S. Dist. LEXIS 59967, at *21 (E.D.N.Y. Mar. 31,\\n2018); Ali v. Ramos, No. 16‐CV‐01994 (ALC), 2018 WL 1353210, at *5, 2018 U.S. Dist.\\nLEXIS 42489, at *10‐12 (S.D.N.Y. Mar. 14, 2018); Lloyd v. City of New York, 246 F. Supp. 3d\\n704, 724 (S.D.N.Y. 2017); Case v. City of New York, 233 F. Supp. 3d 372, 385 (S.D.N.Y.\\n2017); Barcomb v. Kraeger, No. 14‐CV‐1159 (JBA), 2016 WL 2644885, at *5, 2016 U.S. Dist.\\nLEXIS 60536, at *14‐17 (D. Conn. May 5, 2016).\\n\\n\\n 18\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nwas apparent under the circumstances, or the plaintiff signaled her distress,\\n\\nverbally or otherwise, such that a reasonable officer would have been aware of\\n\\nher pain, or both. See Stainback v. Dixon, 569 F.3d 767, 772 (7th Cir. 2009) (ʺ[I]n\\n\\nsome cases, the fact that an act will cause pain or injury will be clear from the\\n\\nnature of the act itself.ʺ); Cortez v. McCauley, 478 F.3d 1108, 1129 (10th Cir. 2007)\\n\\n(en banc) (noting that the plaintiff must allege that ʺan officer ignored [her] timely\\n\\ncomplaints (or was otherwise made aware) that the handcuffs were too tightʺ)\\n\\n(emphasis added); Liiv v. City of Coeur DʹAlene, 130 F. Appʹx 848, 852 (9th Cir.\\n\\n2005) (recognizing excessive force claims may arise where ʺplaintiffs either\\n\\nsuffered damage to their wrists as a consequence of the handcuffs or the plaintiffs\\n\\ncomplained to the officers about the handcuffs being too tightʺ) (emphasis\\n\\nadded). And, as with all aspects of a Fourth Amendment inquiry, an officerʹs\\n\\nawareness is ʺjudged from the perspective of a reasonable officer on the scene.ʺ\\n\\nGraham, 490 U.S. at 396 (citation omitted).\\n\\n We conclude that where an officerʹs use of force in handcuffing is plainly\\n\\nunreasonable under the circumstances or where a plaintiff manifests clear signs\\n\\nof her distress—verbally or otherwise—a fact finder may decide that the officer\\n\\n\\n\\n\\n 19\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nreasonably should have known that his use of force was excessive for purposes\\n\\nof establishing a Fourth Amendment violation.\\n\\n 2. Application\\n\\n\\n We conclude that each of the Graham factors weighs decidedly in the\\n\\nplaintiffʹs favor here. First, the crime at issue was a relatively minor one: the\\n\\nmisdemeanor offense of stalking and harassing a family member from whom she\\n\\nwas estranged. Second, there is no indication that the plaintiff posed a safety\\n\\nthreat, immediate or otherwise, to Palazzola or anyone else. To the contrary, she\\n\\nvoluntarily surrendered to police custody at her local precinct as instructed by\\n\\nher attorney. Third, she did not try to flee or resist Palazzolaʹs attempt to\\n\\nhandcuff her. She was in police custody at the time of his alleged abuse and\\n\\ncomplied with all of his directives while there. Under these circumstances, a\\n\\nreasonable jury could find that the severity of Palazzolaʹs intrusion—continuing\\n\\nto tighten the plaintiffʹs handcuffs after she expressed physical pain and using\\n\\nforce strong enough to cause her permanent injury—was unjustified. See, e.g.,\\n\\nPayne v. Pauley, 337 F.3d 767, 778–79 (7th Cir. 2003) (finding that officerʹs ʺforce in\\n\\narresting a woman who was not threatening to harm the police officer or anyone\\n\\nelse at the scene, was not resisting or evading arrest, was not attempting to flee,\\n\\n\\n 20\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nand was charged with such minor offenses, was not objectively reasonableʺ);\\n\\nKopec v. Tate, 361 F.3d 772, 777‐78 (3d Cir. 2004) (deciding that overly tight\\n\\nhandcuffing of arrestee for ten minutes leading to permanent wrist injury was\\n\\nunreasonable under ʺbenign circumstancesʺ); Saunders v. Duke, 766 F.3d 1262,\\n\\n1264 (11th Cir. 2014) (ʺ[A] police officer violates the Fourth Amendment . . . if he\\n\\nor she uses gratuitous and excessive force against a suspect who is under control,\\n\\nnot resisting, and obeying commands.ʺ)\\n\\n\\n A reasonable officer on the scene should have known that the force used\\n\\nwas excessive. A reasonable jury could find that the degree of force employed by\\n\\nPalazzola was, objectively considered, disproportionate and unwarranted under\\n\\nthe circumstances. Moreover, Cugini directly communicated her distress to\\n\\nPalazzola through her pained utterances and bodily shudders while he was\\n\\nhandcuffing her. The defendant responded by threatening further harm—ʺdonʹt\\n\\n\\n\\n\\n 21\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nmake me hurt youʺ6—with the likely goal of silencing her complaints.7 He then\\n\\ncontinued to tighten her handcuffs, and Cugini again evidenced her physical\\n\\ndiscomfort. Under these circumstances, the defendant should reasonably have\\n\\nknown that his use of force was excessive, both because the plaintiff clearly\\n\\nsignaled her distress and because the excessive nature of the force used was\\n\\n\\n6 The defendant argues that Cugini should not be permitted to rely on the threat that\\nshe alleges he made in asserting her excessive force claim because doing so would\\nrequire the court to assess his subjective motivation. We are indeed not permitted to\\ntake Palazzolaʹs ʺunderlying intent or motivationʺ simpliciter into account in our\\nanalysis of the plaintiffʹs constitutional claim. Graham, 490 U.S. at 397. But neither are\\nwe permitted to ignore ʺthe facts and circumstances of [this] particular case.ʺ Id.\\nViewed in the light most favorable to Cugini, the facts here include a law enforcement\\nofficerʹs threat to the plaintiff with the apparent goal, and ultimate effect, of silencing\\nher cries of distress, and a realization of that threat through the subsequent tightening\\nof the plaintiffʹs handcuffs. A reasonable jury could find that Palazzolaʹs threatened\\nharm reflected not only his subjective motivation, but also, objectively, whether the\\nforce used was excessive and whether he was reasonably made aware of the plaintiffʹs\\npain. A reasonable jury could also find that it was unreasonable for Palazzola to\\nassume that the plaintiff was all right based on her silence following the handcuffing, in\\nlight of the fact that the plaintiff may only have remained silent because of Palazzolaʹs\\nthreat of further pain. It may therefore to that extent be considered.\\n\\n7Other courts have noted the risk that officer intimidation may suppress the complaints\\nof an arrested person. See Warren v. Williams, No. Civ.A. 304CV537 (JCH), 2006 WL\\n860998, at *37, 2006 U.S. Dist. LEXIS 18900, at *113‐14 (D. Conn. Mar. 31, 2006) (where\\nofficers made threats of further force, and plaintiff failed to complain out of fear,\\nʺgeneral complaints about the handcuffs [from others] could have reasonably put the\\ndefendants on notice that they should check and adjust the cuffs of the occupantsʺ); see\\nalso Fry v. Smoker, No. Civ.A. 11‐3015, 2012 WL 1622656, at *6, 2012 U.S. Dist. LEXIS\\n64939, at *16‐17 (E.D. Pa. May 9, 2012) (noting that there are ʺnumerous reasons why\\narrestees may not complain to arresting officers that their handcuffs are too tight, such\\nas intimidation by the officerʺ).\\n\\n\\n 22\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\napparent.\\n\\n We conclude, then, that a reasonable jury could find that the defendantʹs\\n\\nactions were objectively unreasonable under the circumstances and that Cugini\\n\\nhas therefore established a Fourth Amendment violation for present purposes.\\n\\n\\n III. Qualified Immunity\\n\\n\\n The district court granted summary judgment on the ground that\\n\\nirrespective of whether Palazzola violated a constitutional right of the plaintiff,\\n\\nhe was entitled to qualified immunity. On appeal, the plaintiff argues that there\\n\\nwas clearly established law at the time of the relevant events that ʺthe use of\\n\\nentirely gratuitous force against a restrained and unresisting arrestee by an\\n\\nofficer is unreasonable, and therefore, excessive within the meaning of the Fourth\\n\\nAmendment.ʺ Pl. Br. 18. The defendant responds that the facts as the plaintiff\\n\\nalleges them did not constitute a violation of clearly established law because,\\n\\naccording to the allegations, she ʺdid not alert [him] that he could not tighten, or\\n\\nhad to loosen, [her] handcuffs.ʺ Def. Br. 7.\\n\\n\\n To determine whether a defendant officer is entitled to qualified immunity\\n\\nfrom a Fourth Amendment claim against him on a motion for summary\\n\\njudgment, we are to assess whether ʺunder clearly established law, every\\n\\n 23\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nreasonable officer would have concluded that [the defendantʹs] actions violated\\n\\n[the plaintiffʹs] Fourth Amendment rights in the particular circumstance\\n\\npresented by the uncontested facts and the facts presumed in [the plaintiffʹs]\\n\\nfavor.ʺ Brown v. City of New York, 862 F.3d 182, 190 (2d Cir. 2017). In other\\n\\nwords, summary judgment for the defendant is required where ʺthe only\\n\\nconclusion a rational jury could reach is that reasonable officers would disagree\\n\\nabout the legality of the [defendantʹs] conduct under the circumstances.ʺ Lennon\\n\\nv. Miller, 66 F.3d 416, 421 (2d Cir. 1995). As a general rule, to determine whether\\n\\na right is clearly established, we consider ʺSupreme Court decisions, our own\\n\\ndecisions, and decisions from other circuit courts.ʺ Simon v. City of New York, 893\\n\\nF.3d 83, 92 (2d Cir. 2018); see also Ashcroft v. al‐Kidd, 563 U.S. 731, 746 (2011)\\n\\n(ʺ[Q]ualified immunity is lost when plaintiffs point either to cases of controlling\\n\\nauthority in their jurisdiction at the time of the incident or to a consensus of cases\\n\\nof persuasive authority such that a reasonable officer could not have believed\\n\\nthat his actions were lawful.ʺ) (internal quotation marks omitted). That is not to\\n\\nsay, however, that courts ʺrequire a case directly on point, but existing precedent\\n\\nmust have placed the statutory or constitutional question beyond debate.ʺ al‐\\n\\nKidd, 563 U.S. at 741.\\n\\n\\n\\n 24\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n At the time of the plaintiffʹs arrest, the use of excessive force in\\n\\nhandcuffing was prohibited by clearly established constitutional law. While we\\n\\nhad yet to formally hold that a defendant may violate a plaintiffʹs Fourth\\n\\nAmendment rights in a handcuffing‐based excessive force claim, we had long\\n\\nrejected the principle that handcuffing is ʺper se reasonable.ʺ Soares v. State of\\n\\nConn., 8 F.3d 917, 921 (2d Cir. 1993); see Johnson v. Turnbill, 715 F. Appʹx 84, 85 (2d\\n\\nCir. 2018) (summary order) (recognizing that ʺexcessively tight handcuffing that\\n\\ncauses injury can constitute excessive forceʺ under the Fourth Amendment\\n\\n(quoting Shamir v. City of New York, 804 F.3d 553, 557 (2d Cir. 2015)). And a\\n\\nconsensus existed among our sister circuits that unduly tight handcuffing can\\n\\nconstitute excessive force in violation of the Fourth Amendment.8 That was\\n\\nenough to clearly establish in this Circuit that an officerʹs use of excessive force\\n\\n\\n\\n\\n8See, e.g., Calvi v. Knox Cty., 470 F.3d 422, 428 (1st Cir. 2006); Kopec, 361 F.3d at 777‐78\\n(3d Cir. 2004); Heitschmidt v. City of Houston, 161 F.3d 834, 839‐40 (5th Cir. 1998); Lyons v.\\nCity of Xenia, 417 F.3d 565, 575‐76 (6th Cir. 2005); Herzog v. Vill. of Winnetka, 309 F.3d\\n1041, 1043 (7th Cir. 2002); Hanig v. Lee, 415 F.3d 822, 824 (8th Cir. 2005); Liiv, 130 F.\\nAppʹx at 852 (9th Cir. 2005); Vondrak v. City of Las Cruces, 535 F.3d 1198, 1208‐09 (10th\\nCir. 2008). But see Brown v. Gilmore, 278 F.3d 362, 369 (4th Cir. 2002) (ʺ[A] standard\\nprocedure such as handcuffing would rarely constitute excessive force where the\\nofficers were justified . . . in effecting the underlying arrest.ʺ).\\n\\n\\n\\n\\n 25\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nduring handcuffing could give rise to a Fourth Amendment claim for excessive\\n\\nforce.9\\n\\n Even assuming that the right to be free from excessive force during\\n\\nhandcuffing was then clearly established, however, we cannot rest our ultimate\\n\\nconclusion as to immunity on a right that was clearly established only at ʺa high\\n\\nlevel of generality.ʺ al‐Kidd, 563 U.S. at 742. Our analysis must instead be\\n\\nʺparticularizedʺ to the facts of the case. Anderson v. Creighton, 483 U.S. 635, 640\\n\\n(1987). We must therefore focus more narrowly on whether, at the time of\\n\\nCuginiʹs arrest, clearly established law required an officer to respond to a\\n\\ncomplaint by a person under arrest where, as here, that person exhibited only\\n\\nnon‐verbal aural and physical manifestations of her discomfort.\\n\\n We conclude that at the time of the plaintiffʹs arrest, there was no such\\n\\nclearly established law. It remained an open question in this Circuit whether a\\n\\nplaintiff asserting an excessive force claim was required to show evidence that an\\n\\n\\n\\n9See al‐Kidd, 563 U.S. at 746 (noting that consensus of cases of persuasive authority may\\ncreate clearly established law); Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010) (noting\\nthat even where this court has ʺnot explicitly held a law or course of conduct to be\\nunconstitutional, the unconstitutionality of that law or course of conduct will\\nnonetheless be treated as clearly established if decisions by this or other courts clearly\\nforeshadow a particular ruling on the issue, even if those decisions come from courts in\\nother circuitsʺ) (citation and internal quotation marks omitted).\\n\\n 26\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nofficer was made reasonably aware of her pain by means of an explicit verbal\\n\\ncomplaint. And our limited case law on the subject appeared to look to the\\n\\npresence or absence of such a complaint as a significant factor, if not a\\n\\nprerequisite to liability, in our Fourth Amendment analysis. See Shamir, 804 F.3d\\n\\nat 555, 557 (inferring a handcuffing‐based excessive force claim from a complaint\\n\\nwhere the complaint alleged that the plaintiff did make verbal complaints,\\n\\nrepeatedly asked that the handcuffs be loosened, complained that the handcuffs\\n\\nwere ʺreally tightʺ and ʺreally hurt,ʺ and showed police officers his ʺreally\\n\\ndiscolored,ʺ ʺreally swollenʺ hands); cf. Arroyo v. City of New York, 683 F. Appʹx\\n\\n73, 75 (2d Cir. 2017) (summary order) (affirming grant of summary judgment for\\n\\ndefendants on handcuffing‐based excessive force claim where plaintiff ʺalleged\\n\\nno physical injury and never asked for the handcuffs to be removedʺ). Similarly,\\n\\nthere was no such consensus in federal circuits outside ours whether a verbal\\n\\ncomplaint was necessary, so we need not—we cannot—come to a conclusion as\\n\\nto the consequences of any such consensus had indeed there been one.10\\n\\n\\n\\n10Some circuit courts required that a plaintiff make a formal complaint to establish an\\nexcessive force claim. See Lyons, 417 F.3d at 575‐76 (ʺIn order to reach a jury on [an\\nexcessive force] claim, the plaintiff . . . must show that officers ignored plaintiffʹs\\ncomplaints that the handcuffs were too tightʺ); Rodriguez v. Farrell, 294 F.3d 1276, 1279\\n\\n\\n\\n 27\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n Before today, then, the law at least left room for reasonable debate as to\\n\\nwhether the plaintiff was required to alert the defendant to her pain, and, if so,\\n\\nwhether her non‐verbal behavior was sufficient to do so. Lennon, 66 F.3d at 421.\\n\\nAlthough the plaintiff has persuasively argued that the defendant used undue\\n\\nforce in handcuffing her, a reasonable officer under these circumstances could\\n\\nhave concluded at the time of her arrest that he was not required to respond to her\\n\\nnon‐verbal indications of discomfort and pain. We therefore conclude that the\\n\\nplaintiff has failed to establish that the defendant violated a clearly established\\n\\nconstitutional right and that the district court therefore correctly granted the\\n\\ndefendantsʹ motion for summary judgment on that basis.11 We also conclude,\\n\\nhowever, that officers can no longer claim, as the defendant did here, that they\\n\\nare immune from liability for using plainly unreasonable force in handcuffing a\\n\\n\\n\\n\\nn.4 (11th Cir. 2002) (tight handcuffing claim failed where plaintiff ʺmoaned or gruntedʺ\\nin pain while in transport to the police station but never asked officer to adjust his\\nhandcuffs). Others, as discussed above, permitted an excessive force claim to reach a\\njury, so long as the officer was otherwise made aware that the handcuffs of the person\\nunder arrest were too tight. See Stainback, 569 F.3d at 772; Cortez, 478 F.3d at 1129; Liiv,\\n130 F. Appʹx at 852.\\n\\n Because we conclude that the plaintiffʹs federal law claim was properly dismissed, we\\n11\\n\\ndecline to reinstate her state law claims against the City.\\n\\n\\n\\n\\n 28\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\nperson or using force that they should know is unreasonable based on the\\n\\narresteeʹs manifestation of signs of distress on the grounds that the law is not\\n\\nʺclearly established.ʺ12\\n\\n\\n\\n\\n12We acknowledge the presence of an ʺelephant in the room.ʺ The plaintiff testified\\nthat, at the time of her arrest, she and Palazzola already had a hostile personal\\nrelationship. Cugini further testified that there had been a months‐long ʺintimateʺ\\nrelationship between her daughter and Palazzola that ended when Palazzola treated\\nher violently. Cugini Dep. 37‐38, J. App. 79‐80. Palazzolaʹs mother and the plaintiffʹs\\nestranged sister—the woman who filed the current complaint against the plaintiff—\\nwere friends. And shortly before Cuginiʹs arrest, Palazzola trespassed on her property\\nwhile shouting her daughterʹs name. Cugini further testified that when she arrived at\\nCentral Booking, Palazzola, for no apparent reason, removed her prescription glasses\\nwhile she was on the steps outside the precinct. Id. at 22, J. App. 64. She could barely\\nsee without them. Id. After another officer, observing the encounter, reprimanded\\nPalazzola for doing so, he returned Cuginiʹs glasses to her. Id. at 23, J. App. 65.\\nPalazzola testified to the contrary that he never had a romantic relationship with\\nCuginiʹs daughter; was unaware of his motherʹs relationship with Cuginiʹs sister; and\\nconducted only regular ʺhome visitsʺ to Cuginiʹs dwelling prior to her arrest, during\\nwhich he had a cordial conversation with her daughter. Palazzola Dep. June 2, 2016, 7,\\n53‐56, J. App. 269, 316‐18.\\n\\nThese serious, even tawdry, accusations and denials seem a far cry from those that may\\nbe expected to emerge in a typical confrontation between a law enforcement official and\\na person whom he is seeking to restrain. But their truth or falsity does not ultimately\\naffect the outcome of this appeal. As we have explained, the subjective aspects of the\\ndefendantʹs behavior, his ʺunderlying intent or motivation,ʺ do not matter for purposes\\nof assessing whether his behavior violated the plaintiffʹs Fourth Amendment rights.\\nGraham, 490 U.S. at 397. We therefore conclude, as indeed the plaintiff has effectively\\nconceded in her presentation of this case on appeal, that they are not relevant to our\\nlegal assessment of the defendantʹs conduct.\\n\\n\\n 29\\n\\f 18‐1378\\n Cugini v. City of New York, Palazzola\\n\\n CONCLUSION\\n\\n While we recognize that the plaintiff has sufficiently demonstrated, for\\n\\npurposes of surviving a motion for summary judgment, a violation of her\\n\\nconstitutional right to be free from excessive force during handcuffing, we\\n\\nconclude that she has failed to establish that the defendant violated law that was\\n\\nclearly established at the time of her arrest. The defendant was therefore entitled\\n\\nto the protection of qualified immunity. Because we conclude that the plaintiffʹs\\n\\nfederal law claim was properly dismissed, we decline to reinstate her state law\\n\\nclaims. We have considered the partiesʹ remaining arguments on appeal and\\n\\nconclude that they are without merit. The judgment of the district court is\\n\\ntherefore AFFIRMED.\\n\\n\\n\\n\\n 30\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4553,"cells":{"id":{"kind":"number","value":4672975,"string":"4,672,975"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Atterbury v. United States Marshals Service"},"decision_date":{"kind":"string","value":"2019-10-25"},"docket_number":{"kind":"string","value":"18-1713-(L)"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: NEWMAN, CABRANES, LYNCH, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JON O. NEWMAN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"18-1713-(L)\\nAtterbury v. United States Marshals Service\\n\\n UNITED STATES COURT OF APPEALS\\n\\n FOR THE SECOND CIRCUIT\\n\\n August Term 2019\\n\\n Argued: September 17, 2019 Decided: October 25, 2019\\n\\n Docket Nos. 18‐1713‐cv(L); 18‐2378‐cv(Con)\\n\\n‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐\\nSTEPHEN L. ATTERBURY,\\n\\n Plaintiff ‐ Appellant,\\n\\n v.\\n\\nUNITED STATES MARSHALS SERVICE, GARY\\nINSLEY, CONTRACTING OFFICER, OFFICE OF\\nSECURITY CONTRACTS, JUDICIAL DIVISION,\\nUNITED STATES MARSHALS SERVICE, IN HIS\\nINDIVIDUAL CAPACITY, JOHN DOE, IN HIS\\nINDIVIDUAL CAPACITY,\\n\\n Defendants ‐ Appellees.\\n___________________________________________________\\n\\nDANIEL F. HAUSCHILD,\\n\\n Plaintiff ‐ Appellee,\\n\\n v.\\n\\nUNITED STATES MARSHALS SERVICE,\\n\\n Defendant ‐ Appellant,\\n\\fPATRICIA HOFFMAN, CONTRACTING OFFICER,\\nOFFICE OF SECURITY CONTRACTS, JUDICIAL\\nSECURITY DIVISION, UNITED STATES SERVICE,\\nIN HER INDIVIDUAL CAPACITY, JOHN DOE, IN\\nHIS INDIVIDUAL CAPACITY,\\n\\n Defendants.\\n‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐\\n\\nBefore: NEWMAN, CABRANES, LYNCH, Circuit Judges.\\n\\n Consolidated appeals from the May 8, 2018, judgment of the District Court\\n\\nfor the Western District of New York, granting summary judgment to the United\\n\\nStates Marshals Service (“USMS”) on the claim of Stephen L. Atterbury that he\\n\\nwas improperly discharged as a Court Security Officer (“CSO”) (No. 18‒1713), and\\n\\nfrom the June 15, 2018, judgment of the District Court for the Southern District of\\n\\nNew York granting summary judgment to Daniel F. Hauschild on his claim that\\n\\nhe was improperly discharged as a CSO (No. 18‒2378).\\n\\n In No. 18‒1713, we reverse and remand; in No. 18‒2378, we affirm and\\n\\nremand.\\n\\n\\n\\n Joshua J. Ellison (Kate M. Swearengen, on the\\n brief), Cohen, Weiss and Simon LLP, New\\n York, NY, for Stephen L. Atterbury,\\n Plaintiff‐Appellant in 18‐1713, and Daniel F.\\n Hauschild, Plaintiff‐Appellee in 18‐2378.\\n\\n 2\\n\\f Christine S. Poscablo, Asst. U.S. Atty., New York,\\n NY (Geoffrey S. Berman, U.S. Atty. for the\\n Southern District of New York, Benjamin H.\\n Torrance, Asst. U.S. Atty., New York, NY,\\n James P. Kennedy, Jr., U.S. Atty. for the\\n Western District of New York, Michael S.\\n Cerrone, Monica J. Richards, Asst. U.S.\\n Attys., Buffalo, NY, on the brief), for United\\n States Marshals Service, Gary Insley and\\n John Doe, Defendants‐Appellees in 18‐1713,\\n and United States Marshals Service,\\n Defendant‐Appellant in 18‐2378.\\n\\n\\nJON O. NEWMAN, Circuit Judge:\\n\\n These appeals present, in an unusual context, the issues of whether a\\n\\ndischarged public employee working for a federal government contractor has a\\n\\nproperty interest in continued employment and, if so, whether his discharge\\n\\ncomported with the requirements of procedural due process. The context is\\n\\nunusual because, as to both appeals, the property interest is claimed to arise from\\n\\nthe contract between the employee’s union and his employer, but the discharge\\n\\nwas ordered by the government agency with which the employer has a contract.\\n\\n In No. 18‒1713, Stephen L. Atterbury appeals from the May 8, 2018,\\n\\njudgment of the District Court for the Western District of New York (Richard\\n\\nArcara, District Judge) granting summary judgment to the United States Marshals\\n\\n\\n 3\\n\\fService (“USMS”) on his claim that he was improperly discharged from his\\n\\nposition as a Court Security Officer (“CSO”). In No. 18‒2378, USMS appeals from\\n\\nthe June 15, 2018, judgment of the District Court for the Southern District of New\\n\\nYork (Cathy Seibel, District Judge) granting summary judgment to Daniel F.\\n\\nHauschild on his claim that he was improperly discharged as a CSO.\\n\\n We conclude that both Atterbury and Hauschild had a property interest in\\n\\ntheir continued employment as CSOs and that their discharges did not comply\\n\\nwith the requirements of procedural due process. We therefore reverse and\\n\\nremand in No. 18‒1713 and affirm and remand in No. 18‒2378.\\n\\n Background\\n\\n The parties and their relationships. Stephen L. Atterbury was a CSO in the\\n\\nWestern District of New York from 2002 until his termination in April 2011,\\n\\nserving at the federal courthouse in Rochester, New York. Daniel F. Hauschild was\\n\\na CSO in the Southern District of New York from 1989 until his termination in Oct.\\n\\n2012, serving most recently as Lead CSO at the federal courthouse in\\n\\nPoughkeepsie, New York. Atterbury and Hauschild (collectively, “CSOs”) were\\n\\nemployed by Akal Security, Inc. (“Akal”), a private company providing security\\n\\n\\n\\n\\n 4\\n\\fservices. Akal was retained by the USMS to provide security services at federal\\n\\ncourthouses.\\n\\n The relationship between the CSOs and Akal was governed by a 2010\\n\\ncollective bargaining agreement (“CBA”) between Akal and the United States\\n\\nCourt Security Officers, the union representing the CSOs. The relationship\\n\\nbetween Akal and USMS was governed by a contract between them (“Akal‐USMS\\n\\nContract”). We consider the provisions of these documents below.\\n\\n Atterbury’s alleged misconduct. Atterbury left work early on Feb. 24, 2011,\\n\\nafter telling his superior officer that he was going home because he felt ill. The\\n\\nparties dispute whether Atterbury was actually ill. Atterbury contends that he left\\n\\nbecause he felt unwell, and that he understood his superior officer’s response was\\n\\nan indication of permission. That officer claimed that he thought Atterbury was\\n\\njoking. Other witnesses gave divergent accounts of whether Atterbury appeared\\n\\nto be sick, with some corroborating Atterbury’s account and others suggesting that\\n\\nhe did not seem ill and that he was angry due to a miscommunication about\\n\\nwhether he needed to remain at a certain post. A U.S. Marshal, who said he\\n\\nwitnessed Atterbury leaving, stated that Atterbury “did not appear or sound sick”\\n\\nbut “appeared and sounded agitated and annoyed.” J. App’s at 22. The Marshal\\n\\n\\n\\n 5\\n\\freported Atterbury, and USMS directed Akal to investigate whether Atterbury\\n\\nhad violated performance standards by abandoning his post. After interviewing\\n\\nseveral witnesses, Akal reported to USMS that its findings were consistent with\\n\\nAtterbury’s version of events.\\n\\n USMS asked Akal to reconsider, finding that Akal’s investigation was\\n\\ninsufficiently thorough because its investigator conducted only a brief, informal\\n\\ninterview of the eyewitness marshal who had reported the incident. Akal stood by\\n\\nits findings, noting that USMS had not given Akal any information that\\n\\ncontradicted its findings. Nevertheless, USMS informed Akal that it disagreed\\n\\nwith Akal’s findings, that Atterbury’s actions had undermined confidence in his\\n\\nability to perform his duties as a CSO, and that Atterbury should be permanently\\n\\nremoved from performing under the Akal‐USMS Contract. USMS did not identify\\n\\nthe findings of Akal with which it disagreed or the actions of Atterbury on which\\n\\nUSMS relied. Atterbury appealed his removal to Akal. Akal apparently forwarded\\n\\nthat appeal to USMS, which informed Akal that the appeal was denied. Akal then\\n\\nterminated Atterbury’s employment.\\n\\n Hauschild’s alleged misconduct. In July 2012, USMS requested Akal to\\n\\ninvestigate eleven allegations concerning Hauschild that it had received in two\\n\\n\\n\\n 6\\n\\fanonymous letters. One allegation was that Hauschild had sent his brother, who\\n\\nis a convicted felon, to the home of a U.S. Bankruptcy Judge to fix a plumbing\\n\\nproblem, and, as Lead CSO, had assigned an on‐duty Court Security Officer to\\n\\naccompany his brother, who could not be left unattended. Akal’s report to USMS\\n\\nsubstantially confirmed this allegation and recommended that Hauschild, who\\n\\nwas at that point temporarily suspended, be disciplined with a “time served”\\n\\nsuspension and given a final warning. Akal’s investigation did not confirm any of\\n\\nthe other anonymous allegations against Hauschild.\\n\\n In a letter identical (except for names and dates) to the letter directing\\n\\nAtterbury’s removal, USMS notified Akal that it disagreed with Akal’s findings\\n\\nand recommendation, and that Hauschild’s actions had undermined confidence\\n\\nin his ability to perform his duties as a CSO. USMS ordered that Hauschild be\\n\\npermanently removed from performing under the Akal‐USMS Contract. USMS\\n\\ndid not provide a statement of its findings or reasons for removing Hauschild.\\n\\nHauschild challenged his removal and asked USMS for a hearing. Akal asked\\n\\nUSMS to reconsider the removal decision. USMS informed Akal that it had\\n\\nreceived Hauschild’s appeal and had denied it. Akal then terminated Hauschild’s\\n\\nemployment.\\n\\n\\n\\n 7\\n\\f Litigation procedure. Atterbury filed a suit in the Western District of New\\n\\nYork to challenge the termination of his employment, and Hauschild filed a similar\\n\\nsuit in the Southern District of New York. For purposes of the pending appeal, we\\n\\nneed to note only the following procedural aspects of each case. Atterbury’s\\n\\ncomplaint included a claim under the Administrative Procedures Act (“APA”),\\n\\nspecifically, that “USMS violated the APA, 5 U.S.C. § 706(2)(A) or § 706(2)(B),\\n\\nbecause its decision to remove Atterbury from the CSO program, thus ending his\\n\\nemployment, without sufficient due process was contrary to his constitutional\\n\\nrights.” Atterbury Complaint ¶ 58. He claimed that he had a constitutionally\\n\\nprotected property interest in his continued employment by virtue of the “just\\n\\ncause” provision of the CBA. Id. ¶ 48. Judge Arcara dismissed the complaint,\\n\\nruling, among other things, that Atterbury’s APA claim was really “a disguised\\n\\ncontract action” for which jurisdiction under the Tucker Act, see 28 U.S.C.\\n\\n§ 1491(a)(1) lies in the Court of Federal Claims, see 28 U.S.C. § 1346(a). See Atterbury\\n\\nv. United States Marshall [sic] Service, No. 12‒CV‒00502‒A(F), 2014 WL 3392725, at\\n\\n*9‒*13 (July 10, 2014) (“Atterbury I”). Judge Arcara did not reach the merits of\\n\\nAtterbury’s APA claim based on an alleged property interest in continued\\n\\nemployment arising from the “just cause” provision of the CBA.\\n\\n\\n\\n 8\\n\\f Atterbury appealed, and we reversed. See Atterbury v. United States Marshals\\n\\nService, 805 F.3d 398, 409 (2d Cir. 2015) (“Atterbury II”). First, we noted that in Stein\\n\\nv. Board of the City of New York, 792 F.2d 13 (2d Cir. 1986), we had recognized that\\n\\n“an employee of a government contractor may under certain circumstances have\\n\\na constitutionally protected property interest in continued employment.”\\n\\nAtterbury, 805 F. 3d at 407. The plaintiff in Stein had a contract with his employer\\n\\nproviding that he could not be discharged except for “good cause,” Stein, 792 F.3d\\n\\nat 17, and we there concluded that this clause “created a protected property\\n\\ninterest” for Stein. See id. In Atterbury II, we stated, “Atterbury’s circumstances\\n\\nparallel those of the plaintiff in Stein. His complaint can fairly be read to allege that\\n\\nthe CBA’s ‘just cause’ provision gave him a protected property interest in\\n\\ncontinued employment.” 805 F.3d at 407. Finally, we ruled that Atterbury’s APA\\n\\nclaim “has a basis independent of any contract with the United States” and\\n\\ntherefore “does not fall within the scope of the Tucker Act.” Id. at 409. We\\n\\nremanded for further proceedings. See id.\\n\\n On remand, Judge Arcara considered the merits of Atterbury’s APA claim.\\n\\nSee Atterbury v. United States Marshals Service, No. 12‐CV‐502‒A, 2018 WL 2100600,\\n\\nat *2‒12 (W.D.N.Y. May 7, 2018) (“Atterbury III”). First, he recognized that the\\n\\n\\n\\n 9\\n\\fultimate question was whether Atterbury had a legitimate claim of entitlement to\\n\\ncontinued employment as a CSO. See id. at *7. He then stated that “[t]hat question\\n\\ncannot be answered without referring to the USMS‐Akal contact, which the CBA\\n\\nexplicitly references.” Id. at *8 n.4. Judge Arcara acknowledged that section 8.1 of\\n\\nthe CBA provided that no employee “‘shall be disciplined or terminated without\\n\\njust cause.’” Id. (quoting CBA § 8.1). He then noted that “[s]ection 4 of the CBA\\n\\nprovides that a CSO may be ‘discipline[d]’ only ‘subject to the grievance and\\n\\narbitration procedures, except for those issues involving USMS rights under the\\n\\ncontract between the USMS and the Company,” id. at *9 (quoting CBA § 4)\\n\\n(emphasis and second brackets in original), and that section H‐3(b) of the Akal‐\\n\\nUSMS contract provides:\\n\\n The United States Marshal Service reserves the right at all times to\\n determine the suitability of any Contractor employee to serve as a\\n CSO. Decisions rendered under any dispute resolution process . . .\\n shall not be binding upon the United States Marshals Service.\\n\\nId. (quoting Akal‐USMS contract § H3(b) (ellipsis in original).\\n\\n Judge Arcara concluded that the CBA and the Akal‐USMS contract, read\\n\\ntogether, created a “hybrid employment contract, unlike the contract at issue in\\n\\nStein,” id. at *11, that the Akal‐USMS contract “vests considerable discretion in the\\n\\nUSMS to decide what factors are relevant to a matter of CSO discipline,” id. at *10,\\n\\n 10\\n\\fand that Atterbury therefore “has no property interest in his continued\\n\\nemployment,” id. at *11. Judge Arcara granted the motion of USMS for summary\\n\\njudgment and denied Atterbury’s motion for summary judgment. See id. at *12.\\n\\nAtterbury’s timely appeal is No. 18‒1713.\\n\\n In the Southern District case, Hauschild’s complaint included the same APA\\n\\nclaim that Atterbury had made in the Western District case. Hauschild Complaint\\n\\n¶ 61. Like Judge Arcara, Judge Seibel initially ruled that Hauschild’s APA claim\\n\\nwas a contract claim for which jurisdiction was precluded by the Tucker Act. See\\n\\nHauschild v. United States Marshals Service, No. 13‐CV‐5211 (CS), 2015 WL 13203452,\\n\\nat *7‒*8 (S.D.N.Y. Aug. 28, 2015) (“Hauschild I”). We reversed that ruling in light\\n\\nof Atterbury II. See Hauschild v. United States Marshals Service, 672 F. App’x 93 (2d\\n\\nCir. 2016) (“Hauschild II”).\\n\\n On remand, Judge Seibel first ruled that she could consider not only the\\n\\nCBA contract but also the Akal‐USMS contract, which was referred to in the CBA.\\n\\nSee Hauschild v. United States Marshals Service, No. 13‒CV‒5211 (CS), 2018 WL\\n\\n3014095, at *4 (S.D.N.Y. June 15, 2018) (“Hauschild III”). However, she disagreed\\n\\nwith Judge Arcara in Atterbury I and ruled that the “just cause” provision of the\\n\\nCBA created a property interest in Hauschild’s continued employment as a CSO,\\n\\n\\n\\n 11\\n\\funimpaired by any other language in the CBA or the Akal‐USMS contract. See id.\\n\\nat *7‒*10. She therefore denied the summary judgment motion of the USMS.\\n\\n Turning next to the issue of whether Hauschild’s employment was\\n\\nterminated without the procedural protections of due process, Judge Seibel noted\\n\\nthat Hauschild was given an opportunity to provide oral and written statements\\n\\nin response to each allegation against him, inferring that he must have seen the\\n\\nJuly 12, 2012, letter from USMS to Akal, which requested an investigation, because\\n\\nthe language in Hauschild’s statement was nearly identical to the language in the\\n\\nJuly 12 letter. See id. at *11. She also noted that Hauschild was given an opportunity\\n\\nto submit a post‒termination response. See id. However, she pointed out, “The\\n\\nrecord does not indicate that [Hauschild] was provided with Akal’s investigation\\n\\nreport, the information upon which the report was based, or any other information\\n\\nupon which USMS based its decision.” Id.\\n\\n Judge Seibel ruled that “neither Supreme Court precedent nor Second\\n\\nCircuit precedent dictates that a full adversarial hearing is necessarily required\\n\\npost‐termination to comport with due process.” Id. at *12. Then, carefully\\n\\nendeavoring to apply the due process analysis of Mathews v. Eldridge, 424 U.S. 319,\\n\\n344‒45 (1976), she concluded that “the risk‐of‐error factor tilts in [Hauschild’s]\\n\\n\\n\\n 12\\n\\ffavor, because there are concerns about witness credibility and reliability, and thus\\n\\nthe potential value of a hearing in which [Hauschild] can respond to the evidence\\n\\nagainst him and perhaps confront his accusers is substantially greater.” Id. She\\n\\ntherefore ruled that the process accorded Hauschild was “constitutionally\\n\\ndeficient,” id., granted his motion for summary judgment as to his claim under 5\\n\\nU.S.C. § 706(2)(B), and remanded to the USMS for further proceedings, see id. *13.\\n\\nThe timely appeal of USMS is No. 18‒23783.\\n\\n We granted Atterbury’s motion to consolidate his appeal with USMS’s\\n\\nappeal in Hauschild’s case.\\n\\n Discussion\\n\\n Confronting carefully written opinions of two experienced District Judges\\n\\nreaching opposite conclusions on the same issue arising under the same contracts,\\n\\nwe agree with Judge Seibel. Both judges agreed that the issue on the APA claim of\\n\\nboth Atterbury and Hauschild is whether they have a constitutionally protected\\n\\nproperty interest in their continued employment as CSOs.1 They also agreed that\\n\\n\\n\\n 1 In some circumstances, an employee, terminated from one position, might not be able to\\nassert denial of a constitutionally protected property interest if the employer reassigns the\\nemployee to another position with no adverse consequences. However, as we noted in Atterbury\\nII, “[T]he defendants have not argued, nor is there any basis in the record for us to infer, that Akal\\nhad any non‐CSO positions open to which Atterbury could have been reassigned.” 805 F.3d at\\n407 n.4.\\n 13\\n\\fthis issue arose only on the APA claim under section 706(2)(B), which requires a\\n\\nreviewing court to “hold unlawful and set aside agency action . . . found to be . . .\\n\\ncontrary to constitutional right,” and not on a free‐standing constitutional claim of\\n\\nthe sort recognized in Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics,\\n\\n403 U.S. 388 (1971). Cf. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (“[E]xpanding\\n\\nthe Bivens remedy is now a disfavored judicial activity.”) (quotation marks\\n\\nomitted). Both judges dismissed the employees’ Bivens claims. We affirmed the\\n\\ndismissal of Atterbury’s Bivens claim in Atterbury II, see 805 F.3d at 405, and we\\n\\nnoted in Hauschild II that Hauschild had not sought review of the dismissal of his\\n\\nBivens claim. See 672 F. App’x at 94 n.1.\\n\\n We agree with Judge Seibel that the “just cause” sentence of section 8.1 of\\n\\nthe CBA unequivocally creates a property interest in continued employment: “No\\n\\nemployee, after completion of his or her probationary period, shall be disciplined\\n\\nor terminated without just cause.” CBA contract, § 8.1. As she noted, we had ruled\\n\\nin Stein that a “good cause” provision in an employee’s contract with his private\\n\\nemployer created a property interest, “notwithstanding a provision in the contract\\n\\nbetween the employer and the Board of Education requiring the employer to\\n\\nremove an employee whom the Board deemed to fall below acceptable standards.”\\n\\n\\n\\n 14\\n\\fHauschild III, 2018 WL 3014095, at *9 (citing Stein, 792 F.2d at 14, 17). See Abramson\\n\\nv. Pataki, 278 F.3d 93, 99 (2d Cir. 2002) (“[A] protectable property interest may arise\\n\\nin a situation where an employee may be removed only for cause.”).\\n\\n USMS contends that the “just cause” sentence of section 8.1 of the CBA is\\n\\nmodified by the following sentence in that section:\\n\\n “It is agreed by the parties that in instances when the employee is\\n removed from working under the [Akal‐USMS Contract] by the\\n USMS, or when the employee’s authority to work as a Court Security\\n Officer under the [Akal‐USMS Contract] is otherwise denied or\\n terminated by the USMS, or the Employee no longer satisfies the\\n USMS’s qualifications for his or her position, the Employee may be\\n terminated without recourse to the procedures under this Agreement\\n . . . .”\\nCBA § 8.1 USMS says that the effect of this sentence is to strip employees “removed\\n\\nfrom service by an action of the USMS . . . [of] the only avenue the CBA provides\\n\\nto challenge disciplinary or termination decisions,” Br. for USMS at 36. However,\\n\\nthis argument ignores the avenues outside of the CBA processes by which\\n\\nemployees can challenge a removal not supported by cause, such as a breach‐of‐\\n\\ncontract action against Akal under Section 301(a) of the Labor Management\\n\\nRelations Act, 29 U.S.C. § 185(a), as Judge Seibel pointed out. See Hauschild III, 2018\\n\\nWL 3014095, at *8. Furthermore, the “without recourse” sentence is sensibly read\\n\\n\\n\\n\\n 15\\n\\fto do no more than exempt terminations ordered by USMS from the CBA’s dispute\\n\\nresolution processes.2\\n\\n Also bearing on a literal reading of the CBA’s “just cause” provision is the\\n\\nfact that in other CBAs between Akal and a union representing CSOs, the “just\\n\\ncause” provision explicitly exempted terminations ordered by the USMS. See\\n\\nStrolberg v. United States Marshals Service, 350 F. App’x 113, 114 (9th Cir. 2009);\\n\\nInternational Union, Security, Police, and Fire Professionals of America (SPFPA) v.\\n\\nUnited States Marshal’s Service, 350 F. Supp. 2d 522, 534 (S.D.N.Y. 2004).\\n\\n Finally, we reject the argument of the USMS that section H‐3(b) of the Akal‐\\n\\nUSMS contract somehow modifies the “just cause” provision of the CBA. Section\\n\\nH‐3(b) provides, “The United States Marshals Service reserves the right at all times\\n\\nto determine the suitability of any Contractor employee to serve as a CSO.”\\n\\nPreliminarily, we do not agree with Judge Arcara that the Akal‐USMS contract can\\n\\nmodify the unambiguous “just cause” language of the CBA simply because there\\n\\nis a reference (although not an incorporation by reference) to the contract in the\\n\\nCBA. More importantly, our decision in Stein has already rejected a similar\\n\\nargument. As we noted in Atterbury II, “the ‘just cause’ provision in [Stein’s]\\n\\n\\n 2In Atterbury II, we noted the existence of the “without recourse” sentence, but expressed\\nno view on its significance because USMS had not relied on it on appeal. 805 F.3d at 407 n.3.\\n 16\\n\\femployment contract created a protected property interest” and “the city had\\n\\ntransgressed on that claim of entitlement by disqualifying the plaintiff under the\\n\\n‘good moral character’ provision” of the employer’s contract with the city. 805 F.3d\\n\\nat 407. Similarly here, the “suitability” provision of the Akal‐USMS contract would\\n\\ntransgress the employee’s protected property interest if it were permitted to\\n\\noverride the “just cause” provision of the CBA. Judge Seibel relied on this\\n\\nunderstanding of Stein. See Hauschild III, 2018 WL 3014095, at *9.\\n\\n We conclude that both Atterbury and Hauschild had a constitutionally\\n\\nprotected property interest in their continued employment as CSOs. See Wilson v.\\n\\nMVM, Inc., 475 F.3d 166, 178 (3d Cir. 2007) (concluding that, with respect to CSOs,\\n\\n“a private employment contract with a ‘just cause’ termination clause can create a\\n\\nconstitutionally protected property interest”); cf. Stein, 792 F.2d at 15‒17.\\n\\n We also conclude that the procedures USMS used for the terminations of\\n\\nemployment of both Atterbury and Hauschild have thus far not comported with\\n\\nthe requirements of due process. Although Atterbury and Hauschild were\\n\\ninformed of the initial misconduct allegations that gave rise to Akal’s\\n\\ninvestigations, USMS provided no explanation of the reasons for its decisions that\\n\\nthey be removed from the CSO program. Instead, it sent both Atterbury and\\n\\n\\n\\n 17\\n\\fHauschild the same form letter, which stated only that USMS “d[id] not concur\\n\\nwith Akal’s findings and proposed disciplinary strategy” and that each CSO’s\\n\\n“actions have undermined the District’s confidence and trust in [his] ability to\\n\\neffectively perform his duties.” Neither letter identified which of Akal’s findings\\n\\nit rejected. See Supp. App’x at 15, 323. As to Atterbury, who was the subject of one\\n\\nmisconduct allegation, which Akal found unsubstantiated, USMS did not identify\\n\\nthe findings of Akal with which it disagreed or the actions of Atterbury on which\\n\\nUSMS relied. And, since the facts were in dispute, some form of hearing was\\n\\nrequired. As to Hauschild, who was the subject of eleven misconduct allegations,\\n\\nonly one of which Akal regarded as substantial, USMS did not indicate whether it\\n\\nbased its decision on the substantiated allegation, on any of the unsubstantiated\\n\\nallegations, or both. And, as Judge Seibel recognized, to the extent that facts were\\n\\nin dispute, some form of hearing was required.\\n\\n Remedy. There remains for consideration the appropriate remedy. In\\n\\nHauschild II, we said only that we “remand the matter for further proceedings\\n\\nconsistent with this order.” 672 F. App’x at 96. Because that decision ruled only on\\n\\nthe District Court’s jurisdiction, that decretal language was sufficient. However,\\n\\n\\n\\n\\n 18\\n\\fnow that we have upheld Atterbury’s and Hauschild’s claims on the merits, we\\n\\nneed to make our remand slightly more precise.\\n\\n Because the claims we have sustained arise under the APA, which permits\\n\\nreview of agency action, the district courts in both cases must remand to USMS for\\n\\nfurther proceedings. That is the procedural route Judge Seibel ordered to be\\n\\nfollowed, see Hauschild III, 2018 WL 3014095, at *13, and is the route sought to be\\n\\nfollowed by Atterbury, see Br. for Atterbury at 48.\\n\\n Conclusion\\n\\n In Atterbury’s case, No. 18‒1713, we reverse and remand to the District\\n\\nCourt with direction to remand to USMS for further proceedings consistent with\\n\\nthis opinion; in Hauschild’s case, No. 18‒2378, we affirm and remand to the\\n\\nDistrict Court with direction to remand to USMS for further proceedings\\n\\nconsistent with this opinion.\\n\\n\\n\\n\\n 19\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4450228/\", \"author_raw\": \"JON O. NEWMAN, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"NEWMAN"},"judge2":{"kind":"string","value":"CABRANES"},"judge3":{"kind":"string","value":"LYNCH"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"NEWMAN\": \", Circuit\", \"CABRANES\": \", Circuit\", \"LYNCH\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4672975/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Atterbury v. United States Marshals Service\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-10-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n18-1713-(L)\nAtterbury v. United States Marshals Service\n\n UNITED STATES COURT OF APPEALS\n\n FOR THE SECOND CIRCUIT\n\n August Term 2019\n\n Argued: September 17, 2019 Decided: October 25, 2019\n\n Docket Nos. 18‐1713‐cv(L); 18‐2378‐cv(Con)\n\n‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐\nSTEPHEN L. ATTERBURY,\n\n Plaintiff ‐ Appellant,\n\n v.\n\nUNITED STATES MARSHALS SERVICE, GARY\nINSLEY, CONTRACTING OFFICER, OFFICE OF\nSECURITY CONTRACTS, JUDICIAL DIVISION,\nUNITED STATES MARSHALS SERVICE, IN HIS\nINDIVIDUAL CAPACITY, JOHN DOE, IN HIS\nINDIVIDUAL CAPACITY,\n\n Defendants ‐ Appellees.\n___________________________________________________\n\nDANIEL F. HAUSCHILD,\n\n Plaintiff ‐ Appellee,\n\n v.\n\nUNITED STATES MARSHALS SERVICE,\n\n Defendant ‐ Appellant,\n\fPATRICIA HOFFMAN, CONTRACTING OFFICER,\nOFFICE OF SECURITY CONTRACTS, JUDICIAL\nSECURITY DIVISION, UNITED STATES SERVICE,\nIN HER INDIVIDUAL CAPACITY, JOHN DOE, IN\nHIS INDIVIDUAL CAPACITY,\n\n Defendants.\n‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐\n\nBefore: NEWMAN, CABRANES, LYNCH, Circuit Judges.\n\n Consolidated appeals from the May 8, 2018, judgment of the District Court\n\nfor the Western District of New York, granting summary judgment to the United\n\nStates Marshals Service (“USMS”) on the claim of Stephen L. Atterbury that he\n\nwas improperly discharged as a Court Security Officer (“CSO”) (No. 18‒1713), and\n\nfrom the June 15, 2018, judgment of the District Court for the Southern District of\n\nNew York granting summary judgment to Daniel F. Hauschild on his claim that\n\nhe was improperly discharged as a CSO (No. 18‒2378).\n\n In No. 18‒1713, we reverse and remand; in No. 18‒2378, we affirm and\n\nremand.\n\n\n\n Joshua J. Ellison (Kate M. Swearengen, on the\n brief), Cohen, Weiss and Simon LLP, New\n York, NY, for Stephen L. Atterbury,\n Plaintiff‐Appellant in 18‐1713, and Daniel F.\n Hauschild, Plaintiff‐Appellee in 18‐2378.\n\n 2\n\f Christine S. Poscablo, Asst. U.S. Atty., New York,\n NY (Geoffrey S. Berman, U.S. Atty. for the\n Southern District of New York, Benjamin H.\n Torrance, Asst. U.S. Atty., New York, NY,\n James P. Kennedy, Jr., U.S. Atty. for the\n Western District of New York, Michael S.\n Cerrone, Monica J. Richards, Asst. U.S.\n Attys., Buffalo, NY, on the brief), for United\n States Marshals Service, Gary Insley and\n John Doe, Defendants‐Appellees in 18‐1713,\n and United States Marshals Service,\n Defendant‐Appellant in 18‐2378.\n\n\nJON O. NEWMAN, Circuit Judge:\n\n These appeals present, in an unusual context, the issues of whether a\n\ndischarged public employee working for a federal government contractor has a\n\nproperty interest in continued employment and, if so, whether his discharge\n\ncomported with the requirements of procedural due process. The context is\n\nunusual because, as to both appeals, the property interest is claimed to arise from\n\nthe contract between the employee’s union and his employer, but the discharge\n\nwas ordered by the government agency with which the employer has a contract.\n\n In No. 18‒1713, Stephen L. Atterbury appeals from the May 8, 2018,\n\njudgment of the District Court for the Western District of New York (Richard\n\nArcara, District Judge) granting summary judgment to the United States Marshals\n\n\n 3\n\fService (“USMS”) on his claim that he was improperly discharged from his\n\nposition as a Court Security Officer (“CSO”). In No. 18‒2378, USMS appeals from\n\nthe June 15, 2018, judgment of the District Court for the Southern District of New\n\nYork (Cathy Seibel, District Judge) granting summary judgment to Daniel F.\n\nHauschild on his claim that he was improperly discharged as a CSO.\n\n We conclude that both Atterbury and Hauschild had a property interest in\n\ntheir continued employment as CSOs and that their discharges did not comply\n\nwith the requirements of procedural due process. We therefore reverse and\n\nremand in No. 18‒1713 and affirm and remand in No. 18‒2378.\n\n Background\n\n The parties and their relationships. Stephen L. Atterbury was a CSO in the\n\nWestern District of New York from 2002 until his termination in April 2011,\n\nserving at the federal courthouse in Rochester, New York. Daniel F. Hauschild was\n\na CSO in the Southern District of New York from 1989 until his termination in Oct.\n\n2012, serving most recently as Lead CSO at the federal courthouse in\n\nPoughkeepsie, New York. Atterbury and Hauschild (collectively, “CSOs”) were\n\nemployed by Akal Security, Inc. (“Akal”), a private company providing security\n\n\n\n\n 4\n\fservices. Akal was retained by the USMS to provide security services at federal\n\ncourthouses.\n\n The relationship between the CSOs and Akal was governed by a 2010\n\ncollective bargaining agreement (“CBA”) between Akal and the United States\n\nCourt Security Officers, the union representing the CSOs. The relationship\n\nbetween Akal and USMS was governed by a contract between them (“Akal‐USMS\n\nContract”). We consider the provisions of these documents below.\n\n Atterbury’s alleged misconduct. Atterbury left work early on Feb. 24, 2011,\n\nafter telling his superior officer that he was going home because he felt ill. The\n\nparties dispute whether Atterbury was actually ill. Atterbury contends that he left\n\nbecause he felt unwell, and that he understood his superior officer’s response was\n\nan indication of permission. That officer claimed that he thought Atterbury was\n\njoking. Other witnesses gave divergent accounts of whether Atterbury appeared\n\nto be sick, with some corroborating Atterbury’s account and others suggesting that\n\nhe did not seem ill and that he was angry due to a miscommunication about\n\nwhether he needed to remain at a certain post. A U.S. Marshal, who said he\n\nwitnessed Atterbury leaving, stated that Atterbury “did not appear or sound sick”\n\nbut “appeared and sounded agitated and annoyed.” J. App’s at 22. The Marshal\n\n\n\n 5\n\freported Atterbury, and USMS directed Akal to investigate whether Atterbury\n\nhad violated performance standards by abandoning his post. After interviewing\n\nseveral witnesses, Akal reported to USMS that its findings were consistent with\n\nAtterbury’s version of events.\n\n USMS asked Akal to reconsider, finding that Akal’s investigation was\n\ninsufficiently thorough because its investigator conducted only a brief, informal\n\ninterview of the eyewitness marshal who had reported the incident. Akal stood by\n\nits findings, noting that USMS had not given Akal any information that\n\ncontradicted its findings. Nevertheless, USMS informed Akal that it disagreed\n\nwith Akal’s findings, that Atterbury’s actions had undermined confidence in his\n\nability to perform his duties as a CSO, and that Atterbury should be permanently\n\nremoved from performing under the Akal‐USMS Contract. USMS did not identify\n\nthe findings of Akal with which it disagreed or the actions of Atterbury on which\n\nUSMS relied. Atterbury appealed his removal to Akal. Akal apparently forwarded\n\nthat appeal to USMS, which informed Akal that the appeal was denied. Akal then\n\nterminated Atterbury’s employment.\n\n Hauschild’s alleged misconduct. In July 2012, USMS requested Akal to\n\ninvestigate eleven allegations concerning Hauschild that it had received in two\n\n\n\n 6\n\fanonymous letters. One allegation was that Hauschild had sent his brother, who\n\nis a convicted felon, to the home of a U.S. Bankruptcy Judge to fix a plumbing\n\nproblem, and, as Lead CSO, had assigned an on‐duty Court Security Officer to\n\naccompany his brother, who could not be left unattended. Akal’s report to USMS\n\nsubstantially confirmed this allegation and recommended that Hauschild, who\n\nwas at that point temporarily suspended, be disciplined with a “time served”\n\nsuspension and given a final warning. Akal’s investigation did not confirm any of\n\nthe other anonymous allegations against Hauschild.\n\n In a letter identical (except for names and dates) to the letter directing\n\nAtterbury’s removal, USMS notified Akal that it disagreed with Akal’s findings\n\nand recommendation, and that Hauschild’s actions had undermined confidence\n\nin his ability to perform his duties as a CSO. USMS ordered that Hauschild be\n\npermanently removed from performing under the Akal‐USMS Contract. USMS\n\ndid not provide a statement of its findings or reasons for removing Hauschild.\n\nHauschild challenged his removal and asked USMS for a hearing. Akal asked\n\nUSMS to reconsider the removal decision. USMS informed Akal that it had\n\nreceived Hauschild’s appeal and had denied it. Akal then terminated Hauschild’s\n\nemployment.\n\n\n\n 7\n\f Litigation procedure. Atterbury filed a suit in the Western District of New\n\nYork to challenge the termination of his employment, and Hauschild filed a similar\n\nsuit in the Southern District of New York. For purposes of the pending appeal, we\n\nneed to note only the following procedural aspects of each case. Atterbury’s\n\ncomplaint included a claim under the Administrative Procedures Act (“APA”),\n\nspecifically, that “USMS violated the APA, 5 U.S.C. § 706(2)(A) or § 706(2)(B),\n\nbecause its decision to remove Atterbury from the CSO program, thus ending his\n\nemployment, without sufficient due process was contrary to his constitutional\n\nrights.” Atterbury Complaint ¶ 58. He claimed that he had a constitutionally\n\nprotected property interest in his continued employment by virtue of the “just\n\ncause” provision of the CBA. Id. ¶ 48. Judge Arcara dismissed the complaint,\n\nruling, among other things, that Atterbury’s APA claim was really “a disguised\n\ncontract action” for which jurisdiction under the Tucker Act, see 28 U.S.C.\n\n§ 1491(a)(1) lies in the Court of Federal Claims, see 28 U.S.C. § 1346(a). See Atterbury\n\nv. United States Marshall [sic] Service, No. 12‒CV‒00502‒A(F), 2014 WL 3392725, at\n\n*9‒*13 (July 10, 2014) (“Atterbury I”). Judge Arcara did not reach the merits of\n\nAtterbury’s APA claim based on an alleged property interest in continued\n\nemployment arising from the “just cause” provision of the CBA.\n\n\n\n 8\n\f Atterbury appealed, and we reversed. See Atterbury v. United States Marshals\n\nService, 805 F.3d 398, 409 (2d Cir. 2015) (“Atterbury II”). First, we noted that in Stein\n\nv. Board of the City of New York, 792 F.2d 13 (2d Cir. 1986), we had recognized that\n\n“an employee of a government contractor may under certain circumstances have\n\na constitutionally protected property interest in continued employment.”\n\nAtterbury, 805 F. 3d at 407. The plaintiff in Stein had a contract with his employer\n\nproviding that he could not be discharged except for “good cause,” Stein, 792 F.3d\n\nat 17, and we there concluded that this clause “created a protected property\n\ninterest” for Stein. See id. In Atterbury II, we stated, “Atterbury’s circumstances\n\nparallel those of the plaintiff in Stein. His complaint can fairly be read to allege that\n\nthe CBA’s ‘just cause’ provision gave him a protected property interest in\n\ncontinued employment.” 805 F.3d at 407. Finally, we ruled that Atterbury’s APA\n\nclaim “has a basis independent of any contract with the United States” and\n\ntherefore “does not fall within the scope of the Tucker Act.” Id. at 409. We\n\nremanded for further proceedings. See id.\n\n On remand, Judge Arcara considered the merits of Atterbury’s APA claim.\n\nSee Atterbury v. United States Marshals Service, No. 12‐CV‐502‒A, 2018 WL 2100600,\n\nat *2‒12 (W.D.N.Y. May 7, 2018) (“Atterbury III”). First, he recognized that the\n\n\n\n 9\n\fultimate question was whether Atterbury had a legitimate claim of entitlement to\n\ncontinued employment as a CSO. See id. at *7. He then stated that “[t]hat question\n\ncannot be answered without referring to the USMS‐Akal contact, which the CBA\n\nexplicitly references.” Id. at *8 n.4. Judge Arcara acknowledged that section 8.1 of\n\nthe CBA provided that no employee “‘shall be disciplined or terminated without\n\njust cause.’” Id. (quoting CBA § 8.1). He then noted that “[s]ection 4 of the CBA\n\nprovides that a CSO may be ‘discipline[d]’ only ‘subject to the grievance and\n\narbitration procedures, except for those issues involving USMS rights under the\n\ncontract between the USMS and the Company,” id. at *9 (quoting CBA § 4)\n\n(emphasis and second brackets in original), and that section H‐3(b) of the Akal‐\n\nUSMS contract provides:\n\n The United States Marshal Service reserves the right at all times to\n determine the suitability of any Contractor employee to serve as a\n CSO. Decisions rendered under any dispute resolution process . . .\n shall not be binding upon the United States Marshals Service.\n\nId. (quoting Akal‐USMS contract § H3(b) (ellipsis in original).\n\n Judge Arcara concluded that the CBA and the Akal‐USMS contract, read\n\ntogether, created a “hybrid employment contract, unlike the contract at issue in\n\nStein,” id. at *11, that the Akal‐USMS contract “vests considerable discretion in the\n\nUSMS to decide what factors are relevant to a matter of CSO discipline,” id. at *10,\n\n 10\n\fand that Atterbury therefore “has no property interest in his continued\n\nemployment,” id. at *11. Judge Arcara granted the motion of USMS for summary\n\njudgment and denied Atterbury’s motion for summary judgment. See id. at *12.\n\nAtterbury’s timely appeal is No. 18‒1713.\n\n In the Southern District case, Hauschild’s complaint included the same APA\n\nclaim that Atterbury had made in the Western District case. Hauschild Complaint\n\n¶ 61. Like Judge Arcara, Judge Seibel initially ruled that Hauschild’s APA claim\n\nwas a contract claim for which jurisdiction was precluded by the Tucker Act. See\n\nHauschild v. United States Marshals Service, No. 13‐CV‐5211 (CS), 2015 WL 13203452,\n\nat *7‒*8 (S.D.N.Y. Aug. 28, 2015) (“Hauschild I”). We reversed that ruling in light\n\nof Atterbury II. See Hauschild v. United States Marshals Service, 672 F. App’x 93 (2d\n\nCir. 2016) (“Hauschild II”).\n\n On remand, Judge Seibel first ruled that she could consider not only the\n\nCBA contract but also the Akal‐USMS contract, which was referred to in the CBA.\n\nSee Hauschild v. United States Marshals Service, No. 13‒CV‒5211 (CS), 2018 WL\n\n3014095, at *4 (S.D.N.Y. June 15, 2018) (“Hauschild III”). However, she disagreed\n\nwith Judge Arcara in Atterbury I and ruled that the “just cause” provision of the\n\nCBA created a property interest in Hauschild’s continued employment as a CSO,\n\n\n\n 11\n\funimpaired by any other language in the CBA or the Akal‐USMS contract. See id.\n\nat *7‒*10. She therefore denied the summary judgment motion of the USMS.\n\n Turning next to the issue of whether Hauschild’s employment was\n\nterminated without the procedural protections of due process, Judge Seibel noted\n\nthat Hauschild was given an opportunity to provide oral and written statements\n\nin response to each allegation against him, inferring that he must have seen the\n\nJuly 12, 2012, letter from USMS to Akal, which requested an investigation, because\n\nthe language in Hauschild’s statement was nearly identical to the language in the\n\nJuly 12 letter. See id. at *11. She also noted that Hauschild was given an opportunity\n\nto submit a post‒termination response. See id. However, she pointed out, “The\n\nrecord does not indicate that [Hauschild] was provided with Akal’s investigation\n\nreport, the information upon which the report was based, or any other information\n\nupon which USMS based its decision.” Id.\n\n Judge Seibel ruled that “neither Supreme Court precedent nor Second\n\nCircuit precedent dictates that a full adversarial hearing is necessarily required\n\npost‐termination to comport with due process.” Id. at *12. Then, carefully\n\nendeavoring to apply the due process analysis of Mathews v. Eldridge, 424 U.S. 319,\n\n344‒45 (1976), she concluded that “the risk‐of‐error factor tilts in [Hauschild’s]\n\n\n\n 12\n\ffavor, because there are concerns about witness credibility and reliability, and thus\n\nthe potential value of a hearing in which [Hauschild] can respond to the evidence\n\nagainst him and perhaps confront his accusers is substantially greater.” Id. She\n\ntherefore ruled that the process accorded Hauschild was “constitutionally\n\ndeficient,” id., granted his motion for summary judgment as to his claim under 5\n\nU.S.C. § 706(2)(B), and remanded to the USMS for further proceedings, see id. *13.\n\nThe timely appeal of USMS is No. 18‒23783.\n\n We granted Atterbury’s motion to consolidate his appeal with USMS’s\n\nappeal in Hauschild’s case.\n\n Discussion\n\n Confronting carefully written opinions of two experienced District Judges\n\nreaching opposite conclusions on the same issue arising under the same contracts,\n\nwe agree with Judge Seibel. Both judges agreed that the issue on the APA claim of\n\nboth Atterbury and Hauschild is whether they have a constitutionally protected\n\nproperty interest in their continued employment as CSOs.1 They also agreed that\n\n\n\n 1 In some circumstances, an employee, terminated from one position, might not be able to\nassert denial of a constitutionally protected property interest if the employer reassigns the\nemployee to another position with no adverse consequences. However, as we noted in Atterbury\nII, “[T]he defendants have not argued, nor is there any basis in the record for us to infer, that Akal\nhad any non‐CSO positions open to which Atterbury could have been reassigned.” 805 F.3d at\n407 n.4.\n 13\n\fthis issue arose only on the APA claim under section 706(2)(B), which requires a\n\nreviewing court to “hold unlawful and set aside agency action . . . found to be . . .\n\ncontrary to constitutional right,” and not on a free‐standing constitutional claim of\n\nthe sort recognized in Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics,\n\n403 U.S. 388 (1971). Cf. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (“[E]xpanding\n\nthe Bivens remedy is now a disfavored judicial activity.”) (quotation marks\n\nomitted). Both judges dismissed the employees’ Bivens claims. We affirmed the\n\ndismissal of Atterbury’s Bivens claim in Atterbury II, see 805 F.3d at 405, and we\n\nnoted in Hauschild II that Hauschild had not sought review of the dismissal of his\n\nBivens claim. See 672 F. App’x at 94 n.1.\n\n We agree with Judge Seibel that the “just cause” sentence of section 8.1 of\n\nthe CBA unequivocally creates a property interest in continued employment: “No\n\nemployee, after completion of his or her probationary period, shall be disciplined\n\nor terminated without just cause.” CBA contract, § 8.1. As she noted, we had ruled\n\nin Stein that a “good cause” provision in an employee’s contract with his private\n\nemployer created a property interest, “notwithstanding a provision in the contract\n\nbetween the employer and the Board of Education requiring the employer to\n\nremove an employee whom the Board deemed to fall below acceptable standards.”\n\n\n\n 14\n\fHauschild III, 2018 WL 3014095, at *9 (citing Stein, 792 F.2d at 14, 17). See Abramson\n\nv. Pataki, 278 F.3d 93, 99 (2d Cir. 2002) (“[A] protectable property interest may arise\n\nin a situation where an employee may be removed only for cause.”).\n\n USMS contends that the “just cause” sentence of section 8.1 of the CBA is\n\nmodified by the following sentence in that section:\n\n “It is agreed by the parties that in instances when the employee is\n removed from working under the [Akal‐USMS Contract] by the\n USMS, or when the employee’s authority to work as a Court Security\n Officer under the [Akal‐USMS Contract] is otherwise denied or\n terminated by the USMS, or the Employee no longer satisfies the\n USMS’s qualifications for his or her position, the Employee may be\n terminated without recourse to the procedures under this Agreement\n . . . .”\nCBA § 8.1 USMS says that the effect of this sentence is to strip employees “removed\n\nfrom service by an action of the USMS . . . [of] the only avenue the CBA provides\n\nto challenge disciplinary or termination decisions,” Br. for USMS at 36. However,\n\nthis argument ignores the avenues outside of the CBA processes by which\n\nemployees can challenge a removal not supported by cause, such as a breach‐of‐\n\ncontract action against Akal under Section 301(a) of the Labor Management\n\nRelations Act, 29 U.S.C. § 185(a), as Judge Seibel pointed out. See Hauschild III, 2018\n\nWL 3014095, at *8. Furthermore, the “without recourse” sentence is sensibly read\n\n\n\n\n 15\n\fto do no more than exempt terminations ordered by USMS from the CBA’s dispute\n\nresolution processes.2\n\n Also bearing on a literal reading of the CBA’s “just cause” provision is the\n\nfact that in other CBAs between Akal and a union representing CSOs, the “just\n\ncause” provision explicitly exempted terminations ordered by the USMS. See\n\nStrolberg v. United States Marshals Service, 350 F. App’x 113, 114 (9th Cir. 2009);\n\nInternational Union, Security, Police, and Fire Professionals of America (SPFPA) v.\n\nUnited States Marshal’s Service, 350 F. Supp. 2d 522, 534 (S.D.N.Y. 2004).\n\n Finally, we reject the argument of the USMS that section H‐3(b) of the Akal‐\n\nUSMS contract somehow modifies the “just cause” provision of the CBA. Section\n\nH‐3(b) provides, “The United States Marshals Service reserves the right at all times\n\nto determine the suitability of any Contractor employee to serve as a CSO.”\n\nPreliminarily, we do not agree with Judge Arcara that the Akal‐USMS contract can\n\nmodify the unambiguous “just cause” language of the CBA simply because there\n\nis a reference (although not an incorporation by reference) to the contract in the\n\nCBA. More importantly, our decision in Stein has already rejected a similar\n\nargument. As we noted in Atterbury II, “the ‘just cause’ provision in [Stein’s]\n\n\n 2In Atterbury II, we noted the existence of the “without recourse” sentence, but expressed\nno view on its significance because USMS had not relied on it on appeal. 805 F.3d at 407 n.3.\n 16\n\femployment contract created a protected property interest” and “the city had\n\ntransgressed on that claim of entitlement by disqualifying the plaintiff under the\n\n‘good moral character’ provision” of the employer’s contract with the city. 805 F.3d\n\nat 407. Similarly here, the “suitability” provision of the Akal‐USMS contract would\n\ntransgress the employee’s protected property interest if it were permitted to\n\noverride the “just cause” provision of the CBA. Judge Seibel relied on this\n\nunderstanding of Stein. See Hauschild III, 2018 WL 3014095, at *9.\n\n We conclude that both Atterbury and Hauschild had a constitutionally\n\nprotected property interest in their continued employment as CSOs. See Wilson v.\n\nMVM, Inc., 475 F.3d 166, 178 (3d Cir. 2007) (concluding that, with respect to CSOs,\n\n“a private employment contract with a ‘just cause’ termination clause can create a\n\nconstitutionally protected property interest”); cf. Stein, 792 F.2d at 15‒17.\n\n We also conclude that the procedures USMS used for the terminations of\n\nemployment of both Atterbury and Hauschild have thus far not comported with\n\nthe requirements of due process. Although Atterbury and Hauschild were\n\ninformed of the initial misconduct allegations that gave rise to Akal’s\n\ninvestigations, USMS provided no explanation of the reasons for its decisions that\n\nthey be removed from the CSO program. Instead, it sent both Atterbury and\n\n\n\n 17\n\fHauschild the same form letter, which stated only that USMS “d[id] not concur\n\nwith Akal’s findings and proposed disciplinary strategy” and that each CSO’s\n\n“actions have undermined the District’s confidence and trust in [his] ability to\n\neffectively perform his duties.” Neither letter identified which of Akal’s findings\n\nit rejected. See Supp. App’x at 15, 323. As to Atterbury, who was the subject of one\n\nmisconduct allegation, which Akal found unsubstantiated, USMS did not identify\n\nthe findings of Akal with which it disagreed or the actions of Atterbury on which\n\nUSMS relied. And, since the facts were in dispute, some form of hearing was\n\nrequired. As to Hauschild, who was the subject of eleven misconduct allegations,\n\nonly one of which Akal regarded as substantial, USMS did not indicate whether it\n\nbased its decision on the substantiated allegation, on any of the unsubstantiated\n\nallegations, or both. And, as Judge Seibel recognized, to the extent that facts were\n\nin dispute, some form of hearing was required.\n\n Remedy. There remains for consideration the appropriate remedy. In\n\nHauschild II, we said only that we “remand the matter for further proceedings\n\nconsistent with this order.” 672 F. App’x at 96. Because that decision ruled only on\n\nthe District Court’s jurisdiction, that decretal language was sufficient. However,\n\n\n\n\n 18\n\fnow that we have upheld Atterbury’s and Hauschild’s claims on the merits, we\n\nneed to make our remand slightly more precise.\n\n Because the claims we have sustained arise under the APA, which permits\n\nreview of agency action, the district courts in both cases must remand to USMS for\n\nfurther proceedings. That is the procedural route Judge Seibel ordered to be\n\nfollowed, see Hauschild III, 2018 WL 3014095, at *13, and is the route sought to be\n\nfollowed by Atterbury, see Br. for Atterbury at 48.\n\n Conclusion\n\n In Atterbury’s case, No. 18‒1713, we reverse and remand to the District\n\nCourt with direction to remand to USMS for further proceedings consistent with\n\nthis opinion; in Hauschild’s case, No. 18‒2378, we affirm and remand to the\n\nDistrict Court with direction to remand to USMS for further proceedings\n\nconsistent with this opinion.\n\n\n\n\n 19\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Atterbury v. United States Marshals Service\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-10-25\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n18-1713-(L)\\nAtterbury v. United States Marshals Service\\n\\n UNITED STATES COURT OF APPEALS\\n\\n FOR THE SECOND CIRCUIT\\n\\n August Term 2019\\n\\n Argued: September 17, 2019 Decided: October 25, 2019\\n\\n Docket Nos. 18‐1713‐cv(L); 18‐2378‐cv(Con)\\n\\n‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐\\nSTEPHEN L. ATTERBURY,\\n\\n Plaintiff ‐ Appellant,\\n\\n v.\\n\\nUNITED STATES MARSHALS SERVICE, GARY\\nINSLEY, CONTRACTING OFFICER, OFFICE OF\\nSECURITY CONTRACTS, JUDICIAL DIVISION,\\nUNITED STATES MARSHALS SERVICE, IN HIS\\nINDIVIDUAL CAPACITY, JOHN DOE, IN HIS\\nINDIVIDUAL CAPACITY,\\n\\n Defendants ‐ Appellees.\\n___________________________________________________\\n\\nDANIEL F. HAUSCHILD,\\n\\n Plaintiff ‐ Appellee,\\n\\n v.\\n\\nUNITED STATES MARSHALS SERVICE,\\n\\n Defendant ‐ Appellant,\\n\\fPATRICIA HOFFMAN, CONTRACTING OFFICER,\\nOFFICE OF SECURITY CONTRACTS, JUDICIAL\\nSECURITY DIVISION, UNITED STATES SERVICE,\\nIN HER INDIVIDUAL CAPACITY, JOHN DOE, IN\\nHIS INDIVIDUAL CAPACITY,\\n\\n Defendants.\\n‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐\\n\\nBefore: NEWMAN, CABRANES, LYNCH, Circuit Judges.\\n\\n Consolidated appeals from the May 8, 2018, judgment of the District Court\\n\\nfor the Western District of New York, granting summary judgment to the United\\n\\nStates Marshals Service (“USMS”) on the claim of Stephen L. Atterbury that he\\n\\nwas improperly discharged as a Court Security Officer (“CSO”) (No. 18‒1713), and\\n\\nfrom the June 15, 2018, judgment of the District Court for the Southern District of\\n\\nNew York granting summary judgment to Daniel F. Hauschild on his claim that\\n\\nhe was improperly discharged as a CSO (No. 18‒2378).\\n\\n In No. 18‒1713, we reverse and remand; in No. 18‒2378, we affirm and\\n\\nremand.\\n\\n\\n\\n Joshua J. Ellison (Kate M. Swearengen, on the\\n brief), Cohen, Weiss and Simon LLP, New\\n York, NY, for Stephen L. Atterbury,\\n Plaintiff‐Appellant in 18‐1713, and Daniel F.\\n Hauschild, Plaintiff‐Appellee in 18‐2378.\\n\\n 2\\n\\f Christine S. Poscablo, Asst. U.S. Atty., New York,\\n NY (Geoffrey S. Berman, U.S. Atty. for the\\n Southern District of New York, Benjamin H.\\n Torrance, Asst. U.S. Atty., New York, NY,\\n James P. Kennedy, Jr., U.S. Atty. for the\\n Western District of New York, Michael S.\\n Cerrone, Monica J. Richards, Asst. U.S.\\n Attys., Buffalo, NY, on the brief), for United\\n States Marshals Service, Gary Insley and\\n John Doe, Defendants‐Appellees in 18‐1713,\\n and United States Marshals Service,\\n Defendant‐Appellant in 18‐2378.\\n\\n\\nJON O. NEWMAN, Circuit Judge:\\n\\n These appeals present, in an unusual context, the issues of whether a\\n\\ndischarged public employee working for a federal government contractor has a\\n\\nproperty interest in continued employment and, if so, whether his discharge\\n\\ncomported with the requirements of procedural due process. The context is\\n\\nunusual because, as to both appeals, the property interest is claimed to arise from\\n\\nthe contract between the employee’s union and his employer, but the discharge\\n\\nwas ordered by the government agency with which the employer has a contract.\\n\\n In No. 18‒1713, Stephen L. Atterbury appeals from the May 8, 2018,\\n\\njudgment of the District Court for the Western District of New York (Richard\\n\\nArcara, District Judge) granting summary judgment to the United States Marshals\\n\\n\\n 3\\n\\fService (“USMS”) on his claim that he was improperly discharged from his\\n\\nposition as a Court Security Officer (“CSO”). In No. 18‒2378, USMS appeals from\\n\\nthe June 15, 2018, judgment of the District Court for the Southern District of New\\n\\nYork (Cathy Seibel, District Judge) granting summary judgment to Daniel F.\\n\\nHauschild on his claim that he was improperly discharged as a CSO.\\n\\n We conclude that both Atterbury and Hauschild had a property interest in\\n\\ntheir continued employment as CSOs and that their discharges did not comply\\n\\nwith the requirements of procedural due process. We therefore reverse and\\n\\nremand in No. 18‒1713 and affirm and remand in No. 18‒2378.\\n\\n Background\\n\\n The parties and their relationships. Stephen L. Atterbury was a CSO in the\\n\\nWestern District of New York from 2002 until his termination in April 2011,\\n\\nserving at the federal courthouse in Rochester, New York. Daniel F. Hauschild was\\n\\na CSO in the Southern District of New York from 1989 until his termination in Oct.\\n\\n2012, serving most recently as Lead CSO at the federal courthouse in\\n\\nPoughkeepsie, New York. Atterbury and Hauschild (collectively, “CSOs”) were\\n\\nemployed by Akal Security, Inc. (“Akal”), a private company providing security\\n\\n\\n\\n\\n 4\\n\\fservices. Akal was retained by the USMS to provide security services at federal\\n\\ncourthouses.\\n\\n The relationship between the CSOs and Akal was governed by a 2010\\n\\ncollective bargaining agreement (“CBA”) between Akal and the United States\\n\\nCourt Security Officers, the union representing the CSOs. The relationship\\n\\nbetween Akal and USMS was governed by a contract between them (“Akal‐USMS\\n\\nContract”). We consider the provisions of these documents below.\\n\\n Atterbury’s alleged misconduct. Atterbury left work early on Feb. 24, 2011,\\n\\nafter telling his superior officer that he was going home because he felt ill. The\\n\\nparties dispute whether Atterbury was actually ill. Atterbury contends that he left\\n\\nbecause he felt unwell, and that he understood his superior officer’s response was\\n\\nan indication of permission. That officer claimed that he thought Atterbury was\\n\\njoking. Other witnesses gave divergent accounts of whether Atterbury appeared\\n\\nto be sick, with some corroborating Atterbury’s account and others suggesting that\\n\\nhe did not seem ill and that he was angry due to a miscommunication about\\n\\nwhether he needed to remain at a certain post. A U.S. Marshal, who said he\\n\\nwitnessed Atterbury leaving, stated that Atterbury “did not appear or sound sick”\\n\\nbut “appeared and sounded agitated and annoyed.” J. App’s at 22. The Marshal\\n\\n\\n\\n 5\\n\\freported Atterbury, and USMS directed Akal to investigate whether Atterbury\\n\\nhad violated performance standards by abandoning his post. After interviewing\\n\\nseveral witnesses, Akal reported to USMS that its findings were consistent with\\n\\nAtterbury’s version of events.\\n\\n USMS asked Akal to reconsider, finding that Akal’s investigation was\\n\\ninsufficiently thorough because its investigator conducted only a brief, informal\\n\\ninterview of the eyewitness marshal who had reported the incident. Akal stood by\\n\\nits findings, noting that USMS had not given Akal any information that\\n\\ncontradicted its findings. Nevertheless, USMS informed Akal that it disagreed\\n\\nwith Akal’s findings, that Atterbury’s actions had undermined confidence in his\\n\\nability to perform his duties as a CSO, and that Atterbury should be permanently\\n\\nremoved from performing under the Akal‐USMS Contract. USMS did not identify\\n\\nthe findings of Akal with which it disagreed or the actions of Atterbury on which\\n\\nUSMS relied. Atterbury appealed his removal to Akal. Akal apparently forwarded\\n\\nthat appeal to USMS, which informed Akal that the appeal was denied. Akal then\\n\\nterminated Atterbury’s employment.\\n\\n Hauschild’s alleged misconduct. In July 2012, USMS requested Akal to\\n\\ninvestigate eleven allegations concerning Hauschild that it had received in two\\n\\n\\n\\n 6\\n\\fanonymous letters. One allegation was that Hauschild had sent his brother, who\\n\\nis a convicted felon, to the home of a U.S. Bankruptcy Judge to fix a plumbing\\n\\nproblem, and, as Lead CSO, had assigned an on‐duty Court Security Officer to\\n\\naccompany his brother, who could not be left unattended. Akal’s report to USMS\\n\\nsubstantially confirmed this allegation and recommended that Hauschild, who\\n\\nwas at that point temporarily suspended, be disciplined with a “time served”\\n\\nsuspension and given a final warning. Akal’s investigation did not confirm any of\\n\\nthe other anonymous allegations against Hauschild.\\n\\n In a letter identical (except for names and dates) to the letter directing\\n\\nAtterbury’s removal, USMS notified Akal that it disagreed with Akal’s findings\\n\\nand recommendation, and that Hauschild’s actions had undermined confidence\\n\\nin his ability to perform his duties as a CSO. USMS ordered that Hauschild be\\n\\npermanently removed from performing under the Akal‐USMS Contract. USMS\\n\\ndid not provide a statement of its findings or reasons for removing Hauschild.\\n\\nHauschild challenged his removal and asked USMS for a hearing. Akal asked\\n\\nUSMS to reconsider the removal decision. USMS informed Akal that it had\\n\\nreceived Hauschild’s appeal and had denied it. Akal then terminated Hauschild’s\\n\\nemployment.\\n\\n\\n\\n 7\\n\\f Litigation procedure. Atterbury filed a suit in the Western District of New\\n\\nYork to challenge the termination of his employment, and Hauschild filed a similar\\n\\nsuit in the Southern District of New York. For purposes of the pending appeal, we\\n\\nneed to note only the following procedural aspects of each case. Atterbury’s\\n\\ncomplaint included a claim under the Administrative Procedures Act (“APA”),\\n\\nspecifically, that “USMS violated the APA, 5 U.S.C. § 706(2)(A) or § 706(2)(B),\\n\\nbecause its decision to remove Atterbury from the CSO program, thus ending his\\n\\nemployment, without sufficient due process was contrary to his constitutional\\n\\nrights.” Atterbury Complaint ¶ 58. He claimed that he had a constitutionally\\n\\nprotected property interest in his continued employment by virtue of the “just\\n\\ncause” provision of the CBA. Id. ¶ 48. Judge Arcara dismissed the complaint,\\n\\nruling, among other things, that Atterbury’s APA claim was really “a disguised\\n\\ncontract action” for which jurisdiction under the Tucker Act, see 28 U.S.C.\\n\\n§ 1491(a)(1) lies in the Court of Federal Claims, see 28 U.S.C. § 1346(a). See Atterbury\\n\\nv. United States Marshall [sic] Service, No. 12‒CV‒00502‒A(F), 2014 WL 3392725, at\\n\\n*9‒*13 (July 10, 2014) (“Atterbury I”). Judge Arcara did not reach the merits of\\n\\nAtterbury’s APA claim based on an alleged property interest in continued\\n\\nemployment arising from the “just cause” provision of the CBA.\\n\\n\\n\\n 8\\n\\f Atterbury appealed, and we reversed. See Atterbury v. United States Marshals\\n\\nService, 805 F.3d 398, 409 (2d Cir. 2015) (“Atterbury II”). First, we noted that in Stein\\n\\nv. Board of the City of New York, 792 F.2d 13 (2d Cir. 1986), we had recognized that\\n\\n“an employee of a government contractor may under certain circumstances have\\n\\na constitutionally protected property interest in continued employment.”\\n\\nAtterbury, 805 F. 3d at 407. The plaintiff in Stein had a contract with his employer\\n\\nproviding that he could not be discharged except for “good cause,” Stein, 792 F.3d\\n\\nat 17, and we there concluded that this clause “created a protected property\\n\\ninterest” for Stein. See id. In Atterbury II, we stated, “Atterbury’s circumstances\\n\\nparallel those of the plaintiff in Stein. His complaint can fairly be read to allege that\\n\\nthe CBA’s ‘just cause’ provision gave him a protected property interest in\\n\\ncontinued employment.” 805 F.3d at 407. Finally, we ruled that Atterbury’s APA\\n\\nclaim “has a basis independent of any contract with the United States” and\\n\\ntherefore “does not fall within the scope of the Tucker Act.” Id. at 409. We\\n\\nremanded for further proceedings. See id.\\n\\n On remand, Judge Arcara considered the merits of Atterbury’s APA claim.\\n\\nSee Atterbury v. United States Marshals Service, No. 12‐CV‐502‒A, 2018 WL 2100600,\\n\\nat *2‒12 (W.D.N.Y. May 7, 2018) (“Atterbury III”). First, he recognized that the\\n\\n\\n\\n 9\\n\\fultimate question was whether Atterbury had a legitimate claim of entitlement to\\n\\ncontinued employment as a CSO. See id. at *7. He then stated that “[t]hat question\\n\\ncannot be answered without referring to the USMS‐Akal contact, which the CBA\\n\\nexplicitly references.” Id. at *8 n.4. Judge Arcara acknowledged that section 8.1 of\\n\\nthe CBA provided that no employee “‘shall be disciplined or terminated without\\n\\njust cause.’” Id. (quoting CBA § 8.1). He then noted that “[s]ection 4 of the CBA\\n\\nprovides that a CSO may be ‘discipline[d]’ only ‘subject to the grievance and\\n\\narbitration procedures, except for those issues involving USMS rights under the\\n\\ncontract between the USMS and the Company,” id. at *9 (quoting CBA § 4)\\n\\n(emphasis and second brackets in original), and that section H‐3(b) of the Akal‐\\n\\nUSMS contract provides:\\n\\n The United States Marshal Service reserves the right at all times to\\n determine the suitability of any Contractor employee to serve as a\\n CSO. Decisions rendered under any dispute resolution process . . .\\n shall not be binding upon the United States Marshals Service.\\n\\nId. (quoting Akal‐USMS contract § H3(b) (ellipsis in original).\\n\\n Judge Arcara concluded that the CBA and the Akal‐USMS contract, read\\n\\ntogether, created a “hybrid employment contract, unlike the contract at issue in\\n\\nStein,” id. at *11, that the Akal‐USMS contract “vests considerable discretion in the\\n\\nUSMS to decide what factors are relevant to a matter of CSO discipline,” id. at *10,\\n\\n 10\\n\\fand that Atterbury therefore “has no property interest in his continued\\n\\nemployment,” id. at *11. Judge Arcara granted the motion of USMS for summary\\n\\njudgment and denied Atterbury’s motion for summary judgment. See id. at *12.\\n\\nAtterbury’s timely appeal is No. 18‒1713.\\n\\n In the Southern District case, Hauschild’s complaint included the same APA\\n\\nclaim that Atterbury had made in the Western District case. Hauschild Complaint\\n\\n¶ 61. Like Judge Arcara, Judge Seibel initially ruled that Hauschild’s APA claim\\n\\nwas a contract claim for which jurisdiction was precluded by the Tucker Act. See\\n\\nHauschild v. United States Marshals Service, No. 13‐CV‐5211 (CS), 2015 WL 13203452,\\n\\nat *7‒*8 (S.D.N.Y. Aug. 28, 2015) (“Hauschild I”). We reversed that ruling in light\\n\\nof Atterbury II. See Hauschild v. United States Marshals Service, 672 F. App’x 93 (2d\\n\\nCir. 2016) (“Hauschild II”).\\n\\n On remand, Judge Seibel first ruled that she could consider not only the\\n\\nCBA contract but also the Akal‐USMS contract, which was referred to in the CBA.\\n\\nSee Hauschild v. United States Marshals Service, No. 13‒CV‒5211 (CS), 2018 WL\\n\\n3014095, at *4 (S.D.N.Y. June 15, 2018) (“Hauschild III”). However, she disagreed\\n\\nwith Judge Arcara in Atterbury I and ruled that the “just cause” provision of the\\n\\nCBA created a property interest in Hauschild’s continued employment as a CSO,\\n\\n\\n\\n 11\\n\\funimpaired by any other language in the CBA or the Akal‐USMS contract. See id.\\n\\nat *7‒*10. She therefore denied the summary judgment motion of the USMS.\\n\\n Turning next to the issue of whether Hauschild’s employment was\\n\\nterminated without the procedural protections of due process, Judge Seibel noted\\n\\nthat Hauschild was given an opportunity to provide oral and written statements\\n\\nin response to each allegation against him, inferring that he must have seen the\\n\\nJuly 12, 2012, letter from USMS to Akal, which requested an investigation, because\\n\\nthe language in Hauschild’s statement was nearly identical to the language in the\\n\\nJuly 12 letter. See id. at *11. She also noted that Hauschild was given an opportunity\\n\\nto submit a post‒termination response. See id. However, she pointed out, “The\\n\\nrecord does not indicate that [Hauschild] was provided with Akal’s investigation\\n\\nreport, the information upon which the report was based, or any other information\\n\\nupon which USMS based its decision.” Id.\\n\\n Judge Seibel ruled that “neither Supreme Court precedent nor Second\\n\\nCircuit precedent dictates that a full adversarial hearing is necessarily required\\n\\npost‐termination to comport with due process.” Id. at *12. Then, carefully\\n\\nendeavoring to apply the due process analysis of Mathews v. Eldridge, 424 U.S. 319,\\n\\n344‒45 (1976), she concluded that “the risk‐of‐error factor tilts in [Hauschild’s]\\n\\n\\n\\n 12\\n\\ffavor, because there are concerns about witness credibility and reliability, and thus\\n\\nthe potential value of a hearing in which [Hauschild] can respond to the evidence\\n\\nagainst him and perhaps confront his accusers is substantially greater.” Id. She\\n\\ntherefore ruled that the process accorded Hauschild was “constitutionally\\n\\ndeficient,” id., granted his motion for summary judgment as to his claim under 5\\n\\nU.S.C. § 706(2)(B), and remanded to the USMS for further proceedings, see id. *13.\\n\\nThe timely appeal of USMS is No. 18‒23783.\\n\\n We granted Atterbury’s motion to consolidate his appeal with USMS’s\\n\\nappeal in Hauschild’s case.\\n\\n Discussion\\n\\n Confronting carefully written opinions of two experienced District Judges\\n\\nreaching opposite conclusions on the same issue arising under the same contracts,\\n\\nwe agree with Judge Seibel. Both judges agreed that the issue on the APA claim of\\n\\nboth Atterbury and Hauschild is whether they have a constitutionally protected\\n\\nproperty interest in their continued employment as CSOs.1 They also agreed that\\n\\n\\n\\n 1 In some circumstances, an employee, terminated from one position, might not be able to\\nassert denial of a constitutionally protected property interest if the employer reassigns the\\nemployee to another position with no adverse consequences. However, as we noted in Atterbury\\nII, “[T]he defendants have not argued, nor is there any basis in the record for us to infer, that Akal\\nhad any non‐CSO positions open to which Atterbury could have been reassigned.” 805 F.3d at\\n407 n.4.\\n 13\\n\\fthis issue arose only on the APA claim under section 706(2)(B), which requires a\\n\\nreviewing court to “hold unlawful and set aside agency action . . . found to be . . .\\n\\ncontrary to constitutional right,” and not on a free‐standing constitutional claim of\\n\\nthe sort recognized in Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics,\\n\\n403 U.S. 388 (1971). Cf. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (“[E]xpanding\\n\\nthe Bivens remedy is now a disfavored judicial activity.”) (quotation marks\\n\\nomitted). Both judges dismissed the employees’ Bivens claims. We affirmed the\\n\\ndismissal of Atterbury’s Bivens claim in Atterbury II, see 805 F.3d at 405, and we\\n\\nnoted in Hauschild II that Hauschild had not sought review of the dismissal of his\\n\\nBivens claim. See 672 F. App’x at 94 n.1.\\n\\n We agree with Judge Seibel that the “just cause” sentence of section 8.1 of\\n\\nthe CBA unequivocally creates a property interest in continued employment: “No\\n\\nemployee, after completion of his or her probationary period, shall be disciplined\\n\\nor terminated without just cause.” CBA contract, § 8.1. As she noted, we had ruled\\n\\nin Stein that a “good cause” provision in an employee’s contract with his private\\n\\nemployer created a property interest, “notwithstanding a provision in the contract\\n\\nbetween the employer and the Board of Education requiring the employer to\\n\\nremove an employee whom the Board deemed to fall below acceptable standards.”\\n\\n\\n\\n 14\\n\\fHauschild III, 2018 WL 3014095, at *9 (citing Stein, 792 F.2d at 14, 17). See Abramson\\n\\nv. Pataki, 278 F.3d 93, 99 (2d Cir. 2002) (“[A] protectable property interest may arise\\n\\nin a situation where an employee may be removed only for cause.”).\\n\\n USMS contends that the “just cause” sentence of section 8.1 of the CBA is\\n\\nmodified by the following sentence in that section:\\n\\n “It is agreed by the parties that in instances when the employee is\\n removed from working under the [Akal‐USMS Contract] by the\\n USMS, or when the employee’s authority to work as a Court Security\\n Officer under the [Akal‐USMS Contract] is otherwise denied or\\n terminated by the USMS, or the Employee no longer satisfies the\\n USMS’s qualifications for his or her position, the Employee may be\\n terminated without recourse to the procedures under this Agreement\\n . . . .”\\nCBA § 8.1 USMS says that the effect of this sentence is to strip employees “removed\\n\\nfrom service by an action of the USMS . . . [of] the only avenue the CBA provides\\n\\nto challenge disciplinary or termination decisions,” Br. for USMS at 36. However,\\n\\nthis argument ignores the avenues outside of the CBA processes by which\\n\\nemployees can challenge a removal not supported by cause, such as a breach‐of‐\\n\\ncontract action against Akal under Section 301(a) of the Labor Management\\n\\nRelations Act, 29 U.S.C. § 185(a), as Judge Seibel pointed out. See Hauschild III, 2018\\n\\nWL 3014095, at *8. Furthermore, the “without recourse” sentence is sensibly read\\n\\n\\n\\n\\n 15\\n\\fto do no more than exempt terminations ordered by USMS from the CBA’s dispute\\n\\nresolution processes.2\\n\\n Also bearing on a literal reading of the CBA’s “just cause” provision is the\\n\\nfact that in other CBAs between Akal and a union representing CSOs, the “just\\n\\ncause” provision explicitly exempted terminations ordered by the USMS. See\\n\\nStrolberg v. United States Marshals Service, 350 F. App’x 113, 114 (9th Cir. 2009);\\n\\nInternational Union, Security, Police, and Fire Professionals of America (SPFPA) v.\\n\\nUnited States Marshal’s Service, 350 F. Supp. 2d 522, 534 (S.D.N.Y. 2004).\\n\\n Finally, we reject the argument of the USMS that section H‐3(b) of the Akal‐\\n\\nUSMS contract somehow modifies the “just cause” provision of the CBA. Section\\n\\nH‐3(b) provides, “The United States Marshals Service reserves the right at all times\\n\\nto determine the suitability of any Contractor employee to serve as a CSO.”\\n\\nPreliminarily, we do not agree with Judge Arcara that the Akal‐USMS contract can\\n\\nmodify the unambiguous “just cause” language of the CBA simply because there\\n\\nis a reference (although not an incorporation by reference) to the contract in the\\n\\nCBA. More importantly, our decision in Stein has already rejected a similar\\n\\nargument. As we noted in Atterbury II, “the ‘just cause’ provision in [Stein’s]\\n\\n\\n 2In Atterbury II, we noted the existence of the “without recourse” sentence, but expressed\\nno view on its significance because USMS had not relied on it on appeal. 805 F.3d at 407 n.3.\\n 16\\n\\femployment contract created a protected property interest” and “the city had\\n\\ntransgressed on that claim of entitlement by disqualifying the plaintiff under the\\n\\n‘good moral character’ provision” of the employer’s contract with the city. 805 F.3d\\n\\nat 407. Similarly here, the “suitability” provision of the Akal‐USMS contract would\\n\\ntransgress the employee’s protected property interest if it were permitted to\\n\\noverride the “just cause” provision of the CBA. Judge Seibel relied on this\\n\\nunderstanding of Stein. See Hauschild III, 2018 WL 3014095, at *9.\\n\\n We conclude that both Atterbury and Hauschild had a constitutionally\\n\\nprotected property interest in their continued employment as CSOs. See Wilson v.\\n\\nMVM, Inc., 475 F.3d 166, 178 (3d Cir. 2007) (concluding that, with respect to CSOs,\\n\\n“a private employment contract with a ‘just cause’ termination clause can create a\\n\\nconstitutionally protected property interest”); cf. Stein, 792 F.2d at 15‒17.\\n\\n We also conclude that the procedures USMS used for the terminations of\\n\\nemployment of both Atterbury and Hauschild have thus far not comported with\\n\\nthe requirements of due process. Although Atterbury and Hauschild were\\n\\ninformed of the initial misconduct allegations that gave rise to Akal’s\\n\\ninvestigations, USMS provided no explanation of the reasons for its decisions that\\n\\nthey be removed from the CSO program. Instead, it sent both Atterbury and\\n\\n\\n\\n 17\\n\\fHauschild the same form letter, which stated only that USMS “d[id] not concur\\n\\nwith Akal’s findings and proposed disciplinary strategy” and that each CSO’s\\n\\n“actions have undermined the District’s confidence and trust in [his] ability to\\n\\neffectively perform his duties.” Neither letter identified which of Akal’s findings\\n\\nit rejected. See Supp. App’x at 15, 323. As to Atterbury, who was the subject of one\\n\\nmisconduct allegation, which Akal found unsubstantiated, USMS did not identify\\n\\nthe findings of Akal with which it disagreed or the actions of Atterbury on which\\n\\nUSMS relied. And, since the facts were in dispute, some form of hearing was\\n\\nrequired. As to Hauschild, who was the subject of eleven misconduct allegations,\\n\\nonly one of which Akal regarded as substantial, USMS did not indicate whether it\\n\\nbased its decision on the substantiated allegation, on any of the unsubstantiated\\n\\nallegations, or both. And, as Judge Seibel recognized, to the extent that facts were\\n\\nin dispute, some form of hearing was required.\\n\\n Remedy. There remains for consideration the appropriate remedy. In\\n\\nHauschild II, we said only that we “remand the matter for further proceedings\\n\\nconsistent with this order.” 672 F. App’x at 96. Because that decision ruled only on\\n\\nthe District Court’s jurisdiction, that decretal language was sufficient. However,\\n\\n\\n\\n\\n 18\\n\\fnow that we have upheld Atterbury’s and Hauschild’s claims on the merits, we\\n\\nneed to make our remand slightly more precise.\\n\\n Because the claims we have sustained arise under the APA, which permits\\n\\nreview of agency action, the district courts in both cases must remand to USMS for\\n\\nfurther proceedings. That is the procedural route Judge Seibel ordered to be\\n\\nfollowed, see Hauschild III, 2018 WL 3014095, at *13, and is the route sought to be\\n\\nfollowed by Atterbury, see Br. for Atterbury at 48.\\n\\n Conclusion\\n\\n In Atterbury’s case, No. 18‒1713, we reverse and remand to the District\\n\\nCourt with direction to remand to USMS for further proceedings consistent with\\n\\nthis opinion; in Hauschild’s case, No. 18‒2378, we affirm and remand to the\\n\\nDistrict Court with direction to remand to USMS for further proceedings\\n\\nconsistent with this opinion.\\n\\n\\n\\n\\n 19\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4554,"cells":{"id":{"kind":"number","value":4674165,"string":"4,674,165"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"In Re: Alba Sanchez"},"decision_date":{"kind":"string","value":"2019-10-30"},"docket_number":{"kind":"string","value":"18-679"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: WALKER, CARNEY, AND SULLIVAN, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"18-679\\nIn re: Alba Sanchez\\n\\n\\n In the\\n United States Court of Appeals\\n For the Second Circuit\\n\\n August Term, 2019\\n\\n Submitted: September 4, 2019\\n Decided: October 30, 2019\\n\\n Docket No. 18‐679\\n\\n\\n\\n IN RE: ALBA SANCHEZ,\\n\\n Debtor.\\n\\n KENNETH ROSELLINI,\\n\\n Appellant,\\n\\n v.\\n\\n UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF NEW YORK,\\n\\n Appellee.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of New York\\n No. 16‐cv‐5522, Block, Judge.\\n\\n\\n\\nBefore: WALKER, CARNEY, AND SULLIVAN, Circuit Judges.\\n\\f Kenneth Rosellini, an attorney proceeding pro se, appeals the district court’s\\norders affirming the bankruptcy court’s award of monetary sanctions pursuant to\\nits inherent power. As a matter of first impression in our Circuit, we hold that\\nbankruptcy courts possess inherent power to sanction attorneys in appropriate\\ncircumstances. Because Rosellini’s challenges to the bankruptcy court’s exercise\\nof that power fails for the reasons set forth in a separately‐filed summary order,\\nwe affirm.\\n\\n AFFIRMED.\\n\\n Kenneth Rosellini, Esq., pro se, Clifton, NJ, for\\n Appellant.\\n\\n No appearance, for Appellee.\\nPER CURIAM.\\n\\n In September 2013, Appellant Kenneth Rosellini filed a Chapter 7 petition in\\n\\nthe United States Bankruptcy Court for the Eastern District of New York on behalf\\n\\nof his client, Alba Sanchez. Rosellini subsequently failed to prosecute the case,\\n\\nhowever, prompting the bankruptcy court to issue multiple orders to show cause.\\n\\nAfter he failed to comply with those orders, the bankruptcy court ultimately\\n\\nsanctioned him $1,000. Rosellini then filed a motion to vacate the sanctions order,\\n\\nwhich the bankruptcy court denied, citing its inherent power “to manage its\\n\\ncalendar and the courtroom.” App’x at 5 (quoting United States v. Seltzer, 227 F.3d\\n\\n36, 42 (2d Cir. 2000)). Rosellini appealed the bankruptcy court’s orders denying\\n\\n\\n\\n\\n 2\\n\\fhis motion to vacate and denying reconsideration, and the district court (Block, J.)\\n\\naffirmed. He now appeals to this Court.\\n\\n “A district court’s order in a bankruptcy case is subject to plenary review,\\n\\nmeaning that this Court undertakes an independent examination of the factual\\n\\nfindings and legal conclusions of the bankruptcy court.” Goldman, Sachs & Co. v.\\n\\nEsso Virgin Islands, Inc. (In re Duplan Corp.), 212 F.3d 144, 151 (2d Cir. 2000). Here,\\n\\nbecause the bankruptcy court relied exclusively on its inherent power to support\\n\\nits sanctions order, we confine our review to the question of whether the court\\n\\nproperly exercised that power, and thus we do not consider potential alternative\\n\\nsources of authority. See Solow v. Kalikow (In re Kalikow), 602 F.3d 82, 96 (2d Cir.\\n\\n2010) (“The Bankruptcy Court’s discretion to award sanctions may be exercised\\n\\nonly on the basis of the specific authority invoked by that court.”).\\n\\n As a threshold matter, although Rosellini does not argue that bankruptcy\\n\\ncourts lack an inherent sanctioning power, we consider this issue to be\\n\\njurisdictional. See, e.g., Zeisl v. Watman (In re Austrian & German Bank Holocaust\\n\\nLitig.), 317 F.3d 91, 99 (2d Cir. 2003); United States v. Uccio, 917 F.2d 80, 84 (2d Cir.\\n\\n1990), superseded by rule on other grounds as recognized in United States v. Werber, 51\\n\\nF.3d 342 (2d Cir. 1995). Thus, we have an independent obligation to ensure that\\n\\n\\n\\n 3\\n\\fbankruptcy courts in fact possess such power. See Bender v. Williamsport Area Sch.\\n\\nDist., 475 U.S. 534, 541 (1986) (“[E]very federal appellate court has a special\\n\\nobligation to satisfy itself not only of its own jurisdiction, but also that of the lower\\n\\ncourts in a cause under review, even though the parties are prepared to concede\\n\\nit.” (internal quotation marks omitted)); see also, e.g., Green Point Credit, LLC v.\\n\\nMcLean (In re McLean), 794 F.3d 1313, 1318–20 (11th Cir. 2015) (considering sua\\n\\nsponte whether the bankruptcy court had jurisdiction to enforce an injunction\\n\\nthrough its contempt power); Plastiras v. Idell (In re Sequoia Auto Brokers Ltd., Inc.),\\n\\n827 F.2d 1281, 1283–84 (9th Cir. 1987) (considering sua sponte the jurisdictional\\n\\nquestion of whether bankruptcy judges have inherent contempt power), superseded\\n\\nby statute on other grounds as recognized in Caldwell v. Unified Capital Corp. (In re\\n\\nRainbow Magazine, Inc.), 77 F.3d 278 (9th Cir. 1996).\\n\\n In fulfilling this obligation here, we consider an issue of first impression in\\n\\nour Circuit – but we do not write on a blank slate. Both the Supreme Court and\\n\\nthis Court have previously suggested that bankruptcy courts possess inherent\\n\\nsanctioning powers. See Law v. Siegel, 571 U.S. 415, 427 (2014) (“The [bankruptcy]\\n\\ncourt may also possess further sanctioning authority under . . . its inherent\\n\\npowers.”); In re Kalikow, 602 F.3d at 96–97 (rejecting the bankruptcy court’s\\n\\n\\n\\n 4\\n\\f“attempt to exercise a combination of inherent and statutory authority” to award\\n\\nsanctions, while implying that bankruptcy courts possess such inherent authority\\n\\nas a general matter); Casse v. Key Bank Nat’l Ass’n (In re Casse), 198 F.3d 327, 336,\\n\\n341 (2d Cir. 1999) (holding that the bankruptcy court had authority under 11 U.S.C.\\n\\n§§ 105(a) and 349(a) to enjoin future filings, but also noting in dicta that\\n\\nbankruptcy courts, “through their inherent powers as courts, . . . are able to police\\n\\ntheir dockets and afford appropriate relief” (quoting 2 Collier on Bankruptcy\\n\\n¶ 105.01[2] (15th ed. 1999))). And beyond our circuit, the “[c]ourts of appeals\\n\\nconsistently have recognized that bankruptcy courts may impose various forms of\\n\\ninherent‐power sanctions.” Charbono v. Sumski (In re Charbono), 790 F.3d 80, 87 (1st\\n\\nCir. 2015) (collecting cases).\\n\\n As our sister circuits have explained, inherent sanctioning powers are not\\n\\ncontingent on Article III, but rather are, as their name suggests, inherent in the\\n\\nnature of federal courts as institutions charged with judicial functions. See id. at\\n\\n86–87; Citizens Bank & Tr. Co. v. Case (In re Case), 937 F.2d 1014, 1023 (5th Cir. 1991);\\n\\nsee also Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (“Certain implied powers\\n\\nmust necessarily result to our Courts of justice from the nature of their institution\\n\\n. . . . These powers are governed not by rule or statute but by the control\\n\\n\\n\\n 5\\n\\fnecessarily vested in courts to manage their own affairs so as to achieve the orderly\\n\\nand expeditious disposition of cases.” (internal quotation marks, citations, and\\n\\nbrackets omitted)). We therefore hold that bankruptcy courts, like Article III\\n\\ncourts, possess inherent sanctioning powers. And, as relevant here, these include\\n\\nthe power to impose relatively minor non‐compensatory sanctions on attorneys\\n\\nappearing before the court in appropriate circumstances. See Wilder v. GL Bus\\n\\nLines, 258 F.3d 126, 130 (2d Cir. 2001) (per curiam); Seltzer, 227 F.3d at 41–42. We\\n\\nexpress no opinion on the outermost bounds of bankruptcy courts’ inherent\\n\\nsanctions powers, including their power to impose more substantial punitive\\n\\nsanctions. See Adell v. John Richards Homes Bldg. Co. (In re John Richards Homes Bldg.\\n\\nCo.), 552 F. App’x 401, 415 (6th Cir. 2013); Knupfer v. Lindblade (In re Dyer), 322 F.3d\\n\\n1178, 1194, 1198 (9th Cir. 2003).\\n\\n In these circumstances, the bankruptcy court’s order imposing sanctions on\\n\\nRosellini in the amount of $1,000 was appropriate for the reasons stated in a\\n\\nseparately‐filed summary order. Accordingly, we AFFIRM the orders of the\\n\\ndistrict court.\\n\\n\\n\\n\\n 6\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4451418/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"WALKER"},"judge2":{"kind":"string","value":"CARNEY"},"judge3":{"kind":"string","value":"SULLIVAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"WALKER\": \", Circuit\", \"CARNEY\": \", Circuit\", \"SULLIVAN\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4674165/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: In Re: Alba Sanchez\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-10-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n18-679\nIn re: Alba Sanchez\n\n\n In the\n United States Court of Appeals\n For the Second Circuit\n\n August Term, 2019\n\n Submitted: September 4, 2019\n Decided: October 30, 2019\n\n Docket No. 18‐679\n\n\n\n IN RE: ALBA SANCHEZ,\n\n Debtor.\n\n KENNETH ROSELLINI,\n\n Appellant,\n\n v.\n\n UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF NEW YORK,\n\n Appellee.\n\n\n\n\n Appeal from the United States District Court\n for the Eastern District of New York\n No. 16‐cv‐5522, Block, Judge.\n\n\n\nBefore: WALKER, CARNEY, AND SULLIVAN, Circuit Judges.\n\f Kenneth Rosellini, an attorney proceeding pro se, appeals the district court’s\norders affirming the bankruptcy court’s award of monetary sanctions pursuant to\nits inherent power. As a matter of first impression in our Circuit, we hold that\nbankruptcy courts possess inherent power to sanction attorneys in appropriate\ncircumstances. Because Rosellini’s challenges to the bankruptcy court’s exercise\nof that power fails for the reasons set forth in a separately‐filed summary order,\nwe affirm.\n\n AFFIRMED.\n\n Kenneth Rosellini, Esq., pro se, Clifton, NJ, for\n Appellant.\n\n No appearance, for Appellee.\nPER CURIAM.\n\n In September 2013, Appellant Kenneth Rosellini filed a Chapter 7 petition in\n\nthe United States Bankruptcy Court for the Eastern District of New York on behalf\n\nof his client, Alba Sanchez. Rosellini subsequently failed to prosecute the case,\n\nhowever, prompting the bankruptcy court to issue multiple orders to show cause.\n\nAfter he failed to comply with those orders, the bankruptcy court ultimately\n\nsanctioned him $1,000. Rosellini then filed a motion to vacate the sanctions order,\n\nwhich the bankruptcy court denied, citing its inherent power “to manage its\n\ncalendar and the courtroom.” App’x at 5 (quoting United States v. Seltzer, 227 F.3d\n\n36, 42 (2d Cir. 2000)). Rosellini appealed the bankruptcy court’s orders denying\n\n\n\n\n 2\n\fhis motion to vacate and denying reconsideration, and the district court (Block, J.)\n\naffirmed. He now appeals to this Court.\n\n “A district court’s order in a bankruptcy case is subject to plenary review,\n\nmeaning that this Court undertakes an independent examination of the factual\n\nfindings and legal conclusions of the bankruptcy court.” Goldman, Sachs & Co. v.\n\nEsso Virgin Islands, Inc. (In re Duplan Corp.), 212 F.3d 144, 151 (2d Cir. 2000). Here,\n\nbecause the bankruptcy court relied exclusively on its inherent power to support\n\nits sanctions order, we confine our review to the question of whether the court\n\nproperly exercised that power, and thus we do not consider potential alternative\n\nsources of authority. See Solow v. Kalikow (In re Kalikow), 602 F.3d 82, 96 (2d Cir.\n\n2010) (“The Bankruptcy Court’s discretion to award sanctions may be exercised\n\nonly on the basis of the specific authority invoked by that court.”).\n\n As a threshold matter, although Rosellini does not argue that bankruptcy\n\ncourts lack an inherent sanctioning power, we consider this issue to be\n\njurisdictional. See, e.g., Zeisl v. Watman (In re Austrian & German Bank Holocaust\n\nLitig.), 317 F.3d 91, 99 (2d Cir. 2003); United States v. Uccio, 917 F.2d 80, 84 (2d Cir.\n\n1990), superseded by rule on other grounds as recognized in United States v. Werber, 51\n\nF.3d 342 (2d Cir. 1995). Thus, we have an independent obligation to ensure that\n\n\n\n 3\n\fbankruptcy courts in fact possess such power. See Bender v. Williamsport Area Sch.\n\nDist., 475 U.S. 534, 541 (1986) (“[E]very federal appellate court has a special\n\nobligation to satisfy itself not only of its own jurisdiction, but also that of the lower\n\ncourts in a cause under review, even though the parties are prepared to concede\n\nit.” (internal quotation marks omitted)); see also, e.g., Green Point Credit, LLC v.\n\nMcLean (In re McLean), 794 F.3d 1313, 1318–20 (11th Cir. 2015) (considering sua\n\nsponte whether the bankruptcy court had jurisdiction to enforce an injunction\n\nthrough its contempt power); Plastiras v. Idell (In re Sequoia Auto Brokers Ltd., Inc.),\n\n827 F.2d 1281, 1283–84 (9th Cir. 1987) (considering sua sponte the jurisdictional\n\nquestion of whether bankruptcy judges have inherent contempt power), superseded\n\nby statute on other grounds as recognized in Caldwell v. Unified Capital Corp. (In re\n\nRainbow Magazine, Inc.), 77 F.3d 278 (9th Cir. 1996).\n\n In fulfilling this obligation here, we consider an issue of first impression in\n\nour Circuit – but we do not write on a blank slate. Both the Supreme Court and\n\nthis Court have previously suggested that bankruptcy courts possess inherent\n\nsanctioning powers. See Law v. Siegel, 571 U.S. 415, 427 (2014) (“The [bankruptcy]\n\ncourt may also possess further sanctioning authority under . . . its inherent\n\npowers.”); In re Kalikow, 602 F.3d at 96–97 (rejecting the bankruptcy court’s\n\n\n\n 4\n\f“attempt to exercise a combination of inherent and statutory authority” to award\n\nsanctions, while implying that bankruptcy courts possess such inherent authority\n\nas a general matter); Casse v. Key Bank Nat’l Ass’n (In re Casse), 198 F.3d 327, 336,\n\n341 (2d Cir. 1999) (holding that the bankruptcy court had authority under 11 U.S.C.\n\n§§ 105(a) and 349(a) to enjoin future filings, but also noting in dicta that\n\nbankruptcy courts, “through their inherent powers as courts, . . . are able to police\n\ntheir dockets and afford appropriate relief” (quoting 2 Collier on Bankruptcy\n\n¶ 105.01[2] (15th ed. 1999))). And beyond our circuit, the “[c]ourts of appeals\n\nconsistently have recognized that bankruptcy courts may impose various forms of\n\ninherent‐power sanctions.” Charbono v. Sumski (In re Charbono), 790 F.3d 80, 87 (1st\n\nCir. 2015) (collecting cases).\n\n As our sister circuits have explained, inherent sanctioning powers are not\n\ncontingent on Article III, but rather are, as their name suggests, inherent in the\n\nnature of federal courts as institutions charged with judicial functions. See id. at\n\n86–87; Citizens Bank & Tr. Co. v. Case (In re Case), 937 F.2d 1014, 1023 (5th Cir. 1991);\n\nsee also Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (“Certain implied powers\n\nmust necessarily result to our Courts of justice from the nature of their institution\n\n. . . . These powers are governed not by rule or statute but by the control\n\n\n\n 5\n\fnecessarily vested in courts to manage their own affairs so as to achieve the orderly\n\nand expeditious disposition of cases.” (internal quotation marks, citations, and\n\nbrackets omitted)). We therefore hold that bankruptcy courts, like Article III\n\ncourts, possess inherent sanctioning powers. And, as relevant here, these include\n\nthe power to impose relatively minor non‐compensatory sanctions on attorneys\n\nappearing before the court in appropriate circumstances. See Wilder v. GL Bus\n\nLines, 258 F.3d 126, 130 (2d Cir. 2001) (per curiam); Seltzer, 227 F.3d at 41–42. We\n\nexpress no opinion on the outermost bounds of bankruptcy courts’ inherent\n\nsanctions powers, including their power to impose more substantial punitive\n\nsanctions. See Adell v. John Richards Homes Bldg. Co. (In re John Richards Homes Bldg.\n\nCo.), 552 F. App’x 401, 415 (6th Cir. 2013); Knupfer v. Lindblade (In re Dyer), 322 F.3d\n\n1178, 1194, 1198 (9th Cir. 2003).\n\n In these circumstances, the bankruptcy court’s order imposing sanctions on\n\nRosellini in the amount of $1,000 was appropriate for the reasons stated in a\n\nseparately‐filed summary order. Accordingly, we AFFIRM the orders of the\n\ndistrict court.\n\n\n\n\n 6\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: In Re: Alba Sanchez\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-10-30\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n18-679\\nIn re: Alba Sanchez\\n\\n\\n In the\\n United States Court of Appeals\\n For the Second Circuit\\n\\n August Term, 2019\\n\\n Submitted: September 4, 2019\\n Decided: October 30, 2019\\n\\n Docket No. 18‐679\\n\\n\\n\\n IN RE: ALBA SANCHEZ,\\n\\n Debtor.\\n\\n KENNETH ROSELLINI,\\n\\n Appellant,\\n\\n v.\\n\\n UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF NEW YORK,\\n\\n Appellee.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of New York\\n No. 16‐cv‐5522, Block, Judge.\\n\\n\\n\\nBefore: WALKER, CARNEY, AND SULLIVAN, Circuit Judges.\\n\\f Kenneth Rosellini, an attorney proceeding pro se, appeals the district court’s\\norders affirming the bankruptcy court’s award of monetary sanctions pursuant to\\nits inherent power. As a matter of first impression in our Circuit, we hold that\\nbankruptcy courts possess inherent power to sanction attorneys in appropriate\\ncircumstances. Because Rosellini’s challenges to the bankruptcy court’s exercise\\nof that power fails for the reasons set forth in a separately‐filed summary order,\\nwe affirm.\\n\\n AFFIRMED.\\n\\n Kenneth Rosellini, Esq., pro se, Clifton, NJ, for\\n Appellant.\\n\\n No appearance, for Appellee.\\nPER CURIAM.\\n\\n In September 2013, Appellant Kenneth Rosellini filed a Chapter 7 petition in\\n\\nthe United States Bankruptcy Court for the Eastern District of New York on behalf\\n\\nof his client, Alba Sanchez. Rosellini subsequently failed to prosecute the case,\\n\\nhowever, prompting the bankruptcy court to issue multiple orders to show cause.\\n\\nAfter he failed to comply with those orders, the bankruptcy court ultimately\\n\\nsanctioned him $1,000. Rosellini then filed a motion to vacate the sanctions order,\\n\\nwhich the bankruptcy court denied, citing its inherent power “to manage its\\n\\ncalendar and the courtroom.” App’x at 5 (quoting United States v. Seltzer, 227 F.3d\\n\\n36, 42 (2d Cir. 2000)). Rosellini appealed the bankruptcy court’s orders denying\\n\\n\\n\\n\\n 2\\n\\fhis motion to vacate and denying reconsideration, and the district court (Block, J.)\\n\\naffirmed. He now appeals to this Court.\\n\\n “A district court’s order in a bankruptcy case is subject to plenary review,\\n\\nmeaning that this Court undertakes an independent examination of the factual\\n\\nfindings and legal conclusions of the bankruptcy court.” Goldman, Sachs & Co. v.\\n\\nEsso Virgin Islands, Inc. (In re Duplan Corp.), 212 F.3d 144, 151 (2d Cir. 2000). Here,\\n\\nbecause the bankruptcy court relied exclusively on its inherent power to support\\n\\nits sanctions order, we confine our review to the question of whether the court\\n\\nproperly exercised that power, and thus we do not consider potential alternative\\n\\nsources of authority. See Solow v. Kalikow (In re Kalikow), 602 F.3d 82, 96 (2d Cir.\\n\\n2010) (“The Bankruptcy Court’s discretion to award sanctions may be exercised\\n\\nonly on the basis of the specific authority invoked by that court.”).\\n\\n As a threshold matter, although Rosellini does not argue that bankruptcy\\n\\ncourts lack an inherent sanctioning power, we consider this issue to be\\n\\njurisdictional. See, e.g., Zeisl v. Watman (In re Austrian & German Bank Holocaust\\n\\nLitig.), 317 F.3d 91, 99 (2d Cir. 2003); United States v. Uccio, 917 F.2d 80, 84 (2d Cir.\\n\\n1990), superseded by rule on other grounds as recognized in United States v. Werber, 51\\n\\nF.3d 342 (2d Cir. 1995). Thus, we have an independent obligation to ensure that\\n\\n\\n\\n 3\\n\\fbankruptcy courts in fact possess such power. See Bender v. Williamsport Area Sch.\\n\\nDist., 475 U.S. 534, 541 (1986) (“[E]very federal appellate court has a special\\n\\nobligation to satisfy itself not only of its own jurisdiction, but also that of the lower\\n\\ncourts in a cause under review, even though the parties are prepared to concede\\n\\nit.” (internal quotation marks omitted)); see also, e.g., Green Point Credit, LLC v.\\n\\nMcLean (In re McLean), 794 F.3d 1313, 1318–20 (11th Cir. 2015) (considering sua\\n\\nsponte whether the bankruptcy court had jurisdiction to enforce an injunction\\n\\nthrough its contempt power); Plastiras v. Idell (In re Sequoia Auto Brokers Ltd., Inc.),\\n\\n827 F.2d 1281, 1283–84 (9th Cir. 1987) (considering sua sponte the jurisdictional\\n\\nquestion of whether bankruptcy judges have inherent contempt power), superseded\\n\\nby statute on other grounds as recognized in Caldwell v. Unified Capital Corp. (In re\\n\\nRainbow Magazine, Inc.), 77 F.3d 278 (9th Cir. 1996).\\n\\n In fulfilling this obligation here, we consider an issue of first impression in\\n\\nour Circuit – but we do not write on a blank slate. Both the Supreme Court and\\n\\nthis Court have previously suggested that bankruptcy courts possess inherent\\n\\nsanctioning powers. See Law v. Siegel, 571 U.S. 415, 427 (2014) (“The [bankruptcy]\\n\\ncourt may also possess further sanctioning authority under . . . its inherent\\n\\npowers.”); In re Kalikow, 602 F.3d at 96–97 (rejecting the bankruptcy court’s\\n\\n\\n\\n 4\\n\\f“attempt to exercise a combination of inherent and statutory authority” to award\\n\\nsanctions, while implying that bankruptcy courts possess such inherent authority\\n\\nas a general matter); Casse v. Key Bank Nat’l Ass’n (In re Casse), 198 F.3d 327, 336,\\n\\n341 (2d Cir. 1999) (holding that the bankruptcy court had authority under 11 U.S.C.\\n\\n§§ 105(a) and 349(a) to enjoin future filings, but also noting in dicta that\\n\\nbankruptcy courts, “through their inherent powers as courts, . . . are able to police\\n\\ntheir dockets and afford appropriate relief” (quoting 2 Collier on Bankruptcy\\n\\n¶ 105.01[2] (15th ed. 1999))). And beyond our circuit, the “[c]ourts of appeals\\n\\nconsistently have recognized that bankruptcy courts may impose various forms of\\n\\ninherent‐power sanctions.” Charbono v. Sumski (In re Charbono), 790 F.3d 80, 87 (1st\\n\\nCir. 2015) (collecting cases).\\n\\n As our sister circuits have explained, inherent sanctioning powers are not\\n\\ncontingent on Article III, but rather are, as their name suggests, inherent in the\\n\\nnature of federal courts as institutions charged with judicial functions. See id. at\\n\\n86–87; Citizens Bank & Tr. Co. v. Case (In re Case), 937 F.2d 1014, 1023 (5th Cir. 1991);\\n\\nsee also Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (“Certain implied powers\\n\\nmust necessarily result to our Courts of justice from the nature of their institution\\n\\n. . . . These powers are governed not by rule or statute but by the control\\n\\n\\n\\n 5\\n\\fnecessarily vested in courts to manage their own affairs so as to achieve the orderly\\n\\nand expeditious disposition of cases.” (internal quotation marks, citations, and\\n\\nbrackets omitted)). We therefore hold that bankruptcy courts, like Article III\\n\\ncourts, possess inherent sanctioning powers. And, as relevant here, these include\\n\\nthe power to impose relatively minor non‐compensatory sanctions on attorneys\\n\\nappearing before the court in appropriate circumstances. See Wilder v. GL Bus\\n\\nLines, 258 F.3d 126, 130 (2d Cir. 2001) (per curiam); Seltzer, 227 F.3d at 41–42. We\\n\\nexpress no opinion on the outermost bounds of bankruptcy courts’ inherent\\n\\nsanctions powers, including their power to impose more substantial punitive\\n\\nsanctions. See Adell v. John Richards Homes Bldg. Co. (In re John Richards Homes Bldg.\\n\\nCo.), 552 F. App’x 401, 415 (6th Cir. 2013); Knupfer v. Lindblade (In re Dyer), 322 F.3d\\n\\n1178, 1194, 1198 (9th Cir. 2003).\\n\\n In these circumstances, the bankruptcy court’s order imposing sanctions on\\n\\nRosellini in the amount of $1,000 was appropriate for the reasons stated in a\\n\\nseparately‐filed summary order. Accordingly, we AFFIRM the orders of the\\n\\ndistrict court.\\n\\n\\n\\n\\n 6\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4555,"cells":{"id":{"kind":"number","value":4674166,"string":"4,674,166"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Deem v. DiMella-Deem"},"decision_date":{"kind":"string","value":"2019-10-30"},"docket_number":{"kind":"string","value":"18-2266"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: WINTER, POOLER, AND SULLIVAN, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"RICHARD J. SULLIVAN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"18-2266\\nDeem v. DiMella-Deem\\n\\n\\n In the\\n United States Court of Appeals\\n For the Second Circuit\\n\\n August Term, 2019\\n\\n Argued: August 26, 2019\\n Decided: October 30, 2019\\n\\n Docket No. 18‐2266\\n\\n\\n\\n MICHAEL ANTHONY DEEM,\\n\\n Plaintiff‐Appellant,\\n\\n v.\\n\\n LORNA DIMELLA‐DEEM, ROBERT J. FILEWICH, PHD, ANGELINA YOUNG, ROLLIN\\n AURELIEN, ROBIN D. CARTON, ESQ., FAITH G. MILLER, ANGELA DIMELLA, JANE\\n DOE, HON. ARLENE GORDON‐OLIVER, F.C.J.,\\n\\n Defendants‐Appellees.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of New York\\n No. 18‐cv‐6186, Román, Judge.\\n\\n\\n\\nBefore: WINTER, POOLER, AND SULLIVAN, Circuit Judges.\\n\\f Plaintiff‐Appellant Michael Anthony Deem appeals the district court’s sua\\nsponte dismissal of his complaint, in which he claimed that Defendants – various\\nindividuals involved in his pending divorce and child custody proceedings,\\nincluding his wife, their marriage counselor, and a family court judge – violated\\nhis constitutional rights and New York state law. We agree with the district court\\nthat the family court judge is entitled to judicial immunity, and we further hold\\nthat the domestic relations abstention doctrine articulated in American Airlines, Inc.\\nv. Block, 905 F.2d 12 (2d Cir. 1990), applies in federal‐question cases. Accordingly,\\nwe affirm.\\n\\n AFFIRMED.\\n\\n MICHAEL ANTHONY DEEM, pro se, Yonkers, NY\\n (argued).\\n\\n LORNA DIMELLA‐DEEM, pro se, Briarcliff Manor,\\n NY.\\n\\n BARBARA DECROW GOLDBERG, Martin Clearwater\\n & Bell LLP, New York, NY (argued), for\\n Defendant‐Appellee Robert J. Filewich, PhD.\\n\\n JOHN M. NONNA, Westchester County Attorney\\n (Justin R. Adin, Associate County Attorney, on the\\n brief), White Plains, NY, for Defendant‐Appellee\\n Angelina Young.\\n\\n THOMAS E. HUMBACH, Rockland County\\n Department of Law, New City, NY, for Defendant‐\\n Appellee Rollin Aurelien.\\n\\n ERIN A. O’LEARY, Morgan Melhuish Abrutyn,\\n Attorneys at Law, New York, NY, for Defendant‐\\n Appellee Robin D. Carton, Esq.\\n\\n\\n\\n\\n 2\\n\\f BRETT A. SCHER, Kaufman Dolowich & Voluck\\n LLP, Woodbury, NY, for Defendant‐Appellee\\n Faith G. Miller.\\n\\n ANGELA DIMELLA, pro se, Cortlandt Manor, NY.\\n\\n BARBARA D. UNDERWOOD, Attorney General, State\\n of New York (Judith N. Vale, Senior Assistant\\n Solicitor General, argued and on the brief, and Mark\\n H. Shawhan, Assistant Solicitor General, on the\\n brief), New York, NY, for Defendant‐Appellee Hon.\\n Arlene Gordon‐Oliver, F.C.J.\\n\\nRICHARD J. SULLIVAN, Circuit Judge:\\n\\n In November 2017, Plaintiff‐Appellant Michael Anthony Deem filed for\\n\\ndivorce from Defendant‐Appellee Lorna DiMella‐Deem in New York State\\n\\nSupreme Court, Westchester County, seeking joint custody of their two children.\\n\\nThe divorce gave rise to family court proceedings over which Family Court Judge\\n\\nArlene Gordon‐Oliver presided. In the course of those proceedings, Judge\\n\\nGordon‐Oliver granted an application filed by Defendant‐Appellee Faith Miller,\\n\\nwho had been appointed to represent the children during the family court\\n\\nproceedings, for a temporary protection order requiring Deem to refrain from any\\n\\ncontact with the children.\\n\\n Deem, a licensed attorney, responded by filing this suit in the Southern\\n\\nDistrict of New York against his wife, their marriage counselor, Judge Gordon‐\\n\\n\\n 3\\n\\fOliver, and other individuals (collectively, “Defendants”) involved in the family\\n\\ncourt proceedings. In particular, Deem asserted claims under 42 U.S.C. §§ 1983,\\n\\n1985, and New York state law, alleging, inter alia, that Defendants conspired to\\n\\nmaliciously prosecute him and to violate his right to intimate association with his\\n\\nchildren. Upon the filing of Deem’s complaint, Judge Gordon‐Oliver recused\\n\\nherself, adjourned an upcoming hearing to a date two months out, and transferred\\n\\nthe case to a different judge. Judge Gordon‐Oliver also extended the temporary\\n\\norder of protection until the next court date. One week later, Deem filed an\\n\\namended complaint seeking damages against Judge Gordon‐Oliver.\\n\\n On July 24, 2018, the district court (Nelson S. Román, Judge) sua sponte\\n\\ndismissed the case. Specifically, the district court concluded that Judge Gordon‐\\n\\nOliver was entitled to judicial immunity and that Deem’s claims against her were\\n\\ntherefore frivolous. With respect to Deem’s federal claims against the remaining\\n\\ndefendants, the district court declined to exercise subject matter jurisdiction,\\n\\nruling that abstention was warranted under our holding in American Airlines, Inc.\\n\\nv. Block, since Deem’s claims “are, or are on the verge of being, about child\\n\\ncustody,” and Deem had “alleged no facts indicating that there is any ‘obstacle to\\n\\n[a] full and fair determination [of his child custody issues] in state courts.’” App’x\\n\\n\\n\\n 4\\n\\fat 44 (alterations in original) (quoting Am. Airlines, Inc. v. Block, 905 F.2d 12, 14 (2d\\n\\nCir. 1990)). After dismissing all of Deem’s federal claims, the district court\\n\\ndeclined to exercise supplemental jurisdiction over his state law claims. Deem\\n\\ntimely appealed the dismissal of his federal claims.\\n\\n I. Judicial Immunity\\n\\n We affirm the dismissal of Deem’s claims against Judge Gordon‐Oliver\\n\\nsubstantially for the reasons set forth in the district court’s well‐reasoned decision.\\n\\nSee App’x 40–42. In particular, the district court correctly determined that, at all\\n\\nrelevant times, Judge Gordon‐Oliver acted in her judicial capacity. See Mireles v.\\n\\nWaco, 502 U.S. 9, 11 (1991). Furthermore, even assuming that Judge Gordon‐Oliver\\n\\nerred in extending the temporary protection order against Deem shortly after\\n\\nrecusing herself, any such error falls far short of an act “taken in the complete\\n\\nabsence of all jurisdiction.” Id. at 12; see also, e.g., Brandley v. Keeshan, 64 F.3d 196,\\n\\n201 (5th Cir. 1995) (holding that judicial immunity barred suit against a state court\\n\\njudge who set an execution date after recusing himself), abrogated on other grounds\\n\\nby Wallace v. Kato, 549 U.S. 384 (2007). Because Judge Gordon‐Oliver was thus\\n\\nclearly entitled to judicial immunity, the district court did not err in sua sponte\\n\\ndismissing the claims against her as frivolous. See Mills v. Fischer, 645 F.3d 176,\\n\\n\\n\\n 5\\n\\f177 (2d Cir. 2011) (“Any claim dismissed on the ground of absolute judicial\\n\\nimmunity is ‘frivolous’ for purposes of 28 U.S.C. § 1915(g).”).\\n\\n II. Domestic Relations Exception and Abstention\\n\\n With respect to Deem’s remaining federal claims, the district court abstained\\n\\nfrom exercising subject matter jurisdiction under American Airlines. On appeal,\\n\\nDeem argues that, under our subsequent decision in Williams v. Lambert, 46 F.3d\\n\\n1275 (2d Cir. 1995), the domestic relations abstention doctrine does not apply in\\n\\nfederal‐question cases. We disagree. Although the domestic relations “exception”\\n\\nto subject matter jurisdiction recognized by the Supreme Court in Ankenbrandt v.\\n\\nRichards, 504 U.S. 689 (1992), does not apply in federal‐question cases, the domestic\\n\\nrelations abstention doctrine articulated in American Airlines does. And since\\n\\nAmerican Airlines remains good law in this Circuit, we affirm the district court’s\\n\\ndismissal of Deem’s federal claims on abstention grounds.\\n\\nA. Background: American Airlines (1990), Ankenbrandt (1992), and Williams (1995)\\n\\n In American Airlines, a federal‐question interpleader case, we held that the\\n\\ndistrict court erred in not abstaining from adjudicating the parties’ dispute over\\n\\nthe distribution of certain funds – specifically, funds corresponding to an ex‐\\n\\nspouse’s maintenance obligations that had not yet been reduced to a final\\n\\n\\n\\n 6\\n\\fjudgment in state court. 905 F.2d at 15. Before reaching the question of abstention,\\n\\nwe first concluded that the case did not fall within the exception to subject matter\\n\\njurisdiction recognized in Barber v. Barber, 62 U.S. (21 How.) 582, 584 (1859). Id. at\\n\\n14. That was so, we explained, because the Barber exception applied “only where\\n\\na federal court is asked to grant a divorce or annulment, determine support\\n\\npayments, or award custody of a child” – in other words, a “rather narrowly\\n\\nconfined” set of disputes not present in American Airlines. Id. (internal quotation\\n\\nmarks and citation omitted). We also noted that the exception might not apply in\\n\\nfederal‐question cases, but declined to resolve that issue. Id. at 14 n.1. Proceeding\\n\\nto the question of abstention, we then explained:\\n\\n Nevertheless, even if subject matter jurisdiction lies over a particular\\n matrimonial action, federal courts may properly abstain from\\n adjudicating such actions in view of the greater interest and expertise\\n of state courts in this field. A federal court presented with\\n matrimonial issues or issues “on the verge” of being matrimonial in\\n nature should abstain from exercising jurisdiction so long as there is\\n no obstacle to their full and fair determination in state courts.\\n\\nId. at 14 (quoting Bossom v. Bossom, 551 F.2d 474, 475 (2d Cir. 1976) (per curiam);\\n\\nPhillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509, 516 (2d Cir. 1973)).\\n\\nBecause the parties’ dispute over certain maintenance funds was, at a minimum,\\n\\non the verge of being matrimonial in nature, and since there was no obstacle to the\\n\\n\\n\\n 7\\n\\ffull and fair determination of that dispute in state court, we concluded that the\\n\\ndistrict court should have abstained from exercising jurisdiction over it. See id. at\\n\\n14–15.\\n\\n Two years later, in Ankenbrandt, the Supreme Court reaffirmed the existence\\n\\nof the jurisdictional exception recognized in Barber. 504 U.S. at 699–704. The Court\\n\\nfirst held that the domestic relations exception was not of constitutional\\n\\ndimension, but rather was an implied exception to Congress’s grant of diversity\\n\\njurisdiction in 28 U.S.C. § 1332. Id. at 696, 700–03. The Court further held,\\n\\nconsistent with American Airlines, that the exception did not apply because the\\n\\nplaintiff’s tort suit for damages, alleging child abuse against her ex‐husband and\\n\\nhis female companion, did not “involv[e] the issuance of a divorce, alimony, or\\n\\nchild custody decree.” Id. at 704. Finally, the Court concluded that abstention was\\n\\nnot appropriate under Younger v. Harris, 401 U.S. 37 (1971), because there were no\\n\\npending state court proceedings, or under Burford v. Sun Oil Co., 319 U.S. 315\\n\\n(1943), because the “status of the domestic relationship ha[d] been determined as\\n\\na matter of state law, and in any event ha[d] no bearing on the underlying torts\\n\\nalleged.” Id. at 705–06.\\n\\n\\n\\n\\n 8\\n\\f The following year, in Williams, we considered an Equal Protection Clause\\n\\nchallenge to a New York law that allegedly discriminated against children born\\n\\nout of wedlock. 46 F.3d at 1277. After concluding that various other abstention\\n\\ndoctrines did not apply, we stated, without elaboration, that “the general policy\\n\\nthat federal courts should abstain from deciding cases that involve matrimonial\\n\\nand domestic relations issues” likewise did not apply. Id. at 1281–83. The Williams\\n\\ndecision did not mention abstention again, but rather proceeded to discuss the\\n\\n“matrimonial exception” articulated in Barber and reaffirmed in Ankenbrandt. Id.\\n\\nat 1283–84. In the course of that discussion, Williams cited American Airlines in\\n\\npassing, together with other cases, when recognizing the existence of the\\n\\nmatrimonial exception; however, Williams did not address or even acknowledge\\n\\nAmerican Airlines’s abstention holding. Id. at 1283. Ultimately, the Williams Court\\n\\nheld that “the matrimonial exception d[id] not apply” because the case did not\\n\\ninvolve a decree for divorce, alimony, or child custody, and was “before this Court\\n\\non federal question jurisdiction, not diversity.” Id. at 1284.\\n\\n B. Discussion\\n\\n Here, as in American Airlines, we first consider whether the domestic\\n\\nrelations exception to federal jurisdiction applies – that is, whether the district\\n\\n\\n\\n 9\\n\\fcourt lacks subject matter jurisdiction as a threshold matter – and then, if the\\n\\nanswer is no, we proceed to consider whether the district court properly abstained\\n\\nfrom exercising its jurisdiction. See Am. Airlines, 905 F.2d at 15; see also In re S.G.\\n\\nPhillips Constructors, Inc., 45 F.3d 702, 708 (2d Cir. 1995) (“[T]he abstention\\n\\nprovisions implicate the question whether the bankruptcy court should exercise\\n\\njurisdiction, not whether the court has jurisdiction in the first instance. . . . The act\\n\\nof abstaining presumes that proper jurisdiction otherwise exists.”).\\n\\n With respect to the first question, the domestic relations exception clearly\\n\\ndoes not apply to this case because it is “before this Court on federal question\\n\\njurisdiction, not diversity.” Williams, 46 F.3d at 1284. Even if that answer were not\\n\\ncompelled by our holding in Williams, we would find no basis for inferring a\\n\\ndomestic relations exception to the federal‐question jurisdiction statute, 28 U.S.C.\\n\\n§ 1331. That the Court in Ankenbrandt recognized a domestic relations exception\\n\\nto the diversity jurisdiction statute (based mainly on the statute’s pre‐1948 text, the\\n\\nCourt’s longstanding interpretation, and stare decisis) has no bearing on whether\\n\\nsuch an exception applies in non‐diversity cases. See Atwood v. Fort Peck Tribal\\n\\nCourt Assiniboine, 513 F.3d 943, 947 (9th Cir. 2008) (holding that the domestic\\n\\nrelations exception does not apply in non‐diversity cases); United States v. Bailey,\\n\\n\\n\\n 10\\n\\f115 F.3d 1222, 1231 (5th Cir. 1997) (same); United States v. Johnson, 114 F.3d 476, 481\\n\\n(4th Cir. 1997) (same). Nor are we persuaded by the Seventh Circuit’s view that\\n\\n“the domestic‐relations exception . . . appl[ies] to both federal‐question and\\n\\ndiversity suits.” Kowalski v. Boliker, 893 F.3d 987, 995 (7th Cir. 2018) (citing Allen v.\\n\\nAllen, 48 F.3d 259, 262 n.3 (7th Cir. 1995)). In Allen, the court recognized that the\\n\\n“domestic relations exception is statutorily carved out from diversity jurisdiction,”\\n\\nbut reasoned that “its goal of leaving family disputes to the courts best suited to\\n\\ndeal with them [was] equally strong, if not stronger, in the instant, non‐diversity\\n\\ndispute.” 48 F.3d at 262 n.3. But the exception’s “goal” is not enough to broaden\\n\\nits scope beyond the diversity jurisdiction context, since the exception “exists as a\\n\\nmatter of statutory construction.” Ankenbrandt, 504 U.S. at 700. Thus, in the\\n\\nfederal‐question context, the policies animating the outcome in Allen are\\n\\nappropriately considered as a basis for domestic‐relations abstention, not the\\n\\ndomestic relations exception.\\n\\n With respect to abstention, we agree with the district court that Deem’s\\n\\nclaims are, at a minimum, “on the verge of being matrimonial in nature” and that\\n\\n“there is no obstacle to their full and fair determination in state courts.” Am.\\n\\nAirlines, 905 F.2d at 14 (internal quotation marks omitted). Accordingly, this case\\n\\n\\n\\n 11\\n\\fis squarely governed by our holding in American Airlines, unless that holding is no\\n\\nlonger good law.\\n\\n Turning then to the question of American Airlines’s validity, we begin by\\n\\nrecognizing the basic rule that a published panel decision is binding on future\\n\\npanels “unless and until it is overruled by the Court en banc or by the Supreme\\n\\nCourt.” Jones v. Coughlin, 45 F.3d 677, 679 (2d Cir. 1995) (per curiam). Of course,\\n\\n“[w]e have recognized . . . that there is an exception to this general rule when an\\n\\nintervening Supreme Court decision . . . casts doubt on our controlling precedent.”\\n\\nIn re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 154 (2d Cir. 2015) as\\n\\namended (Dec. 17, 2015) (internal quotation marks and citation omitted), aff’d sub\\n\\nnom. Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018). In those circumstances, “the\\n\\nintervening decision need not address the precise issue already decided by our\\n\\nCourt,” though there must still be a “conflict, incompatibility, or inconsistency”\\n\\nbetween the intervening decision and our precedent. Id. at 154–55 (brackets,\\n\\ninternal quotation marks, and citations omitted).\\n\\n Ankenbrandt, the intervening Supreme Court decision most relevant to\\n\\nAmerican Airlines’s abstention holding, neither overruled that holding nor cast\\n\\ndoubt on it to the extent that we are free to chart a new course here. As we have\\n\\n\\n\\n 12\\n\\fexplained, Ankenbrandt was not a federal‐question case and thus did not squarely\\n\\naddress the issue presented in American Airlines or this case. And while\\n\\nAnkenbrandt could be read to suggest that abstention based on domestic relations\\n\\nconcerns is merely a variant of Younger or Burford abstention, see Ankenbrandt, 504\\n\\nU.S. at 705–06, 706 n.8, the existence of a distinct abstention doctrine for certain\\n\\ndomestic relations disputes is supported by the Supreme Court’s longstanding\\n\\nrecognition – in a non‐diversity case involving a child custody dispute – that “[t]he\\n\\nwhole subject of the domestic relations of husband and wife, parent and child,\\n\\nbelongs to the laws of the states, and not to the laws of the United States.” In re\\n\\nBurrus, 136 U.S. 586, 593–94 (1890); see also Ankenbrandt, 504 U.S. at 703 (citing In re\\n\\nBurrus with approval while noting that it “technically did not involve a\\n\\nconstruction of the diversity statute”); Elk Grove Unified Sch. Dist. v. Newdow, 542\\n\\nU.S. 1, 13 (2004) (reiterating, in the context of prudential standing, that “in general\\n\\nit is appropriate for the federal courts to leave delicate issues of domestic relations\\n\\nto the state courts”), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control\\n\\nComponents, Inc., 572 U.S. 118 (2014). Consistent with these statements, several of\\n\\nour sister circuits have continued to recognize a distinct domestic relations\\n\\nabstention doctrine in one form or another post‐Ankenbrandt. See supra p.7\\n\\n\\n\\n 13\\n\\f(discussing the Seventh Circuit’s abstention‐like approach to federal‐question\\n\\ndomestic relations cases); Chambers v. Michigan, 473 F. App’x 477, 479 (6th Cir.\\n\\n2012) (unpublished) (“Even when brought under the guise of a federal question\\n\\naction, a suit whose substance is domestic relations generally will not be\\n\\nentertained in a federal court.” (citing Firestone v. Cleveland Tr. Co., 654 F.2d 1212,\\n\\n1215 (6th Cir. 1981)); DeMauro v. DeMauro, 115 F.3d 94, 99 (1st Cir. 1997)\\n\\n(“[A]bstention by use of a stay may be permissible where a RICO action is directed\\n\\nagainst concealment or transfer of property that is the very subject of a pending\\n\\ndivorce proceeding.”); see also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 n.9 (1987)\\n\\n(“The various types of abstention are not rigid pigeonholes into which federal\\n\\ncourts must try to fit cases.”). Therefore, in the absence of a clear statement from\\n\\nthe Supreme Court precluding an abstention doctrine like the one in American\\n\\nAirlines, we discern no conflict, incompatibility, or inconsistency between that case\\n\\nand intervening Supreme Court law that would render prior Circuit precedent not\\n\\nbinding on us. See In re Arab Bank, 808 F.3d at 153 (“Whatever the tension between\\n\\n[our precedent and Supreme Court precedent], the decisions are not logically\\n\\ninconsistent.”).\\n\\n\\n\\n\\n 14\\n\\f Finally, there is no merit to the argument that the abstention issue presented\\n\\nhere is governed by Williams rather than American Airlines. Admittedly, certain\\n\\nlanguage in Williams is, at first glance, suggestive of a ruling on abstention.\\n\\nNevertheless, Williams did not squarely address whether abstention under\\n\\nAmerican Airlines was appropriate, let alone whether its abstention holding had\\n\\nbeen abrogated by Ankenbrandt. See 46 F.3d at 1283–84. Rather, Williams ultimately\\n\\nrelied on Ankenbrandt to conclude that “the matrimonial exception does not apply.”\\n\\nId. at 1284 (emphasis added). In these circumstances, we will not read Williams to\\n\\nbe in conflict with American Airlines, much less a binding holding that American\\n\\nAirlines is no longer good law. See Friends of the E. Hampton Airport, Inc. v. Town of\\n\\nE. Hampton, 841 F.3d 133, 153 (2d Cir. 2016) (“[A] sub silentio holding is not binding\\n\\nprecedent.” (internal quotation marks and citation omitted)). Furthermore, “even\\n\\nif the [Williams] Court had wanted to overrule [American Airlines], it could not have\\n\\ndone so.” Tanasi v. New All. Bank, 786 F.3d 195, 200 n.6 (2d Cir. 2015) as amended\\n\\n(May 21, 2015). Thus, even assuming the two cases were in direct conflict, we\\n\\nwould “have no choice but to follow” American Airlines, and we do so here.1 Id.\\n\\n\\n\\n1Our decision today is consistent with our unbroken practice of citing American Airlines\\nwhen upholding, in unpublished decisions, the dismissal of both federal‐question and\\ndiversity cases involving domestic relations disputes. See, e.g., Martinez v. Queens Cty.\\nDist. Att’y, 596 F. App’x 10, 12 (2d Cir. 2015); Keane v. Keane, 549 F. App’x 54, 55 (2d Cir.\\n 15\\n\\f Accordingly, since American Airlines continues to be the law of this Circuit,\\n\\nand since Deem’s claims are at least “on the verge of being matrimonial in nature”\\n\\nand are capable of being fairly resolved in state court, we affirm the district court’s\\n\\ndismissal of Deem’s federal claims on abstention grounds.\\n\\n III.\\n\\n We have considered Deem’s remaining arguments and find them without\\n\\nmerit. For the reasons stated above, we AFFIRM the judgment of the district court.\\n\\n\\n\\n\\n2014); Hamilton v. Hamilton‐Grinols, 363 F. App’x 767, 769 (2d Cir. 2010); Schottel v. Kutyba,\\nNo. 06‐1577, 2009 WL 230106, at *1 (2d Cir. Feb. 2, 2009); Mitchell‐Angel v. Cronin, 101 F.3d\\n108, 1996 WL 107300, at *2 (2d Cir. Mar. 8, 1996).\\n 16\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4451419/\", \"author_raw\": \"RICHARD J. SULLIVAN, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WINTER"},"judge2":{"kind":"string","value":"POOLER"},"judge3":{"kind":"string","value":"SULLIVAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"WINTER\": \", Circuit\", \"POOLER\": \", Circuit\", \"SULLIVAN\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4674166/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Deem v. DiMella-Deem\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-10-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n18-2266\nDeem v. DiMella-Deem\n\n\n In the\n United States Court of Appeals\n For the Second Circuit\n\n August Term, 2019\n\n Argued: August 26, 2019\n Decided: October 30, 2019\n\n Docket No. 18‐2266\n\n\n\n MICHAEL ANTHONY DEEM,\n\n Plaintiff‐Appellant,\n\n v.\n\n LORNA DIMELLA‐DEEM, ROBERT J. FILEWICH, PHD, ANGELINA YOUNG, ROLLIN\n AURELIEN, ROBIN D. CARTON, ESQ., FAITH G. MILLER, ANGELA DIMELLA, JANE\n DOE, HON. ARLENE GORDON‐OLIVER, F.C.J.,\n\n Defendants‐Appellees.\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of New York\n No. 18‐cv‐6186, Román, Judge.\n\n\n\nBefore: WINTER, POOLER, AND SULLIVAN, Circuit Judges.\n\f Plaintiff‐Appellant Michael Anthony Deem appeals the district court’s sua\nsponte dismissal of his complaint, in which he claimed that Defendants – various\nindividuals involved in his pending divorce and child custody proceedings,\nincluding his wife, their marriage counselor, and a family court judge – violated\nhis constitutional rights and New York state law. We agree with the district court\nthat the family court judge is entitled to judicial immunity, and we further hold\nthat the domestic relations abstention doctrine articulated in American Airlines, Inc.\nv. Block, 905 F.2d 12 (2d Cir. 1990), applies in federal‐question cases. Accordingly,\nwe affirm.\n\n AFFIRMED.\n\n MICHAEL ANTHONY DEEM, pro se, Yonkers, NY\n (argued).\n\n LORNA DIMELLA‐DEEM, pro se, Briarcliff Manor,\n NY.\n\n BARBARA DECROW GOLDBERG, Martin Clearwater\n & Bell LLP, New York, NY (argued), for\n Defendant‐Appellee Robert J. Filewich, PhD.\n\n JOHN M. NONNA, Westchester County Attorney\n (Justin R. Adin, Associate County Attorney, on the\n brief), White Plains, NY, for Defendant‐Appellee\n Angelina Young.\n\n THOMAS E. HUMBACH, Rockland County\n Department of Law, New City, NY, for Defendant‐\n Appellee Rollin Aurelien.\n\n ERIN A. O’LEARY, Morgan Melhuish Abrutyn,\n Attorneys at Law, New York, NY, for Defendant‐\n Appellee Robin D. Carton, Esq.\n\n\n\n\n 2\n\f BRETT A. SCHER, Kaufman Dolowich & Voluck\n LLP, Woodbury, NY, for Defendant‐Appellee\n Faith G. Miller.\n\n ANGELA DIMELLA, pro se, Cortlandt Manor, NY.\n\n BARBARA D. UNDERWOOD, Attorney General, State\n of New York (Judith N. Vale, Senior Assistant\n Solicitor General, argued and on the brief, and Mark\n H. Shawhan, Assistant Solicitor General, on the\n brief), New York, NY, for Defendant‐Appellee Hon.\n Arlene Gordon‐Oliver, F.C.J.\n\nRICHARD J. SULLIVAN, Circuit Judge:\n\n In November 2017, Plaintiff‐Appellant Michael Anthony Deem filed for\n\ndivorce from Defendant‐Appellee Lorna DiMella‐Deem in New York State\n\nSupreme Court, Westchester County, seeking joint custody of their two children.\n\nThe divorce gave rise to family court proceedings over which Family Court Judge\n\nArlene Gordon‐Oliver presided. In the course of those proceedings, Judge\n\nGordon‐Oliver granted an application filed by Defendant‐Appellee Faith Miller,\n\nwho had been appointed to represent the children during the family court\n\nproceedings, for a temporary protection order requiring Deem to refrain from any\n\ncontact with the children.\n\n Deem, a licensed attorney, responded by filing this suit in the Southern\n\nDistrict of New York against his wife, their marriage counselor, Judge Gordon‐\n\n\n 3\n\fOliver, and other individuals (collectively, “Defendants”) involved in the family\n\ncourt proceedings. In particular, Deem asserted claims under 42 U.S.C. §§ 1983,\n\n1985, and New York state law, alleging, inter alia, that Defendants conspired to\n\nmaliciously prosecute him and to violate his right to intimate association with his\n\nchildren. Upon the filing of Deem’s complaint, Judge Gordon‐Oliver recused\n\nherself, adjourned an upcoming hearing to a date two months out, and transferred\n\nthe case to a different judge. Judge Gordon‐Oliver also extended the temporary\n\norder of protection until the next court date. One week later, Deem filed an\n\namended complaint seeking damages against Judge Gordon‐Oliver.\n\n On July 24, 2018, the district court (Nelson S. Román, Judge) sua sponte\n\ndismissed the case. Specifically, the district court concluded that Judge Gordon‐\n\nOliver was entitled to judicial immunity and that Deem’s claims against her were\n\ntherefore frivolous. With respect to Deem’s federal claims against the remaining\n\ndefendants, the district court declined to exercise subject matter jurisdiction,\n\nruling that abstention was warranted under our holding in American Airlines, Inc.\n\nv. Block, since Deem’s claims “are, or are on the verge of being, about child\n\ncustody,” and Deem had “alleged no facts indicating that there is any ‘obstacle to\n\n[a] full and fair determination [of his child custody issues] in state courts.’” App’x\n\n\n\n 4\n\fat 44 (alterations in original) (quoting Am. Airlines, Inc. v. Block, 905 F.2d 12, 14 (2d\n\nCir. 1990)). After dismissing all of Deem’s federal claims, the district court\n\ndeclined to exercise supplemental jurisdiction over his state law claims. Deem\n\ntimely appealed the dismissal of his federal claims.\n\n I. Judicial Immunity\n\n We affirm the dismissal of Deem’s claims against Judge Gordon‐Oliver\n\nsubstantially for the reasons set forth in the district court’s well‐reasoned decision.\n\nSee App’x 40–42. In particular, the district court correctly determined that, at all\n\nrelevant times, Judge Gordon‐Oliver acted in her judicial capacity. See Mireles v.\n\nWaco, 502 U.S. 9, 11 (1991). Furthermore, even assuming that Judge Gordon‐Oliver\n\nerred in extending the temporary protection order against Deem shortly after\n\nrecusing herself, any such error falls far short of an act “taken in the complete\n\nabsence of all jurisdiction.” Id. at 12; see also, e.g., Brandley v. Keeshan, 64 F.3d 196,\n\n201 (5th Cir. 1995) (holding that judicial immunity barred suit against a state court\n\njudge who set an execution date after recusing himself), abrogated on other grounds\n\nby Wallace v. Kato, 549 U.S. 384 (2007). Because Judge Gordon‐Oliver was thus\n\nclearly entitled to judicial immunity, the district court did not err in sua sponte\n\ndismissing the claims against her as frivolous. See Mills v. Fischer, 645 F.3d 176,\n\n\n\n 5\n\f177 (2d Cir. 2011) (“Any claim dismissed on the ground of absolute judicial\n\nimmunity is ‘frivolous’ for purposes of 28 U.S.C. § 1915(g).”).\n\n II. Domestic Relations Exception and Abstention\n\n With respect to Deem’s remaining federal claims, the district court abstained\n\nfrom exercising subject matter jurisdiction under American Airlines. On appeal,\n\nDeem argues that, under our subsequent decision in Williams v. Lambert, 46 F.3d\n\n1275 (2d Cir. 1995), the domestic relations abstention doctrine does not apply in\n\nfederal‐question cases. We disagree. Although the domestic relations “exception”\n\nto subject matter jurisdiction recognized by the Supreme Court in Ankenbrandt v.\n\nRichards, 504 U.S. 689 (1992), does not apply in federal‐question cases, the domestic\n\nrelations abstention doctrine articulated in American Airlines does. And since\n\nAmerican Airlines remains good law in this Circuit, we affirm the district court’s\n\ndismissal of Deem’s federal claims on abstention grounds.\n\nA. Background: American Airlines (1990), Ankenbrandt (1992), and Williams (1995)\n\n In American Airlines, a federal‐question interpleader case, we held that the\n\ndistrict court erred in not abstaining from adjudicating the parties’ dispute over\n\nthe distribution of certain funds – specifically, funds corresponding to an ex‐\n\nspouse’s maintenance obligations that had not yet been reduced to a final\n\n\n\n 6\n\fjudgment in state court. 905 F.2d at 15. Before reaching the question of abstention,\n\nwe first concluded that the case did not fall within the exception to subject matter\n\njurisdiction recognized in Barber v. Barber, 62 U.S. (21 How.) 582, 584 (1859). Id. at\n\n14. That was so, we explained, because the Barber exception applied “only where\n\na federal court is asked to grant a divorce or annulment, determine support\n\npayments, or award custody of a child” – in other words, a “rather narrowly\n\nconfined” set of disputes not present in American Airlines. Id. (internal quotation\n\nmarks and citation omitted). We also noted that the exception might not apply in\n\nfederal‐question cases, but declined to resolve that issue. Id. at 14 n.1. Proceeding\n\nto the question of abstention, we then explained:\n\n Nevertheless, even if subject matter jurisdiction lies over a particular\n matrimonial action, federal courts may properly abstain from\n adjudicating such actions in view of the greater interest and expertise\n of state courts in this field. A federal court presented with\n matrimonial issues or issues “on the verge” of being matrimonial in\n nature should abstain from exercising jurisdiction so long as there is\n no obstacle to their full and fair determination in state courts.\n\nId. at 14 (quoting Bossom v. Bossom, 551 F.2d 474, 475 (2d Cir. 1976) (per curiam);\n\nPhillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509, 516 (2d Cir. 1973)).\n\nBecause the parties’ dispute over certain maintenance funds was, at a minimum,\n\non the verge of being matrimonial in nature, and since there was no obstacle to the\n\n\n\n 7\n\ffull and fair determination of that dispute in state court, we concluded that the\n\ndistrict court should have abstained from exercising jurisdiction over it. See id. at\n\n14–15.\n\n Two years later, in Ankenbrandt, the Supreme Court reaffirmed the existence\n\nof the jurisdictional exception recognized in Barber. 504 U.S. at 699–704. The Court\n\nfirst held that the domestic relations exception was not of constitutional\n\ndimension, but rather was an implied exception to Congress’s grant of diversity\n\njurisdiction in 28 U.S.C. § 1332. Id. at 696, 700–03. The Court further held,\n\nconsistent with American Airlines, that the exception did not apply because the\n\nplaintiff’s tort suit for damages, alleging child abuse against her ex‐husband and\n\nhis female companion, did not “involv[e] the issuance of a divorce, alimony, or\n\nchild custody decree.” Id. at 704. Finally, the Court concluded that abstention was\n\nnot appropriate under Younger v. Harris, 401 U.S. 37 (1971), because there were no\n\npending state court proceedings, or under Burford v. Sun Oil Co., 319 U.S. 315\n\n(1943), because the “status of the domestic relationship ha[d] been determined as\n\na matter of state law, and in any event ha[d] no bearing on the underlying torts\n\nalleged.” Id. at 705–06.\n\n\n\n\n 8\n\f The following year, in Williams, we considered an Equal Protection Clause\n\nchallenge to a New York law that allegedly discriminated against children born\n\nout of wedlock. 46 F.3d at 1277. After concluding that various other abstention\n\ndoctrines did not apply, we stated, without elaboration, that “the general policy\n\nthat federal courts should abstain from deciding cases that involve matrimonial\n\nand domestic relations issues” likewise did not apply. Id. at 1281–83. The Williams\n\ndecision did not mention abstention again, but rather proceeded to discuss the\n\n“matrimonial exception” articulated in Barber and reaffirmed in Ankenbrandt. Id.\n\nat 1283–84. In the course of that discussion, Williams cited American Airlines in\n\npassing, together with other cases, when recognizing the existence of the\n\nmatrimonial exception; however, Williams did not address or even acknowledge\n\nAmerican Airlines’s abstention holding. Id. at 1283. Ultimately, the Williams Court\n\nheld that “the matrimonial exception d[id] not apply” because the case did not\n\ninvolve a decree for divorce, alimony, or child custody, and was “before this Court\n\non federal question jurisdiction, not diversity.” Id. at 1284.\n\n B. Discussion\n\n Here, as in American Airlines, we first consider whether the domestic\n\nrelations exception to federal jurisdiction applies – that is, whether the district\n\n\n\n 9\n\fcourt lacks subject matter jurisdiction as a threshold matter – and then, if the\n\nanswer is no, we proceed to consider whether the district court properly abstained\n\nfrom exercising its jurisdiction. See Am. Airlines, 905 F.2d at 15; see also In re S.G.\n\nPhillips Constructors, Inc., 45 F.3d 702, 708 (2d Cir. 1995) (“[T]he abstention\n\nprovisions implicate the question whether the bankruptcy court should exercise\n\njurisdiction, not whether the court has jurisdiction in the first instance. . . . The act\n\nof abstaining presumes that proper jurisdiction otherwise exists.”).\n\n With respect to the first question, the domestic relations exception clearly\n\ndoes not apply to this case because it is “before this Court on federal question\n\njurisdiction, not diversity.” Williams, 46 F.3d at 1284. Even if that answer were not\n\ncompelled by our holding in Williams, we would find no basis for inferring a\n\ndomestic relations exception to the federal‐question jurisdiction statute, 28 U.S.C.\n\n§ 1331. That the Court in Ankenbrandt recognized a domestic relations exception\n\nto the diversity jurisdiction statute (based mainly on the statute’s pre‐1948 text, the\n\nCourt’s longstanding interpretation, and stare decisis) has no bearing on whether\n\nsuch an exception applies in non‐diversity cases. See Atwood v. Fort Peck Tribal\n\nCourt Assiniboine, 513 F.3d 943, 947 (9th Cir. 2008) (holding that the domestic\n\nrelations exception does not apply in non‐diversity cases); United States v. Bailey,\n\n\n\n 10\n\f115 F.3d 1222, 1231 (5th Cir. 1997) (same); United States v. Johnson, 114 F.3d 476, 481\n\n(4th Cir. 1997) (same). Nor are we persuaded by the Seventh Circuit’s view that\n\n“the domestic‐relations exception . . . appl[ies] to both federal‐question and\n\ndiversity suits.” Kowalski v. Boliker, 893 F.3d 987, 995 (7th Cir. 2018) (citing Allen v.\n\nAllen, 48 F.3d 259, 262 n.3 (7th Cir. 1995)). In Allen, the court recognized that the\n\n“domestic relations exception is statutorily carved out from diversity jurisdiction,”\n\nbut reasoned that “its goal of leaving family disputes to the courts best suited to\n\ndeal with them [was] equally strong, if not stronger, in the instant, non‐diversity\n\ndispute.” 48 F.3d at 262 n.3. But the exception’s “goal” is not enough to broaden\n\nits scope beyond the diversity jurisdiction context, since the exception “exists as a\n\nmatter of statutory construction.” Ankenbrandt, 504 U.S. at 700. Thus, in the\n\nfederal‐question context, the policies animating the outcome in Allen are\n\nappropriately considered as a basis for domestic‐relations abstention, not the\n\ndomestic relations exception.\n\n With respect to abstention, we agree with the district court that Deem’s\n\nclaims are, at a minimum, “on the verge of being matrimonial in nature” and that\n\n“there is no obstacle to their full and fair determination in state courts.” Am.\n\nAirlines, 905 F.2d at 14 (internal quotation marks omitted). Accordingly, this case\n\n\n\n 11\n\fis squarely governed by our holding in American Airlines, unless that holding is no\n\nlonger good law.\n\n Turning then to the question of American Airlines’s validity, we begin by\n\nrecognizing the basic rule that a published panel decision is binding on future\n\npanels “unless and until it is overruled by the Court en banc or by the Supreme\n\nCourt.” Jones v. Coughlin, 45 F.3d 677, 679 (2d Cir. 1995) (per curiam). Of course,\n\n“[w]e have recognized . . . that there is an exception to this general rule when an\n\nintervening Supreme Court decision . . . casts doubt on our controlling precedent.”\n\nIn re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 154 (2d Cir. 2015) as\n\namended (Dec. 17, 2015) (internal quotation marks and citation omitted), aff’d sub\n\nnom. Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018). In those circumstances, “the\n\nintervening decision need not address the precise issue already decided by our\n\nCourt,” though there must still be a “conflict, incompatibility, or inconsistency”\n\nbetween the intervening decision and our precedent. Id. at 154–55 (brackets,\n\ninternal quotation marks, and citations omitted).\n\n Ankenbrandt, the intervening Supreme Court decision most relevant to\n\nAmerican Airlines’s abstention holding, neither overruled that holding nor cast\n\ndoubt on it to the extent that we are free to chart a new course here. As we have\n\n\n\n 12\n\fexplained, Ankenbrandt was not a federal‐question case and thus did not squarely\n\naddress the issue presented in American Airlines or this case. And while\n\nAnkenbrandt could be read to suggest that abstention based on domestic relations\n\nconcerns is merely a variant of Younger or Burford abstention, see Ankenbrandt, 504\n\nU.S. at 705–06, 706 n.8, the existence of a distinct abstention doctrine for certain\n\ndomestic relations disputes is supported by the Supreme Court’s longstanding\n\nrecognition – in a non‐diversity case involving a child custody dispute – that “[t]he\n\nwhole subject of the domestic relations of husband and wife, parent and child,\n\nbelongs to the laws of the states, and not to the laws of the United States.” In re\n\nBurrus, 136 U.S. 586, 593–94 (1890); see also Ankenbrandt, 504 U.S. at 703 (citing In re\n\nBurrus with approval while noting that it “technically did not involve a\n\nconstruction of the diversity statute”); Elk Grove Unified Sch. Dist. v. Newdow, 542\n\nU.S. 1, 13 (2004) (reiterating, in the context of prudential standing, that “in general\n\nit is appropriate for the federal courts to leave delicate issues of domestic relations\n\nto the state courts”), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control\n\nComponents, Inc., 572 U.S. 118 (2014). Consistent with these statements, several of\n\nour sister circuits have continued to recognize a distinct domestic relations\n\nabstention doctrine in one form or another post‐Ankenbrandt. See supra p.7\n\n\n\n 13\n\f(discussing the Seventh Circuit’s abstention‐like approach to federal‐question\n\ndomestic relations cases); Chambers v. Michigan, 473 F. App’x 477, 479 (6th Cir.\n\n2012) (unpublished) (“Even when brought under the guise of a federal question\n\naction, a suit whose substance is domestic relations generally will not be\n\nentertained in a federal court.” (citing Firestone v. Cleveland Tr. Co., 654 F.2d 1212,\n\n1215 (6th Cir. 1981)); DeMauro v. DeMauro, 115 F.3d 94, 99 (1st Cir. 1997)\n\n(“[A]bstention by use of a stay may be permissible where a RICO action is directed\n\nagainst concealment or transfer of property that is the very subject of a pending\n\ndivorce proceeding.”); see also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 n.9 (1987)\n\n(“The various types of abstention are not rigid pigeonholes into which federal\n\ncourts must try to fit cases.”). Therefore, in the absence of a clear statement from\n\nthe Supreme Court precluding an abstention doctrine like the one in American\n\nAirlines, we discern no conflict, incompatibility, or inconsistency between that case\n\nand intervening Supreme Court law that would render prior Circuit precedent not\n\nbinding on us. See In re Arab Bank, 808 F.3d at 153 (“Whatever the tension between\n\n[our precedent and Supreme Court precedent], the decisions are not logically\n\ninconsistent.”).\n\n\n\n\n 14\n\f Finally, there is no merit to the argument that the abstention issue presented\n\nhere is governed by Williams rather than American Airlines. Admittedly, certain\n\nlanguage in Williams is, at first glance, suggestive of a ruling on abstention.\n\nNevertheless, Williams did not squarely address whether abstention under\n\nAmerican Airlines was appropriate, let alone whether its abstention holding had\n\nbeen abrogated by Ankenbrandt. See 46 F.3d at 1283–84. Rather, Williams ultimately\n\nrelied on Ankenbrandt to conclude that “the matrimonial exception does not apply.”\n\nId. at 1284 (emphasis added). In these circumstances, we will not read Williams to\n\nbe in conflict with American Airlines, much less a binding holding that American\n\nAirlines is no longer good law. See Friends of the E. Hampton Airport, Inc. v. Town of\n\nE. Hampton, 841 F.3d 133, 153 (2d Cir. 2016) (“[A] sub silentio holding is not binding\n\nprecedent.” (internal quotation marks and citation omitted)). Furthermore, “even\n\nif the [Williams] Court had wanted to overrule [American Airlines], it could not have\n\ndone so.” Tanasi v. New All. Bank, 786 F.3d 195, 200 n.6 (2d Cir. 2015) as amended\n\n(May 21, 2015). Thus, even assuming the two cases were in direct conflict, we\n\nwould “have no choice but to follow” American Airlines, and we do so here.1 Id.\n\n\n\n1Our decision today is consistent with our unbroken practice of citing American Airlines\nwhen upholding, in unpublished decisions, the dismissal of both federal‐question and\ndiversity cases involving domestic relations disputes. See, e.g., Martinez v. Queens Cty.\nDist. Att’y, 596 F. App’x 10, 12 (2d Cir. 2015); Keane v. Keane, 549 F. App’x 54, 55 (2d Cir.\n 15\n\f Accordingly, since American Airlines continues to be the law of this Circuit,\n\nand since Deem’s claims are at least “on the verge of being matrimonial in nature”\n\nand are capable of being fairly resolved in state court, we affirm the district court’s\n\ndismissal of Deem’s federal claims on abstention grounds.\n\n III.\n\n We have considered Deem’s remaining arguments and find them without\n\nmerit. For the reasons stated above, we AFFIRM the judgment of the district court.\n\n\n\n\n2014); Hamilton v. Hamilton‐Grinols, 363 F. App’x 767, 769 (2d Cir. 2010); Schottel v. Kutyba,\nNo. 06‐1577, 2009 WL 230106, at *1 (2d Cir. Feb. 2, 2009); Mitchell‐Angel v. Cronin, 101 F.3d\n108, 1996 WL 107300, at *2 (2d Cir. Mar. 8, 1996).\n 16\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Deem v. DiMella-Deem\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-10-30\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n18-2266\\nDeem v. DiMella-Deem\\n\\n\\n In the\\n United States Court of Appeals\\n For the Second Circuit\\n\\n August Term, 2019\\n\\n Argued: August 26, 2019\\n Decided: October 30, 2019\\n\\n Docket No. 18‐2266\\n\\n\\n\\n MICHAEL ANTHONY DEEM,\\n\\n Plaintiff‐Appellant,\\n\\n v.\\n\\n LORNA DIMELLA‐DEEM, ROBERT J. FILEWICH, PHD, ANGELINA YOUNG, ROLLIN\\n AURELIEN, ROBIN D. CARTON, ESQ., FAITH G. MILLER, ANGELA DIMELLA, JANE\\n DOE, HON. ARLENE GORDON‐OLIVER, F.C.J.,\\n\\n Defendants‐Appellees.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of New York\\n No. 18‐cv‐6186, Román, Judge.\\n\\n\\n\\nBefore: WINTER, POOLER, AND SULLIVAN, Circuit Judges.\\n\\f Plaintiff‐Appellant Michael Anthony Deem appeals the district court’s sua\\nsponte dismissal of his complaint, in which he claimed that Defendants – various\\nindividuals involved in his pending divorce and child custody proceedings,\\nincluding his wife, their marriage counselor, and a family court judge – violated\\nhis constitutional rights and New York state law. We agree with the district court\\nthat the family court judge is entitled to judicial immunity, and we further hold\\nthat the domestic relations abstention doctrine articulated in American Airlines, Inc.\\nv. Block, 905 F.2d 12 (2d Cir. 1990), applies in federal‐question cases. Accordingly,\\nwe affirm.\\n\\n AFFIRMED.\\n\\n MICHAEL ANTHONY DEEM, pro se, Yonkers, NY\\n (argued).\\n\\n LORNA DIMELLA‐DEEM, pro se, Briarcliff Manor,\\n NY.\\n\\n BARBARA DECROW GOLDBERG, Martin Clearwater\\n & Bell LLP, New York, NY (argued), for\\n Defendant‐Appellee Robert J. Filewich, PhD.\\n\\n JOHN M. NONNA, Westchester County Attorney\\n (Justin R. Adin, Associate County Attorney, on the\\n brief), White Plains, NY, for Defendant‐Appellee\\n Angelina Young.\\n\\n THOMAS E. HUMBACH, Rockland County\\n Department of Law, New City, NY, for Defendant‐\\n Appellee Rollin Aurelien.\\n\\n ERIN A. O’LEARY, Morgan Melhuish Abrutyn,\\n Attorneys at Law, New York, NY, for Defendant‐\\n Appellee Robin D. Carton, Esq.\\n\\n\\n\\n\\n 2\\n\\f BRETT A. SCHER, Kaufman Dolowich & Voluck\\n LLP, Woodbury, NY, for Defendant‐Appellee\\n Faith G. Miller.\\n\\n ANGELA DIMELLA, pro se, Cortlandt Manor, NY.\\n\\n BARBARA D. UNDERWOOD, Attorney General, State\\n of New York (Judith N. Vale, Senior Assistant\\n Solicitor General, argued and on the brief, and Mark\\n H. Shawhan, Assistant Solicitor General, on the\\n brief), New York, NY, for Defendant‐Appellee Hon.\\n Arlene Gordon‐Oliver, F.C.J.\\n\\nRICHARD J. SULLIVAN, Circuit Judge:\\n\\n In November 2017, Plaintiff‐Appellant Michael Anthony Deem filed for\\n\\ndivorce from Defendant‐Appellee Lorna DiMella‐Deem in New York State\\n\\nSupreme Court, Westchester County, seeking joint custody of their two children.\\n\\nThe divorce gave rise to family court proceedings over which Family Court Judge\\n\\nArlene Gordon‐Oliver presided. In the course of those proceedings, Judge\\n\\nGordon‐Oliver granted an application filed by Defendant‐Appellee Faith Miller,\\n\\nwho had been appointed to represent the children during the family court\\n\\nproceedings, for a temporary protection order requiring Deem to refrain from any\\n\\ncontact with the children.\\n\\n Deem, a licensed attorney, responded by filing this suit in the Southern\\n\\nDistrict of New York against his wife, their marriage counselor, Judge Gordon‐\\n\\n\\n 3\\n\\fOliver, and other individuals (collectively, “Defendants”) involved in the family\\n\\ncourt proceedings. In particular, Deem asserted claims under 42 U.S.C. §§ 1983,\\n\\n1985, and New York state law, alleging, inter alia, that Defendants conspired to\\n\\nmaliciously prosecute him and to violate his right to intimate association with his\\n\\nchildren. Upon the filing of Deem’s complaint, Judge Gordon‐Oliver recused\\n\\nherself, adjourned an upcoming hearing to a date two months out, and transferred\\n\\nthe case to a different judge. Judge Gordon‐Oliver also extended the temporary\\n\\norder of protection until the next court date. One week later, Deem filed an\\n\\namended complaint seeking damages against Judge Gordon‐Oliver.\\n\\n On July 24, 2018, the district court (Nelson S. Román, Judge) sua sponte\\n\\ndismissed the case. Specifically, the district court concluded that Judge Gordon‐\\n\\nOliver was entitled to judicial immunity and that Deem’s claims against her were\\n\\ntherefore frivolous. With respect to Deem’s federal claims against the remaining\\n\\ndefendants, the district court declined to exercise subject matter jurisdiction,\\n\\nruling that abstention was warranted under our holding in American Airlines, Inc.\\n\\nv. Block, since Deem’s claims “are, or are on the verge of being, about child\\n\\ncustody,” and Deem had “alleged no facts indicating that there is any ‘obstacle to\\n\\n[a] full and fair determination [of his child custody issues] in state courts.’” App’x\\n\\n\\n\\n 4\\n\\fat 44 (alterations in original) (quoting Am. Airlines, Inc. v. Block, 905 F.2d 12, 14 (2d\\n\\nCir. 1990)). After dismissing all of Deem’s federal claims, the district court\\n\\ndeclined to exercise supplemental jurisdiction over his state law claims. Deem\\n\\ntimely appealed the dismissal of his federal claims.\\n\\n I. Judicial Immunity\\n\\n We affirm the dismissal of Deem’s claims against Judge Gordon‐Oliver\\n\\nsubstantially for the reasons set forth in the district court’s well‐reasoned decision.\\n\\nSee App’x 40–42. In particular, the district court correctly determined that, at all\\n\\nrelevant times, Judge Gordon‐Oliver acted in her judicial capacity. See Mireles v.\\n\\nWaco, 502 U.S. 9, 11 (1991). Furthermore, even assuming that Judge Gordon‐Oliver\\n\\nerred in extending the temporary protection order against Deem shortly after\\n\\nrecusing herself, any such error falls far short of an act “taken in the complete\\n\\nabsence of all jurisdiction.” Id. at 12; see also, e.g., Brandley v. Keeshan, 64 F.3d 196,\\n\\n201 (5th Cir. 1995) (holding that judicial immunity barred suit against a state court\\n\\njudge who set an execution date after recusing himself), abrogated on other grounds\\n\\nby Wallace v. Kato, 549 U.S. 384 (2007). Because Judge Gordon‐Oliver was thus\\n\\nclearly entitled to judicial immunity, the district court did not err in sua sponte\\n\\ndismissing the claims against her as frivolous. See Mills v. Fischer, 645 F.3d 176,\\n\\n\\n\\n 5\\n\\f177 (2d Cir. 2011) (“Any claim dismissed on the ground of absolute judicial\\n\\nimmunity is ‘frivolous’ for purposes of 28 U.S.C. § 1915(g).”).\\n\\n II. Domestic Relations Exception and Abstention\\n\\n With respect to Deem’s remaining federal claims, the district court abstained\\n\\nfrom exercising subject matter jurisdiction under American Airlines. On appeal,\\n\\nDeem argues that, under our subsequent decision in Williams v. Lambert, 46 F.3d\\n\\n1275 (2d Cir. 1995), the domestic relations abstention doctrine does not apply in\\n\\nfederal‐question cases. We disagree. Although the domestic relations “exception”\\n\\nto subject matter jurisdiction recognized by the Supreme Court in Ankenbrandt v.\\n\\nRichards, 504 U.S. 689 (1992), does not apply in federal‐question cases, the domestic\\n\\nrelations abstention doctrine articulated in American Airlines does. And since\\n\\nAmerican Airlines remains good law in this Circuit, we affirm the district court’s\\n\\ndismissal of Deem’s federal claims on abstention grounds.\\n\\nA. Background: American Airlines (1990), Ankenbrandt (1992), and Williams (1995)\\n\\n In American Airlines, a federal‐question interpleader case, we held that the\\n\\ndistrict court erred in not abstaining from adjudicating the parties’ dispute over\\n\\nthe distribution of certain funds – specifically, funds corresponding to an ex‐\\n\\nspouse’s maintenance obligations that had not yet been reduced to a final\\n\\n\\n\\n 6\\n\\fjudgment in state court. 905 F.2d at 15. Before reaching the question of abstention,\\n\\nwe first concluded that the case did not fall within the exception to subject matter\\n\\njurisdiction recognized in Barber v. Barber, 62 U.S. (21 How.) 582, 584 (1859). Id. at\\n\\n14. That was so, we explained, because the Barber exception applied “only where\\n\\na federal court is asked to grant a divorce or annulment, determine support\\n\\npayments, or award custody of a child” – in other words, a “rather narrowly\\n\\nconfined” set of disputes not present in American Airlines. Id. (internal quotation\\n\\nmarks and citation omitted). We also noted that the exception might not apply in\\n\\nfederal‐question cases, but declined to resolve that issue. Id. at 14 n.1. Proceeding\\n\\nto the question of abstention, we then explained:\\n\\n Nevertheless, even if subject matter jurisdiction lies over a particular\\n matrimonial action, federal courts may properly abstain from\\n adjudicating such actions in view of the greater interest and expertise\\n of state courts in this field. A federal court presented with\\n matrimonial issues or issues “on the verge” of being matrimonial in\\n nature should abstain from exercising jurisdiction so long as there is\\n no obstacle to their full and fair determination in state courts.\\n\\nId. at 14 (quoting Bossom v. Bossom, 551 F.2d 474, 475 (2d Cir. 1976) (per curiam);\\n\\nPhillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509, 516 (2d Cir. 1973)).\\n\\nBecause the parties’ dispute over certain maintenance funds was, at a minimum,\\n\\non the verge of being matrimonial in nature, and since there was no obstacle to the\\n\\n\\n\\n 7\\n\\ffull and fair determination of that dispute in state court, we concluded that the\\n\\ndistrict court should have abstained from exercising jurisdiction over it. See id. at\\n\\n14–15.\\n\\n Two years later, in Ankenbrandt, the Supreme Court reaffirmed the existence\\n\\nof the jurisdictional exception recognized in Barber. 504 U.S. at 699–704. The Court\\n\\nfirst held that the domestic relations exception was not of constitutional\\n\\ndimension, but rather was an implied exception to Congress’s grant of diversity\\n\\njurisdiction in 28 U.S.C. § 1332. Id. at 696, 700–03. The Court further held,\\n\\nconsistent with American Airlines, that the exception did not apply because the\\n\\nplaintiff’s tort suit for damages, alleging child abuse against her ex‐husband and\\n\\nhis female companion, did not “involv[e] the issuance of a divorce, alimony, or\\n\\nchild custody decree.” Id. at 704. Finally, the Court concluded that abstention was\\n\\nnot appropriate under Younger v. Harris, 401 U.S. 37 (1971), because there were no\\n\\npending state court proceedings, or under Burford v. Sun Oil Co., 319 U.S. 315\\n\\n(1943), because the “status of the domestic relationship ha[d] been determined as\\n\\na matter of state law, and in any event ha[d] no bearing on the underlying torts\\n\\nalleged.” Id. at 705–06.\\n\\n\\n\\n\\n 8\\n\\f The following year, in Williams, we considered an Equal Protection Clause\\n\\nchallenge to a New York law that allegedly discriminated against children born\\n\\nout of wedlock. 46 F.3d at 1277. After concluding that various other abstention\\n\\ndoctrines did not apply, we stated, without elaboration, that “the general policy\\n\\nthat federal courts should abstain from deciding cases that involve matrimonial\\n\\nand domestic relations issues” likewise did not apply. Id. at 1281–83. The Williams\\n\\ndecision did not mention abstention again, but rather proceeded to discuss the\\n\\n“matrimonial exception” articulated in Barber and reaffirmed in Ankenbrandt. Id.\\n\\nat 1283–84. In the course of that discussion, Williams cited American Airlines in\\n\\npassing, together with other cases, when recognizing the existence of the\\n\\nmatrimonial exception; however, Williams did not address or even acknowledge\\n\\nAmerican Airlines’s abstention holding. Id. at 1283. Ultimately, the Williams Court\\n\\nheld that “the matrimonial exception d[id] not apply” because the case did not\\n\\ninvolve a decree for divorce, alimony, or child custody, and was “before this Court\\n\\non federal question jurisdiction, not diversity.” Id. at 1284.\\n\\n B. Discussion\\n\\n Here, as in American Airlines, we first consider whether the domestic\\n\\nrelations exception to federal jurisdiction applies – that is, whether the district\\n\\n\\n\\n 9\\n\\fcourt lacks subject matter jurisdiction as a threshold matter – and then, if the\\n\\nanswer is no, we proceed to consider whether the district court properly abstained\\n\\nfrom exercising its jurisdiction. See Am. Airlines, 905 F.2d at 15; see also In re S.G.\\n\\nPhillips Constructors, Inc., 45 F.3d 702, 708 (2d Cir. 1995) (“[T]he abstention\\n\\nprovisions implicate the question whether the bankruptcy court should exercise\\n\\njurisdiction, not whether the court has jurisdiction in the first instance. . . . The act\\n\\nof abstaining presumes that proper jurisdiction otherwise exists.”).\\n\\n With respect to the first question, the domestic relations exception clearly\\n\\ndoes not apply to this case because it is “before this Court on federal question\\n\\njurisdiction, not diversity.” Williams, 46 F.3d at 1284. Even if that answer were not\\n\\ncompelled by our holding in Williams, we would find no basis for inferring a\\n\\ndomestic relations exception to the federal‐question jurisdiction statute, 28 U.S.C.\\n\\n§ 1331. That the Court in Ankenbrandt recognized a domestic relations exception\\n\\nto the diversity jurisdiction statute (based mainly on the statute’s pre‐1948 text, the\\n\\nCourt’s longstanding interpretation, and stare decisis) has no bearing on whether\\n\\nsuch an exception applies in non‐diversity cases. See Atwood v. Fort Peck Tribal\\n\\nCourt Assiniboine, 513 F.3d 943, 947 (9th Cir. 2008) (holding that the domestic\\n\\nrelations exception does not apply in non‐diversity cases); United States v. Bailey,\\n\\n\\n\\n 10\\n\\f115 F.3d 1222, 1231 (5th Cir. 1997) (same); United States v. Johnson, 114 F.3d 476, 481\\n\\n(4th Cir. 1997) (same). Nor are we persuaded by the Seventh Circuit’s view that\\n\\n“the domestic‐relations exception . . . appl[ies] to both federal‐question and\\n\\ndiversity suits.” Kowalski v. Boliker, 893 F.3d 987, 995 (7th Cir. 2018) (citing Allen v.\\n\\nAllen, 48 F.3d 259, 262 n.3 (7th Cir. 1995)). In Allen, the court recognized that the\\n\\n“domestic relations exception is statutorily carved out from diversity jurisdiction,”\\n\\nbut reasoned that “its goal of leaving family disputes to the courts best suited to\\n\\ndeal with them [was] equally strong, if not stronger, in the instant, non‐diversity\\n\\ndispute.” 48 F.3d at 262 n.3. But the exception’s “goal” is not enough to broaden\\n\\nits scope beyond the diversity jurisdiction context, since the exception “exists as a\\n\\nmatter of statutory construction.” Ankenbrandt, 504 U.S. at 700. Thus, in the\\n\\nfederal‐question context, the policies animating the outcome in Allen are\\n\\nappropriately considered as a basis for domestic‐relations abstention, not the\\n\\ndomestic relations exception.\\n\\n With respect to abstention, we agree with the district court that Deem’s\\n\\nclaims are, at a minimum, “on the verge of being matrimonial in nature” and that\\n\\n“there is no obstacle to their full and fair determination in state courts.” Am.\\n\\nAirlines, 905 F.2d at 14 (internal quotation marks omitted). Accordingly, this case\\n\\n\\n\\n 11\\n\\fis squarely governed by our holding in American Airlines, unless that holding is no\\n\\nlonger good law.\\n\\n Turning then to the question of American Airlines’s validity, we begin by\\n\\nrecognizing the basic rule that a published panel decision is binding on future\\n\\npanels “unless and until it is overruled by the Court en banc or by the Supreme\\n\\nCourt.” Jones v. Coughlin, 45 F.3d 677, 679 (2d Cir. 1995) (per curiam). Of course,\\n\\n“[w]e have recognized . . . that there is an exception to this general rule when an\\n\\nintervening Supreme Court decision . . . casts doubt on our controlling precedent.”\\n\\nIn re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 154 (2d Cir. 2015) as\\n\\namended (Dec. 17, 2015) (internal quotation marks and citation omitted), aff’d sub\\n\\nnom. Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018). In those circumstances, “the\\n\\nintervening decision need not address the precise issue already decided by our\\n\\nCourt,” though there must still be a “conflict, incompatibility, or inconsistency”\\n\\nbetween the intervening decision and our precedent. Id. at 154–55 (brackets,\\n\\ninternal quotation marks, and citations omitted).\\n\\n Ankenbrandt, the intervening Supreme Court decision most relevant to\\n\\nAmerican Airlines’s abstention holding, neither overruled that holding nor cast\\n\\ndoubt on it to the extent that we are free to chart a new course here. As we have\\n\\n\\n\\n 12\\n\\fexplained, Ankenbrandt was not a federal‐question case and thus did not squarely\\n\\naddress the issue presented in American Airlines or this case. And while\\n\\nAnkenbrandt could be read to suggest that abstention based on domestic relations\\n\\nconcerns is merely a variant of Younger or Burford abstention, see Ankenbrandt, 504\\n\\nU.S. at 705–06, 706 n.8, the existence of a distinct abstention doctrine for certain\\n\\ndomestic relations disputes is supported by the Supreme Court’s longstanding\\n\\nrecognition – in a non‐diversity case involving a child custody dispute – that “[t]he\\n\\nwhole subject of the domestic relations of husband and wife, parent and child,\\n\\nbelongs to the laws of the states, and not to the laws of the United States.” In re\\n\\nBurrus, 136 U.S. 586, 593–94 (1890); see also Ankenbrandt, 504 U.S. at 703 (citing In re\\n\\nBurrus with approval while noting that it “technically did not involve a\\n\\nconstruction of the diversity statute”); Elk Grove Unified Sch. Dist. v. Newdow, 542\\n\\nU.S. 1, 13 (2004) (reiterating, in the context of prudential standing, that “in general\\n\\nit is appropriate for the federal courts to leave delicate issues of domestic relations\\n\\nto the state courts”), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control\\n\\nComponents, Inc., 572 U.S. 118 (2014). Consistent with these statements, several of\\n\\nour sister circuits have continued to recognize a distinct domestic relations\\n\\nabstention doctrine in one form or another post‐Ankenbrandt. See supra p.7\\n\\n\\n\\n 13\\n\\f(discussing the Seventh Circuit’s abstention‐like approach to federal‐question\\n\\ndomestic relations cases); Chambers v. Michigan, 473 F. App’x 477, 479 (6th Cir.\\n\\n2012) (unpublished) (“Even when brought under the guise of a federal question\\n\\naction, a suit whose substance is domestic relations generally will not be\\n\\nentertained in a federal court.” (citing Firestone v. Cleveland Tr. Co., 654 F.2d 1212,\\n\\n1215 (6th Cir. 1981)); DeMauro v. DeMauro, 115 F.3d 94, 99 (1st Cir. 1997)\\n\\n(“[A]bstention by use of a stay may be permissible where a RICO action is directed\\n\\nagainst concealment or transfer of property that is the very subject of a pending\\n\\ndivorce proceeding.”); see also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 n.9 (1987)\\n\\n(“The various types of abstention are not rigid pigeonholes into which federal\\n\\ncourts must try to fit cases.”). Therefore, in the absence of a clear statement from\\n\\nthe Supreme Court precluding an abstention doctrine like the one in American\\n\\nAirlines, we discern no conflict, incompatibility, or inconsistency between that case\\n\\nand intervening Supreme Court law that would render prior Circuit precedent not\\n\\nbinding on us. See In re Arab Bank, 808 F.3d at 153 (“Whatever the tension between\\n\\n[our precedent and Supreme Court precedent], the decisions are not logically\\n\\ninconsistent.”).\\n\\n\\n\\n\\n 14\\n\\f Finally, there is no merit to the argument that the abstention issue presented\\n\\nhere is governed by Williams rather than American Airlines. Admittedly, certain\\n\\nlanguage in Williams is, at first glance, suggestive of a ruling on abstention.\\n\\nNevertheless, Williams did not squarely address whether abstention under\\n\\nAmerican Airlines was appropriate, let alone whether its abstention holding had\\n\\nbeen abrogated by Ankenbrandt. See 46 F.3d at 1283–84. Rather, Williams ultimately\\n\\nrelied on Ankenbrandt to conclude that “the matrimonial exception does not apply.”\\n\\nId. at 1284 (emphasis added). In these circumstances, we will not read Williams to\\n\\nbe in conflict with American Airlines, much less a binding holding that American\\n\\nAirlines is no longer good law. See Friends of the E. Hampton Airport, Inc. v. Town of\\n\\nE. Hampton, 841 F.3d 133, 153 (2d Cir. 2016) (“[A] sub silentio holding is not binding\\n\\nprecedent.” (internal quotation marks and citation omitted)). Furthermore, “even\\n\\nif the [Williams] Court had wanted to overrule [American Airlines], it could not have\\n\\ndone so.” Tanasi v. New All. Bank, 786 F.3d 195, 200 n.6 (2d Cir. 2015) as amended\\n\\n(May 21, 2015). Thus, even assuming the two cases were in direct conflict, we\\n\\nwould “have no choice but to follow” American Airlines, and we do so here.1 Id.\\n\\n\\n\\n1Our decision today is consistent with our unbroken practice of citing American Airlines\\nwhen upholding, in unpublished decisions, the dismissal of both federal‐question and\\ndiversity cases involving domestic relations disputes. See, e.g., Martinez v. Queens Cty.\\nDist. Att’y, 596 F. App’x 10, 12 (2d Cir. 2015); Keane v. Keane, 549 F. App’x 54, 55 (2d Cir.\\n 15\\n\\f Accordingly, since American Airlines continues to be the law of this Circuit,\\n\\nand since Deem’s claims are at least “on the verge of being matrimonial in nature”\\n\\nand are capable of being fairly resolved in state court, we affirm the district court’s\\n\\ndismissal of Deem’s federal claims on abstention grounds.\\n\\n III.\\n\\n We have considered Deem’s remaining arguments and find them without\\n\\nmerit. For the reasons stated above, we AFFIRM the judgment of the district court.\\n\\n\\n\\n\\n2014); Hamilton v. Hamilton‐Grinols, 363 F. App’x 767, 769 (2d Cir. 2010); Schottel v. Kutyba,\\nNo. 06‐1577, 2009 WL 230106, at *1 (2d Cir. Feb. 2, 2009); Mitchell‐Angel v. Cronin, 101 F.3d\\n108, 1996 WL 107300, at *2 (2d Cir. Mar. 8, 1996).\\n 16\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4556,"cells":{"id":{"kind":"number","value":4674657,"string":"4,674,657"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Tanner"},"decision_date":{"kind":"string","value":"2019-10-31"},"docket_number":{"kind":"string","value":"18-3598-cr(L)"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: 25 26 JACOBS, LOHIER, and PARK, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"LOHIER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"18‐3598‐cr(L)\\n United States v. Tanner et al.\\n\\n 1 UNITED STATES COURT OF APPEALS\\n 2 FOR THE SECOND CIRCUIT\\n 3\\n 4 August Term, 2018\\n 5\\n 6 (Argued: June 24, 2019 Decided: October 31, 2019)\\n 7\\n 8 Docket Nos. 18‐3598‐cr(L), 18‐3601‐cr(CON), 19‐294‐cr(CON), 19‐356‐cr(CON)\\n 9\\n10 _____________________________________\\n11\\n12 UNITED STATES OF AMERICA,\\n13\\n14 Appellee,\\n15\\n16 v.\\n17\\n18 GARY TANNER, ANDREW DAVENPORT,\\n19\\n20 Defendants‐Appellants.\\n21\\n22 _____________________________________\\n23\\n24 Before:\\n25\\n26 JACOBS, LOHIER, and PARK, Circuit Judges.\\n27\\n28 Defendants Andrew Davenport and Gary Tanner were convicted after a\\n29 jury trial in the United States District Court for the Southern District of New\\n30 York (Preska, J.) of honest services fraud and honest services fraud conspiracy,\\n31 conspiracy to violate the Travel Act, and conspiracy to commit money\\n32 laundering. In addition to challenging their convictions, the defendants\\n33 challenge the restitution and forfeiture orders entered against them. We affirm\\n34 the defendants’ convictions, but we conclude that the District Court (1) failed to\\n35 employ a sound methodology to determine the victim’s actual loss for\\n36 restitution, and (2) erred in ordering forfeiture of an amount that exceeded the\\n\\f 1 amount of the criminal proceeds. We also hold that, under the circumstances of\\n 2 this case, Honeycutt v. United States, 137 S. Ct. 1626 (2017), does not foreclose\\n 3 ordering the defendants jointly and severally to forfeit the proceeds each\\n 4 possessed as a result of their crimes. Accordingly, the convictions are\\n 5 AFFIRMED, the restitution order of the District Court is VACATED in part and\\n 6 REMANDED with instructions to employ a sound methodology in determining\\n 7 actual victim loss, and the forfeiture orders are VACATED in part and\\n 8 REMANDED with instructions to amend the judgments so that the defendants\\n 9 are required jointly and severally to forfeit a total of no more than $9,703,995.33.\\n10\\n11 RICHARD COOPER, Assistant United States Attorney\\n12 (Amanda Kramer, Won S. Shin, Assistant United States\\n13 Attorneys, on the brief), for Geoffrey S. Berman, United\\n14 States Attorney for the Southern District of New York,\\n15 New York, NY, for Appellee United States of America.\\n16\\n17 DANIEL S. VOLCHOK, Wilmer Cutler Pickering Hale and\\n18 Dorr LLP, Washington, DC (Howard M. Shapiro, David\\n19 M. Lehn, Wilmer Cutler Pickering Hale and Dorr LLP,\\n20 Washington, DC, Brendan R. McGuire, Matthew\\n21 Galeotti, Claire M. Guehenno, Marguerite Colson,\\n22 Wilmer Cutler Pickering Hale and Dorr LLP, New York,\\n23 NY, on the brief), for Defendant‐Appellant Gary Tanner.\\n24\\n25 ALEXANDRA A.E. SHAPIRO (Daniel J. O’Neill, on the brief),\\n26 Shapiro Arato Bach LLP, New York, NY, for Defendant‐\\n27 Appellant Andrew Davenport.\\n\\n28 LOHIER, Circuit Judge:\\n\\n29 Defendants Andrew Davenport and Gary Tanner were convicted after a\\n\\n30 jury trial in the United States District Court for the Southern District of New\\n\\n31 York (Preska, J.) of honest services fraud and honest services fraud conspiracy, 18\\n\\n32 U.S.C. §§ 1343, 1346, 1349, conspiracy to violate the Travel Act, 18 U.S.C. §§ 371,\\n 2\\n\\f 1 1952(a)(1), (3), and conspiracy to commit money laundering, 18 U.S.C. § 1956(h).\\n\\n 2 On appeal, the defendants attack the sufficiency of the evidence at trial relating\\n\\n 3 to their convictions for the honest services fraud counts and for conspiring to\\n\\n 4 violate the Travel Act. They also challenge the jury instructions regarding\\n\\n 5 Davenport’s intent, various evidentiary rulings made at trial, and the restitution\\n\\n 6 and forfeiture orders entered by the District Court. We conclude that sufficient\\n\\n 7 evidence supported the defendants’ convictions, that the jury charge was not\\n\\n 8 erroneous, and that any errors in the District Court’s evidentiary rulings were\\n\\n 9 harmless. We therefore affirm the judgments of conviction. With respect to the\\n\\n10 restitution order, we hold that the District Court failed to use a sound\\n\\n11 methodology to determine the victim’s actual loss. We also conclude that, under\\n\\n12 the circumstances of this case, the defendants may be held jointly and severally\\n\\n13 liable to forfeit the criminal proceeds that each possessed as a result of their\\n\\n14 crimes, see Honeycutt v. United States, 137 S. Ct. 1626 (2017), but that the District\\n\\n15 Court erred in ordering the defendants to forfeit more than the amount of their\\n\\n16 criminal proceeds.\\n\\n\\n\\n\\n 3\\n\\f 1 BACKGROUND\\n\\n 2 Because this is an appeal from judgments of conviction entered after a jury\\n\\n 3 trial and Tanner and Davenport challenge the sufficiency of the evidence against\\n\\n 4 them, the following facts are drawn from the trial evidence and described “in the\\n\\n 5 light most favorable to the Government.” United States v. Caltabiano, 871 F.3d\\n\\n 6 210, 213 (2d Cir. 2017).\\n\\n 7 In 2013 Tanner’s employer, Valeant Pharmaceuticals International, a\\n\\n 8 pharmaceutical manufacturer, partnered with Philidor RX Services, a specialty\\n\\n 9 pharmacy founded and run by Davenport, to sell Valeant’s pharmaceutical\\n\\n10 products. As insurance companies demanded prior authorization for branded\\n\\n11 drugs like Valeant’s, specialty pharmacies like Philidor helped customers\\n\\n12 navigate interactions with insurance companies to access branded drugs. To\\n\\n13 help Philidor grow into a strong distribution channel for Valeant’s products,\\n\\n14 Valeant placed four of its employees onsite at Philidor and made Tanner\\n\\n15 primarily responsible for managing Valeant’s relationship with Philidor.\\n\\n16 As Tanner became integrated into Philidor’s business over time, he began\\n\\n17 to use his position at Valeant to assist Philidor in ways that could be considered\\n\\n18 contrary to Valeant’s interests. When Valeant directed him to contact and\\n\\n\\n\\n 4\\n\\f 1 develop ties with other pharmacies in order to diversify Valeant’s specialty\\n\\n 2 pharmacy network, for example, Tanner told Valeant that he would comply but\\n\\n 3 made at best half‐hearted attempts to do so, ultimately using the new contacts to\\n\\n 4 help Philidor, not Valeant. Using an alias, Tanner secretly provided Davenport\\n\\n 5 with information about competitor pharmacies, which Tanner obtained through\\n\\n 6 his ostensible efforts to diversify Valeant’s network. In one example, Davenport\\n\\n 7 received information from Tanner about a competitor and asked whether the\\n\\n 8 competition was “[p]roblematic”; Tanner responded: “No—just market\\n\\n 9 intelligence for us.” Supp. App’x 2. And when, as Tanner but not Valeant knew,\\n\\n10 Philidor appeared ready to accept a 3.5 percent discount on Valeant\\n\\n11 pharmaceutical products, Tanner gave Philidor a 4 percent discount instead, to\\n\\n12 Valeant’s economic detriment.\\n\\n13 The close relationship between Tanner and Philidor also benefited Tanner.\\n\\n14 In the period when Tanner was feeding Davenport information about Philidor’s\\n\\n15 competitors, for example, Davenport paid about $750 for a one‐night luxury\\n\\n16 hotel stay in New York for Tanner and his wife.\\n\\n17 In 2014 Valeant began negotiations for the immediate acquisition of\\n\\n18 Philidor. Tanner was assigned to Valeant’s due diligence team and tasked with\\n\\n\\n\\n 5\\n\\f 1 helping Valeant better understand Philidor’s business. Throughout Valeant’s\\n\\n 2 negotiations with Philidor, however, Tanner secretly worked on Philidor’s\\n\\n 3 behalf, helping it devise a negotiating strategy and forwarding at least one\\n\\n 4 confidential document revealing Valeant’s position to Davenport. The Valeant\\n\\n 5 team was unaware that Tanner was providing this advice to Davenport.\\n\\n 6 The negotiations ended in December 2014, when Valeant purchased an\\n\\n 7 option to acquire Philidor under a Purchase Option Agreement (“POA”). From\\n\\n 8 start to end of negotiations, the price tag of the POA deal increased by $8 million.\\n\\n 9 Valeant paid Philidor $133 million in upfront payments between December 2014\\n\\n10 and January 2015, promising an additional $100 million in potential future\\n\\n11 payments to Philidor’s owners depending on Philidor’s future sales. Drawing on\\n\\n12 these upfront payments, Davenport transferred over $9.7 million to Tanner in\\n\\n13 four separate transactions channeled through a series of shell companies owned\\n\\n14 or controlled by Davenport and Tanner that were established to disguise the\\n\\n15 payments.\\n\\n16 In January 2017 Tanner and Davenport were charged with (1) honest\\n\\n17 services wire fraud conspiracy (Count One); (2) honest services wire fraud\\n\\n18 (Count Two); (3) Travel Act conspiracy predicated on a violation of New York’s\\n\\n\\n\\n 6\\n\\f 1 commercial bribery laws (Count Three); and (4) money laundering conspiracy\\n\\n 2 (Count Four). The honest services fraud charges were premised on the theory\\n\\n 3 that Davenport agreed to pay Tanner a portion of the proceeds from the sale of\\n\\n 4 Philidor to Valeant in exchange for Tanner serving Philidor’s and Davenport’s\\n\\n 5 interests.\\n\\n 6 A jury convicted both defendants on all counts. The District Court\\n\\n 7 sentenced each to a term of imprisonment of 366 days, to be followed by two\\n\\n 8 years of supervised release. The District Court also ordered Tanner and\\n\\n 9 Davenport to jointly and severally pay $11,855,683.35 in restitution and to each\\n\\n10 forfeit $9,703,995.33 in criminal proceeds.\\n\\n11 This appeal followed.\\n\\n12 DISCUSSION\\n\\n13 On appeal, both defendants contend principally that there was insufficient\\n\\n14 evidence for a reasonable jury to convict them of honest services wire fraud or of\\n\\n15 violating the Travel Act; that the District Court gave the jury an erroneous\\n\\n16 instruction on the mens rea element for honest services wire fraud; and that the\\n\\n17 District Court erred in excluding certain emails and testimony and precluding\\n\\n18 cross‐examination, all of which might have cast doubt on the Government’s main\\n\\n\\n\\n 7\\n\\f 1 theory at trial. In addition, both defendants challenge the restitution and\\n\\n 2 forfeiture orders. For the reasons that follow, we find no basis for reversing their\\n\\n 3 convictions. But we vacate the portion of the defendants’ sentences that required\\n\\n 4 them, jointly and severally, to pay $8 million in restitution and that also required\\n\\n 5 each to pay $9,703,995.33 in forfeiture, for an approximate total forfeited amount\\n\\n 6 of $19.4 million.\\n\\n 7 1. Sufficiency of the Evidence\\n\\n 8 Davenport and Tanner maintain that there was insufficient evidence to\\n\\n 9 convict them of honest services wire fraud or of violating the Travel Act.\\n\\n10 Although challenges to the sufficiency of the evidence supporting conviction are\\n\\n11 reviewed de novo, the challenger “bears a heavy burden” because our review “is\\n\\n12 exceedingly deferential.” United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012)\\n\\n13 (quotation marks omitted). A judgment of conviction will be upheld “if any\\n\\n14 rational trier of fact could have found the essential elements of the crime beyond\\n\\n15 a reasonable doubt.” Id. (quotation marks omitted); see also United States v.\\n\\n16 Payton, 159 F.3d 49, 56 (2d Cir. 1998) (“The ultimate question is not whether we\\n\\n17 believe the evidence adduced at trial established [the] defendant’s guilt beyond a\\n\\n\\n\\n\\n 8\\n\\f 1 reasonable doubt, but whether any rational trier of fact could so find.”). With\\n\\n 2 that in mind, we consider the defendants’ sufficiency challenges.\\n\\n 3 A. Honest Services Fraud Convictions\\n\\n 4 The honest services fraud statute, 18 U.S.C. § 1346, requires the\\n\\n 5 Government to prove a “fraudulent scheme[] to deprive another of honest\\n\\n 6 services through bribes or kickbacks supplied by a third party who had not been\\n\\n 7 deceived.” Skilling v. United States, 561 U.S. 358, 404 (2010). “[T]o violate the\\n\\n 8 right to honest services, the charged conduct must involve a quid pro quo, i.e., an\\n\\n 9 intent to give or receive something of value in exchange for an . . . act.” United\\n\\n10 States v. Nouri, 711 F.3d 129, 139 (2d Cir. 2013) (quotation marks omitted).\\n\\n11 Here, Tanner conveyed information about competitor specialty\\n\\n12 pharmacies that he had acquired in his capacity as a Valeant employee, secured\\n\\n13 for Philidor an incremental discount on Valeant products that was not in\\n\\n14 Valeant’s interest, and secretly advised Davenport about how to negotiate certain\\n\\n15 terms of the POA with Valeant. Meanwhile, Davenport secretly paid Tanner\\n\\n16 about $9.7 million from the proceeds of the sale under the POA and about $750\\n\\n17 for a luxury hotel stay in New York City. In our view, the size and timing of\\n\\n18 Davenport’s payments to Tanner as well as his use of shell companies to conceal\\n\\n\\n\\n 9\\n\\f 1 the $9.7 million payment provided compelling evidence that Davenport made\\n\\n 2 the payments in exchange for Tanner’s help. See United States v. Rosen, 716 F.3d\\n\\n 3 691, 703 (2d Cir. 2013); United States v. Bahel, 662 F.3d 610, 639–40 (2d Cir. 2011).\\n\\n 4 Tanner and Davenport insist that their case falls outside “the paradigmatic\\n\\n 5 cases of bribes and kickbacks” described in Skilling because at least part of\\n\\n 6 Tanner’s job for Valeant involved helping Philidor. 561 U.S. at 411. Helping\\n\\n 7 Philidor, they suggest, ultimately helped Valeant. We are not persuaded. First,\\n\\n 8 the Government was not required to prove that acts that Tanner performed or\\n\\n 9 promised to perform for Davenport were contrary to Valeant’s interests, or that\\n\\n10 they caused or were intended to cause it financial harm; it needed to prove only\\n\\n11 that Valeant lost its right to Tanner’s honest services at least in part because of\\n\\n12 Davenport’s bribes and kickback. See Skilling, 561 U.S. at 400. Second, in any\\n\\n13 event, there was ample evidence that Tanner’s conduct was designed to harm\\n\\n14 Valeant. As we have recounted above, Tanner materially undercut Valeant’s\\n\\n15 ability to diversify its network through specialty pharmacies that competed with\\n\\n16 Philidor; he secured for Philidor a discount on Valeant products that was not in\\n\\n17 Valeant’s interest; and he advised Davenport on negotiating the terms of the\\n\\n\\n\\n\\n 10\\n\\f 1 POA. Although not required under Skilling, that evidence was certainly\\n\\n 2 sufficient to support the honest services fraud convictions here.\\n\\n 3 Nor are we convinced that Tanner was merely engaged in undisclosed\\n\\n 4 self‐dealing because he allegedly held an ownership interest in Philidor.\\n\\n 5 Although the Government introduced some evidence at trial suggesting that\\n\\n 6 Tanner may have held an ownership interest in Philidor, the Government also\\n\\n 7 characterized the “so‐called ownership interest” as a “bribe” or a stand‐in for\\n\\n 8 Davenport’s agreement to give Tanner a cut of the profits of the eventual sale of\\n\\n 9 Philidor. The jury, therefore, could reasonably have rejected the theory that\\n\\n10 Tanner held an ownership interest in Philidor, or concluded that the ownership\\n\\n11 interest constituted a bribe.\\n\\n12 B. Travel Act Convictions\\n\\n13 Tanner and Davenport fare no better in challenging their convictions\\n\\n14 under the Travel Act, which, as relevant here, prohibits traveling interstate or\\n\\n15 using mail or any other “facility” for the purpose of distributing the proceeds of\\n\\n16 or promoting any “unlawful activity.” 18 U.S.C. § 1952(a)(1), (3). “[U]nlawful\\n\\n17 activity” includes “bribery . . . in violation of the laws of the State in which\\n\\n18 committed.” Id. § 1952(b). The defendants contend that there was no evidence\\n\\n\\n\\n 11\\n\\f 1 that they conspired to commit bribery in New York, which the parties agree is\\n\\n 2 the relevant State. We disagree. Even assuming, without deciding, that a charge\\n\\n 3 of conspiracy to violate the Travel Act requires proof that the defendants\\n\\n 4 conspired to commit bribery specifically in New York, the evidence that\\n\\n 5 Davenport paid for Tanner’s luxury hotel stay in New York in exchange for\\n\\n 6 information about Philidor’s competitors, though thin, was enough for the jury\\n\\n 7 to determine that the conspiracy to commit bribery occurred at least in part in\\n\\n 8 New York.\\n\\n 9 2. Jury Instructions\\n\\n10 The defendants next contend that even if the evidence against them was\\n\\n11 sufficient, they should have a new trial on the honest services counts because, in\\n\\n12 describing the elements of those counts, the District Court failed to instruct the\\n\\n13 jury that it must find that both Tanner and Davenport acted with corrupt intent.\\n\\n14 Read in context, however, the challenged portions of the jury charge, which we\\n\\n15 review de novo, see United States v. Roy, 783 F.3d 418, 420 (2d Cir. 2015), did not\\n\\n16 suggest that the jury could convict based on Tanner’s corrupt intent alone. When\\n\\n17 it introduced the intent requirement, the District Court specifically referred to\\n\\n18 both defendants, telling the jury that the Government must prove “that Gary\\n\\n\\n\\n 12\\n\\f 1 Tanner and Andrew Davenport knowingly and willfully participated in the\\n\\n 2 scheme or artifice, with knowledge of its fraudulent nature and with specific\\n\\n 3 intent to defraud.” App’x 492–93. Moments later, the District Court repeated\\n\\n 4 that an element of honest services wire fraud was that “a defendant participated\\n\\n 5 in the scheme knowingly, willfully, and with specific intent to defraud,” which it\\n\\n 6 further defined as “specific intent to deceive for the purpose of depriving Valeant\\n\\n 7 of its right to Tanner’s honest services.” App’x 494. Although the instruction at\\n\\n 8 this point might have again referred to each defendant by name, we conclude\\n\\n 9 that it fairly informed the jury of its obligation to find Davenport’s corrupt intent\\n\\n10 as well as Tanner’s in order to convict.\\n\\n11 3. Evidentiary Rulings\\n\\n12 The defendants’ final challenge to their convictions arises from various\\n\\n13 evidentiary rulings. They believe these rulings impaired their ability to cast\\n\\n14 doubt on the Government’s principal argument at trial that Tanner secretly\\n\\n15 intended to further Philidor’s interest at Valeant’s expense. First, the defendants\\n\\n16 contend that the District Court erred in excluding, as hearsay, two emails that\\n\\n17 they sought to introduce into evidence under the “state of mind” exception to the\\n\\n18 hearsay rule. Second, they assert that the District Court erred in excluding the\\n\\n\\n\\n 13\\n\\f 1 testimony of one witness, refusing to compel the immunization of another, and\\n\\n 2 restricting their cross‐examination of a third. Although we review the District\\n\\n 3 Court’s rulings for abuse of discretion, we need not assess error if we deem the\\n\\n 4 error harmless. See United States v. Siddiqui, 699 F.3d 690, 703–04 (2d Cir. 2012).\\n\\n 5 After reviewing the extensive trial record, we agree with the Government that\\n\\n 6 any evidentiary errors by the District Court were harmless in light of the\\n\\n 7 overwhelming evidence of the defendants’ guilt on all counts.\\n\\n 8 4. Sentencing\\n\\n 9 Finally, the defendants challenge the restitution and forfeiture orders\\n\\n10 entered against them. These challenges are not without merit.\\n\\n11 A. Restitution\\n\\n12 The District Court determined, pursuant to 18 U.S.C. § 3663A, that\\n\\n13 Davenport and Tanner were jointly and severally liable for the $8 million that\\n\\n14 Valeant allegedly overpaid for the option to purchase Philidor. We review the\\n\\n15 District Court’s order of restitution for abuse of discretion, “reversing its ruling\\n\\n16 only if it rests on an error of law, a clearly erroneous finding of fact, or otherwise\\n\\n17 cannot be located within the range of permissible decisions.” United States v.\\n\\n18 Thompson, 792 F.3d 273, 277 (2d Cir. 2015) (quotation marks omitted). Because\\n\\n\\n\\n 14\\n\\f 1 the purpose of restitution is compensatory and 18 U.S.C. § 3664(f)(1)(A) provides\\n\\n 2 that a restitution order is limited to “the full amount of each victim’s losses,” the\\n\\n 3 “restitution order must be tied to the victim’s actual, provable, loss,” United\\n\\n 4 States v. Zangari, 677 F.3d 86, 91 (2d Cir. 2012), and the amount of restitution\\n\\n 5 ordered must reflect a “reasonable approximation of losses supported by a\\n\\n 6 sound methodology,” United States v. Gushlak, 728 F.3d 184, 196 (2d Cir. 2013).\\n\\n 7 We conclude that the District Court abused its discretion in ordering the\\n\\n 8 $8 million in restitution. That amount—which represents nothing more than the\\n\\n 9 difference between Valeant’s initial offer and the final purchase price of the\\n\\n10 option to buy Philidor—does not attempt to approximate any increase in cost\\n\\n11 that is attributable to the defendants’ criminal conduct. It is therefore not a\\n\\n12 “reasonable approximation of losses supported by a sound methodology.” Id.\\n\\n13 Urging affirmance, the Government proposes that the $9.7 million\\n\\n14 kickback constituted Valeant’s actual loss. As we explained in United States v.\\n\\n15 Finazzo, 850 F.3d 94 (2d Cir. 2017), however, while a direct correlation between a\\n\\n16 defendant’s gain and a victim’s loss may exist “‘such that the defendant’s gain\\n\\n17 can act as a measure of—as opposed to a substitute for—the victim’s loss[,]’” id.\\n\\n18 at 117 (quoting Zangari, 677 F.3d at 93), loss to the victim “is not a necessary\\n\\n\\n\\n 15\\n\\f 1 consequence” of all kickback schemes, id. at 118. For that reason, it would not be\\n\\n 2 “a sufficiently sound methodology for the district court to merely assume that . . .\\n\\n 3 kickbacks [a]re solely justified by inflated prices.” Id. at 117–18 (quoting\\n\\n 4 Zangari, 677 F.3d at 93). Here the loss to Valeant was not a necessary\\n\\n 5 consequence of the kickback Tanner received. We therefore also reject the\\n\\n 6 Government’s argument that $9.7 million reflects Valeant’s actual loss.\\n\\n 7 We vacate the portion of the restitution order requiring the defendants to\\n\\n 8 jointly and severally pay $8 million to Valeant and remand to allow the District\\n\\n 9 Court to determine Valeant’s actual loss if that can be done using a sound\\n\\n10 methodology.\\n\\n11 B. Forfeiture\\n\\n12 Davenport and Tanner were ordered to forfeit $9,703,995.33 each rather\\n\\n13 than jointly and severally, for an approximate total of $19.4 million. As the\\n\\n14 Government concedes on appeal, the total proceeds of the defendants’ kickback\\n\\n15 scheme amounted to no more than $9,703,995.33. It was therefore error for the\\n\\n16 District Court to order the defendants to forfeit double that amount. We vacate\\n\\n\\n\\n\\n 16\\n\\f 1 and remand with instructions to amend the judgments so that the defendants\\n\\n 2 together are required to forfeit a total of no more than $9,703,995.33.\\n\\n 3 Davenport separately argues that his forfeiture order should be vacated in\\n\\n 4 its entirety because the Supreme Court in Honeycutt v. United States, 137 S. Ct.\\n\\n 5 1626 (2017), prohibited joint and several forfeiture for co‐conspirators. While we\\n\\n 6 have not yet fully defined the parameters of Honeycutt, this much is true:\\n\\n 7 Honeycutt’s bar against joint and several forfeiture for co‐conspirators applies\\n\\n 8 only to co‐conspirators who never possessed the tainted proceeds of their crimes.\\n\\n 9 See id. at 1630 (“[A] defendant may [not] be held jointly and severally liable for\\n\\n10 property that his co‐conspirator derived from the crime but that the defendant\\n\\n11 himself did not acquire.” (emphasis added)); id. at 1631–33. But when each\\n\\n12 co‐conspirator acquired the full proceeds “as a result of the crime,” id. at 1635,\\n\\n13 each can still be held liable to forfeit the value of those tainted proceeds, even if\\n\\n14 those proceeds are no longer in his possession because they have been\\n\\n15 “dissipated or otherwise disposed of by ‘any act or omission of the defendant.’”\\n\\n16 Id. at 1634 (quoting 21 U.S.C. § 853(p)(1)). Davenport’s argument to the contrary\\n\\n17 ignores that criminal forfeiture “merg[es]” an in personam element with the\\n\\n18 traditional in rem nature of forfeiture, making it “easier for the Government to\\n\\n\\n\\n 17\\n\\f 1 hold the defendant who acquired the tainted property responsible,” id. at 1635,\\n\\n 2 by allowing the Government to seek “substitute property” under § 853(p) when\\n\\n 3 the defendant no longer possesses the criminal proceeds. See 21 U.S.C. § 853(p).\\n\\n 4 There are two more things to note when criminal proceeds result from\\n\\n 5 money laundering offenses under 18 U.S.C. § 1956 in particular. First, a court,\\n\\n 6 “in imposing sentence on a person convicted of an offense in violation of section\\n\\n 7 1956, . . . shall order that the person forfeit to the United States any property, real\\n\\n 8 or personal, involved in such offense.” 18 U.S.C. § 982(a)(1) (emphasis added).\\n\\n 9 Second, a defendant who “acted merely as an intermediary” but no longer\\n\\n10 possesses the property acquired as a result of money laundering may be required\\n\\n11 to forfeit substitute property, but only if the defendant “conducted three or more\\n\\n12 separate transactions involving a total of $100,000 or more in any twelve month\\n\\n13 period.” 18 U.S.C. § 982(b)(2); see also id. § 853(p).\\n\\n14 Here, Davenport was an active participant in the unlawful activity that his\\n\\n15 money laundering was designed to conceal, rather than a mere intermediary in\\n\\n16 the money laundering scheme. But even if Davenport fell into the “mere\\n\\n17 intermediary” category of § 982(b)(2), that provision’s safe harbor would not\\n\\n18 extend to him because at trial, the evidence showed that Davenport wired a total\\n\\n\\n\\n 18\\n\\f 1 of $9.7 million in four separate transactions from December 2014 to January 2015,\\n\\n 2 while the safe harbor is triggered only if the defendant engages in fewer than\\n\\n 3 three such transactions. See 18 U.S.C. § 982(b)(2). Although Davenport no\\n\\n 4 longer possesses the money he laundered, the Government may seek “substitute\\n\\n 5 property” and hold him liable together with Tanner to forfeit the laundered\\n\\n 6 money he transferred to Tanner. See 21 U.S.C. § 853(p).\\n\\n 7 For these reasons and under these circumstances, insofar as the District\\n\\n 8 Court’s forfeiture orders require the defendants to each pay $9,703,995.33, we\\n\\n 9 vacate and remand to the District Court with instructions to order the defendants\\n\\n10 jointly and severally to forfeit a total of no more than $9,703,995.33.\\n\\n11 CONCLUSION\\n\\n12 We have considered the parties’ remaining arguments and conclude that\\n\\n13 they are without merit. For the foregoing reasons, the convictions of both\\n\\n14 Davenport and Tanner are AFFIRMED, the restitution order of the District Court\\n\\n15 is VACATED in part and REMANDED with instructions to employ a sound\\n\\n16 methodology in determining Valeant’s actual loss, and the forfeiture orders of\\n\\n17 the District Court are VACATED in part and REMANDED with instructions to\\n\\n\\n\\n\\n 19\\n\\f1 amend the judgments so that the defendants are required jointly and severally to\\n\\n2 forfeit a total of no more than $9,703,995.33.\\n\\n\\n\\n\\n 20\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4451910/\", \"author_raw\": \"LOHIER, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"JACOBS"},"judge2":{"kind":"string","value":"LOHIER"},"judge3":{"kind":"string","value":"PARK"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JACOBS\": \", Circuit\", \"LOHIER\": \", Circuit\", \"PARK\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4674657/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Tanner\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-10-31\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n18‐3598‐cr(L)\n United States v. Tanner et al.\n\n 1 UNITED STATES COURT OF APPEALS\n 2 FOR THE SECOND CIRCUIT\n 3\n 4 August Term, 2018\n 5\n 6 (Argued: June 24, 2019 Decided: October 31, 2019)\n 7\n 8 Docket Nos. 18‐3598‐cr(L), 18‐3601‐cr(CON), 19‐294‐cr(CON), 19‐356‐cr(CON)\n 9\n10 _____________________________________\n11\n12 UNITED STATES OF AMERICA,\n13\n14 Appellee,\n15\n16 v.\n17\n18 GARY TANNER, ANDREW DAVENPORT,\n19\n20 Defendants‐Appellants.\n21\n22 _____________________________________\n23\n24 Before:\n25\n26 JACOBS, LOHIER, and PARK, Circuit Judges.\n27\n28 Defendants Andrew Davenport and Gary Tanner were convicted after a\n29 jury trial in the United States District Court for the Southern District of New\n30 York (Preska, J.) of honest services fraud and honest services fraud conspiracy,\n31 conspiracy to violate the Travel Act, and conspiracy to commit money\n32 laundering. In addition to challenging their convictions, the defendants\n33 challenge the restitution and forfeiture orders entered against them. We affirm\n34 the defendants’ convictions, but we conclude that the District Court (1) failed to\n35 employ a sound methodology to determine the victim’s actual loss for\n36 restitution, and (2) erred in ordering forfeiture of an amount that exceeded the\n\f 1 amount of the criminal proceeds. We also hold that, under the circumstances of\n 2 this case, Honeycutt v. United States, 137 S. Ct. 1626 (2017), does not foreclose\n 3 ordering the defendants jointly and severally to forfeit the proceeds each\n 4 possessed as a result of their crimes. Accordingly, the convictions are\n 5 AFFIRMED, the restitution order of the District Court is VACATED in part and\n 6 REMANDED with instructions to employ a sound methodology in determining\n 7 actual victim loss, and the forfeiture orders are VACATED in part and\n 8 REMANDED with instructions to amend the judgments so that the defendants\n 9 are required jointly and severally to forfeit a total of no more than $9,703,995.33.\n10\n11 RICHARD COOPER, Assistant United States Attorney\n12 (Amanda Kramer, Won S. Shin, Assistant United States\n13 Attorneys, on the brief), for Geoffrey S. Berman, United\n14 States Attorney for the Southern District of New York,\n15 New York, NY, for Appellee United States of America.\n16\n17 DANIEL S. VOLCHOK, Wilmer Cutler Pickering Hale and\n18 Dorr LLP, Washington, DC (Howard M. Shapiro, David\n19 M. Lehn, Wilmer Cutler Pickering Hale and Dorr LLP,\n20 Washington, DC, Brendan R. McGuire, Matthew\n21 Galeotti, Claire M. Guehenno, Marguerite Colson,\n22 Wilmer Cutler Pickering Hale and Dorr LLP, New York,\n23 NY, on the brief), for Defendant‐Appellant Gary Tanner.\n24\n25 ALEXANDRA A.E. SHAPIRO (Daniel J. O’Neill, on the brief),\n26 Shapiro Arato Bach LLP, New York, NY, for Defendant‐\n27 Appellant Andrew Davenport.\n\n28 LOHIER, Circuit Judge:\n\n29 Defendants Andrew Davenport and Gary Tanner were convicted after a\n\n30 jury trial in the United States District Court for the Southern District of New\n\n31 York (Preska, J.) of honest services fraud and honest services fraud conspiracy, 18\n\n32 U.S.C. §§ 1343, 1346, 1349, conspiracy to violate the Travel Act, 18 U.S.C. §§ 371,\n 2\n\f 1 1952(a)(1), (3), and conspiracy to commit money laundering, 18 U.S.C. § 1956(h).\n\n 2 On appeal, the defendants attack the sufficiency of the evidence at trial relating\n\n 3 to their convictions for the honest services fraud counts and for conspiring to\n\n 4 violate the Travel Act. They also challenge the jury instructions regarding\n\n 5 Davenport’s intent, various evidentiary rulings made at trial, and the restitution\n\n 6 and forfeiture orders entered by the District Court. We conclude that sufficient\n\n 7 evidence supported the defendants’ convictions, that the jury charge was not\n\n 8 erroneous, and that any errors in the District Court’s evidentiary rulings were\n\n 9 harmless. We therefore affirm the judgments of conviction. With respect to the\n\n10 restitution order, we hold that the District Court failed to use a sound\n\n11 methodology to determine the victim’s actual loss. We also conclude that, under\n\n12 the circumstances of this case, the defendants may be held jointly and severally\n\n13 liable to forfeit the criminal proceeds that each possessed as a result of their\n\n14 crimes, see Honeycutt v. United States, 137 S. Ct. 1626 (2017), but that the District\n\n15 Court erred in ordering the defendants to forfeit more than the amount of their\n\n16 criminal proceeds.\n\n\n\n\n 3\n\f 1 BACKGROUND\n\n 2 Because this is an appeal from judgments of conviction entered after a jury\n\n 3 trial and Tanner and Davenport challenge the sufficiency of the evidence against\n\n 4 them, the following facts are drawn from the trial evidence and described “in the\n\n 5 light most favorable to the Government.” United States v. Caltabiano, 871 F.3d\n\n 6 210, 213 (2d Cir. 2017).\n\n 7 In 2013 Tanner’s employer, Valeant Pharmaceuticals International, a\n\n 8 pharmaceutical manufacturer, partnered with Philidor RX Services, a specialty\n\n 9 pharmacy founded and run by Davenport, to sell Valeant’s pharmaceutical\n\n10 products. As insurance companies demanded prior authorization for branded\n\n11 drugs like Valeant’s, specialty pharmacies like Philidor helped customers\n\n12 navigate interactions with insurance companies to access branded drugs. To\n\n13 help Philidor grow into a strong distribution channel for Valeant’s products,\n\n14 Valeant placed four of its employees onsite at Philidor and made Tanner\n\n15 primarily responsible for managing Valeant’s relationship with Philidor.\n\n16 As Tanner became integrated into Philidor’s business over time, he began\n\n17 to use his position at Valeant to assist Philidor in ways that could be considered\n\n18 contrary to Valeant’s interests. When Valeant directed him to contact and\n\n\n\n 4\n\f 1 develop ties with other pharmacies in order to diversify Valeant’s specialty\n\n 2 pharmacy network, for example, Tanner told Valeant that he would comply but\n\n 3 made at best half‐hearted attempts to do so, ultimately using the new contacts to\n\n 4 help Philidor, not Valeant. Using an alias, Tanner secretly provided Davenport\n\n 5 with information about competitor pharmacies, which Tanner obtained through\n\n 6 his ostensible efforts to diversify Valeant’s network. In one example, Davenport\n\n 7 received information from Tanner about a competitor and asked whether the\n\n 8 competition was “[p]roblematic”; Tanner responded: “No—just market\n\n 9 intelligence for us.” Supp. App’x 2. And when, as Tanner but not Valeant knew,\n\n10 Philidor appeared ready to accept a 3.5 percent discount on Valeant\n\n11 pharmaceutical products, Tanner gave Philidor a 4 percent discount instead, to\n\n12 Valeant’s economic detriment.\n\n13 The close relationship between Tanner and Philidor also benefited Tanner.\n\n14 In the period when Tanner was feeding Davenport information about Philidor’s\n\n15 competitors, for example, Davenport paid about $750 for a one‐night luxury\n\n16 hotel stay in New York for Tanner and his wife.\n\n17 In 2014 Valeant began negotiations for the immediate acquisition of\n\n18 Philidor. Tanner was assigned to Valeant’s due diligence team and tasked with\n\n\n\n 5\n\f 1 helping Valeant better understand Philidor’s business. Throughout Valeant’s\n\n 2 negotiations with Philidor, however, Tanner secretly worked on Philidor’s\n\n 3 behalf, helping it devise a negotiating strategy and forwarding at least one\n\n 4 confidential document revealing Valeant’s position to Davenport. The Valeant\n\n 5 team was unaware that Tanner was providing this advice to Davenport.\n\n 6 The negotiations ended in December 2014, when Valeant purchased an\n\n 7 option to acquire Philidor under a Purchase Option Agreement (“POA”). From\n\n 8 start to end of negotiations, the price tag of the POA deal increased by $8 million.\n\n 9 Valeant paid Philidor $133 million in upfront payments between December 2014\n\n10 and January 2015, promising an additional $100 million in potential future\n\n11 payments to Philidor’s owners depending on Philidor’s future sales. Drawing on\n\n12 these upfront payments, Davenport transferred over $9.7 million to Tanner in\n\n13 four separate transactions channeled through a series of shell companies owned\n\n14 or controlled by Davenport and Tanner that were established to disguise the\n\n15 payments.\n\n16 In January 2017 Tanner and Davenport were charged with (1) honest\n\n17 services wire fraud conspiracy (Count One); (2) honest services wire fraud\n\n18 (Count Two); (3) Travel Act conspiracy predicated on a violation of New York’s\n\n\n\n 6\n\f 1 commercial bribery laws (Count Three); and (4) money laundering conspiracy\n\n 2 (Count Four). The honest services fraud charges were premised on the theory\n\n 3 that Davenport agreed to pay Tanner a portion of the proceeds from the sale of\n\n 4 Philidor to Valeant in exchange for Tanner serving Philidor’s and Davenport’s\n\n 5 interests.\n\n 6 A jury convicted both defendants on all counts. The District Court\n\n 7 sentenced each to a term of imprisonment of 366 days, to be followed by two\n\n 8 years of supervised release. The District Court also ordered Tanner and\n\n 9 Davenport to jointly and severally pay $11,855,683.35 in restitution and to each\n\n10 forfeit $9,703,995.33 in criminal proceeds.\n\n11 This appeal followed.\n\n12 DISCUSSION\n\n13 On appeal, both defendants contend principally that there was insufficient\n\n14 evidence for a reasonable jury to convict them of honest services wire fraud or of\n\n15 violating the Travel Act; that the District Court gave the jury an erroneous\n\n16 instruction on the mens rea element for honest services wire fraud; and that the\n\n17 District Court erred in excluding certain emails and testimony and precluding\n\n18 cross‐examination, all of which might have cast doubt on the Government’s main\n\n\n\n 7\n\f 1 theory at trial. In addition, both defendants challenge the restitution and\n\n 2 forfeiture orders. For the reasons that follow, we find no basis for reversing their\n\n 3 convictions. But we vacate the portion of the defendants’ sentences that required\n\n 4 them, jointly and severally, to pay $8 million in restitution and that also required\n\n 5 each to pay $9,703,995.33 in forfeiture, for an approximate total forfeited amount\n\n 6 of $19.4 million.\n\n 7 1. Sufficiency of the Evidence\n\n 8 Davenport and Tanner maintain that there was insufficient evidence to\n\n 9 convict them of honest services wire fraud or of violating the Travel Act.\n\n10 Although challenges to the sufficiency of the evidence supporting conviction are\n\n11 reviewed de novo, the challenger “bears a heavy burden” because our review “is\n\n12 exceedingly deferential.” United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012)\n\n13 (quotation marks omitted). A judgment of conviction will be upheld “if any\n\n14 rational trier of fact could have found the essential elements of the crime beyond\n\n15 a reasonable doubt.” Id. (quotation marks omitted); see also United States v.\n\n16 Payton, 159 F.3d 49, 56 (2d Cir. 1998) (“The ultimate question is not whether we\n\n17 believe the evidence adduced at trial established [the] defendant’s guilt beyond a\n\n\n\n\n 8\n\f 1 reasonable doubt, but whether any rational trier of fact could so find.”). With\n\n 2 that in mind, we consider the defendants’ sufficiency challenges.\n\n 3 A. Honest Services Fraud Convictions\n\n 4 The honest services fraud statute, 18 U.S.C. § 1346, requires the\n\n 5 Government to prove a “fraudulent scheme[] to deprive another of honest\n\n 6 services through bribes or kickbacks supplied by a third party who had not been\n\n 7 deceived.” Skilling v. United States, 561 U.S. 358, 404 (2010). “[T]o violate the\n\n 8 right to honest services, the charged conduct must involve a quid pro quo, i.e., an\n\n 9 intent to give or receive something of value in exchange for an . . . act.” United\n\n10 States v. Nouri, 711 F.3d 129, 139 (2d Cir. 2013) (quotation marks omitted).\n\n11 Here, Tanner conveyed information about competitor specialty\n\n12 pharmacies that he had acquired in his capacity as a Valeant employee, secured\n\n13 for Philidor an incremental discount on Valeant products that was not in\n\n14 Valeant’s interest, and secretly advised Davenport about how to negotiate certain\n\n15 terms of the POA with Valeant. Meanwhile, Davenport secretly paid Tanner\n\n16 about $9.7 million from the proceeds of the sale under the POA and about $750\n\n17 for a luxury hotel stay in New York City. In our view, the size and timing of\n\n18 Davenport’s payments to Tanner as well as his use of shell companies to conceal\n\n\n\n 9\n\f 1 the $9.7 million payment provided compelling evidence that Davenport made\n\n 2 the payments in exchange for Tanner’s help. See United States v. Rosen, 716 F.3d\n\n 3 691, 703 (2d Cir. 2013); United States v. Bahel, 662 F.3d 610, 639–40 (2d Cir. 2011).\n\n 4 Tanner and Davenport insist that their case falls outside “the paradigmatic\n\n 5 cases of bribes and kickbacks” described in Skilling because at least part of\n\n 6 Tanner’s job for Valeant involved helping Philidor. 561 U.S. at 411. Helping\n\n 7 Philidor, they suggest, ultimately helped Valeant. We are not persuaded. First,\n\n 8 the Government was not required to prove that acts that Tanner performed or\n\n 9 promised to perform for Davenport were contrary to Valeant’s interests, or that\n\n10 they caused or were intended to cause it financial harm; it needed to prove only\n\n11 that Valeant lost its right to Tanner’s honest services at least in part because of\n\n12 Davenport’s bribes and kickback. See Skilling, 561 U.S. at 400. Second, in any\n\n13 event, there was ample evidence that Tanner’s conduct was designed to harm\n\n14 Valeant. As we have recounted above, Tanner materially undercut Valeant’s\n\n15 ability to diversify its network through specialty pharmacies that competed with\n\n16 Philidor; he secured for Philidor a discount on Valeant products that was not in\n\n17 Valeant’s interest; and he advised Davenport on negotiating the terms of the\n\n\n\n\n 10\n\f 1 POA. Although not required under Skilling, that evidence was certainly\n\n 2 sufficient to support the honest services fraud convictions here.\n\n 3 Nor are we convinced that Tanner was merely engaged in undisclosed\n\n 4 self‐dealing because he allegedly held an ownership interest in Philidor.\n\n 5 Although the Government introduced some evidence at trial suggesting that\n\n 6 Tanner may have held an ownership interest in Philidor, the Government also\n\n 7 characterized the “so‐called ownership interest” as a “bribe” or a stand‐in for\n\n 8 Davenport’s agreement to give Tanner a cut of the profits of the eventual sale of\n\n 9 Philidor. The jury, therefore, could reasonably have rejected the theory that\n\n10 Tanner held an ownership interest in Philidor, or concluded that the ownership\n\n11 interest constituted a bribe.\n\n12 B. Travel Act Convictions\n\n13 Tanner and Davenport fare no better in challenging their convictions\n\n14 under the Travel Act, which, as relevant here, prohibits traveling interstate or\n\n15 using mail or any other “facility” for the purpose of distributing the proceeds of\n\n16 or promoting any “unlawful activity.” 18 U.S.C. § 1952(a)(1), (3). “[U]nlawful\n\n17 activity” includes “bribery . . . in violation of the laws of the State in which\n\n18 committed.” Id. § 1952(b). The defendants contend that there was no evidence\n\n\n\n 11\n\f 1 that they conspired to commit bribery in New York, which the parties agree is\n\n 2 the relevant State. We disagree. Even assuming, without deciding, that a charge\n\n 3 of conspiracy to violate the Travel Act requires proof that the defendants\n\n 4 conspired to commit bribery specifically in New York, the evidence that\n\n 5 Davenport paid for Tanner’s luxury hotel stay in New York in exchange for\n\n 6 information about Philidor’s competitors, though thin, was enough for the jury\n\n 7 to determine that the conspiracy to commit bribery occurred at least in part in\n\n 8 New York.\n\n 9 2. Jury Instructions\n\n10 The defendants next contend that even if the evidence against them was\n\n11 sufficient, they should have a new trial on the honest services counts because, in\n\n12 describing the elements of those counts, the District Court failed to instruct the\n\n13 jury that it must find that both Tanner and Davenport acted with corrupt intent.\n\n14 Read in context, however, the challenged portions of the jury charge, which we\n\n15 review de novo, see United States v. Roy, 783 F.3d 418, 420 (2d Cir. 2015), did not\n\n16 suggest that the jury could convict based on Tanner’s corrupt intent alone. When\n\n17 it introduced the intent requirement, the District Court specifically referred to\n\n18 both defendants, telling the jury that the Government must prove “that Gary\n\n\n\n 12\n\f 1 Tanner and Andrew Davenport knowingly and willfully participated in the\n\n 2 scheme or artifice, with knowledge of its fraudulent nature and with specific\n\n 3 intent to defraud.” App’x 492–93. Moments later, the District Court repeated\n\n 4 that an element of honest services wire fraud was that “a defendant participated\n\n 5 in the scheme knowingly, willfully, and with specific intent to defraud,” which it\n\n 6 further defined as “specific intent to deceive for the purpose of depriving Valeant\n\n 7 of its right to Tanner’s honest services.” App’x 494. Although the instruction at\n\n 8 this point might have again referred to each defendant by name, we conclude\n\n 9 that it fairly informed the jury of its obligation to find Davenport’s corrupt intent\n\n10 as well as Tanner’s in order to convict.\n\n11 3. Evidentiary Rulings\n\n12 The defendants’ final challenge to their convictions arises from various\n\n13 evidentiary rulings. They believe these rulings impaired their ability to cast\n\n14 doubt on the Government’s principal argument at trial that Tanner secretly\n\n15 intended to further Philidor’s interest at Valeant’s expense. First, the defendants\n\n16 contend that the District Court erred in excluding, as hearsay, two emails that\n\n17 they sought to introduce into evidence under the “state of mind” exception to the\n\n18 hearsay rule. Second, they assert that the District Court erred in excluding the\n\n\n\n 13\n\f 1 testimony of one witness, refusing to compel the immunization of another, and\n\n 2 restricting their cross‐examination of a third. Although we review the District\n\n 3 Court’s rulings for abuse of discretion, we need not assess error if we deem the\n\n 4 error harmless. See United States v. Siddiqui, 699 F.3d 690, 703–04 (2d Cir. 2012).\n\n 5 After reviewing the extensive trial record, we agree with the Government that\n\n 6 any evidentiary errors by the District Court were harmless in light of the\n\n 7 overwhelming evidence of the defendants’ guilt on all counts.\n\n 8 4. Sentencing\n\n 9 Finally, the defendants challenge the restitution and forfeiture orders\n\n10 entered against them. These challenges are not without merit.\n\n11 A. Restitution\n\n12 The District Court determined, pursuant to 18 U.S.C. § 3663A, that\n\n13 Davenport and Tanner were jointly and severally liable for the $8 million that\n\n14 Valeant allegedly overpaid for the option to purchase Philidor. We review the\n\n15 District Court’s order of restitution for abuse of discretion, “reversing its ruling\n\n16 only if it rests on an error of law, a clearly erroneous finding of fact, or otherwise\n\n17 cannot be located within the range of permissible decisions.” United States v.\n\n18 Thompson, 792 F.3d 273, 277 (2d Cir. 2015) (quotation marks omitted). Because\n\n\n\n 14\n\f 1 the purpose of restitution is compensatory and 18 U.S.C. § 3664(f)(1)(A) provides\n\n 2 that a restitution order is limited to “the full amount of each victim’s losses,” the\n\n 3 “restitution order must be tied to the victim’s actual, provable, loss,” United\n\n 4 States v. Zangari, 677 F.3d 86, 91 (2d Cir. 2012), and the amount of restitution\n\n 5 ordered must reflect a “reasonable approximation of losses supported by a\n\n 6 sound methodology,” United States v. Gushlak, 728 F.3d 184, 196 (2d Cir. 2013).\n\n 7 We conclude that the District Court abused its discretion in ordering the\n\n 8 $8 million in restitution. That amount—which represents nothing more than the\n\n 9 difference between Valeant’s initial offer and the final purchase price of the\n\n10 option to buy Philidor—does not attempt to approximate any increase in cost\n\n11 that is attributable to the defendants’ criminal conduct. It is therefore not a\n\n12 “reasonable approximation of losses supported by a sound methodology.” Id.\n\n13 Urging affirmance, the Government proposes that the $9.7 million\n\n14 kickback constituted Valeant’s actual loss. As we explained in United States v.\n\n15 Finazzo, 850 F.3d 94 (2d Cir. 2017), however, while a direct correlation between a\n\n16 defendant’s gain and a victim’s loss may exist “‘such that the defendant’s gain\n\n17 can act as a measure of—as opposed to a substitute for—the victim’s loss[,]’” id.\n\n18 at 117 (quoting Zangari, 677 F.3d at 93), loss to the victim “is not a necessary\n\n\n\n 15\n\f 1 consequence” of all kickback schemes, id. at 118. For that reason, it would not be\n\n 2 “a sufficiently sound methodology for the district court to merely assume that . . .\n\n 3 kickbacks [a]re solely justified by inflated prices.” Id. at 117–18 (quoting\n\n 4 Zangari, 677 F.3d at 93). Here the loss to Valeant was not a necessary\n\n 5 consequence of the kickback Tanner received. We therefore also reject the\n\n 6 Government’s argument that $9.7 million reflects Valeant’s actual loss.\n\n 7 We vacate the portion of the restitution order requiring the defendants to\n\n 8 jointly and severally pay $8 million to Valeant and remand to allow the District\n\n 9 Court to determine Valeant’s actual loss if that can be done using a sound\n\n10 methodology.\n\n11 B. Forfeiture\n\n12 Davenport and Tanner were ordered to forfeit $9,703,995.33 each rather\n\n13 than jointly and severally, for an approximate total of $19.4 million. As the\n\n14 Government concedes on appeal, the total proceeds of the defendants’ kickback\n\n15 scheme amounted to no more than $9,703,995.33. It was therefore error for the\n\n16 District Court to order the defendants to forfeit double that amount. We vacate\n\n\n\n\n 16\n\f 1 and remand with instructions to amend the judgments so that the defendants\n\n 2 together are required to forfeit a total of no more than $9,703,995.33.\n\n 3 Davenport separately argues that his forfeiture order should be vacated in\n\n 4 its entirety because the Supreme Court in Honeycutt v. United States, 137 S. Ct.\n\n 5 1626 (2017), prohibited joint and several forfeiture for co‐conspirators. While we\n\n 6 have not yet fully defined the parameters of Honeycutt, this much is true:\n\n 7 Honeycutt’s bar against joint and several forfeiture for co‐conspirators applies\n\n 8 only to co‐conspirators who never possessed the tainted proceeds of their crimes.\n\n 9 See id. at 1630 (“[A] defendant may [not] be held jointly and severally liable for\n\n10 property that his co‐conspirator derived from the crime but that the defendant\n\n11 himself did not acquire.” (emphasis added)); id. at 1631–33. But when each\n\n12 co‐conspirator acquired the full proceeds “as a result of the crime,” id. at 1635,\n\n13 each can still be held liable to forfeit the value of those tainted proceeds, even if\n\n14 those proceeds are no longer in his possession because they have been\n\n15 “dissipated or otherwise disposed of by ‘any act or omission of the defendant.’”\n\n16 Id. at 1634 (quoting 21 U.S.C. § 853(p)(1)). Davenport’s argument to the contrary\n\n17 ignores that criminal forfeiture “merg[es]” an in personam element with the\n\n18 traditional in rem nature of forfeiture, making it “easier for the Government to\n\n\n\n 17\n\f 1 hold the defendant who acquired the tainted property responsible,” id. at 1635,\n\n 2 by allowing the Government to seek “substitute property” under § 853(p) when\n\n 3 the defendant no longer possesses the criminal proceeds. See 21 U.S.C. § 853(p).\n\n 4 There are two more things to note when criminal proceeds result from\n\n 5 money laundering offenses under 18 U.S.C. § 1956 in particular. First, a court,\n\n 6 “in imposing sentence on a person convicted of an offense in violation of section\n\n 7 1956, . . . shall order that the person forfeit to the United States any property, real\n\n 8 or personal, involved in such offense.” 18 U.S.C. § 982(a)(1) (emphasis added).\n\n 9 Second, a defendant who “acted merely as an intermediary” but no longer\n\n10 possesses the property acquired as a result of money laundering may be required\n\n11 to forfeit substitute property, but only if the defendant “conducted three or more\n\n12 separate transactions involving a total of $100,000 or more in any twelve month\n\n13 period.” 18 U.S.C. § 982(b)(2); see also id. § 853(p).\n\n14 Here, Davenport was an active participant in the unlawful activity that his\n\n15 money laundering was designed to conceal, rather than a mere intermediary in\n\n16 the money laundering scheme. But even if Davenport fell into the “mere\n\n17 intermediary” category of § 982(b)(2), that provision’s safe harbor would not\n\n18 extend to him because at trial, the evidence showed that Davenport wired a total\n\n\n\n 18\n\f 1 of $9.7 million in four separate transactions from December 2014 to January 2015,\n\n 2 while the safe harbor is triggered only if the defendant engages in fewer than\n\n 3 three such transactions. See 18 U.S.C. § 982(b)(2). Although Davenport no\n\n 4 longer possesses the money he laundered, the Government may seek “substitute\n\n 5 property” and hold him liable together with Tanner to forfeit the laundered\n\n 6 money he transferred to Tanner. See 21 U.S.C. § 853(p).\n\n 7 For these reasons and under these circumstances, insofar as the District\n\n 8 Court’s forfeiture orders require the defendants to each pay $9,703,995.33, we\n\n 9 vacate and remand to the District Court with instructions to order the defendants\n\n10 jointly and severally to forfeit a total of no more than $9,703,995.33.\n\n11 CONCLUSION\n\n12 We have considered the parties’ remaining arguments and conclude that\n\n13 they are without merit. For the foregoing reasons, the convictions of both\n\n14 Davenport and Tanner are AFFIRMED, the restitution order of the District Court\n\n15 is VACATED in part and REMANDED with instructions to employ a sound\n\n16 methodology in determining Valeant’s actual loss, and the forfeiture orders of\n\n17 the District Court are VACATED in part and REMANDED with instructions to\n\n\n\n\n 19\n\f1 amend the judgments so that the defendants are required jointly and severally to\n\n2 forfeit a total of no more than $9,703,995.33.\n\n\n\n\n 20\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Tanner\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-10-31\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n18‐3598‐cr(L)\\n United States v. Tanner et al.\\n\\n 1 UNITED STATES COURT OF APPEALS\\n 2 FOR THE SECOND CIRCUIT\\n 3\\n 4 August Term, 2018\\n 5\\n 6 (Argued: June 24, 2019 Decided: October 31, 2019)\\n 7\\n 8 Docket Nos. 18‐3598‐cr(L), 18‐3601‐cr(CON), 19‐294‐cr(CON), 19‐356‐cr(CON)\\n 9\\n10 _____________________________________\\n11\\n12 UNITED STATES OF AMERICA,\\n13\\n14 Appellee,\\n15\\n16 v.\\n17\\n18 GARY TANNER, ANDREW DAVENPORT,\\n19\\n20 Defendants‐Appellants.\\n21\\n22 _____________________________________\\n23\\n24 Before:\\n25\\n26 JACOBS, LOHIER, and PARK, Circuit Judges.\\n27\\n28 Defendants Andrew Davenport and Gary Tanner were convicted after a\\n29 jury trial in the United States District Court for the Southern District of New\\n30 York (Preska, J.) of honest services fraud and honest services fraud conspiracy,\\n31 conspiracy to violate the Travel Act, and conspiracy to commit money\\n32 laundering. In addition to challenging their convictions, the defendants\\n33 challenge the restitution and forfeiture orders entered against them. We affirm\\n34 the defendants’ convictions, but we conclude that the District Court (1) failed to\\n35 employ a sound methodology to determine the victim’s actual loss for\\n36 restitution, and (2) erred in ordering forfeiture of an amount that exceeded the\\n\\f 1 amount of the criminal proceeds. We also hold that, under the circumstances of\\n 2 this case, Honeycutt v. United States, 137 S. Ct. 1626 (2017), does not foreclose\\n 3 ordering the defendants jointly and severally to forfeit the proceeds each\\n 4 possessed as a result of their crimes. Accordingly, the convictions are\\n 5 AFFIRMED, the restitution order of the District Court is VACATED in part and\\n 6 REMANDED with instructions to employ a sound methodology in determining\\n 7 actual victim loss, and the forfeiture orders are VACATED in part and\\n 8 REMANDED with instructions to amend the judgments so that the defendants\\n 9 are required jointly and severally to forfeit a total of no more than $9,703,995.33.\\n10\\n11 RICHARD COOPER, Assistant United States Attorney\\n12 (Amanda Kramer, Won S. Shin, Assistant United States\\n13 Attorneys, on the brief), for Geoffrey S. Berman, United\\n14 States Attorney for the Southern District of New York,\\n15 New York, NY, for Appellee United States of America.\\n16\\n17 DANIEL S. VOLCHOK, Wilmer Cutler Pickering Hale and\\n18 Dorr LLP, Washington, DC (Howard M. Shapiro, David\\n19 M. Lehn, Wilmer Cutler Pickering Hale and Dorr LLP,\\n20 Washington, DC, Brendan R. McGuire, Matthew\\n21 Galeotti, Claire M. Guehenno, Marguerite Colson,\\n22 Wilmer Cutler Pickering Hale and Dorr LLP, New York,\\n23 NY, on the brief), for Defendant‐Appellant Gary Tanner.\\n24\\n25 ALEXANDRA A.E. SHAPIRO (Daniel J. O’Neill, on the brief),\\n26 Shapiro Arato Bach LLP, New York, NY, for Defendant‐\\n27 Appellant Andrew Davenport.\\n\\n28 LOHIER, Circuit Judge:\\n\\n29 Defendants Andrew Davenport and Gary Tanner were convicted after a\\n\\n30 jury trial in the United States District Court for the Southern District of New\\n\\n31 York (Preska, J.) of honest services fraud and honest services fraud conspiracy, 18\\n\\n32 U.S.C. §§ 1343, 1346, 1349, conspiracy to violate the Travel Act, 18 U.S.C. §§ 371,\\n 2\\n\\f 1 1952(a)(1), (3), and conspiracy to commit money laundering, 18 U.S.C. § 1956(h).\\n\\n 2 On appeal, the defendants attack the sufficiency of the evidence at trial relating\\n\\n 3 to their convictions for the honest services fraud counts and for conspiring to\\n\\n 4 violate the Travel Act. They also challenge the jury instructions regarding\\n\\n 5 Davenport’s intent, various evidentiary rulings made at trial, and the restitution\\n\\n 6 and forfeiture orders entered by the District Court. We conclude that sufficient\\n\\n 7 evidence supported the defendants’ convictions, that the jury charge was not\\n\\n 8 erroneous, and that any errors in the District Court’s evidentiary rulings were\\n\\n 9 harmless. We therefore affirm the judgments of conviction. With respect to the\\n\\n10 restitution order, we hold that the District Court failed to use a sound\\n\\n11 methodology to determine the victim’s actual loss. We also conclude that, under\\n\\n12 the circumstances of this case, the defendants may be held jointly and severally\\n\\n13 liable to forfeit the criminal proceeds that each possessed as a result of their\\n\\n14 crimes, see Honeycutt v. United States, 137 S. Ct. 1626 (2017), but that the District\\n\\n15 Court erred in ordering the defendants to forfeit more than the amount of their\\n\\n16 criminal proceeds.\\n\\n\\n\\n\\n 3\\n\\f 1 BACKGROUND\\n\\n 2 Because this is an appeal from judgments of conviction entered after a jury\\n\\n 3 trial and Tanner and Davenport challenge the sufficiency of the evidence against\\n\\n 4 them, the following facts are drawn from the trial evidence and described “in the\\n\\n 5 light most favorable to the Government.” United States v. Caltabiano, 871 F.3d\\n\\n 6 210, 213 (2d Cir. 2017).\\n\\n 7 In 2013 Tanner’s employer, Valeant Pharmaceuticals International, a\\n\\n 8 pharmaceutical manufacturer, partnered with Philidor RX Services, a specialty\\n\\n 9 pharmacy founded and run by Davenport, to sell Valeant’s pharmaceutical\\n\\n10 products. As insurance companies demanded prior authorization for branded\\n\\n11 drugs like Valeant’s, specialty pharmacies like Philidor helped customers\\n\\n12 navigate interactions with insurance companies to access branded drugs. To\\n\\n13 help Philidor grow into a strong distribution channel for Valeant’s products,\\n\\n14 Valeant placed four of its employees onsite at Philidor and made Tanner\\n\\n15 primarily responsible for managing Valeant’s relationship with Philidor.\\n\\n16 As Tanner became integrated into Philidor’s business over time, he began\\n\\n17 to use his position at Valeant to assist Philidor in ways that could be considered\\n\\n18 contrary to Valeant’s interests. When Valeant directed him to contact and\\n\\n\\n\\n 4\\n\\f 1 develop ties with other pharmacies in order to diversify Valeant’s specialty\\n\\n 2 pharmacy network, for example, Tanner told Valeant that he would comply but\\n\\n 3 made at best half‐hearted attempts to do so, ultimately using the new contacts to\\n\\n 4 help Philidor, not Valeant. Using an alias, Tanner secretly provided Davenport\\n\\n 5 with information about competitor pharmacies, which Tanner obtained through\\n\\n 6 his ostensible efforts to diversify Valeant’s network. In one example, Davenport\\n\\n 7 received information from Tanner about a competitor and asked whether the\\n\\n 8 competition was “[p]roblematic”; Tanner responded: “No—just market\\n\\n 9 intelligence for us.” Supp. App’x 2. And when, as Tanner but not Valeant knew,\\n\\n10 Philidor appeared ready to accept a 3.5 percent discount on Valeant\\n\\n11 pharmaceutical products, Tanner gave Philidor a 4 percent discount instead, to\\n\\n12 Valeant’s economic detriment.\\n\\n13 The close relationship between Tanner and Philidor also benefited Tanner.\\n\\n14 In the period when Tanner was feeding Davenport information about Philidor’s\\n\\n15 competitors, for example, Davenport paid about $750 for a one‐night luxury\\n\\n16 hotel stay in New York for Tanner and his wife.\\n\\n17 In 2014 Valeant began negotiations for the immediate acquisition of\\n\\n18 Philidor. Tanner was assigned to Valeant’s due diligence team and tasked with\\n\\n\\n\\n 5\\n\\f 1 helping Valeant better understand Philidor’s business. Throughout Valeant’s\\n\\n 2 negotiations with Philidor, however, Tanner secretly worked on Philidor’s\\n\\n 3 behalf, helping it devise a negotiating strategy and forwarding at least one\\n\\n 4 confidential document revealing Valeant’s position to Davenport. The Valeant\\n\\n 5 team was unaware that Tanner was providing this advice to Davenport.\\n\\n 6 The negotiations ended in December 2014, when Valeant purchased an\\n\\n 7 option to acquire Philidor under a Purchase Option Agreement (“POA”). From\\n\\n 8 start to end of negotiations, the price tag of the POA deal increased by $8 million.\\n\\n 9 Valeant paid Philidor $133 million in upfront payments between December 2014\\n\\n10 and January 2015, promising an additional $100 million in potential future\\n\\n11 payments to Philidor’s owners depending on Philidor’s future sales. Drawing on\\n\\n12 these upfront payments, Davenport transferred over $9.7 million to Tanner in\\n\\n13 four separate transactions channeled through a series of shell companies owned\\n\\n14 or controlled by Davenport and Tanner that were established to disguise the\\n\\n15 payments.\\n\\n16 In January 2017 Tanner and Davenport were charged with (1) honest\\n\\n17 services wire fraud conspiracy (Count One); (2) honest services wire fraud\\n\\n18 (Count Two); (3) Travel Act conspiracy predicated on a violation of New York’s\\n\\n\\n\\n 6\\n\\f 1 commercial bribery laws (Count Three); and (4) money laundering conspiracy\\n\\n 2 (Count Four). The honest services fraud charges were premised on the theory\\n\\n 3 that Davenport agreed to pay Tanner a portion of the proceeds from the sale of\\n\\n 4 Philidor to Valeant in exchange for Tanner serving Philidor’s and Davenport’s\\n\\n 5 interests.\\n\\n 6 A jury convicted both defendants on all counts. The District Court\\n\\n 7 sentenced each to a term of imprisonment of 366 days, to be followed by two\\n\\n 8 years of supervised release. The District Court also ordered Tanner and\\n\\n 9 Davenport to jointly and severally pay $11,855,683.35 in restitution and to each\\n\\n10 forfeit $9,703,995.33 in criminal proceeds.\\n\\n11 This appeal followed.\\n\\n12 DISCUSSION\\n\\n13 On appeal, both defendants contend principally that there was insufficient\\n\\n14 evidence for a reasonable jury to convict them of honest services wire fraud or of\\n\\n15 violating the Travel Act; that the District Court gave the jury an erroneous\\n\\n16 instruction on the mens rea element for honest services wire fraud; and that the\\n\\n17 District Court erred in excluding certain emails and testimony and precluding\\n\\n18 cross‐examination, all of which might have cast doubt on the Government’s main\\n\\n\\n\\n 7\\n\\f 1 theory at trial. In addition, both defendants challenge the restitution and\\n\\n 2 forfeiture orders. For the reasons that follow, we find no basis for reversing their\\n\\n 3 convictions. But we vacate the portion of the defendants’ sentences that required\\n\\n 4 them, jointly and severally, to pay $8 million in restitution and that also required\\n\\n 5 each to pay $9,703,995.33 in forfeiture, for an approximate total forfeited amount\\n\\n 6 of $19.4 million.\\n\\n 7 1. Sufficiency of the Evidence\\n\\n 8 Davenport and Tanner maintain that there was insufficient evidence to\\n\\n 9 convict them of honest services wire fraud or of violating the Travel Act.\\n\\n10 Although challenges to the sufficiency of the evidence supporting conviction are\\n\\n11 reviewed de novo, the challenger “bears a heavy burden” because our review “is\\n\\n12 exceedingly deferential.” United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012)\\n\\n13 (quotation marks omitted). A judgment of conviction will be upheld “if any\\n\\n14 rational trier of fact could have found the essential elements of the crime beyond\\n\\n15 a reasonable doubt.” Id. (quotation marks omitted); see also United States v.\\n\\n16 Payton, 159 F.3d 49, 56 (2d Cir. 1998) (“The ultimate question is not whether we\\n\\n17 believe the evidence adduced at trial established [the] defendant’s guilt beyond a\\n\\n\\n\\n\\n 8\\n\\f 1 reasonable doubt, but whether any rational trier of fact could so find.”). With\\n\\n 2 that in mind, we consider the defendants’ sufficiency challenges.\\n\\n 3 A. Honest Services Fraud Convictions\\n\\n 4 The honest services fraud statute, 18 U.S.C. § 1346, requires the\\n\\n 5 Government to prove a “fraudulent scheme[] to deprive another of honest\\n\\n 6 services through bribes or kickbacks supplied by a third party who had not been\\n\\n 7 deceived.” Skilling v. United States, 561 U.S. 358, 404 (2010). “[T]o violate the\\n\\n 8 right to honest services, the charged conduct must involve a quid pro quo, i.e., an\\n\\n 9 intent to give or receive something of value in exchange for an . . . act.” United\\n\\n10 States v. Nouri, 711 F.3d 129, 139 (2d Cir. 2013) (quotation marks omitted).\\n\\n11 Here, Tanner conveyed information about competitor specialty\\n\\n12 pharmacies that he had acquired in his capacity as a Valeant employee, secured\\n\\n13 for Philidor an incremental discount on Valeant products that was not in\\n\\n14 Valeant’s interest, and secretly advised Davenport about how to negotiate certain\\n\\n15 terms of the POA with Valeant. Meanwhile, Davenport secretly paid Tanner\\n\\n16 about $9.7 million from the proceeds of the sale under the POA and about $750\\n\\n17 for a luxury hotel stay in New York City. In our view, the size and timing of\\n\\n18 Davenport’s payments to Tanner as well as his use of shell companies to conceal\\n\\n\\n\\n 9\\n\\f 1 the $9.7 million payment provided compelling evidence that Davenport made\\n\\n 2 the payments in exchange for Tanner’s help. See United States v. Rosen, 716 F.3d\\n\\n 3 691, 703 (2d Cir. 2013); United States v. Bahel, 662 F.3d 610, 639–40 (2d Cir. 2011).\\n\\n 4 Tanner and Davenport insist that their case falls outside “the paradigmatic\\n\\n 5 cases of bribes and kickbacks” described in Skilling because at least part of\\n\\n 6 Tanner’s job for Valeant involved helping Philidor. 561 U.S. at 411. Helping\\n\\n 7 Philidor, they suggest, ultimately helped Valeant. We are not persuaded. First,\\n\\n 8 the Government was not required to prove that acts that Tanner performed or\\n\\n 9 promised to perform for Davenport were contrary to Valeant’s interests, or that\\n\\n10 they caused or were intended to cause it financial harm; it needed to prove only\\n\\n11 that Valeant lost its right to Tanner’s honest services at least in part because of\\n\\n12 Davenport’s bribes and kickback. See Skilling, 561 U.S. at 400. Second, in any\\n\\n13 event, there was ample evidence that Tanner’s conduct was designed to harm\\n\\n14 Valeant. As we have recounted above, Tanner materially undercut Valeant’s\\n\\n15 ability to diversify its network through specialty pharmacies that competed with\\n\\n16 Philidor; he secured for Philidor a discount on Valeant products that was not in\\n\\n17 Valeant’s interest; and he advised Davenport on negotiating the terms of the\\n\\n\\n\\n\\n 10\\n\\f 1 POA. Although not required under Skilling, that evidence was certainly\\n\\n 2 sufficient to support the honest services fraud convictions here.\\n\\n 3 Nor are we convinced that Tanner was merely engaged in undisclosed\\n\\n 4 self‐dealing because he allegedly held an ownership interest in Philidor.\\n\\n 5 Although the Government introduced some evidence at trial suggesting that\\n\\n 6 Tanner may have held an ownership interest in Philidor, the Government also\\n\\n 7 characterized the “so‐called ownership interest” as a “bribe” or a stand‐in for\\n\\n 8 Davenport’s agreement to give Tanner a cut of the profits of the eventual sale of\\n\\n 9 Philidor. The jury, therefore, could reasonably have rejected the theory that\\n\\n10 Tanner held an ownership interest in Philidor, or concluded that the ownership\\n\\n11 interest constituted a bribe.\\n\\n12 B. Travel Act Convictions\\n\\n13 Tanner and Davenport fare no better in challenging their convictions\\n\\n14 under the Travel Act, which, as relevant here, prohibits traveling interstate or\\n\\n15 using mail or any other “facility” for the purpose of distributing the proceeds of\\n\\n16 or promoting any “unlawful activity.” 18 U.S.C. § 1952(a)(1), (3). “[U]nlawful\\n\\n17 activity” includes “bribery . . . in violation of the laws of the State in which\\n\\n18 committed.” Id. § 1952(b). The defendants contend that there was no evidence\\n\\n\\n\\n 11\\n\\f 1 that they conspired to commit bribery in New York, which the parties agree is\\n\\n 2 the relevant State. We disagree. Even assuming, without deciding, that a charge\\n\\n 3 of conspiracy to violate the Travel Act requires proof that the defendants\\n\\n 4 conspired to commit bribery specifically in New York, the evidence that\\n\\n 5 Davenport paid for Tanner’s luxury hotel stay in New York in exchange for\\n\\n 6 information about Philidor’s competitors, though thin, was enough for the jury\\n\\n 7 to determine that the conspiracy to commit bribery occurred at least in part in\\n\\n 8 New York.\\n\\n 9 2. Jury Instructions\\n\\n10 The defendants next contend that even if the evidence against them was\\n\\n11 sufficient, they should have a new trial on the honest services counts because, in\\n\\n12 describing the elements of those counts, the District Court failed to instruct the\\n\\n13 jury that it must find that both Tanner and Davenport acted with corrupt intent.\\n\\n14 Read in context, however, the challenged portions of the jury charge, which we\\n\\n15 review de novo, see United States v. Roy, 783 F.3d 418, 420 (2d Cir. 2015), did not\\n\\n16 suggest that the jury could convict based on Tanner’s corrupt intent alone. When\\n\\n17 it introduced the intent requirement, the District Court specifically referred to\\n\\n18 both defendants, telling the jury that the Government must prove “that Gary\\n\\n\\n\\n 12\\n\\f 1 Tanner and Andrew Davenport knowingly and willfully participated in the\\n\\n 2 scheme or artifice, with knowledge of its fraudulent nature and with specific\\n\\n 3 intent to defraud.” App’x 492–93. Moments later, the District Court repeated\\n\\n 4 that an element of honest services wire fraud was that “a defendant participated\\n\\n 5 in the scheme knowingly, willfully, and with specific intent to defraud,” which it\\n\\n 6 further defined as “specific intent to deceive for the purpose of depriving Valeant\\n\\n 7 of its right to Tanner’s honest services.” App’x 494. Although the instruction at\\n\\n 8 this point might have again referred to each defendant by name, we conclude\\n\\n 9 that it fairly informed the jury of its obligation to find Davenport’s corrupt intent\\n\\n10 as well as Tanner’s in order to convict.\\n\\n11 3. Evidentiary Rulings\\n\\n12 The defendants’ final challenge to their convictions arises from various\\n\\n13 evidentiary rulings. They believe these rulings impaired their ability to cast\\n\\n14 doubt on the Government’s principal argument at trial that Tanner secretly\\n\\n15 intended to further Philidor’s interest at Valeant’s expense. First, the defendants\\n\\n16 contend that the District Court erred in excluding, as hearsay, two emails that\\n\\n17 they sought to introduce into evidence under the “state of mind” exception to the\\n\\n18 hearsay rule. Second, they assert that the District Court erred in excluding the\\n\\n\\n\\n 13\\n\\f 1 testimony of one witness, refusing to compel the immunization of another, and\\n\\n 2 restricting their cross‐examination of a third. Although we review the District\\n\\n 3 Court’s rulings for abuse of discretion, we need not assess error if we deem the\\n\\n 4 error harmless. See United States v. Siddiqui, 699 F.3d 690, 703–04 (2d Cir. 2012).\\n\\n 5 After reviewing the extensive trial record, we agree with the Government that\\n\\n 6 any evidentiary errors by the District Court were harmless in light of the\\n\\n 7 overwhelming evidence of the defendants’ guilt on all counts.\\n\\n 8 4. Sentencing\\n\\n 9 Finally, the defendants challenge the restitution and forfeiture orders\\n\\n10 entered against them. These challenges are not without merit.\\n\\n11 A. Restitution\\n\\n12 The District Court determined, pursuant to 18 U.S.C. § 3663A, that\\n\\n13 Davenport and Tanner were jointly and severally liable for the $8 million that\\n\\n14 Valeant allegedly overpaid for the option to purchase Philidor. We review the\\n\\n15 District Court’s order of restitution for abuse of discretion, “reversing its ruling\\n\\n16 only if it rests on an error of law, a clearly erroneous finding of fact, or otherwise\\n\\n17 cannot be located within the range of permissible decisions.” United States v.\\n\\n18 Thompson, 792 F.3d 273, 277 (2d Cir. 2015) (quotation marks omitted). Because\\n\\n\\n\\n 14\\n\\f 1 the purpose of restitution is compensatory and 18 U.S.C. § 3664(f)(1)(A) provides\\n\\n 2 that a restitution order is limited to “the full amount of each victim’s losses,” the\\n\\n 3 “restitution order must be tied to the victim’s actual, provable, loss,” United\\n\\n 4 States v. Zangari, 677 F.3d 86, 91 (2d Cir. 2012), and the amount of restitution\\n\\n 5 ordered must reflect a “reasonable approximation of losses supported by a\\n\\n 6 sound methodology,” United States v. Gushlak, 728 F.3d 184, 196 (2d Cir. 2013).\\n\\n 7 We conclude that the District Court abused its discretion in ordering the\\n\\n 8 $8 million in restitution. That amount—which represents nothing more than the\\n\\n 9 difference between Valeant’s initial offer and the final purchase price of the\\n\\n10 option to buy Philidor—does not attempt to approximate any increase in cost\\n\\n11 that is attributable to the defendants’ criminal conduct. It is therefore not a\\n\\n12 “reasonable approximation of losses supported by a sound methodology.” Id.\\n\\n13 Urging affirmance, the Government proposes that the $9.7 million\\n\\n14 kickback constituted Valeant’s actual loss. As we explained in United States v.\\n\\n15 Finazzo, 850 F.3d 94 (2d Cir. 2017), however, while a direct correlation between a\\n\\n16 defendant’s gain and a victim’s loss may exist “‘such that the defendant’s gain\\n\\n17 can act as a measure of—as opposed to a substitute for—the victim’s loss[,]’” id.\\n\\n18 at 117 (quoting Zangari, 677 F.3d at 93), loss to the victim “is not a necessary\\n\\n\\n\\n 15\\n\\f 1 consequence” of all kickback schemes, id. at 118. For that reason, it would not be\\n\\n 2 “a sufficiently sound methodology for the district court to merely assume that . . .\\n\\n 3 kickbacks [a]re solely justified by inflated prices.” Id. at 117–18 (quoting\\n\\n 4 Zangari, 677 F.3d at 93). Here the loss to Valeant was not a necessary\\n\\n 5 consequence of the kickback Tanner received. We therefore also reject the\\n\\n 6 Government’s argument that $9.7 million reflects Valeant’s actual loss.\\n\\n 7 We vacate the portion of the restitution order requiring the defendants to\\n\\n 8 jointly and severally pay $8 million to Valeant and remand to allow the District\\n\\n 9 Court to determine Valeant’s actual loss if that can be done using a sound\\n\\n10 methodology.\\n\\n11 B. Forfeiture\\n\\n12 Davenport and Tanner were ordered to forfeit $9,703,995.33 each rather\\n\\n13 than jointly and severally, for an approximate total of $19.4 million. As the\\n\\n14 Government concedes on appeal, the total proceeds of the defendants’ kickback\\n\\n15 scheme amounted to no more than $9,703,995.33. It was therefore error for the\\n\\n16 District Court to order the defendants to forfeit double that amount. We vacate\\n\\n\\n\\n\\n 16\\n\\f 1 and remand with instructions to amend the judgments so that the defendants\\n\\n 2 together are required to forfeit a total of no more than $9,703,995.33.\\n\\n 3 Davenport separately argues that his forfeiture order should be vacated in\\n\\n 4 its entirety because the Supreme Court in Honeycutt v. United States, 137 S. Ct.\\n\\n 5 1626 (2017), prohibited joint and several forfeiture for co‐conspirators. While we\\n\\n 6 have not yet fully defined the parameters of Honeycutt, this much is true:\\n\\n 7 Honeycutt’s bar against joint and several forfeiture for co‐conspirators applies\\n\\n 8 only to co‐conspirators who never possessed the tainted proceeds of their crimes.\\n\\n 9 See id. at 1630 (“[A] defendant may [not] be held jointly and severally liable for\\n\\n10 property that his co‐conspirator derived from the crime but that the defendant\\n\\n11 himself did not acquire.” (emphasis added)); id. at 1631–33. But when each\\n\\n12 co‐conspirator acquired the full proceeds “as a result of the crime,” id. at 1635,\\n\\n13 each can still be held liable to forfeit the value of those tainted proceeds, even if\\n\\n14 those proceeds are no longer in his possession because they have been\\n\\n15 “dissipated or otherwise disposed of by ‘any act or omission of the defendant.’”\\n\\n16 Id. at 1634 (quoting 21 U.S.C. § 853(p)(1)). Davenport’s argument to the contrary\\n\\n17 ignores that criminal forfeiture “merg[es]” an in personam element with the\\n\\n18 traditional in rem nature of forfeiture, making it “easier for the Government to\\n\\n\\n\\n 17\\n\\f 1 hold the defendant who acquired the tainted property responsible,” id. at 1635,\\n\\n 2 by allowing the Government to seek “substitute property” under § 853(p) when\\n\\n 3 the defendant no longer possesses the criminal proceeds. See 21 U.S.C. § 853(p).\\n\\n 4 There are two more things to note when criminal proceeds result from\\n\\n 5 money laundering offenses under 18 U.S.C. § 1956 in particular. First, a court,\\n\\n 6 “in imposing sentence on a person convicted of an offense in violation of section\\n\\n 7 1956, . . . shall order that the person forfeit to the United States any property, real\\n\\n 8 or personal, involved in such offense.” 18 U.S.C. § 982(a)(1) (emphasis added).\\n\\n 9 Second, a defendant who “acted merely as an intermediary” but no longer\\n\\n10 possesses the property acquired as a result of money laundering may be required\\n\\n11 to forfeit substitute property, but only if the defendant “conducted three or more\\n\\n12 separate transactions involving a total of $100,000 or more in any twelve month\\n\\n13 period.” 18 U.S.C. § 982(b)(2); see also id. § 853(p).\\n\\n14 Here, Davenport was an active participant in the unlawful activity that his\\n\\n15 money laundering was designed to conceal, rather than a mere intermediary in\\n\\n16 the money laundering scheme. But even if Davenport fell into the “mere\\n\\n17 intermediary” category of § 982(b)(2), that provision’s safe harbor would not\\n\\n18 extend to him because at trial, the evidence showed that Davenport wired a total\\n\\n\\n\\n 18\\n\\f 1 of $9.7 million in four separate transactions from December 2014 to January 2015,\\n\\n 2 while the safe harbor is triggered only if the defendant engages in fewer than\\n\\n 3 three such transactions. See 18 U.S.C. § 982(b)(2). Although Davenport no\\n\\n 4 longer possesses the money he laundered, the Government may seek “substitute\\n\\n 5 property” and hold him liable together with Tanner to forfeit the laundered\\n\\n 6 money he transferred to Tanner. See 21 U.S.C. § 853(p).\\n\\n 7 For these reasons and under these circumstances, insofar as the District\\n\\n 8 Court’s forfeiture orders require the defendants to each pay $9,703,995.33, we\\n\\n 9 vacate and remand to the District Court with instructions to order the defendants\\n\\n10 jointly and severally to forfeit a total of no more than $9,703,995.33.\\n\\n11 CONCLUSION\\n\\n12 We have considered the parties’ remaining arguments and conclude that\\n\\n13 they are without merit. For the foregoing reasons, the convictions of both\\n\\n14 Davenport and Tanner are AFFIRMED, the restitution order of the District Court\\n\\n15 is VACATED in part and REMANDED with instructions to employ a sound\\n\\n16 methodology in determining Valeant’s actual loss, and the forfeiture orders of\\n\\n17 the District Court are VACATED in part and REMANDED with instructions to\\n\\n\\n\\n\\n 19\\n\\f1 amend the judgments so that the defendants are required jointly and severally to\\n\\n2 forfeit a total of no more than $9,703,995.33.\\n\\n\\n\\n\\n 20\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4557,"cells":{"id":{"kind":"number","value":4668603,"string":"4,668,603"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Donna Javitz v. County of Luzerne"},"decision_date":{"kind":"string","value":"2019-10-10"},"docket_number":{"kind":"string","value":"18-2389"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Third Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: RESTREPO, PORTER, and FISHER, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"RESTREPO, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"PRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n\\n _____________\\n\\n No. 18-2389\\n _____________\\n\\n DONNA DAVIS JAVITZ,\\n Appellant\\n\\n v.\\n\\n COUNTY OF LUZERNE;\\n ROBERT LAWTON, Individually;\\n DAVID PARSNIK, Individually\\n ______________\\n\\n On Appeal from the United States District Court\\n for the Middle District of Pennsylvania\\n (D.C. Civ. Action No. 3-15-cv-02443)\\n District Judge: Honorable Robert D. Mariani\\n ______________\\n\\n Argued: May 1, 2019\\n ______________\\n\\n Before: RESTREPO, PORTER, and FISHER, Circuit Judges.\\n\\n (Opinion Filed: October 10, 2019)\\n __\\nMatthew T. Comerford\\nCurt M. Parkins\\nComerford Law\\n204 Wyoming Avenue\\nScranton, PA 18503\\n\\nDonna EM Davis [ARGUED]\\n651 Simpson Street\\nThroop, PA 18512\\n\\f Counsel for Appellant\\n\\nMark W. Bufalino [ARGUED]\\nJohn G. Dean\\nElliott Greenleaf & Dean\\n39 Public Square\\nSuite 100\\nWilkes-Barre, PA 18701\\n\\n Counsel for Appellees\\n\\nVernon L. Francis [ARGUED]\\nDechert\\n2929 Arch Street\\n18th Floor, Cica Centre\\nPhiladelphia, PA 19104\\n\\nMary Catherine Roper\\nAmerican Civil Liberties Union of Pennsylvania\\nP.O. Box 60173\\nPhiladelphia, PA 19106\\n\\n Counsel for Amicus Appellants,\\n American Civil Liberties Union\\n\\n ______________\\n\\n OPINION OF THE COURT\\n ______________\\n\\n\\nRESTREPO, Circuit Judge.\\n\\n\\n Donna Davis-Javitz (“Javitz”) was hired as the Director of Human Resources for\\n\\nLuzerne County. Shortly into her tenure, she was allegedly the victim of an illegal\\n\\nrecording by a public employee in her role as local union representative. After reporting\\n\\nthis crime, Javitz’s relationship with her employer became rocky, and she was\\n\\nsubsequently fired. She now alleges that her firing was unconstitutional under the First\\n\\n 2\\n\\fAmendment and, alternatively, under the Fourteenth Amendment’s Due Process Clause.\\n\\nThe District Court ruled against Javitz on both claims. For the reasons that follow, we\\n\\nwill affirm the District Court’s due process ruling, but will reverse and remand its First\\n\\nAmendment ruling.\\n\\n\\n I.\\n\\n In July 2014, Javitz was offered a position with Luzerne County as the Director of\\n\\nHuman Resources. AI 571, ¶ 22. Her offer letter contained the terms of her employment,\\n\\nand described the job as: “Management Level, Non Union, Exempt, Regular Full Time,”\\n\\nand that her position was “at will.” AI 57 ¶ 24–25 (emphasis added). Javitz signed and\\n\\naccepted the offer, and began employment on August 4, 2014.\\n\\n As Director of Human Services, Javitz was responsible for—among other duties—\\n\\ncommencing the hiring process for vacant positions, negotiating contracts, dealing with\\n\\nemployee complaints, responding to grievances, conducting investigations, and attending\\n\\nmeetings. AI 55, 58, ¶¶ 12, 27. Once she began work, Javitz participated in two\\n\\ninvestigatory meetings with the American Federation of State, County, and Municipal\\n\\nEmployees (“AFSCME”), which eventually resulted in ASFSCME filing an unfair labor\\n\\npractices suit in March 2015. AI 58 at ¶ 30.\\n\\n A. Javitz’s Allegations of Wiretapping\\n\\n\\n\\n\\n1\\n AI refers to Appendix Volume I, and so AII, AIII, and AIV refer to Appendix\\nVolumes II, III, and IV, respectively.\\n 3\\n\\f Javitz claimed that a document filed in the ASFSCME lawsuit was a transcript of\\n\\nthe investigatory meetings in which she participated. She suspected that a specific county\\n\\nemployee, AFSCME union representative Paula Schnelly, had recorded the meeting\\n\\nwithout Javitz’s consent—a crime under 18 Pa. Cons. Stat. § 5703. AIII 56, 60, 67, 76.\\n\\n Javitz reported her concern to her supervisor, David Parsnik, who agreed that the\\n\\nmeeting may have been recorded. AI 59, ¶ 31. The two met with the District Attorney,\\n\\nwho indicated that she would refer the matter to the Office of the Attorney General due to\\n\\na conflict of interest. Id. at ¶ 33. Javitz claims that the County Manager, Robert Lawton,\\n\\nintervened and instructed the District Attorney to drop the matter, which Defendants deny.\\n\\nAIII 78.\\n\\n After reporting the matter, Javitz followed up with Parsnik and the County Solicitor\\n\\nabout the status of the investigation multiple times. AI 59–60, ¶ 35.\\n\\n After making this report to the District Attorney, Javitz alleges that county\\n\\nemployees retaliated against her. She claims that her supervisor assigned work directly to\\n\\nher subordinates and cut her out of those and other assignments for which Javitz would\\n\\nhave otherwise been responsible. AIII 85–86. She also cites her office’s relocation in\\n\\nMay of 2015 as an example, but the move was planned prior to her hiring. AI 61, ¶ 44.\\n\\n Finally, on October 26, 2015, Javitz was fired. AIII 92–95. She was given no\\n\\nreason for her termination. Id. She requested a Loudermill hearing, but was denied. Id.\\n\\n B. County’s Response\\n\\n The County maintains that Javitz was fired because of her “conduct toward [county]\\n\\nunions, her refusal to follow through with hiring a Human Resources Business Partner [(a\\n\\n 4\\n\\fvacant position in the Human Resources Department during Plaintiff’s County\\n\\nemployment)], her failure to initiate policies, procedures and initiatives as directed[,] and\\n\\n[her handling of] issues with the employment application for a candidate for an assistant\\n\\npublic defender position.” AI 67, ¶ 70.\\n\\n C. District Court Proceedings\\n\\n Javitz filed a complaint alleging, inter alia, a 42 U.S.C. § 1983 claim for violation\\n\\nof her procedural due process rights under the Fourteenth Amendment and for retaliation\\n\\nin violation of her First Amendment rights. AI 7. The District Court granted summary\\n\\njudgment in favor of the Defendants. First, the District Court found that Javitz did not\\n\\nhave a property interest in her employment, and, thus, her termination did not violate her\\n\\nFourteenth Amendment due process rights. Second, the Court found that Javitz was not\\n\\nprotected under the First Amendment because her speech was that of a public employee,\\n\\nand not a private citizen, stating: “[Javitz] became aware of the information through her\\n\\nemployment, was encouraged to report the information by the policies of her employer,\\n\\nand reported the information only to other County employees.” AI 28. Thus, because\\n\\nJavitz spoke as a public employee and not a private citizen, the Constitution does not\\n\\nprotect her from employer discipline, or, as in this case, her termination. Id.\\n\\n II.\\n\\n The District Court had jurisdiction pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §\\n\\n1331. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a\\n\\ndistrict court order granting summary judgment. Karns v. Shanahan, 879 F.3d 504, 512\\n\\n(3d Cir. 2018).\\n\\n 5\\n\\f III.\\n\\n A.\\n\\n We first consider Javitz’s due process claim. The Fourteenth Amendment\\n\\nprovides that no state shall “deprive any person of life, liberty, or property, without due\\n\\nprocess of law.” U.S. Const. amend. XIV § 1. “The first step in analyzing a due process\\n\\nclaim is to determine whether the ‘asserted individual interest . . . [is] encompassed\\n\\nwithin the [F]ourteenth [A]mendment’s protection of life, liberty, or property.’” Elmore\\n\\nv. Cleary, 399 F.3d 279, 282 (3d Cir. 2005) (citation omitted) (alterations in original).\\n\\n“To have a property interest in a job [ ] . . . a person must have . . . a legitimate\\n\\nentitlement to such continued employment.” Id. (citation omitted). State law determines\\n\\nwhether a person is entitled to a property interest in their government job. Hill v.\\n\\nBorough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006).\\n\\n In Pennsylvania, employees are at-will by default; a contract or applicable state\\n\\nlaw must be shown to rebut this default status and establish a property right. See Stumpp\\n\\nv. Stroudsburg Mun Auth., 658 A.2d 333, 334–35 (Pa. 1995). In Luzerne County, Career\\n\\nService Employees may only be fired for just cause, but Exempt Level Employees are\\n\\nemployed at-will. The Luzerne County Charter is silent as to whether Javitz’s position\\n\\nwas Career Service or Exempt Level.\\n\\n Given that the County legislation is silent on this issue, we review the terms of\\n\\nJavitz’s employment to determine whether she was an Exempt Level Employee. The\\n\\noffer letter describes her position as “Exempt,” and describes her employment as “At\\n\\nWill.” AI 18–19. Given this evidence, we agree with the District Court: Javitz was hired\\n\\n 6\\n\\fas an Exempt Level Employee, did not have a property interest in her government\\n\\nposition, and thus her termination was not entitled to Fourteenth Amendment due process\\n\\nprotection. AI 20. Therefore, we will affirm the District Court’s ruling concerning\\n\\nJavitz’s due process claim.\\n\\n B.\\n\\n We next turn to Javitz’s First Amendment retaliation claim. “To prevail on a First\\n\\nAmendment retaliation claim under 42 U.S.C. § 1983, a plaintiff must prove that (1) he\\n\\nengaged in constitutionally protected conduct, (2) the defendant engaged in retaliatory\\n\\naction sufficient to deter a person of ordinary firmness from exercising his constitutional\\n\\nrights, and (3) a causal link [existed] between the constitutionally protected conduct and\\n\\nthe retaliatory action.” Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir.\\n\\n2019) (internal quotation marks and citation omitted) (alteration in original). Because the\\n\\nDistrict Court ruled that Javitz’s speech was not protected speech—by finding that she\\n\\nspoke as a public employee and not a private citizen—we focus only on the first factor.\\n\\n When determining whether an individual spoke as a public employee versus a\\n\\nprivate citizen, three Supreme Court cases guide our analysis. First, in Pickering v.\\n\\nBoard of Education, 391 U.S. 563 (1968), the Court instructed that we determine if the\\n\\nemployee spoke as a citizen on a matter of public concern, and if so, whether the\\n\\ngovernment employer was justified in treating the employee differently from any other\\n\\nmember of the general public. Id. at 568. This initial inquiry has become known as the\\n\\nPickering balancing test.\\n\\n\\n\\n 7\\n\\f Second, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court specified\\n\\nthis inquiry by holding that “when public employees make statements pursuant to their\\n\\nofficial duties, the employees are not speaking as citizens for First Amendment purposes,\\n\\nand the Constitution does not insulate their communications from employer discipline.”\\n\\nId. at 421. This rule is based on administrative efficiency and acts to keep every\\n\\nworkplace dispute from becoming a federal case. See id. at 418. This rule, however, is\\n\\nbalanced with the Court’s acknowledgement that if “employees are speaking as citizens\\n\\nabout matters of public concern, they must face only those speech restrictions that are\\n\\nnecessary for their employers to operate efficiently and effectively.” Id. at 419 (citation\\n\\nomitted).\\n\\n Third, and most recently, the Court decided Lane v. Franks, 573 U.S. 228 (2014).\\n\\nThe Lane Court focused on the nexus between the employee’s speech and his/her job\\n\\nduties, stating that “the mere fact that a citizen’s speech concerns information acquired by\\n\\nvirtue of his public employment does not transform that speech into employee—rather\\n\\nthan citizen—speech.” Id. at 240. Thus, the “critical question” is “whether the speech at\\n\\nissue is itself ordinarily within the scope of an employee’s duties, not whether it merely\\n\\nconcerns those duties.” Id.\\n\\n This Circuit has followed these cases and, when appropriate, has focused its\\n\\ninquiry on whether a public employee’s speech was informed by or the result of his or her\\n\\nprimary job duties. For example, in Flora v. County of Luzerne, 776 F.3d 169 (3d Cir.\\n\\n2015), the Acting Chief Public Defender alleged that his employer chose not to promote\\n\\nhim because of his speech—specifically, for his efforts to secure funding for the Office of\\n\\n 8\\n\\fthe Public Defender in a class action lawsuit and for publicly reporting the county’s\\n\\nnoncompliance with a Pennsylvania Supreme Court expungement order relating to the\\n\\n2008 “Kids for Cash” scandal. Id. at 172–74. The District Court dismissed the\\n\\ncomplaint, finding that Flora’s speech related to his official duties as Chief Public\\n\\nDefender, and thus was not protected speech. Id. at 174. This Court reversed, holding\\n\\nthat “[w]hile certain statements in Flora’s complaint do suggest that the speech at issue\\n\\nbore some relation to his job duties and may have, indirectly, benefitted his clients, that\\n\\ndoes not bring the speech within the realm of his ordinary job duties . . . [t]o view it\\n\\notherwise would unduly restrict First Amendment rights, because reporting malfeasance\\n\\nor misfeasance will regularly benefit an employee in the execution of his job duties by,\\n\\npresumably, removing impediments to proper government functioning.” Id. at 180\\n\\n(citation omitted).\\n\\n In Dougherty v. School District of Philadelphia, 772 F.3d 979 (3d Cir. 2014), a\\n\\nformer employee with the School District of Philadelphia was terminated after contacting\\n\\nthe local newspaper regarding alleged business misconduct by the Superintendent. Id. at\\n\\n983–84. He filed an action alleging First Amendment retaliation and was successful at\\n\\nthe District Court. Id. at 984–85. On appeal, the school district argued that Dougherty’s\\n\\nspeech was that of an employee, because “the content of [his] speech was gained from\\n\\n‘special knowledge’ and ‘experience’ [and that] his speech ‘owes its existence to’ his\\n\\nprofessional duties.” Id. 989. We found this argument unavailing, emphasizing that\\n\\n“whether an employee’s speech ‘concern[s] the subject matter of [his] employment’ is\\n\\n‘nondispositive.’” Id. (citing Garcetti, 547 U.S. at 421). Rather, “[u]nder Lane, [we\\n\\n 9\\n\\fdetermined] that Dougherty’s report to [the newspaper] was not made pursuant to his\\n\\nofficial job duties . . . [and was] not foreclosed merely because the subject matter of the\\n\\nspeech concern[ed] or relate[d] to those duties.” Id. at 990.\\n\\n Again, in De Ritis v. McGarrigle, 861 F.3d 444 (3d Cir. 2017), we distinguished\\n\\ncitizen speech from employee speech by focusing on the primary job duties of the\\n\\nplaintiff. In De Ritis, we held that a public defender’s rumormongering about his\\n\\nperceived demotion to judges and attorneys while in the courtroom was not protected\\n\\nspeech, because as an attorney, rapport-building conversations with judges and other\\n\\nattorneys just before or after a case proceeding are “part and parcel of [a public\\n\\ndefender’s] ordinary job duties—not citizen speech.” Id. at 453–54 (citation omitted).\\n\\nWe distinguished, however, out-of-court conversations De Rittis had with the county\\n\\nsolicitor and chair of the county council, both high-ranking county officials that De Ritis\\n\\nhad access to as a result of his work. We held those conversations to be citizen speech,\\n\\nbecause these out-of-court conversations, possible only by virtue of his employment,\\n\\nwere not “‘part of the work [De Ritis] was paid to perform on an ordinary basis.’” Id. at\\n\\n454 (quoting Flora, 776 F.3d at 180) (alteration in original).\\n\\n C.\\n\\n This case is analogous to Flora, Dougherty, and De Ritis. As in those cases, our\\n\\nthreshold inquiry is whether Javitz spoke as a citizen or a public employee, and as such,\\n\\nwhether her speech was either “ordinarily within the scope of [her] duties,” or simply\\n\\nrelating to those duties. Lane, 573 U.S. at 240. Who Javitz spoke to, what she spoke\\n\\n\\n\\n 10\\n\\fabout, and why she spoke at all each fall outside the scope of her primary job duties and\\n\\nevidence citizen speech.\\n\\n 1.\\n\\n Here, as in De Ritis, Javitz had access to high-ranking county officials by virtue of\\n\\nher job as the Human Resources Director. Javitz had the ability to communicate and\\n\\ninterface with these individuals in a manner that someone not employed by the county,\\n\\nand someone without the position of Human Resources Director, would have. But access\\n\\nto these individuals is secondary to our citizen speech inquiry—we must focus on\\n\\nwhether Javitz interfacing with them was a part of her primary job duties.\\n\\n The District Court found that it was “by virtue of [Javitz’s] position as a public\\n\\nemployee that [she] was allowed to make the speech in the mode and manner in which\\n\\nshe did; that is, accompanied by her supervisor and director to the District Attorney.”\\n\\nJavitz v. Luzerne Cty., No. 3:15-CV-2443, 2018 WL 1545589, at *10 (M.D. Pa. Mar. 29,\\n\\n2018). This reasoning does not follow our precedent—unless the mode and manner of\\n\\nJavitz’s speech was “part of the work [she] was paid to perform on an ordinary basis[,]”\\n\\nthe fact that she could easily contact the District Attorney by virtue of her employment\\n\\ndoes not support a finding that Javitz spoke as an employee and not a citizen. De Ritis,\\n\\n861 F.3d at 454 (quoting Flora, 776 F.3d at 180).\\n\\n 2.\\n\\n The subject of Javitz’s speech was also not within her ordinary job duties. Javitz\\n\\nreported a crime. But the record and the District Court found that nowhere in her job\\n\\nduties was she instructed to report crimes. Rather, the District Court placed significant\\n\\n 11\\n\\femphasis on the County Ethics Code which “encouraged [Javitz] to disclose any\\n\\ninformation which . . . she believe[d] evidence[ed] a violation of any law, rule or\\n\\nregulation.” Javitz, 2018 WL 1545589, at *9.\\n\\n Here, our focus remains on whether Javitz spoke “pursuant to [her] official job\\n\\nduties.” Dougherty, 772 F.3d at 990. Without more, relying on the County Ethics Code\\n\\nthat merely encourages reporting wrongdoing is not enough to bring her reporting into\\n\\nthe realm of her ordinary job duties. The District Court’s emphasis on the suggestion by\\n\\nthe County Ethics Code is misplaced. It is commonplace for ethics codes and employee\\n\\nhandbooks to encourage reporting wrongdoing, and absent some formal job duty or\\n\\nresponsibility, such encouragement is not enough to bring Javitz’s reporting into the\\n\\nrealm of her official duties—that is, the realm of employee speech.\\n\\n 3.\\n\\n Lastly, the why of Javitz’s reporting. “Speech involves matters of public concern\\n\\nwhen it can be fairly considered as relating to any matter of political, social, or other\\n\\nconcern to the community, or when it is subject of legitimate news interest; that is, a\\n\\nsubject of general interest and of value and concern to the public.” Lane, 573 U.S. at 241\\n\\n(internal quotations and citation omitted); see also Connick v. Myers, 461 U.S. 138, 146\\n\\n(1983). In Pennsylvania, “telephonic interloping is illegal unless the individuals at both\\n\\nends of the conversation agree that what they say to one another may be made public.”\\n\\nCommonwealth v. Murray, 223 A.2d 102, 105 (Pa. 1966). Without such consent,\\n\\nrecording another individual becomes a class 3 felony. See 18 Pa. Cons. Stat. § 5703.\\n\\n\\n\\n 12\\n\\f We have held that “an internal investigation into the alleged criminal actions of\\n\\npublic employees falls squarely within the core public speech delineated in Connick.”\\n\\nBaldassare v. State of N.J., 250 F.3d 188, 196–97 (3d Cir. 2001) (internal quotation\\n\\nmarks and citations omitted). Javitz likely had some personal motivations for following\\n\\nup on the status of the investigation—victims of crimes often do. But that does not\\n\\nremove her reporting to merely a “personal curiosity,” as the District Court described.\\n\\nJavitz, 2018 WL 1545589, at *11. Because Javitz reported that she believed she was the\\n\\nvictim of a crime, and because she followed up on the status of the investigation into that\\n\\ncrime, she was speaking on a matter of public importance.\\n\\n\\n\\n Our inquiry in this case has been a practical one. De Ritis, 861 F.3d at 453. Javitz\\n\\nfound herself in a county role that placed her within reach of local authority figures. The\\n\\nposition was accompanied with a County Ethics Code that encouraged reporting of\\n\\nwrongdoing. Javitz was allegedly the victim of a crime, which she reported. The crime,\\n\\nsubsequent contact with local authority figures regarding that crime, and the lack of any\\n\\nformal duty to report that crime are evidence that she was not experiencing or acting\\n\\nwithin the primary functions of her employment. Thus, we hold that Javitz’s speech was\\n\\nthat of a citizen speaking to a matter of public concern.\\n\\n IV.\\n\\n For the foregoing reasons, we will affirm the District Court’s ruling concerning\\n\\nJavitz’s due process claim. We will, however, reverse its ruling regarding Javitz’s First\\n\\n\\n\\n 13\\n\\fAmendment retaliation claim and remand for further proceedings consistent with this\\n\\nopinion.\\n\\n\\n\\n\\n 14\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4445856/\", \"author_raw\": \"RESTREPO, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"RESTREPO"},"judge2":{"kind":"string","value":"PORTER"},"judge3":{"kind":"string","value":"FISHER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"RESTREPO\": \", Circuit\", \"PORTER\": \", Circuit\", \"FISHER\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4668603/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Donna Javitz v. County of Luzerne\nCourt: U.S. Court of Appeals for the Third Circuit\nDate decided: 2019-10-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n\n _____________\n\n No. 18-2389\n _____________\n\n DONNA DAVIS JAVITZ,\n Appellant\n\n v.\n\n COUNTY OF LUZERNE;\n ROBERT LAWTON, Individually;\n DAVID PARSNIK, Individually\n ______________\n\n On Appeal from the United States District Court\n for the Middle District of Pennsylvania\n (D.C. Civ. Action No. 3-15-cv-02443)\n District Judge: Honorable Robert D. Mariani\n ______________\n\n Argued: May 1, 2019\n ______________\n\n Before: RESTREPO, PORTER, and FISHER, Circuit Judges.\n\n (Opinion Filed: October 10, 2019)\n __\nMatthew T. Comerford\nCurt M. Parkins\nComerford Law\n204 Wyoming Avenue\nScranton, PA 18503\n\nDonna EM Davis [ARGUED]\n651 Simpson Street\nThroop, PA 18512\n\f Counsel for Appellant\n\nMark W. Bufalino [ARGUED]\nJohn G. Dean\nElliott Greenleaf & Dean\n39 Public Square\nSuite 100\nWilkes-Barre, PA 18701\n\n Counsel for Appellees\n\nVernon L. Francis [ARGUED]\nDechert\n2929 Arch Street\n18th Floor, Cica Centre\nPhiladelphia, PA 19104\n\nMary Catherine Roper\nAmerican Civil Liberties Union of Pennsylvania\nP.O. Box 60173\nPhiladelphia, PA 19106\n\n Counsel for Amicus Appellants,\n American Civil Liberties Union\n\n ______________\n\n OPINION OF THE COURT\n ______________\n\n\nRESTREPO, Circuit Judge.\n\n\n Donna Davis-Javitz (“Javitz”) was hired as the Director of Human Resources for\n\nLuzerne County. Shortly into her tenure, she was allegedly the victim of an illegal\n\nrecording by a public employee in her role as local union representative. After reporting\n\nthis crime, Javitz’s relationship with her employer became rocky, and she was\n\nsubsequently fired. She now alleges that her firing was unconstitutional under the First\n\n 2\n\fAmendment and, alternatively, under the Fourteenth Amendment’s Due Process Clause.\n\nThe District Court ruled against Javitz on both claims. For the reasons that follow, we\n\nwill affirm the District Court’s due process ruling, but will reverse and remand its First\n\nAmendment ruling.\n\n\n I.\n\n In July 2014, Javitz was offered a position with Luzerne County as the Director of\n\nHuman Resources. AI 571, ¶ 22. Her offer letter contained the terms of her employment,\n\nand described the job as: “Management Level, Non Union, Exempt, Regular Full Time,”\n\nand that her position was “at will.” AI 57 ¶ 24–25 (emphasis added). Javitz signed and\n\naccepted the offer, and began employment on August 4, 2014.\n\n As Director of Human Services, Javitz was responsible for—among other duties—\n\ncommencing the hiring process for vacant positions, negotiating contracts, dealing with\n\nemployee complaints, responding to grievances, conducting investigations, and attending\n\nmeetings. AI 55, 58, ¶¶ 12, 27. Once she began work, Javitz participated in two\n\ninvestigatory meetings with the American Federation of State, County, and Municipal\n\nEmployees (“AFSCME”), which eventually resulted in ASFSCME filing an unfair labor\n\npractices suit in March 2015. AI 58 at ¶ 30.\n\n A. Javitz’s Allegations of Wiretapping\n\n\n\n\n1\n AI refers to Appendix Volume I, and so AII, AIII, and AIV refer to Appendix\nVolumes II, III, and IV, respectively.\n 3\n\f Javitz claimed that a document filed in the ASFSCME lawsuit was a transcript of\n\nthe investigatory meetings in which she participated. She suspected that a specific county\n\nemployee, AFSCME union representative Paula Schnelly, had recorded the meeting\n\nwithout Javitz’s consent—a crime under 18 Pa. Cons. Stat. § 5703. AIII 56, 60, 67, 76.\n\n Javitz reported her concern to her supervisor, David Parsnik, who agreed that the\n\nmeeting may have been recorded. AI 59, ¶ 31. The two met with the District Attorney,\n\nwho indicated that she would refer the matter to the Office of the Attorney General due to\n\na conflict of interest. Id. at ¶ 33. Javitz claims that the County Manager, Robert Lawton,\n\nintervened and instructed the District Attorney to drop the matter, which Defendants deny.\n\nAIII 78.\n\n After reporting the matter, Javitz followed up with Parsnik and the County Solicitor\n\nabout the status of the investigation multiple times. AI 59–60, ¶ 35.\n\n After making this report to the District Attorney, Javitz alleges that county\n\nemployees retaliated against her. She claims that her supervisor assigned work directly to\n\nher subordinates and cut her out of those and other assignments for which Javitz would\n\nhave otherwise been responsible. AIII 85–86. She also cites her office’s relocation in\n\nMay of 2015 as an example, but the move was planned prior to her hiring. AI 61, ¶ 44.\n\n Finally, on October 26, 2015, Javitz was fired. AIII 92–95. She was given no\n\nreason for her termination. Id. She requested a Loudermill hearing, but was denied. Id.\n\n B. County’s Response\n\n The County maintains that Javitz was fired because of her “conduct toward [county]\n\nunions, her refusal to follow through with hiring a Human Resources Business Partner [(a\n\n 4\n\fvacant position in the Human Resources Department during Plaintiff’s County\n\nemployment)], her failure to initiate policies, procedures and initiatives as directed[,] and\n\n[her handling of] issues with the employment application for a candidate for an assistant\n\npublic defender position.” AI 67, ¶ 70.\n\n C. District Court Proceedings\n\n Javitz filed a complaint alleging, inter alia, a 42 U.S.C. § 1983 claim for violation\n\nof her procedural due process rights under the Fourteenth Amendment and for retaliation\n\nin violation of her First Amendment rights. AI 7. The District Court granted summary\n\njudgment in favor of the Defendants. First, the District Court found that Javitz did not\n\nhave a property interest in her employment, and, thus, her termination did not violate her\n\nFourteenth Amendment due process rights. Second, the Court found that Javitz was not\n\nprotected under the First Amendment because her speech was that of a public employee,\n\nand not a private citizen, stating: “[Javitz] became aware of the information through her\n\nemployment, was encouraged to report the information by the policies of her employer,\n\nand reported the information only to other County employees.” AI 28. Thus, because\n\nJavitz spoke as a public employee and not a private citizen, the Constitution does not\n\nprotect her from employer discipline, or, as in this case, her termination. Id.\n\n II.\n\n The District Court had jurisdiction pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §\n\n1331. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a\n\ndistrict court order granting summary judgment. Karns v. Shanahan, 879 F.3d 504, 512\n\n(3d Cir. 2018).\n\n 5\n\f III.\n\n A.\n\n We first consider Javitz’s due process claim. The Fourteenth Amendment\n\nprovides that no state shall “deprive any person of life, liberty, or property, without due\n\nprocess of law.” U.S. Const. amend. XIV § 1. “The first step in analyzing a due process\n\nclaim is to determine whether the ‘asserted individual interest . . . [is] encompassed\n\nwithin the [F]ourteenth [A]mendment’s protection of life, liberty, or property.’” Elmore\n\nv. Cleary, 399 F.3d 279, 282 (3d Cir. 2005) (citation omitted) (alterations in original).\n\n“To have a property interest in a job [ ] . . . a person must have . . . a legitimate\n\nentitlement to such continued employment.” Id. (citation omitted). State law determines\n\nwhether a person is entitled to a property interest in their government job. Hill v.\n\nBorough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006).\n\n In Pennsylvania, employees are at-will by default; a contract or applicable state\n\nlaw must be shown to rebut this default status and establish a property right. See Stumpp\n\nv. Stroudsburg Mun Auth., 658 A.2d 333, 334–35 (Pa. 1995). In Luzerne County, Career\n\nService Employees may only be fired for just cause, but Exempt Level Employees are\n\nemployed at-will. The Luzerne County Charter is silent as to whether Javitz’s position\n\nwas Career Service or Exempt Level.\n\n Given that the County legislation is silent on this issue, we review the terms of\n\nJavitz’s employment to determine whether she was an Exempt Level Employee. The\n\noffer letter describes her position as “Exempt,” and describes her employment as “At\n\nWill.” AI 18–19. Given this evidence, we agree with the District Court: Javitz was hired\n\n 6\n\fas an Exempt Level Employee, did not have a property interest in her government\n\nposition, and thus her termination was not entitled to Fourteenth Amendment due process\n\nprotection. AI 20. Therefore, we will affirm the District Court’s ruling concerning\n\nJavitz’s due process claim.\n\n B.\n\n We next turn to Javitz’s First Amendment retaliation claim. “To prevail on a First\n\nAmendment retaliation claim under 42 U.S.C. § 1983, a plaintiff must prove that (1) he\n\nengaged in constitutionally protected conduct, (2) the defendant engaged in retaliatory\n\naction sufficient to deter a person of ordinary firmness from exercising his constitutional\n\nrights, and (3) a causal link [existed] between the constitutionally protected conduct and\n\nthe retaliatory action.” Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir.\n\n2019) (internal quotation marks and citation omitted) (alteration in original). Because the\n\nDistrict Court ruled that Javitz’s speech was not protected speech—by finding that she\n\nspoke as a public employee and not a private citizen—we focus only on the first factor.\n\n When determining whether an individual spoke as a public employee versus a\n\nprivate citizen, three Supreme Court cases guide our analysis. First, in Pickering v.\n\nBoard of Education, 391 U.S. 563 (1968), the Court instructed that we determine if the\n\nemployee spoke as a citizen on a matter of public concern, and if so, whether the\n\ngovernment employer was justified in treating the employee differently from any other\n\nmember of the general public. Id. at 568. This initial inquiry has become known as the\n\nPickering balancing test.\n\n\n\n 7\n\f Second, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court specified\n\nthis inquiry by holding that “when public employees make statements pursuant to their\n\nofficial duties, the employees are not speaking as citizens for First Amendment purposes,\n\nand the Constitution does not insulate their communications from employer discipline.”\n\nId. at 421. This rule is based on administrative efficiency and acts to keep every\n\nworkplace dispute from becoming a federal case. See id. at 418. This rule, however, is\n\nbalanced with the Court’s acknowledgement that if “employees are speaking as citizens\n\nabout matters of public concern, they must face only those speech restrictions that are\n\nnecessary for their employers to operate efficiently and effectively.” Id. at 419 (citation\n\nomitted).\n\n Third, and most recently, the Court decided Lane v. Franks, 573 U.S. 228 (2014).\n\nThe Lane Court focused on the nexus between the employee’s speech and his/her job\n\nduties, stating that “the mere fact that a citizen’s speech concerns information acquired by\n\nvirtue of his public employment does not transform that speech into employee—rather\n\nthan citizen—speech.” Id. at 240. Thus, the “critical question” is “whether the speech at\n\nissue is itself ordinarily within the scope of an employee’s duties, not whether it merely\n\nconcerns those duties.” Id.\n\n This Circuit has followed these cases and, when appropriate, has focused its\n\ninquiry on whether a public employee’s speech was informed by or the result of his or her\n\nprimary job duties. For example, in Flora v. County of Luzerne, 776 F.3d 169 (3d Cir.\n\n2015), the Acting Chief Public Defender alleged that his employer chose not to promote\n\nhim because of his speech—specifically, for his efforts to secure funding for the Office of\n\n 8\n\fthe Public Defender in a class action lawsuit and for publicly reporting the county’s\n\nnoncompliance with a Pennsylvania Supreme Court expungement order relating to the\n\n2008 “Kids for Cash” scandal. Id. at 172–74. The District Court dismissed the\n\ncomplaint, finding that Flora’s speech related to his official duties as Chief Public\n\nDefender, and thus was not protected speech. Id. at 174. This Court reversed, holding\n\nthat “[w]hile certain statements in Flora’s complaint do suggest that the speech at issue\n\nbore some relation to his job duties and may have, indirectly, benefitted his clients, that\n\ndoes not bring the speech within the realm of his ordinary job duties . . . [t]o view it\n\notherwise would unduly restrict First Amendment rights, because reporting malfeasance\n\nor misfeasance will regularly benefit an employee in the execution of his job duties by,\n\npresumably, removing impediments to proper government functioning.” Id. at 180\n\n(citation omitted).\n\n In Dougherty v. School District of Philadelphia, 772 F.3d 979 (3d Cir. 2014), a\n\nformer employee with the School District of Philadelphia was terminated after contacting\n\nthe local newspaper regarding alleged business misconduct by the Superintendent. Id. at\n\n983–84. He filed an action alleging First Amendment retaliation and was successful at\n\nthe District Court. Id. at 984–85. On appeal, the school district argued that Dougherty’s\n\nspeech was that of an employee, because “the content of [his] speech was gained from\n\n‘special knowledge’ and ‘experience’ [and that] his speech ‘owes its existence to’ his\n\nprofessional duties.” Id. 989. We found this argument unavailing, emphasizing that\n\n“whether an employee’s speech ‘concern[s] the subject matter of [his] employment’ is\n\n‘nondispositive.’” Id. (citing Garcetti, 547 U.S. at 421). Rather, “[u]nder Lane, [we\n\n 9\n\fdetermined] that Dougherty’s report to [the newspaper] was not made pursuant to his\n\nofficial job duties . . . [and was] not foreclosed merely because the subject matter of the\n\nspeech concern[ed] or relate[d] to those duties.” Id. at 990.\n\n Again, in De Ritis v. McGarrigle, 861 F.3d 444 (3d Cir. 2017), we distinguished\n\ncitizen speech from employee speech by focusing on the primary job duties of the\n\nplaintiff. In De Ritis, we held that a public defender’s rumormongering about his\n\nperceived demotion to judges and attorneys while in the courtroom was not protected\n\nspeech, because as an attorney, rapport-building conversations with judges and other\n\nattorneys just before or after a case proceeding are “part and parcel of [a public\n\ndefender’s] ordinary job duties—not citizen speech.” Id. at 453–54 (citation omitted).\n\nWe distinguished, however, out-of-court conversations De Rittis had with the county\n\nsolicitor and chair of the county council, both high-ranking county officials that De Ritis\n\nhad access to as a result of his work. We held those conversations to be citizen speech,\n\nbecause these out-of-court conversations, possible only by virtue of his employment,\n\nwere not “‘part of the work [De Ritis] was paid to perform on an ordinary basis.’” Id. at\n\n454 (quoting Flora, 776 F.3d at 180) (alteration in original).\n\n C.\n\n This case is analogous to Flora, Dougherty, and De Ritis. As in those cases, our\n\nthreshold inquiry is whether Javitz spoke as a citizen or a public employee, and as such,\n\nwhether her speech was either “ordinarily within the scope of [her] duties,” or simply\n\nrelating to those duties. Lane, 573 U.S. at 240. Who Javitz spoke to, what she spoke\n\n\n\n 10\n\fabout, and why she spoke at all each fall outside the scope of her primary job duties and\n\nevidence citizen speech.\n\n 1.\n\n Here, as in De Ritis, Javitz had access to high-ranking county officials by virtue of\n\nher job as the Human Resources Director. Javitz had the ability to communicate and\n\ninterface with these individuals in a manner that someone not employed by the county,\n\nand someone without the position of Human Resources Director, would have. But access\n\nto these individuals is secondary to our citizen speech inquiry—we must focus on\n\nwhether Javitz interfacing with them was a part of her primary job duties.\n\n The District Court found that it was “by virtue of [Javitz’s] position as a public\n\nemployee that [she] was allowed to make the speech in the mode and manner in which\n\nshe did; that is, accompanied by her supervisor and director to the District Attorney.”\n\nJavitz v. Luzerne Cty., No. 3:15-CV-2443, 2018 WL 1545589, at *10 (M.D. Pa. Mar. 29,\n\n2018). This reasoning does not follow our precedent—unless the mode and manner of\n\nJavitz’s speech was “part of the work [she] was paid to perform on an ordinary basis[,]”\n\nthe fact that she could easily contact the District Attorney by virtue of her employment\n\ndoes not support a finding that Javitz spoke as an employee and not a citizen. De Ritis,\n\n861 F.3d at 454 (quoting Flora, 776 F.3d at 180).\n\n 2.\n\n The subject of Javitz’s speech was also not within her ordinary job duties. Javitz\n\nreported a crime. But the record and the District Court found that nowhere in her job\n\nduties was she instructed to report crimes. Rather, the District Court placed significant\n\n 11\n\femphasis on the County Ethics Code which “encouraged [Javitz] to disclose any\n\ninformation which . . . she believe[d] evidence[ed] a violation of any law, rule or\n\nregulation.” Javitz, 2018 WL 1545589, at *9.\n\n Here, our focus remains on whether Javitz spoke “pursuant to [her] official job\n\nduties.” Dougherty, 772 F.3d at 990. Without more, relying on the County Ethics Code\n\nthat merely encourages reporting wrongdoing is not enough to bring her reporting into\n\nthe realm of her ordinary job duties. The District Court’s emphasis on the suggestion by\n\nthe County Ethics Code is misplaced. It is commonplace for ethics codes and employee\n\nhandbooks to encourage reporting wrongdoing, and absent some formal job duty or\n\nresponsibility, such encouragement is not enough to bring Javitz’s reporting into the\n\nrealm of her official duties—that is, the realm of employee speech.\n\n 3.\n\n Lastly, the why of Javitz’s reporting. “Speech involves matters of public concern\n\nwhen it can be fairly considered as relating to any matter of political, social, or other\n\nconcern to the community, or when it is subject of legitimate news interest; that is, a\n\nsubject of general interest and of value and concern to the public.” Lane, 573 U.S. at 241\n\n(internal quotations and citation omitted); see also Connick v. Myers, 461 U.S. 138, 146\n\n(1983). In Pennsylvania, “telephonic interloping is illegal unless the individuals at both\n\nends of the conversation agree that what they say to one another may be made public.”\n\nCommonwealth v. Murray, 223 A.2d 102, 105 (Pa. 1966). Without such consent,\n\nrecording another individual becomes a class 3 felony. See 18 Pa. Cons. Stat. § 5703.\n\n\n\n 12\n\f We have held that “an internal investigation into the alleged criminal actions of\n\npublic employees falls squarely within the core public speech delineated in Connick.”\n\nBaldassare v. State of N.J., 250 F.3d 188, 196–97 (3d Cir. 2001) (internal quotation\n\nmarks and citations omitted). Javitz likely had some personal motivations for following\n\nup on the status of the investigation—victims of crimes often do. But that does not\n\nremove her reporting to merely a “personal curiosity,” as the District Court described.\n\nJavitz, 2018 WL 1545589, at *11. Because Javitz reported that she believed she was the\n\nvictim of a crime, and because she followed up on the status of the investigation into that\n\ncrime, she was speaking on a matter of public importance.\n\n\n\n Our inquiry in this case has been a practical one. De Ritis, 861 F.3d at 453. Javitz\n\nfound herself in a county role that placed her within reach of local authority figures. The\n\nposition was accompanied with a County Ethics Code that encouraged reporting of\n\nwrongdoing. Javitz was allegedly the victim of a crime, which she reported. The crime,\n\nsubsequent contact with local authority figures regarding that crime, and the lack of any\n\nformal duty to report that crime are evidence that she was not experiencing or acting\n\nwithin the primary functions of her employment. Thus, we hold that Javitz’s speech was\n\nthat of a citizen speaking to a matter of public concern.\n\n IV.\n\n For the foregoing reasons, we will affirm the District Court’s ruling concerning\n\nJavitz’s due process claim. We will, however, reverse its ruling regarding Javitz’s First\n\n\n\n 13\n\fAmendment retaliation claim and remand for further proceedings consistent with this\n\nopinion.\n\n\n\n\n 14\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Donna Javitz v. County of Luzerne\\nCourt: U.S. Court of Appeals for the Third Circuit\\nDate decided: 2019-10-10\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n\\n _____________\\n\\n No. 18-2389\\n _____________\\n\\n DONNA DAVIS JAVITZ,\\n Appellant\\n\\n v.\\n\\n COUNTY OF LUZERNE;\\n ROBERT LAWTON, Individually;\\n DAVID PARSNIK, Individually\\n ______________\\n\\n On Appeal from the United States District Court\\n for the Middle District of Pennsylvania\\n (D.C. Civ. Action No. 3-15-cv-02443)\\n District Judge: Honorable Robert D. Mariani\\n ______________\\n\\n Argued: May 1, 2019\\n ______________\\n\\n Before: RESTREPO, PORTER, and FISHER, Circuit Judges.\\n\\n (Opinion Filed: October 10, 2019)\\n __\\nMatthew T. Comerford\\nCurt M. Parkins\\nComerford Law\\n204 Wyoming Avenue\\nScranton, PA 18503\\n\\nDonna EM Davis [ARGUED]\\n651 Simpson Street\\nThroop, PA 18512\\n\\f Counsel for Appellant\\n\\nMark W. Bufalino [ARGUED]\\nJohn G. Dean\\nElliott Greenleaf & Dean\\n39 Public Square\\nSuite 100\\nWilkes-Barre, PA 18701\\n\\n Counsel for Appellees\\n\\nVernon L. Francis [ARGUED]\\nDechert\\n2929 Arch Street\\n18th Floor, Cica Centre\\nPhiladelphia, PA 19104\\n\\nMary Catherine Roper\\nAmerican Civil Liberties Union of Pennsylvania\\nP.O. Box 60173\\nPhiladelphia, PA 19106\\n\\n Counsel for Amicus Appellants,\\n American Civil Liberties Union\\n\\n ______________\\n\\n OPINION OF THE COURT\\n ______________\\n\\n\\nRESTREPO, Circuit Judge.\\n\\n\\n Donna Davis-Javitz (“Javitz”) was hired as the Director of Human Resources for\\n\\nLuzerne County. Shortly into her tenure, she was allegedly the victim of an illegal\\n\\nrecording by a public employee in her role as local union representative. After reporting\\n\\nthis crime, Javitz’s relationship with her employer became rocky, and she was\\n\\nsubsequently fired. She now alleges that her firing was unconstitutional under the First\\n\\n 2\\n\\fAmendment and, alternatively, under the Fourteenth Amendment’s Due Process Clause.\\n\\nThe District Court ruled against Javitz on both claims. For the reasons that follow, we\\n\\nwill affirm the District Court’s due process ruling, but will reverse and remand its First\\n\\nAmendment ruling.\\n\\n\\n I.\\n\\n In July 2014, Javitz was offered a position with Luzerne County as the Director of\\n\\nHuman Resources. AI 571, ¶ 22. Her offer letter contained the terms of her employment,\\n\\nand described the job as: “Management Level, Non Union, Exempt, Regular Full Time,”\\n\\nand that her position was “at will.” AI 57 ¶ 24–25 (emphasis added). Javitz signed and\\n\\naccepted the offer, and began employment on August 4, 2014.\\n\\n As Director of Human Services, Javitz was responsible for—among other duties—\\n\\ncommencing the hiring process for vacant positions, negotiating contracts, dealing with\\n\\nemployee complaints, responding to grievances, conducting investigations, and attending\\n\\nmeetings. AI 55, 58, ¶¶ 12, 27. Once she began work, Javitz participated in two\\n\\ninvestigatory meetings with the American Federation of State, County, and Municipal\\n\\nEmployees (“AFSCME”), which eventually resulted in ASFSCME filing an unfair labor\\n\\npractices suit in March 2015. AI 58 at ¶ 30.\\n\\n A. Javitz’s Allegations of Wiretapping\\n\\n\\n\\n\\n1\\n AI refers to Appendix Volume I, and so AII, AIII, and AIV refer to Appendix\\nVolumes II, III, and IV, respectively.\\n 3\\n\\f Javitz claimed that a document filed in the ASFSCME lawsuit was a transcript of\\n\\nthe investigatory meetings in which she participated. She suspected that a specific county\\n\\nemployee, AFSCME union representative Paula Schnelly, had recorded the meeting\\n\\nwithout Javitz’s consent—a crime under 18 Pa. Cons. Stat. § 5703. AIII 56, 60, 67, 76.\\n\\n Javitz reported her concern to her supervisor, David Parsnik, who agreed that the\\n\\nmeeting may have been recorded. AI 59, ¶ 31. The two met with the District Attorney,\\n\\nwho indicated that she would refer the matter to the Office of the Attorney General due to\\n\\na conflict of interest. Id. at ¶ 33. Javitz claims that the County Manager, Robert Lawton,\\n\\nintervened and instructed the District Attorney to drop the matter, which Defendants deny.\\n\\nAIII 78.\\n\\n After reporting the matter, Javitz followed up with Parsnik and the County Solicitor\\n\\nabout the status of the investigation multiple times. AI 59–60, ¶ 35.\\n\\n After making this report to the District Attorney, Javitz alleges that county\\n\\nemployees retaliated against her. She claims that her supervisor assigned work directly to\\n\\nher subordinates and cut her out of those and other assignments for which Javitz would\\n\\nhave otherwise been responsible. AIII 85–86. She also cites her office’s relocation in\\n\\nMay of 2015 as an example, but the move was planned prior to her hiring. AI 61, ¶ 44.\\n\\n Finally, on October 26, 2015, Javitz was fired. AIII 92–95. She was given no\\n\\nreason for her termination. Id. She requested a Loudermill hearing, but was denied. Id.\\n\\n B. County’s Response\\n\\n The County maintains that Javitz was fired because of her “conduct toward [county]\\n\\nunions, her refusal to follow through with hiring a Human Resources Business Partner [(a\\n\\n 4\\n\\fvacant position in the Human Resources Department during Plaintiff’s County\\n\\nemployment)], her failure to initiate policies, procedures and initiatives as directed[,] and\\n\\n[her handling of] issues with the employment application for a candidate for an assistant\\n\\npublic defender position.” AI 67, ¶ 70.\\n\\n C. District Court Proceedings\\n\\n Javitz filed a complaint alleging, inter alia, a 42 U.S.C. § 1983 claim for violation\\n\\nof her procedural due process rights under the Fourteenth Amendment and for retaliation\\n\\nin violation of her First Amendment rights. AI 7. The District Court granted summary\\n\\njudgment in favor of the Defendants. First, the District Court found that Javitz did not\\n\\nhave a property interest in her employment, and, thus, her termination did not violate her\\n\\nFourteenth Amendment due process rights. Second, the Court found that Javitz was not\\n\\nprotected under the First Amendment because her speech was that of a public employee,\\n\\nand not a private citizen, stating: “[Javitz] became aware of the information through her\\n\\nemployment, was encouraged to report the information by the policies of her employer,\\n\\nand reported the information only to other County employees.” AI 28. Thus, because\\n\\nJavitz spoke as a public employee and not a private citizen, the Constitution does not\\n\\nprotect her from employer discipline, or, as in this case, her termination. Id.\\n\\n II.\\n\\n The District Court had jurisdiction pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §\\n\\n1331. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a\\n\\ndistrict court order granting summary judgment. Karns v. Shanahan, 879 F.3d 504, 512\\n\\n(3d Cir. 2018).\\n\\n 5\\n\\f III.\\n\\n A.\\n\\n We first consider Javitz’s due process claim. The Fourteenth Amendment\\n\\nprovides that no state shall “deprive any person of life, liberty, or property, without due\\n\\nprocess of law.” U.S. Const. amend. XIV § 1. “The first step in analyzing a due process\\n\\nclaim is to determine whether the ‘asserted individual interest . . . [is] encompassed\\n\\nwithin the [F]ourteenth [A]mendment’s protection of life, liberty, or property.’” Elmore\\n\\nv. Cleary, 399 F.3d 279, 282 (3d Cir. 2005) (citation omitted) (alterations in original).\\n\\n“To have a property interest in a job [ ] . . . a person must have . . . a legitimate\\n\\nentitlement to such continued employment.” Id. (citation omitted). State law determines\\n\\nwhether a person is entitled to a property interest in their government job. Hill v.\\n\\nBorough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006).\\n\\n In Pennsylvania, employees are at-will by default; a contract or applicable state\\n\\nlaw must be shown to rebut this default status and establish a property right. See Stumpp\\n\\nv. Stroudsburg Mun Auth., 658 A.2d 333, 334–35 (Pa. 1995). In Luzerne County, Career\\n\\nService Employees may only be fired for just cause, but Exempt Level Employees are\\n\\nemployed at-will. The Luzerne County Charter is silent as to whether Javitz’s position\\n\\nwas Career Service or Exempt Level.\\n\\n Given that the County legislation is silent on this issue, we review the terms of\\n\\nJavitz’s employment to determine whether she was an Exempt Level Employee. The\\n\\noffer letter describes her position as “Exempt,” and describes her employment as “At\\n\\nWill.” AI 18–19. Given this evidence, we agree with the District Court: Javitz was hired\\n\\n 6\\n\\fas an Exempt Level Employee, did not have a property interest in her government\\n\\nposition, and thus her termination was not entitled to Fourteenth Amendment due process\\n\\nprotection. AI 20. Therefore, we will affirm the District Court’s ruling concerning\\n\\nJavitz’s due process claim.\\n\\n B.\\n\\n We next turn to Javitz’s First Amendment retaliation claim. “To prevail on a First\\n\\nAmendment retaliation claim under 42 U.S.C. § 1983, a plaintiff must prove that (1) he\\n\\nengaged in constitutionally protected conduct, (2) the defendant engaged in retaliatory\\n\\naction sufficient to deter a person of ordinary firmness from exercising his constitutional\\n\\nrights, and (3) a causal link [existed] between the constitutionally protected conduct and\\n\\nthe retaliatory action.” Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir.\\n\\n2019) (internal quotation marks and citation omitted) (alteration in original). Because the\\n\\nDistrict Court ruled that Javitz’s speech was not protected speech—by finding that she\\n\\nspoke as a public employee and not a private citizen—we focus only on the first factor.\\n\\n When determining whether an individual spoke as a public employee versus a\\n\\nprivate citizen, three Supreme Court cases guide our analysis. First, in Pickering v.\\n\\nBoard of Education, 391 U.S. 563 (1968), the Court instructed that we determine if the\\n\\nemployee spoke as a citizen on a matter of public concern, and if so, whether the\\n\\ngovernment employer was justified in treating the employee differently from any other\\n\\nmember of the general public. Id. at 568. This initial inquiry has become known as the\\n\\nPickering balancing test.\\n\\n\\n\\n 7\\n\\f Second, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court specified\\n\\nthis inquiry by holding that “when public employees make statements pursuant to their\\n\\nofficial duties, the employees are not speaking as citizens for First Amendment purposes,\\n\\nand the Constitution does not insulate their communications from employer discipline.”\\n\\nId. at 421. This rule is based on administrative efficiency and acts to keep every\\n\\nworkplace dispute from becoming a federal case. See id. at 418. This rule, however, is\\n\\nbalanced with the Court’s acknowledgement that if “employees are speaking as citizens\\n\\nabout matters of public concern, they must face only those speech restrictions that are\\n\\nnecessary for their employers to operate efficiently and effectively.” Id. at 419 (citation\\n\\nomitted).\\n\\n Third, and most recently, the Court decided Lane v. Franks, 573 U.S. 228 (2014).\\n\\nThe Lane Court focused on the nexus between the employee’s speech and his/her job\\n\\nduties, stating that “the mere fact that a citizen’s speech concerns information acquired by\\n\\nvirtue of his public employment does not transform that speech into employee—rather\\n\\nthan citizen—speech.” Id. at 240. Thus, the “critical question” is “whether the speech at\\n\\nissue is itself ordinarily within the scope of an employee’s duties, not whether it merely\\n\\nconcerns those duties.” Id.\\n\\n This Circuit has followed these cases and, when appropriate, has focused its\\n\\ninquiry on whether a public employee’s speech was informed by or the result of his or her\\n\\nprimary job duties. For example, in Flora v. County of Luzerne, 776 F.3d 169 (3d Cir.\\n\\n2015), the Acting Chief Public Defender alleged that his employer chose not to promote\\n\\nhim because of his speech—specifically, for his efforts to secure funding for the Office of\\n\\n 8\\n\\fthe Public Defender in a class action lawsuit and for publicly reporting the county’s\\n\\nnoncompliance with a Pennsylvania Supreme Court expungement order relating to the\\n\\n2008 “Kids for Cash” scandal. Id. at 172–74. The District Court dismissed the\\n\\ncomplaint, finding that Flora’s speech related to his official duties as Chief Public\\n\\nDefender, and thus was not protected speech. Id. at 174. This Court reversed, holding\\n\\nthat “[w]hile certain statements in Flora’s complaint do suggest that the speech at issue\\n\\nbore some relation to his job duties and may have, indirectly, benefitted his clients, that\\n\\ndoes not bring the speech within the realm of his ordinary job duties . . . [t]o view it\\n\\notherwise would unduly restrict First Amendment rights, because reporting malfeasance\\n\\nor misfeasance will regularly benefit an employee in the execution of his job duties by,\\n\\npresumably, removing impediments to proper government functioning.” Id. at 180\\n\\n(citation omitted).\\n\\n In Dougherty v. School District of Philadelphia, 772 F.3d 979 (3d Cir. 2014), a\\n\\nformer employee with the School District of Philadelphia was terminated after contacting\\n\\nthe local newspaper regarding alleged business misconduct by the Superintendent. Id. at\\n\\n983–84. He filed an action alleging First Amendment retaliation and was successful at\\n\\nthe District Court. Id. at 984–85. On appeal, the school district argued that Dougherty’s\\n\\nspeech was that of an employee, because “the content of [his] speech was gained from\\n\\n‘special knowledge’ and ‘experience’ [and that] his speech ‘owes its existence to’ his\\n\\nprofessional duties.” Id. 989. We found this argument unavailing, emphasizing that\\n\\n“whether an employee’s speech ‘concern[s] the subject matter of [his] employment’ is\\n\\n‘nondispositive.’” Id. (citing Garcetti, 547 U.S. at 421). Rather, “[u]nder Lane, [we\\n\\n 9\\n\\fdetermined] that Dougherty’s report to [the newspaper] was not made pursuant to his\\n\\nofficial job duties . . . [and was] not foreclosed merely because the subject matter of the\\n\\nspeech concern[ed] or relate[d] to those duties.” Id. at 990.\\n\\n Again, in De Ritis v. McGarrigle, 861 F.3d 444 (3d Cir. 2017), we distinguished\\n\\ncitizen speech from employee speech by focusing on the primary job duties of the\\n\\nplaintiff. In De Ritis, we held that a public defender’s rumormongering about his\\n\\nperceived demotion to judges and attorneys while in the courtroom was not protected\\n\\nspeech, because as an attorney, rapport-building conversations with judges and other\\n\\nattorneys just before or after a case proceeding are “part and parcel of [a public\\n\\ndefender’s] ordinary job duties—not citizen speech.” Id. at 453–54 (citation omitted).\\n\\nWe distinguished, however, out-of-court conversations De Rittis had with the county\\n\\nsolicitor and chair of the county council, both high-ranking county officials that De Ritis\\n\\nhad access to as a result of his work. We held those conversations to be citizen speech,\\n\\nbecause these out-of-court conversations, possible only by virtue of his employment,\\n\\nwere not “‘part of the work [De Ritis] was paid to perform on an ordinary basis.’” Id. at\\n\\n454 (quoting Flora, 776 F.3d at 180) (alteration in original).\\n\\n C.\\n\\n This case is analogous to Flora, Dougherty, and De Ritis. As in those cases, our\\n\\nthreshold inquiry is whether Javitz spoke as a citizen or a public employee, and as such,\\n\\nwhether her speech was either “ordinarily within the scope of [her] duties,” or simply\\n\\nrelating to those duties. Lane, 573 U.S. at 240. Who Javitz spoke to, what she spoke\\n\\n\\n\\n 10\\n\\fabout, and why she spoke at all each fall outside the scope of her primary job duties and\\n\\nevidence citizen speech.\\n\\n 1.\\n\\n Here, as in De Ritis, Javitz had access to high-ranking county officials by virtue of\\n\\nher job as the Human Resources Director. Javitz had the ability to communicate and\\n\\ninterface with these individuals in a manner that someone not employed by the county,\\n\\nand someone without the position of Human Resources Director, would have. But access\\n\\nto these individuals is secondary to our citizen speech inquiry—we must focus on\\n\\nwhether Javitz interfacing with them was a part of her primary job duties.\\n\\n The District Court found that it was “by virtue of [Javitz’s] position as a public\\n\\nemployee that [she] was allowed to make the speech in the mode and manner in which\\n\\nshe did; that is, accompanied by her supervisor and director to the District Attorney.”\\n\\nJavitz v. Luzerne Cty., No. 3:15-CV-2443, 2018 WL 1545589, at *10 (M.D. Pa. Mar. 29,\\n\\n2018). This reasoning does not follow our precedent—unless the mode and manner of\\n\\nJavitz’s speech was “part of the work [she] was paid to perform on an ordinary basis[,]”\\n\\nthe fact that she could easily contact the District Attorney by virtue of her employment\\n\\ndoes not support a finding that Javitz spoke as an employee and not a citizen. De Ritis,\\n\\n861 F.3d at 454 (quoting Flora, 776 F.3d at 180).\\n\\n 2.\\n\\n The subject of Javitz’s speech was also not within her ordinary job duties. Javitz\\n\\nreported a crime. But the record and the District Court found that nowhere in her job\\n\\nduties was she instructed to report crimes. Rather, the District Court placed significant\\n\\n 11\\n\\femphasis on the County Ethics Code which “encouraged [Javitz] to disclose any\\n\\ninformation which . . . she believe[d] evidence[ed] a violation of any law, rule or\\n\\nregulation.” Javitz, 2018 WL 1545589, at *9.\\n\\n Here, our focus remains on whether Javitz spoke “pursuant to [her] official job\\n\\nduties.” Dougherty, 772 F.3d at 990. Without more, relying on the County Ethics Code\\n\\nthat merely encourages reporting wrongdoing is not enough to bring her reporting into\\n\\nthe realm of her ordinary job duties. The District Court’s emphasis on the suggestion by\\n\\nthe County Ethics Code is misplaced. It is commonplace for ethics codes and employee\\n\\nhandbooks to encourage reporting wrongdoing, and absent some formal job duty or\\n\\nresponsibility, such encouragement is not enough to bring Javitz’s reporting into the\\n\\nrealm of her official duties—that is, the realm of employee speech.\\n\\n 3.\\n\\n Lastly, the why of Javitz’s reporting. “Speech involves matters of public concern\\n\\nwhen it can be fairly considered as relating to any matter of political, social, or other\\n\\nconcern to the community, or when it is subject of legitimate news interest; that is, a\\n\\nsubject of general interest and of value and concern to the public.” Lane, 573 U.S. at 241\\n\\n(internal quotations and citation omitted); see also Connick v. Myers, 461 U.S. 138, 146\\n\\n(1983). In Pennsylvania, “telephonic interloping is illegal unless the individuals at both\\n\\nends of the conversation agree that what they say to one another may be made public.”\\n\\nCommonwealth v. Murray, 223 A.2d 102, 105 (Pa. 1966). Without such consent,\\n\\nrecording another individual becomes a class 3 felony. See 18 Pa. Cons. Stat. § 5703.\\n\\n\\n\\n 12\\n\\f We have held that “an internal investigation into the alleged criminal actions of\\n\\npublic employees falls squarely within the core public speech delineated in Connick.”\\n\\nBaldassare v. State of N.J., 250 F.3d 188, 196–97 (3d Cir. 2001) (internal quotation\\n\\nmarks and citations omitted). Javitz likely had some personal motivations for following\\n\\nup on the status of the investigation—victims of crimes often do. But that does not\\n\\nremove her reporting to merely a “personal curiosity,” as the District Court described.\\n\\nJavitz, 2018 WL 1545589, at *11. Because Javitz reported that she believed she was the\\n\\nvictim of a crime, and because she followed up on the status of the investigation into that\\n\\ncrime, she was speaking on a matter of public importance.\\n\\n\\n\\n Our inquiry in this case has been a practical one. De Ritis, 861 F.3d at 453. Javitz\\n\\nfound herself in a county role that placed her within reach of local authority figures. The\\n\\nposition was accompanied with a County Ethics Code that encouraged reporting of\\n\\nwrongdoing. Javitz was allegedly the victim of a crime, which she reported. The crime,\\n\\nsubsequent contact with local authority figures regarding that crime, and the lack of any\\n\\nformal duty to report that crime are evidence that she was not experiencing or acting\\n\\nwithin the primary functions of her employment. Thus, we hold that Javitz’s speech was\\n\\nthat of a citizen speaking to a matter of public concern.\\n\\n IV.\\n\\n For the foregoing reasons, we will affirm the District Court’s ruling concerning\\n\\nJavitz’s due process claim. We will, however, reverse its ruling regarding Javitz’s First\\n\\n\\n\\n 13\\n\\fAmendment retaliation claim and remand for further proceedings consistent with this\\n\\nopinion.\\n\\n\\n\\n\\n 14\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4558,"cells":{"id":{"kind":"number","value":4669330,"string":"4,669,330"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Donna Javitz v. County of Luzerne"},"decision_date":{"kind":"string","value":"2019-10-10"},"docket_number":{"kind":"string","value":"18-2389"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Third Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: RESTREPO, PORTER, and FISHER, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"RESTREPO, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"PRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n\\n _____________\\n\\n No. 18-2389\\n _____________\\n\\n DONNA DAVIS JAVITZ,\\n Appellant\\n\\n v.\\n\\n COUNTY OF LUZERNE;\\n ROBERT LAWTON, Individually;\\n DAVID PARSNIK, Individually\\n ______________\\n\\n On Appeal from the United States District Court\\n for the Middle District of Pennsylvania\\n (D.C. Civ. Action No. 3-15-cv-02443)\\n District Judge: Honorable Robert D. Mariani\\n ______________\\n\\n Argued: May 1, 2019\\n ______________\\n\\n Before: RESTREPO, PORTER, and FISHER, Circuit Judges.\\n\\n (Opinion Filed: October 10, 2019)\\n __\\nMatthew T. Comerford\\nCurt M. Parkins\\nComerford Law\\n204 Wyoming Avenue\\nScranton, PA 18503\\n\\nDonna EM Davis [ARGUED]\\n651 Simpson Street\\nThroop, PA 18512\\n\\f Counsel for Appellant\\n\\nMark W. Bufalino [ARGUED]\\nJohn G. Dean\\nElliott Greenleaf & Dean\\n39 Public Square\\nSuite 100\\nWilkes-Barre, PA 18701\\n\\n Counsel for Appellees\\n\\nVernon L. Francis [ARGUED]\\nDechert\\n2929 Arch Street\\n18th Floor, Cica Centre\\nPhiladelphia, PA 19104\\n\\nMary Catherine Roper\\nAmerican Civil Liberties Union of Pennsylvania\\nP.O. Box 60173\\nPhiladelphia, PA 19106\\n\\n Counsel for Amicus Appellants,\\n American Civil Liberties Union\\n\\n ______________\\n\\n OPINION OF THE COURT\\n ______________\\n\\n\\nRESTREPO, Circuit Judge.\\n\\n\\n Donna Davis-Javitz (“Javitz”) was hired as the Director of Human Resources for\\n\\nLuzerne County. Shortly into her tenure, she was allegedly the victim of an illegal\\n\\nrecording by a public employee in her role as local union representative. After reporting\\n\\nthis crime, Javitz’s relationship with her employer became rocky, and she was\\n\\nsubsequently fired. She now alleges that her firing was unconstitutional under the First\\n\\n 2\\n\\fAmendment and, alternatively, under the Fourteenth Amendment’s Due Process Clause.\\n\\nThe District Court ruled against Javitz on both claims. For the reasons that follow, we\\n\\nwill affirm the District Court’s due process ruling, but will reverse and remand its First\\n\\nAmendment ruling.\\n\\n\\n I.\\n\\n In July 2014, Javitz was offered a position with Luzerne County as the Director of\\n\\nHuman Resources. Her offer letter contained the terms of her employment, and described\\n\\nthe job as: “Management Level, Non Union, Exempt, Regular Full Time,” and that her\\n\\nposition was “at will.” AI1 57 ¶ 24–25 (emphasis added). Javitz signed and accepted the\\n\\noffer, and began employment on August 4, 2014.\\n\\n As Director of Human Services, Javitz was responsible for—among other duties—\\n\\ncommencing the hiring process for vacant positions, negotiating contracts, dealing with\\n\\nemployee complaints, responding to grievances, conducting investigations, and attending\\n\\nmeetings. Once she began work, Javitz participated in two investigatory meetings with the\\n\\nAmerican Federation of State, County, and Municipal Employees (“AFSCME”), which\\n\\neventually resulted in ASFSCME filing an unfair labor practices suit in March 2015.\\n\\n A. Javitz’s Allegations of Wiretapping\\n\\n Javitz claimed that a document filed in the ASFSCME lawsuit was a transcript of\\n\\nthe investigatory meetings in which she participated. She suspected that a specific county\\n\\n\\n\\n1\\n AI refers to Appendix Volume I, and so AII, AIII, and AIV refer to Appendix\\nVolumes II, III, and IV, respectively.\\n 3\\n\\femployee, AFSCME union representative Paula Schnelly, had recorded the meeting\\n\\nwithout Javitz’s consent—a crime under 18 Pa. Cons. Stat. § 5703.\\n\\n Javitz reported her concern to her supervisor, David Parsnik, who agreed that the\\n\\nmeeting may have been recorded. The two met with the District Attorney, who indicated\\n\\nthat she would refer the matter to the Office of the Attorney General due to a conflict of\\n\\ninterest. Javitz claims that the County Manager, Robert Lawton, intervened and instructed\\n\\nthe District Attorney to drop the matter, which Defendants deny.\\n\\n After reporting the matter, Javitz followed up with Parsnik and the County Solicitor\\n\\nabout the status of the investigation multiple times.\\n\\n After making this report to the District Attorney, Javitz alleges that county\\n\\nemployees retaliated against her. She claims that her supervisor assigned work directly to\\n\\nher subordinates and cut her out of those and other assignments for which Javitz would\\n\\nhave otherwise been responsible. She also cites her office’s relocation in May of 2015 as\\n\\nan example, but the move was planned prior to her hiring.\\n\\n Finally, on October 26, 2015, Javitz was fired. She was given no reason for her\\n\\ntermination. Id. She requested a Loudermill hearing, but was denied. Id.\\n\\n B. County’s Response\\n\\n The County maintains that Javitz was fired because of her “conduct toward [county]\\n\\nunions, her refusal to follow through with hiring a Human Resources Business Partner [(a\\n\\nvacant position in the Human Resources Department during Plaintiff’s County\\n\\nemployment)], her failure to initiate policies, procedures and initiatives as directed[,] and\\n\\n\\n\\n 4\\n\\f[her handling of] issues with the employment application for a candidate for an assistant\\n\\npublic defender position.” AI 67, ¶ 70.\\n\\n C. District Court Proceedings\\n\\n Javitz filed a complaint alleging, inter alia, a 42 U.S.C. § 1983 claim for violation\\n\\nof her procedural due process rights under the Fourteenth Amendment and for retaliation\\n\\nin violation of her First Amendment rights. The District Court granted summary\\n\\njudgment in favor of the Defendants. First, the District Court found that Javitz did not\\n\\nhave a property interest in her employment, and, thus, her termination did not violate her\\n\\nFourteenth Amendment due process rights. Second, the Court found that Javitz was not\\n\\nprotected under the First Amendment because her speech was that of a public employee,\\n\\nand not a private citizen, stating: “[Javitz] became aware of the information through her\\n\\nemployment, was encouraged to report the information by the policies of her employer,\\n\\nand reported the information only to other County employees.” AI 28. Thus, because\\n\\nJavitz spoke as a public employee and not a private citizen, the Constitution does not\\n\\nprotect her from employer discipline, or, as in this case, her termination.\\n\\n II.\\n\\n The District Court had jurisdiction pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §\\n\\n1331. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a\\n\\ndistrict court order granting summary judgment. Karns v. Shanahan, 879 F.3d 504, 512\\n\\n(3d Cir. 2018).\\n\\n\\n\\n\\n 5\\n\\f III.\\n\\n A.\\n\\n We first consider Javitz’s due process claim. The Fourteenth Amendment\\n\\nprovides that no state shall “deprive any person of life, liberty, or property, without due\\n\\nprocess of law.” U.S. Const. amend. XIV § 1. “The first step in analyzing a due process\\n\\nclaim is to determine whether the ‘asserted individual interest . . . [is] encompassed\\n\\nwithin the [F]ourteenth [A]mendment’s protection of life, liberty, or property.’” Elmore\\n\\nv. Cleary, 399 F.3d 279, 282 (3d Cir. 2005) (citation omitted) (alterations in original).\\n\\n“To have a property interest in a job [ ] . . . a person must have . . . a legitimate\\n\\nentitlement to such continued employment.” Id. (citation omitted). State law determines\\n\\nwhether a person is entitled to a property interest in their government job. Hill v.\\n\\nBorough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006).\\n\\n In Pennsylvania, employees are at-will by default; a contract or applicable state\\n\\nlaw must be shown to rebut this default status and establish a property right. See Stumpp\\n\\nv. Stroudsburg Mun Auth., 658 A.2d 333, 334–35 (Pa. 1995). In Luzerne County, Career\\n\\nService Employees may only be fired for just cause, but Exempt Level Employees are\\n\\nemployed at-will. The Luzerne County Charter is silent as to whether Javitz’s position\\n\\nwas Career Service or Exempt Level.\\n\\n Given that the County legislation is silent on this issue, we review the terms of\\n\\nJavitz’s employment to determine whether she was an Exempt Level Employee. The\\n\\noffer letter describes her position as “Exempt,” and describes her employment as “At\\n\\nWill.” AI 18–19. Given this evidence, we agree with the District Court: Javitz was hired\\n\\n 6\\n\\fas an Exempt Level Employee, did not have a property interest in her government\\n\\nposition, and thus her termination was not entitled to Fourteenth Amendment due process\\n\\nprotection. AI 20. Therefore, we will affirm the District Court’s ruling concerning\\n\\nJavitz’s due process claim.\\n\\n B.\\n\\n We next turn to Javitz’s First Amendment retaliation claim. “To prevail on a First\\n\\nAmendment retaliation claim under 42 U.S.C. § 1983, a plaintiff must prove that (1) he\\n\\nengaged in constitutionally protected conduct, (2) the defendant engaged in retaliatory\\n\\naction sufficient to deter a person of ordinary firmness from exercising his constitutional\\n\\nrights, and (3) a causal link [existed] between the constitutionally protected conduct and\\n\\nthe retaliatory action.” Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir.\\n\\n2019) (internal quotation marks and citation omitted) (alteration in original). Because the\\n\\nDistrict Court ruled that Javitz’s speech was not protected speech—by finding that she\\n\\nspoke as a public employee and not a private citizen—we focus only on the first factor.\\n\\n When determining whether an individual spoke as a public employee versus a\\n\\nprivate citizen, three Supreme Court cases guide our analysis. First, in Pickering v.\\n\\nBoard of Education, 391 U.S. 563 (1968), the Court instructed that we determine if the\\n\\nemployee spoke as a citizen on a matter of public concern, and if so, whether the\\n\\ngovernment employer was justified in treating the employee differently from any other\\n\\nmember of the general public. Id. at 568. This initial inquiry has become known as the\\n\\nPickering balancing test.\\n\\n\\n\\n 7\\n\\f Second, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court specified\\n\\nthis inquiry by holding that “when public employees make statements pursuant to their\\n\\nofficial duties, the employees are not speaking as citizens for First Amendment purposes,\\n\\nand the Constitution does not insulate their communications from employer discipline.”\\n\\nId. at 421. This rule is based on administrative efficiency and acts to keep every\\n\\nworkplace dispute from becoming a federal case. See id. at 418. This rule, however, is\\n\\nbalanced with the Court’s acknowledgement that if “employees are speaking as citizens\\n\\nabout matters of public concern, they must face only those speech restrictions that are\\n\\nnecessary for their employers to operate efficiently and effectively.” Id. at 419 (citation\\n\\nomitted).\\n\\n Third, and most recently, the Court decided Lane v. Franks, 573 U.S. 228 (2014).\\n\\nThe Lane Court focused on the nexus between the employee’s speech and his/her job\\n\\nduties, stating that “the mere fact that a citizen’s speech concerns information acquired by\\n\\nvirtue of his public employment does not transform that speech into employee—rather\\n\\nthan citizen—speech.” Id. at 240. Thus, the “critical question” is “whether the speech at\\n\\nissue is itself ordinarily within the scope of an employee’s duties, not whether it merely\\n\\nconcerns those duties.” Id.\\n\\n This Circuit has followed these cases and, when appropriate, has focused its\\n\\ninquiry on whether a public employee’s speech was informed by or the result of his or her\\n\\nprimary job duties. For example, in Flora v. County of Luzerne, 776 F.3d 169 (3d Cir.\\n\\n2015), the Acting Chief Public Defender alleged that his employer chose not to promote\\n\\nhim because of his speech—specifically, for his efforts to secure funding for the Office of\\n\\n 8\\n\\fthe Public Defender in a class action lawsuit and for publicly reporting the county’s\\n\\nnoncompliance with a Pennsylvania Supreme Court expungement order relating to the\\n\\n2008 “Kids for Cash” scandal. Id. at 172–74. The District Court dismissed the\\n\\ncomplaint, finding that Flora’s speech related to his official duties as Chief Public\\n\\nDefender, and thus was not protected speech. Id. at 174. This Court reversed, holding\\n\\nthat “[w]hile certain statements in Flora’s complaint do suggest that the speech at issue\\n\\nbore some relation to his job duties and may have, indirectly, benefitted his clients, that\\n\\ndoes not bring the speech within the realm of his ordinary job duties . . . [t]o view it\\n\\notherwise would unduly restrict First Amendment rights, because reporting malfeasance\\n\\nor misfeasance will regularly benefit an employee in the execution of his job duties by,\\n\\npresumably, removing impediments to proper government functioning.” Id. at 180\\n\\n(citation omitted).\\n\\n In Dougherty v. School District of Philadelphia, 772 F.3d 979 (3d Cir. 2014), a\\n\\nformer employee with the School District of Philadelphia was terminated after contacting\\n\\nthe local newspaper regarding alleged business misconduct by the Superintendent. Id. at\\n\\n983–84. He filed an action alleging First Amendment retaliation and was successful at\\n\\nthe District Court. Id. at 984–85. On appeal, the school district argued that Dougherty’s\\n\\nspeech was that of an employee, because “the content of [his] speech was gained from\\n\\n‘special knowledge’ and ‘experience’ [and that] his speech ‘owes its existence to’ his\\n\\nprofessional duties.” Id. 989. We found this argument unavailing, emphasizing that\\n\\n“whether an employee’s speech ‘concern[s] the subject matter of [his] employment’ is\\n\\n‘nondispositive.’” Id. (citing Garcetti, 547 U.S. at 421). Rather, “[u]nder Lane, [we\\n\\n 9\\n\\fdetermined] that Dougherty’s report to [the newspaper] was not made pursuant to his\\n\\nofficial job duties . . . [and was] not foreclosed merely because the subject matter of the\\n\\nspeech concern[ed] or relate[d] to those duties.” Id. at 990.\\n\\n Again, in De Ritis v. McGarrigle, 861 F.3d 444 (3d Cir. 2017), we distinguished\\n\\ncitizen speech from employee speech by focusing on the primary job duties of the\\n\\nplaintiff. In De Ritis, we held that a public defender’s rumormongering about his\\n\\nperceived demotion to judges and attorneys while in the courtroom was not protected\\n\\nspeech, because as an attorney, rapport-building conversations with judges and other\\n\\nattorneys just before or after a case proceeding are “part and parcel of [a public\\n\\ndefender’s] ordinary job duties—not citizen speech.” Id. at 453–54 (citation omitted).\\n\\nWe distinguished, however, out-of-court conversations De Rittis had with the county\\n\\nsolicitor and chair of the county council, both high-ranking county officials that De Ritis\\n\\nhad access to as a result of his work. We held those conversations to be citizen speech,\\n\\nbecause these out-of-court conversations, possible only by virtue of his employment,\\n\\nwere not “‘part of the work [De Ritis] was paid to perform on an ordinary basis.’” Id. at\\n\\n454 (quoting Flora, 776 F.3d at 180) (alteration in original).\\n\\n C.\\n\\n This case is analogous to Flora, Dougherty, and De Ritis. As in those cases, our\\n\\nthreshold inquiry is whether Javitz spoke as a citizen or a public employee, and as such,\\n\\nwhether her speech was either “ordinarily within the scope of [her] duties,” or simply\\n\\nrelating to those duties. Lane, 573 U.S. at 240. Who Javitz spoke to, what she spoke\\n\\n\\n\\n 10\\n\\fabout, and why she spoke at all each fall outside the scope of her primary job duties and\\n\\nevidence citizen speech.\\n\\n 1.\\n\\n Here, as in De Ritis, Javitz had access to high-ranking county officials by virtue of\\n\\nher job as the Human Resources Director. Javitz had the ability to communicate and\\n\\ninterface with these individuals in a manner that someone not employed by the county,\\n\\nand someone without the position of Human Resources Director, would have. But access\\n\\nto these individuals is secondary to our citizen speech inquiry—we must focus on\\n\\nwhether Javitz interfacing with them was a part of her primary job duties.\\n\\n The District Court found that it was “by virtue of [Javitz’s] position as a public\\n\\nemployee that [she] was allowed to make the speech in the mode and manner in which\\n\\nshe did; that is, accompanied by her supervisor and director to the District Attorney.”\\n\\nJavitz v. Luzerne Cty., No. 3:15-CV-2443, 2018 WL 1545589, at *10 (M.D. Pa. Mar. 29,\\n\\n2018). This reasoning does not follow our precedent—unless the mode and manner of\\n\\nJavitz’s speech was “part of the work [she] was paid to perform on an ordinary basis[,]”\\n\\nthe fact that she could easily contact the District Attorney by virtue of her employment\\n\\ndoes not support a finding that Javitz spoke as an employee and not a citizen. De Ritis,\\n\\n861 F.3d at 454 (quoting Flora, 776 F.3d at 180).\\n\\n 2.\\n\\n The subject of Javitz’s speech was also not within her ordinary job duties. Javitz\\n\\nreported a crime. But the record and the District Court found that nowhere in her job\\n\\nduties was she instructed to report crimes. Rather, the District Court placed significant\\n\\n 11\\n\\femphasis on the County Ethics Code which “encouraged [Javitz] to disclose any\\n\\ninformation which . . . she believe[d] evidence[ed] a violation of any law, rule or\\n\\nregulation.” Javitz, 2018 WL 1545589, at *9.\\n\\n Here, our focus remains on whether Javitz spoke “pursuant to [her] official job\\n\\nduties.” Dougherty, 772 F.3d at 990. Without more, relying on the County Ethics Code\\n\\nthat merely encourages reporting wrongdoing is not enough to bring her reporting into\\n\\nthe realm of her ordinary job duties. The District Court’s emphasis on the suggestion by\\n\\nthe County Ethics Code is misplaced. It is commonplace for ethics codes and employee\\n\\nhandbooks to encourage reporting wrongdoing, and absent some formal job duty or\\n\\nresponsibility, such encouragement is not enough to bring Javitz’s reporting into the\\n\\nrealm of her official duties—that is, the realm of employee speech.\\n\\n 3.\\n\\n Lastly, the why of Javitz’s reporting. “Speech involves matters of public concern\\n\\nwhen it can be fairly considered as relating to any matter of political, social, or other\\n\\nconcern to the community, or when it is subject of legitimate news interest; that is, a\\n\\nsubject of general interest and of value and concern to the public.” Lane, 573 U.S. at 241\\n\\n(internal quotations and citation omitted); see also Connick v. Myers, 461 U.S. 138, 146\\n\\n(1983). In Pennsylvania, “telephonic interloping is illegal unless the individuals at both\\n\\nends of the conversation agree that what they say to one another may be made public.”\\n\\nCommonwealth v. Murray, 223 A.2d 102, 105 (Pa. 1966). Without such consent,\\n\\nrecording another individual becomes a class 3 felony. See 18 Pa. Cons. Stat. § 5703.\\n\\n\\n\\n 12\\n\\f We have held that “an internal investigation into the alleged criminal actions of\\n\\npublic employees falls squarely within the core public speech delineated in Connick.”\\n\\nBaldassare v. State of N.J., 250 F.3d 188, 196–97 (3d Cir. 2001) (internal quotation\\n\\nmarks and citations omitted). Javitz likely had some personal motivations for following\\n\\nup on the status of the investigation—victims of crimes often do. But that does not\\n\\nremove her reporting to merely a “personal curiosity,” as the District Court described.\\n\\nJavitz, 2018 WL 1545589, at *11. Because Javitz reported that she believed she was the\\n\\nvictim of a crime, and because she followed up on the status of the investigation into that\\n\\ncrime, she was speaking on a matter of public importance.\\n\\n\\n\\n Our inquiry in this case has been a practical one. De Ritis, 861 F.3d at 453. Javitz\\n\\nfound herself in a county role that placed her within reach of local authority figures. The\\n\\nposition was accompanied with a County Ethics Code that encouraged reporting of\\n\\nwrongdoing. Javitz was allegedly the victim of a crime, which she reported. The crime,\\n\\nsubsequent contact with local authority figures regarding that crime, and the lack of any\\n\\nformal duty to report that crime are evidence that she was not experiencing or acting\\n\\nwithin the primary functions of her employment. Thus, we hold that Javitz’s speech was\\n\\nthat of a citizen speaking to a matter of public concern.\\n\\n IV.\\n\\n For the foregoing reasons, we will affirm the District Court’s ruling concerning\\n\\nJavitz’s due process claim. We will, however, reverse its ruling regarding Javitz’s First\\n\\n\\n\\n 13\\n\\fAmendment retaliation claim and remand for further proceedings consistent with this\\n\\nopinion.\\n\\n\\n\\n\\n 14\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4446583/\", \"author_raw\": \"RESTREPO, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"RESTREPO"},"judge2":{"kind":"string","value":"PORTER"},"judge3":{"kind":"string","value":"FISHER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"RESTREPO\": \", Circuit\", \"PORTER\": \", Circuit\", \"FISHER\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4669330/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Donna Javitz v. County of Luzerne\nCourt: U.S. Court of Appeals for the Third Circuit\nDate decided: 2019-10-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n\n _____________\n\n No. 18-2389\n _____________\n\n DONNA DAVIS JAVITZ,\n Appellant\n\n v.\n\n COUNTY OF LUZERNE;\n ROBERT LAWTON, Individually;\n DAVID PARSNIK, Individually\n ______________\n\n On Appeal from the United States District Court\n for the Middle District of Pennsylvania\n (D.C. Civ. Action No. 3-15-cv-02443)\n District Judge: Honorable Robert D. Mariani\n ______________\n\n Argued: May 1, 2019\n ______________\n\n Before: RESTREPO, PORTER, and FISHER, Circuit Judges.\n\n (Opinion Filed: October 10, 2019)\n __\nMatthew T. Comerford\nCurt M. Parkins\nComerford Law\n204 Wyoming Avenue\nScranton, PA 18503\n\nDonna EM Davis [ARGUED]\n651 Simpson Street\nThroop, PA 18512\n\f Counsel for Appellant\n\nMark W. Bufalino [ARGUED]\nJohn G. Dean\nElliott Greenleaf & Dean\n39 Public Square\nSuite 100\nWilkes-Barre, PA 18701\n\n Counsel for Appellees\n\nVernon L. Francis [ARGUED]\nDechert\n2929 Arch Street\n18th Floor, Cica Centre\nPhiladelphia, PA 19104\n\nMary Catherine Roper\nAmerican Civil Liberties Union of Pennsylvania\nP.O. Box 60173\nPhiladelphia, PA 19106\n\n Counsel for Amicus Appellants,\n American Civil Liberties Union\n\n ______________\n\n OPINION OF THE COURT\n ______________\n\n\nRESTREPO, Circuit Judge.\n\n\n Donna Davis-Javitz (“Javitz”) was hired as the Director of Human Resources for\n\nLuzerne County. Shortly into her tenure, she was allegedly the victim of an illegal\n\nrecording by a public employee in her role as local union representative. After reporting\n\nthis crime, Javitz’s relationship with her employer became rocky, and she was\n\nsubsequently fired. She now alleges that her firing was unconstitutional under the First\n\n 2\n\fAmendment and, alternatively, under the Fourteenth Amendment’s Due Process Clause.\n\nThe District Court ruled against Javitz on both claims. For the reasons that follow, we\n\nwill affirm the District Court’s due process ruling, but will reverse and remand its First\n\nAmendment ruling.\n\n\n I.\n\n In July 2014, Javitz was offered a position with Luzerne County as the Director of\n\nHuman Resources. Her offer letter contained the terms of her employment, and described\n\nthe job as: “Management Level, Non Union, Exempt, Regular Full Time,” and that her\n\nposition was “at will.” AI1 57 ¶ 24–25 (emphasis added). Javitz signed and accepted the\n\noffer, and began employment on August 4, 2014.\n\n As Director of Human Services, Javitz was responsible for—among other duties—\n\ncommencing the hiring process for vacant positions, negotiating contracts, dealing with\n\nemployee complaints, responding to grievances, conducting investigations, and attending\n\nmeetings. Once she began work, Javitz participated in two investigatory meetings with the\n\nAmerican Federation of State, County, and Municipal Employees (“AFSCME”), which\n\neventually resulted in ASFSCME filing an unfair labor practices suit in March 2015.\n\n A. Javitz’s Allegations of Wiretapping\n\n Javitz claimed that a document filed in the ASFSCME lawsuit was a transcript of\n\nthe investigatory meetings in which she participated. She suspected that a specific county\n\n\n\n1\n AI refers to Appendix Volume I, and so AII, AIII, and AIV refer to Appendix\nVolumes II, III, and IV, respectively.\n 3\n\femployee, AFSCME union representative Paula Schnelly, had recorded the meeting\n\nwithout Javitz’s consent—a crime under 18 Pa. Cons. Stat. § 5703.\n\n Javitz reported her concern to her supervisor, David Parsnik, who agreed that the\n\nmeeting may have been recorded. The two met with the District Attorney, who indicated\n\nthat she would refer the matter to the Office of the Attorney General due to a conflict of\n\ninterest. Javitz claims that the County Manager, Robert Lawton, intervened and instructed\n\nthe District Attorney to drop the matter, which Defendants deny.\n\n After reporting the matter, Javitz followed up with Parsnik and the County Solicitor\n\nabout the status of the investigation multiple times.\n\n After making this report to the District Attorney, Javitz alleges that county\n\nemployees retaliated against her. She claims that her supervisor assigned work directly to\n\nher subordinates and cut her out of those and other assignments for which Javitz would\n\nhave otherwise been responsible. She also cites her office’s relocation in May of 2015 as\n\nan example, but the move was planned prior to her hiring.\n\n Finally, on October 26, 2015, Javitz was fired. She was given no reason for her\n\ntermination. Id. She requested a Loudermill hearing, but was denied. Id.\n\n B. County’s Response\n\n The County maintains that Javitz was fired because of her “conduct toward [county]\n\nunions, her refusal to follow through with hiring a Human Resources Business Partner [(a\n\nvacant position in the Human Resources Department during Plaintiff’s County\n\nemployment)], her failure to initiate policies, procedures and initiatives as directed[,] and\n\n\n\n 4\n\f[her handling of] issues with the employment application for a candidate for an assistant\n\npublic defender position.” AI 67, ¶ 70.\n\n C. District Court Proceedings\n\n Javitz filed a complaint alleging, inter alia, a 42 U.S.C. § 1983 claim for violation\n\nof her procedural due process rights under the Fourteenth Amendment and for retaliation\n\nin violation of her First Amendment rights. The District Court granted summary\n\njudgment in favor of the Defendants. First, the District Court found that Javitz did not\n\nhave a property interest in her employment, and, thus, her termination did not violate her\n\nFourteenth Amendment due process rights. Second, the Court found that Javitz was not\n\nprotected under the First Amendment because her speech was that of a public employee,\n\nand not a private citizen, stating: “[Javitz] became aware of the information through her\n\nemployment, was encouraged to report the information by the policies of her employer,\n\nand reported the information only to other County employees.” AI 28. Thus, because\n\nJavitz spoke as a public employee and not a private citizen, the Constitution does not\n\nprotect her from employer discipline, or, as in this case, her termination.\n\n II.\n\n The District Court had jurisdiction pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §\n\n1331. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a\n\ndistrict court order granting summary judgment. Karns v. Shanahan, 879 F.3d 504, 512\n\n(3d Cir. 2018).\n\n\n\n\n 5\n\f III.\n\n A.\n\n We first consider Javitz’s due process claim. The Fourteenth Amendment\n\nprovides that no state shall “deprive any person of life, liberty, or property, without due\n\nprocess of law.” U.S. Const. amend. XIV § 1. “The first step in analyzing a due process\n\nclaim is to determine whether the ‘asserted individual interest . . . [is] encompassed\n\nwithin the [F]ourteenth [A]mendment’s protection of life, liberty, or property.’” Elmore\n\nv. Cleary, 399 F.3d 279, 282 (3d Cir. 2005) (citation omitted) (alterations in original).\n\n“To have a property interest in a job [ ] . . . a person must have . . . a legitimate\n\nentitlement to such continued employment.” Id. (citation omitted). State law determines\n\nwhether a person is entitled to a property interest in their government job. Hill v.\n\nBorough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006).\n\n In Pennsylvania, employees are at-will by default; a contract or applicable state\n\nlaw must be shown to rebut this default status and establish a property right. See Stumpp\n\nv. Stroudsburg Mun Auth., 658 A.2d 333, 334–35 (Pa. 1995). In Luzerne County, Career\n\nService Employees may only be fired for just cause, but Exempt Level Employees are\n\nemployed at-will. The Luzerne County Charter is silent as to whether Javitz’s position\n\nwas Career Service or Exempt Level.\n\n Given that the County legislation is silent on this issue, we review the terms of\n\nJavitz’s employment to determine whether she was an Exempt Level Employee. The\n\noffer letter describes her position as “Exempt,” and describes her employment as “At\n\nWill.” AI 18–19. Given this evidence, we agree with the District Court: Javitz was hired\n\n 6\n\fas an Exempt Level Employee, did not have a property interest in her government\n\nposition, and thus her termination was not entitled to Fourteenth Amendment due process\n\nprotection. AI 20. Therefore, we will affirm the District Court’s ruling concerning\n\nJavitz’s due process claim.\n\n B.\n\n We next turn to Javitz’s First Amendment retaliation claim. “To prevail on a First\n\nAmendment retaliation claim under 42 U.S.C. § 1983, a plaintiff must prove that (1) he\n\nengaged in constitutionally protected conduct, (2) the defendant engaged in retaliatory\n\naction sufficient to deter a person of ordinary firmness from exercising his constitutional\n\nrights, and (3) a causal link [existed] between the constitutionally protected conduct and\n\nthe retaliatory action.” Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir.\n\n2019) (internal quotation marks and citation omitted) (alteration in original). Because the\n\nDistrict Court ruled that Javitz’s speech was not protected speech—by finding that she\n\nspoke as a public employee and not a private citizen—we focus only on the first factor.\n\n When determining whether an individual spoke as a public employee versus a\n\nprivate citizen, three Supreme Court cases guide our analysis. First, in Pickering v.\n\nBoard of Education, 391 U.S. 563 (1968), the Court instructed that we determine if the\n\nemployee spoke as a citizen on a matter of public concern, and if so, whether the\n\ngovernment employer was justified in treating the employee differently from any other\n\nmember of the general public. Id. at 568. This initial inquiry has become known as the\n\nPickering balancing test.\n\n\n\n 7\n\f Second, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court specified\n\nthis inquiry by holding that “when public employees make statements pursuant to their\n\nofficial duties, the employees are not speaking as citizens for First Amendment purposes,\n\nand the Constitution does not insulate their communications from employer discipline.”\n\nId. at 421. This rule is based on administrative efficiency and acts to keep every\n\nworkplace dispute from becoming a federal case. See id. at 418. This rule, however, is\n\nbalanced with the Court’s acknowledgement that if “employees are speaking as citizens\n\nabout matters of public concern, they must face only those speech restrictions that are\n\nnecessary for their employers to operate efficiently and effectively.” Id. at 419 (citation\n\nomitted).\n\n Third, and most recently, the Court decided Lane v. Franks, 573 U.S. 228 (2014).\n\nThe Lane Court focused on the nexus between the employee’s speech and his/her job\n\nduties, stating that “the mere fact that a citizen’s speech concerns information acquired by\n\nvirtue of his public employment does not transform that speech into employee—rather\n\nthan citizen—speech.” Id. at 240. Thus, the “critical question” is “whether the speech at\n\nissue is itself ordinarily within the scope of an employee’s duties, not whether it merely\n\nconcerns those duties.” Id.\n\n This Circuit has followed these cases and, when appropriate, has focused its\n\ninquiry on whether a public employee’s speech was informed by or the result of his or her\n\nprimary job duties. For example, in Flora v. County of Luzerne, 776 F.3d 169 (3d Cir.\n\n2015), the Acting Chief Public Defender alleged that his employer chose not to promote\n\nhim because of his speech—specifically, for his efforts to secure funding for the Office of\n\n 8\n\fthe Public Defender in a class action lawsuit and for publicly reporting the county’s\n\nnoncompliance with a Pennsylvania Supreme Court expungement order relating to the\n\n2008 “Kids for Cash” scandal. Id. at 172–74. The District Court dismissed the\n\ncomplaint, finding that Flora’s speech related to his official duties as Chief Public\n\nDefender, and thus was not protected speech. Id. at 174. This Court reversed, holding\n\nthat “[w]hile certain statements in Flora’s complaint do suggest that the speech at issue\n\nbore some relation to his job duties and may have, indirectly, benefitted his clients, that\n\ndoes not bring the speech within the realm of his ordinary job duties . . . [t]o view it\n\notherwise would unduly restrict First Amendment rights, because reporting malfeasance\n\nor misfeasance will regularly benefit an employee in the execution of his job duties by,\n\npresumably, removing impediments to proper government functioning.” Id. at 180\n\n(citation omitted).\n\n In Dougherty v. School District of Philadelphia, 772 F.3d 979 (3d Cir. 2014), a\n\nformer employee with the School District of Philadelphia was terminated after contacting\n\nthe local newspaper regarding alleged business misconduct by the Superintendent. Id. at\n\n983–84. He filed an action alleging First Amendment retaliation and was successful at\n\nthe District Court. Id. at 984–85. On appeal, the school district argued that Dougherty’s\n\nspeech was that of an employee, because “the content of [his] speech was gained from\n\n‘special knowledge’ and ‘experience’ [and that] his speech ‘owes its existence to’ his\n\nprofessional duties.” Id. 989. We found this argument unavailing, emphasizing that\n\n“whether an employee’s speech ‘concern[s] the subject matter of [his] employment’ is\n\n‘nondispositive.’” Id. (citing Garcetti, 547 U.S. at 421). Rather, “[u]nder Lane, [we\n\n 9\n\fdetermined] that Dougherty’s report to [the newspaper] was not made pursuant to his\n\nofficial job duties . . . [and was] not foreclosed merely because the subject matter of the\n\nspeech concern[ed] or relate[d] to those duties.” Id. at 990.\n\n Again, in De Ritis v. McGarrigle, 861 F.3d 444 (3d Cir. 2017), we distinguished\n\ncitizen speech from employee speech by focusing on the primary job duties of the\n\nplaintiff. In De Ritis, we held that a public defender’s rumormongering about his\n\nperceived demotion to judges and attorneys while in the courtroom was not protected\n\nspeech, because as an attorney, rapport-building conversations with judges and other\n\nattorneys just before or after a case proceeding are “part and parcel of [a public\n\ndefender’s] ordinary job duties—not citizen speech.” Id. at 453–54 (citation omitted).\n\nWe distinguished, however, out-of-court conversations De Rittis had with the county\n\nsolicitor and chair of the county council, both high-ranking county officials that De Ritis\n\nhad access to as a result of his work. We held those conversations to be citizen speech,\n\nbecause these out-of-court conversations, possible only by virtue of his employment,\n\nwere not “‘part of the work [De Ritis] was paid to perform on an ordinary basis.’” Id. at\n\n454 (quoting Flora, 776 F.3d at 180) (alteration in original).\n\n C.\n\n This case is analogous to Flora, Dougherty, and De Ritis. As in those cases, our\n\nthreshold inquiry is whether Javitz spoke as a citizen or a public employee, and as such,\n\nwhether her speech was either “ordinarily within the scope of [her] duties,” or simply\n\nrelating to those duties. Lane, 573 U.S. at 240. Who Javitz spoke to, what she spoke\n\n\n\n 10\n\fabout, and why she spoke at all each fall outside the scope of her primary job duties and\n\nevidence citizen speech.\n\n 1.\n\n Here, as in De Ritis, Javitz had access to high-ranking county officials by virtue of\n\nher job as the Human Resources Director. Javitz had the ability to communicate and\n\ninterface with these individuals in a manner that someone not employed by the county,\n\nand someone without the position of Human Resources Director, would have. But access\n\nto these individuals is secondary to our citizen speech inquiry—we must focus on\n\nwhether Javitz interfacing with them was a part of her primary job duties.\n\n The District Court found that it was “by virtue of [Javitz’s] position as a public\n\nemployee that [she] was allowed to make the speech in the mode and manner in which\n\nshe did; that is, accompanied by her supervisor and director to the District Attorney.”\n\nJavitz v. Luzerne Cty., No. 3:15-CV-2443, 2018 WL 1545589, at *10 (M.D. Pa. Mar. 29,\n\n2018). This reasoning does not follow our precedent—unless the mode and manner of\n\nJavitz’s speech was “part of the work [she] was paid to perform on an ordinary basis[,]”\n\nthe fact that she could easily contact the District Attorney by virtue of her employment\n\ndoes not support a finding that Javitz spoke as an employee and not a citizen. De Ritis,\n\n861 F.3d at 454 (quoting Flora, 776 F.3d at 180).\n\n 2.\n\n The subject of Javitz’s speech was also not within her ordinary job duties. Javitz\n\nreported a crime. But the record and the District Court found that nowhere in her job\n\nduties was she instructed to report crimes. Rather, the District Court placed significant\n\n 11\n\femphasis on the County Ethics Code which “encouraged [Javitz] to disclose any\n\ninformation which . . . she believe[d] evidence[ed] a violation of any law, rule or\n\nregulation.” Javitz, 2018 WL 1545589, at *9.\n\n Here, our focus remains on whether Javitz spoke “pursuant to [her] official job\n\nduties.” Dougherty, 772 F.3d at 990. Without more, relying on the County Ethics Code\n\nthat merely encourages reporting wrongdoing is not enough to bring her reporting into\n\nthe realm of her ordinary job duties. The District Court’s emphasis on the suggestion by\n\nthe County Ethics Code is misplaced. It is commonplace for ethics codes and employee\n\nhandbooks to encourage reporting wrongdoing, and absent some formal job duty or\n\nresponsibility, such encouragement is not enough to bring Javitz’s reporting into the\n\nrealm of her official duties—that is, the realm of employee speech.\n\n 3.\n\n Lastly, the why of Javitz’s reporting. “Speech involves matters of public concern\n\nwhen it can be fairly considered as relating to any matter of political, social, or other\n\nconcern to the community, or when it is subject of legitimate news interest; that is, a\n\nsubject of general interest and of value and concern to the public.” Lane, 573 U.S. at 241\n\n(internal quotations and citation omitted); see also Connick v. Myers, 461 U.S. 138, 146\n\n(1983). In Pennsylvania, “telephonic interloping is illegal unless the individuals at both\n\nends of the conversation agree that what they say to one another may be made public.”\n\nCommonwealth v. Murray, 223 A.2d 102, 105 (Pa. 1966). Without such consent,\n\nrecording another individual becomes a class 3 felony. See 18 Pa. Cons. Stat. § 5703.\n\n\n\n 12\n\f We have held that “an internal investigation into the alleged criminal actions of\n\npublic employees falls squarely within the core public speech delineated in Connick.”\n\nBaldassare v. State of N.J., 250 F.3d 188, 196–97 (3d Cir. 2001) (internal quotation\n\nmarks and citations omitted). Javitz likely had some personal motivations for following\n\nup on the status of the investigation—victims of crimes often do. But that does not\n\nremove her reporting to merely a “personal curiosity,” as the District Court described.\n\nJavitz, 2018 WL 1545589, at *11. Because Javitz reported that she believed she was the\n\nvictim of a crime, and because she followed up on the status of the investigation into that\n\ncrime, she was speaking on a matter of public importance.\n\n\n\n Our inquiry in this case has been a practical one. De Ritis, 861 F.3d at 453. Javitz\n\nfound herself in a county role that placed her within reach of local authority figures. The\n\nposition was accompanied with a County Ethics Code that encouraged reporting of\n\nwrongdoing. Javitz was allegedly the victim of a crime, which she reported. The crime,\n\nsubsequent contact with local authority figures regarding that crime, and the lack of any\n\nformal duty to report that crime are evidence that she was not experiencing or acting\n\nwithin the primary functions of her employment. Thus, we hold that Javitz’s speech was\n\nthat of a citizen speaking to a matter of public concern.\n\n IV.\n\n For the foregoing reasons, we will affirm the District Court’s ruling concerning\n\nJavitz’s due process claim. We will, however, reverse its ruling regarding Javitz’s First\n\n\n\n 13\n\fAmendment retaliation claim and remand for further proceedings consistent with this\n\nopinion.\n\n\n\n\n 14\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Donna Javitz v. County of Luzerne\\nCourt: U.S. Court of Appeals for the Third Circuit\\nDate decided: 2019-10-10\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n\\n _____________\\n\\n No. 18-2389\\n _____________\\n\\n DONNA DAVIS JAVITZ,\\n Appellant\\n\\n v.\\n\\n COUNTY OF LUZERNE;\\n ROBERT LAWTON, Individually;\\n DAVID PARSNIK, Individually\\n ______________\\n\\n On Appeal from the United States District Court\\n for the Middle District of Pennsylvania\\n (D.C. Civ. Action No. 3-15-cv-02443)\\n District Judge: Honorable Robert D. Mariani\\n ______________\\n\\n Argued: May 1, 2019\\n ______________\\n\\n Before: RESTREPO, PORTER, and FISHER, Circuit Judges.\\n\\n (Opinion Filed: October 10, 2019)\\n __\\nMatthew T. Comerford\\nCurt M. Parkins\\nComerford Law\\n204 Wyoming Avenue\\nScranton, PA 18503\\n\\nDonna EM Davis [ARGUED]\\n651 Simpson Street\\nThroop, PA 18512\\n\\f Counsel for Appellant\\n\\nMark W. Bufalino [ARGUED]\\nJohn G. Dean\\nElliott Greenleaf & Dean\\n39 Public Square\\nSuite 100\\nWilkes-Barre, PA 18701\\n\\n Counsel for Appellees\\n\\nVernon L. Francis [ARGUED]\\nDechert\\n2929 Arch Street\\n18th Floor, Cica Centre\\nPhiladelphia, PA 19104\\n\\nMary Catherine Roper\\nAmerican Civil Liberties Union of Pennsylvania\\nP.O. Box 60173\\nPhiladelphia, PA 19106\\n\\n Counsel for Amicus Appellants,\\n American Civil Liberties Union\\n\\n ______________\\n\\n OPINION OF THE COURT\\n ______________\\n\\n\\nRESTREPO, Circuit Judge.\\n\\n\\n Donna Davis-Javitz (“Javitz”) was hired as the Director of Human Resources for\\n\\nLuzerne County. Shortly into her tenure, she was allegedly the victim of an illegal\\n\\nrecording by a public employee in her role as local union representative. After reporting\\n\\nthis crime, Javitz’s relationship with her employer became rocky, and she was\\n\\nsubsequently fired. She now alleges that her firing was unconstitutional under the First\\n\\n 2\\n\\fAmendment and, alternatively, under the Fourteenth Amendment’s Due Process Clause.\\n\\nThe District Court ruled against Javitz on both claims. For the reasons that follow, we\\n\\nwill affirm the District Court’s due process ruling, but will reverse and remand its First\\n\\nAmendment ruling.\\n\\n\\n I.\\n\\n In July 2014, Javitz was offered a position with Luzerne County as the Director of\\n\\nHuman Resources. Her offer letter contained the terms of her employment, and described\\n\\nthe job as: “Management Level, Non Union, Exempt, Regular Full Time,” and that her\\n\\nposition was “at will.” AI1 57 ¶ 24–25 (emphasis added). Javitz signed and accepted the\\n\\noffer, and began employment on August 4, 2014.\\n\\n As Director of Human Services, Javitz was responsible for—among other duties—\\n\\ncommencing the hiring process for vacant positions, negotiating contracts, dealing with\\n\\nemployee complaints, responding to grievances, conducting investigations, and attending\\n\\nmeetings. Once she began work, Javitz participated in two investigatory meetings with the\\n\\nAmerican Federation of State, County, and Municipal Employees (“AFSCME”), which\\n\\neventually resulted in ASFSCME filing an unfair labor practices suit in March 2015.\\n\\n A. Javitz’s Allegations of Wiretapping\\n\\n Javitz claimed that a document filed in the ASFSCME lawsuit was a transcript of\\n\\nthe investigatory meetings in which she participated. She suspected that a specific county\\n\\n\\n\\n1\\n AI refers to Appendix Volume I, and so AII, AIII, and AIV refer to Appendix\\nVolumes II, III, and IV, respectively.\\n 3\\n\\femployee, AFSCME union representative Paula Schnelly, had recorded the meeting\\n\\nwithout Javitz’s consent—a crime under 18 Pa. Cons. Stat. § 5703.\\n\\n Javitz reported her concern to her supervisor, David Parsnik, who agreed that the\\n\\nmeeting may have been recorded. The two met with the District Attorney, who indicated\\n\\nthat she would refer the matter to the Office of the Attorney General due to a conflict of\\n\\ninterest. Javitz claims that the County Manager, Robert Lawton, intervened and instructed\\n\\nthe District Attorney to drop the matter, which Defendants deny.\\n\\n After reporting the matter, Javitz followed up with Parsnik and the County Solicitor\\n\\nabout the status of the investigation multiple times.\\n\\n After making this report to the District Attorney, Javitz alleges that county\\n\\nemployees retaliated against her. She claims that her supervisor assigned work directly to\\n\\nher subordinates and cut her out of those and other assignments for which Javitz would\\n\\nhave otherwise been responsible. She also cites her office’s relocation in May of 2015 as\\n\\nan example, but the move was planned prior to her hiring.\\n\\n Finally, on October 26, 2015, Javitz was fired. She was given no reason for her\\n\\ntermination. Id. She requested a Loudermill hearing, but was denied. Id.\\n\\n B. County’s Response\\n\\n The County maintains that Javitz was fired because of her “conduct toward [county]\\n\\nunions, her refusal to follow through with hiring a Human Resources Business Partner [(a\\n\\nvacant position in the Human Resources Department during Plaintiff’s County\\n\\nemployment)], her failure to initiate policies, procedures and initiatives as directed[,] and\\n\\n\\n\\n 4\\n\\f[her handling of] issues with the employment application for a candidate for an assistant\\n\\npublic defender position.” AI 67, ¶ 70.\\n\\n C. District Court Proceedings\\n\\n Javitz filed a complaint alleging, inter alia, a 42 U.S.C. § 1983 claim for violation\\n\\nof her procedural due process rights under the Fourteenth Amendment and for retaliation\\n\\nin violation of her First Amendment rights. The District Court granted summary\\n\\njudgment in favor of the Defendants. First, the District Court found that Javitz did not\\n\\nhave a property interest in her employment, and, thus, her termination did not violate her\\n\\nFourteenth Amendment due process rights. Second, the Court found that Javitz was not\\n\\nprotected under the First Amendment because her speech was that of a public employee,\\n\\nand not a private citizen, stating: “[Javitz] became aware of the information through her\\n\\nemployment, was encouraged to report the information by the policies of her employer,\\n\\nand reported the information only to other County employees.” AI 28. Thus, because\\n\\nJavitz spoke as a public employee and not a private citizen, the Constitution does not\\n\\nprotect her from employer discipline, or, as in this case, her termination.\\n\\n II.\\n\\n The District Court had jurisdiction pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §\\n\\n1331. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a\\n\\ndistrict court order granting summary judgment. Karns v. Shanahan, 879 F.3d 504, 512\\n\\n(3d Cir. 2018).\\n\\n\\n\\n\\n 5\\n\\f III.\\n\\n A.\\n\\n We first consider Javitz’s due process claim. The Fourteenth Amendment\\n\\nprovides that no state shall “deprive any person of life, liberty, or property, without due\\n\\nprocess of law.” U.S. Const. amend. XIV § 1. “The first step in analyzing a due process\\n\\nclaim is to determine whether the ‘asserted individual interest . . . [is] encompassed\\n\\nwithin the [F]ourteenth [A]mendment’s protection of life, liberty, or property.’” Elmore\\n\\nv. Cleary, 399 F.3d 279, 282 (3d Cir. 2005) (citation omitted) (alterations in original).\\n\\n“To have a property interest in a job [ ] . . . a person must have . . . a legitimate\\n\\nentitlement to such continued employment.” Id. (citation omitted). State law determines\\n\\nwhether a person is entitled to a property interest in their government job. Hill v.\\n\\nBorough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006).\\n\\n In Pennsylvania, employees are at-will by default; a contract or applicable state\\n\\nlaw must be shown to rebut this default status and establish a property right. See Stumpp\\n\\nv. Stroudsburg Mun Auth., 658 A.2d 333, 334–35 (Pa. 1995). In Luzerne County, Career\\n\\nService Employees may only be fired for just cause, but Exempt Level Employees are\\n\\nemployed at-will. The Luzerne County Charter is silent as to whether Javitz’s position\\n\\nwas Career Service or Exempt Level.\\n\\n Given that the County legislation is silent on this issue, we review the terms of\\n\\nJavitz’s employment to determine whether she was an Exempt Level Employee. The\\n\\noffer letter describes her position as “Exempt,” and describes her employment as “At\\n\\nWill.” AI 18–19. Given this evidence, we agree with the District Court: Javitz was hired\\n\\n 6\\n\\fas an Exempt Level Employee, did not have a property interest in her government\\n\\nposition, and thus her termination was not entitled to Fourteenth Amendment due process\\n\\nprotection. AI 20. Therefore, we will affirm the District Court’s ruling concerning\\n\\nJavitz’s due process claim.\\n\\n B.\\n\\n We next turn to Javitz’s First Amendment retaliation claim. “To prevail on a First\\n\\nAmendment retaliation claim under 42 U.S.C. § 1983, a plaintiff must prove that (1) he\\n\\nengaged in constitutionally protected conduct, (2) the defendant engaged in retaliatory\\n\\naction sufficient to deter a person of ordinary firmness from exercising his constitutional\\n\\nrights, and (3) a causal link [existed] between the constitutionally protected conduct and\\n\\nthe retaliatory action.” Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir.\\n\\n2019) (internal quotation marks and citation omitted) (alteration in original). Because the\\n\\nDistrict Court ruled that Javitz’s speech was not protected speech—by finding that she\\n\\nspoke as a public employee and not a private citizen—we focus only on the first factor.\\n\\n When determining whether an individual spoke as a public employee versus a\\n\\nprivate citizen, three Supreme Court cases guide our analysis. First, in Pickering v.\\n\\nBoard of Education, 391 U.S. 563 (1968), the Court instructed that we determine if the\\n\\nemployee spoke as a citizen on a matter of public concern, and if so, whether the\\n\\ngovernment employer was justified in treating the employee differently from any other\\n\\nmember of the general public. Id. at 568. This initial inquiry has become known as the\\n\\nPickering balancing test.\\n\\n\\n\\n 7\\n\\f Second, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court specified\\n\\nthis inquiry by holding that “when public employees make statements pursuant to their\\n\\nofficial duties, the employees are not speaking as citizens for First Amendment purposes,\\n\\nand the Constitution does not insulate their communications from employer discipline.”\\n\\nId. at 421. This rule is based on administrative efficiency and acts to keep every\\n\\nworkplace dispute from becoming a federal case. See id. at 418. This rule, however, is\\n\\nbalanced with the Court’s acknowledgement that if “employees are speaking as citizens\\n\\nabout matters of public concern, they must face only those speech restrictions that are\\n\\nnecessary for their employers to operate efficiently and effectively.” Id. at 419 (citation\\n\\nomitted).\\n\\n Third, and most recently, the Court decided Lane v. Franks, 573 U.S. 228 (2014).\\n\\nThe Lane Court focused on the nexus between the employee’s speech and his/her job\\n\\nduties, stating that “the mere fact that a citizen’s speech concerns information acquired by\\n\\nvirtue of his public employment does not transform that speech into employee—rather\\n\\nthan citizen—speech.” Id. at 240. Thus, the “critical question” is “whether the speech at\\n\\nissue is itself ordinarily within the scope of an employee’s duties, not whether it merely\\n\\nconcerns those duties.” Id.\\n\\n This Circuit has followed these cases and, when appropriate, has focused its\\n\\ninquiry on whether a public employee’s speech was informed by or the result of his or her\\n\\nprimary job duties. For example, in Flora v. County of Luzerne, 776 F.3d 169 (3d Cir.\\n\\n2015), the Acting Chief Public Defender alleged that his employer chose not to promote\\n\\nhim because of his speech—specifically, for his efforts to secure funding for the Office of\\n\\n 8\\n\\fthe Public Defender in a class action lawsuit and for publicly reporting the county’s\\n\\nnoncompliance with a Pennsylvania Supreme Court expungement order relating to the\\n\\n2008 “Kids for Cash” scandal. Id. at 172–74. The District Court dismissed the\\n\\ncomplaint, finding that Flora’s speech related to his official duties as Chief Public\\n\\nDefender, and thus was not protected speech. Id. at 174. This Court reversed, holding\\n\\nthat “[w]hile certain statements in Flora’s complaint do suggest that the speech at issue\\n\\nbore some relation to his job duties and may have, indirectly, benefitted his clients, that\\n\\ndoes not bring the speech within the realm of his ordinary job duties . . . [t]o view it\\n\\notherwise would unduly restrict First Amendment rights, because reporting malfeasance\\n\\nor misfeasance will regularly benefit an employee in the execution of his job duties by,\\n\\npresumably, removing impediments to proper government functioning.” Id. at 180\\n\\n(citation omitted).\\n\\n In Dougherty v. School District of Philadelphia, 772 F.3d 979 (3d Cir. 2014), a\\n\\nformer employee with the School District of Philadelphia was terminated after contacting\\n\\nthe local newspaper regarding alleged business misconduct by the Superintendent. Id. at\\n\\n983–84. He filed an action alleging First Amendment retaliation and was successful at\\n\\nthe District Court. Id. at 984–85. On appeal, the school district argued that Dougherty’s\\n\\nspeech was that of an employee, because “the content of [his] speech was gained from\\n\\n‘special knowledge’ and ‘experience’ [and that] his speech ‘owes its existence to’ his\\n\\nprofessional duties.” Id. 989. We found this argument unavailing, emphasizing that\\n\\n“whether an employee’s speech ‘concern[s] the subject matter of [his] employment’ is\\n\\n‘nondispositive.’” Id. (citing Garcetti, 547 U.S. at 421). Rather, “[u]nder Lane, [we\\n\\n 9\\n\\fdetermined] that Dougherty’s report to [the newspaper] was not made pursuant to his\\n\\nofficial job duties . . . [and was] not foreclosed merely because the subject matter of the\\n\\nspeech concern[ed] or relate[d] to those duties.” Id. at 990.\\n\\n Again, in De Ritis v. McGarrigle, 861 F.3d 444 (3d Cir. 2017), we distinguished\\n\\ncitizen speech from employee speech by focusing on the primary job duties of the\\n\\nplaintiff. In De Ritis, we held that a public defender’s rumormongering about his\\n\\nperceived demotion to judges and attorneys while in the courtroom was not protected\\n\\nspeech, because as an attorney, rapport-building conversations with judges and other\\n\\nattorneys just before or after a case proceeding are “part and parcel of [a public\\n\\ndefender’s] ordinary job duties—not citizen speech.” Id. at 453–54 (citation omitted).\\n\\nWe distinguished, however, out-of-court conversations De Rittis had with the county\\n\\nsolicitor and chair of the county council, both high-ranking county officials that De Ritis\\n\\nhad access to as a result of his work. We held those conversations to be citizen speech,\\n\\nbecause these out-of-court conversations, possible only by virtue of his employment,\\n\\nwere not “‘part of the work [De Ritis] was paid to perform on an ordinary basis.’” Id. at\\n\\n454 (quoting Flora, 776 F.3d at 180) (alteration in original).\\n\\n C.\\n\\n This case is analogous to Flora, Dougherty, and De Ritis. As in those cases, our\\n\\nthreshold inquiry is whether Javitz spoke as a citizen or a public employee, and as such,\\n\\nwhether her speech was either “ordinarily within the scope of [her] duties,” or simply\\n\\nrelating to those duties. Lane, 573 U.S. at 240. Who Javitz spoke to, what she spoke\\n\\n\\n\\n 10\\n\\fabout, and why she spoke at all each fall outside the scope of her primary job duties and\\n\\nevidence citizen speech.\\n\\n 1.\\n\\n Here, as in De Ritis, Javitz had access to high-ranking county officials by virtue of\\n\\nher job as the Human Resources Director. Javitz had the ability to communicate and\\n\\ninterface with these individuals in a manner that someone not employed by the county,\\n\\nand someone without the position of Human Resources Director, would have. But access\\n\\nto these individuals is secondary to our citizen speech inquiry—we must focus on\\n\\nwhether Javitz interfacing with them was a part of her primary job duties.\\n\\n The District Court found that it was “by virtue of [Javitz’s] position as a public\\n\\nemployee that [she] was allowed to make the speech in the mode and manner in which\\n\\nshe did; that is, accompanied by her supervisor and director to the District Attorney.”\\n\\nJavitz v. Luzerne Cty., No. 3:15-CV-2443, 2018 WL 1545589, at *10 (M.D. Pa. Mar. 29,\\n\\n2018). This reasoning does not follow our precedent—unless the mode and manner of\\n\\nJavitz’s speech was “part of the work [she] was paid to perform on an ordinary basis[,]”\\n\\nthe fact that she could easily contact the District Attorney by virtue of her employment\\n\\ndoes not support a finding that Javitz spoke as an employee and not a citizen. De Ritis,\\n\\n861 F.3d at 454 (quoting Flora, 776 F.3d at 180).\\n\\n 2.\\n\\n The subject of Javitz’s speech was also not within her ordinary job duties. Javitz\\n\\nreported a crime. But the record and the District Court found that nowhere in her job\\n\\nduties was she instructed to report crimes. Rather, the District Court placed significant\\n\\n 11\\n\\femphasis on the County Ethics Code which “encouraged [Javitz] to disclose any\\n\\ninformation which . . . she believe[d] evidence[ed] a violation of any law, rule or\\n\\nregulation.” Javitz, 2018 WL 1545589, at *9.\\n\\n Here, our focus remains on whether Javitz spoke “pursuant to [her] official job\\n\\nduties.” Dougherty, 772 F.3d at 990. Without more, relying on the County Ethics Code\\n\\nthat merely encourages reporting wrongdoing is not enough to bring her reporting into\\n\\nthe realm of her ordinary job duties. The District Court’s emphasis on the suggestion by\\n\\nthe County Ethics Code is misplaced. It is commonplace for ethics codes and employee\\n\\nhandbooks to encourage reporting wrongdoing, and absent some formal job duty or\\n\\nresponsibility, such encouragement is not enough to bring Javitz’s reporting into the\\n\\nrealm of her official duties—that is, the realm of employee speech.\\n\\n 3.\\n\\n Lastly, the why of Javitz’s reporting. “Speech involves matters of public concern\\n\\nwhen it can be fairly considered as relating to any matter of political, social, or other\\n\\nconcern to the community, or when it is subject of legitimate news interest; that is, a\\n\\nsubject of general interest and of value and concern to the public.” Lane, 573 U.S. at 241\\n\\n(internal quotations and citation omitted); see also Connick v. Myers, 461 U.S. 138, 146\\n\\n(1983). In Pennsylvania, “telephonic interloping is illegal unless the individuals at both\\n\\nends of the conversation agree that what they say to one another may be made public.”\\n\\nCommonwealth v. Murray, 223 A.2d 102, 105 (Pa. 1966). Without such consent,\\n\\nrecording another individual becomes a class 3 felony. See 18 Pa. Cons. Stat. § 5703.\\n\\n\\n\\n 12\\n\\f We have held that “an internal investigation into the alleged criminal actions of\\n\\npublic employees falls squarely within the core public speech delineated in Connick.”\\n\\nBaldassare v. State of N.J., 250 F.3d 188, 196–97 (3d Cir. 2001) (internal quotation\\n\\nmarks and citations omitted). Javitz likely had some personal motivations for following\\n\\nup on the status of the investigation—victims of crimes often do. But that does not\\n\\nremove her reporting to merely a “personal curiosity,” as the District Court described.\\n\\nJavitz, 2018 WL 1545589, at *11. Because Javitz reported that she believed she was the\\n\\nvictim of a crime, and because she followed up on the status of the investigation into that\\n\\ncrime, she was speaking on a matter of public importance.\\n\\n\\n\\n Our inquiry in this case has been a practical one. De Ritis, 861 F.3d at 453. Javitz\\n\\nfound herself in a county role that placed her within reach of local authority figures. The\\n\\nposition was accompanied with a County Ethics Code that encouraged reporting of\\n\\nwrongdoing. Javitz was allegedly the victim of a crime, which she reported. The crime,\\n\\nsubsequent contact with local authority figures regarding that crime, and the lack of any\\n\\nformal duty to report that crime are evidence that she was not experiencing or acting\\n\\nwithin the primary functions of her employment. Thus, we hold that Javitz’s speech was\\n\\nthat of a citizen speaking to a matter of public concern.\\n\\n IV.\\n\\n For the foregoing reasons, we will affirm the District Court’s ruling concerning\\n\\nJavitz’s due process claim. We will, however, reverse its ruling regarding Javitz’s First\\n\\n\\n\\n 13\\n\\fAmendment retaliation claim and remand for further proceedings consistent with this\\n\\nopinion.\\n\\n\\n\\n\\n 14\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4559,"cells":{"id":{"kind":"number","value":4669545,"string":"4,669,545"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Jane Orie v. Secretary Pennsylvania Departm"},"decision_date":{"kind":"string","value":"2019-10-15"},"docket_number":{"kind":"string","value":"16-1685"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Third Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: JORDAN, BIBAS, and MATEY, Circuit Judges (\", \"parties\": \"\", \"opinions\": [{\"author\": \"BIBAS, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"PRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n _______________\\n\\n No. 16-1685\\n _______________\\n\\n JANE C. ORIE,\\n Appellant\\n\\n v.\\n\\n SECRETARY PENNSYLVANIA DEPARTMENT OF\\n CORRECTIONS\\n _______________\\n\\n On Appeal from the United States District Court\\n for the Western District of Pennsylvania\\n (D.C. No. 2-15-cv-01153)\\n Magistrate Judge: Honorable Robert C. Mitchell\\n _______________\\n\\n Argued June 5, 2019\\n\\n Before: JORDAN, BIBAS, and MATEY, Circuit Judges\\n\\n (Filed: )\\n _______________\\n\\nWilliam C. Costopoulos [ARGUED]\\nCostopoulos Foster & Fields\\n\\f831 Market Street\\nP.O. Box 222\\nLemoyne, PA 17043\\n Counsel for Appellants\\n\\nRonald M. Wabby, Jr. [ARGUED]\\nAllegheny County Office of District Attorney\\n436 Grant Street\\nPittsburgh, PA 15219\\n Counsel for Appellees\\n _______________\\n\\n OPINION OF THE COURT\\n _______________\\n\\nBIBAS, Circuit Judge.\\n Forging evidence is one way to get a mistrial. Jane Orie, a\\nformer Pennsylvania state senator, introduced forged evidence\\nat her trial in state court. So the judge declared a mistrial. (The\\nexhibits that triggered the mistrial are appended to this opin-\\nion.) During Orie’s second trial, the court excluded her expert\\nwitness because his testimony would have been irrelevant. Af-\\nter her second trial, a jury convicted her of forgery, theft of\\nservices, Pennsylvania Ethics Act violations, and related\\ncrimes. Orie now brings a federal habeas petition challenging\\nthese convictions.\\n We hold that Orie’s convictions do not warrant habeas re-\\nlief. To start, we lack jurisdiction to consider her challenge to\\nher Ethics Act convictions because she is not in custody for\\nthose convictions. On the merits, the state appellate court rea-\\nsonably upheld the trial court’s finding that a mistrial was\\n\\n\\n\\n\\n 2\\n\\fmanifestly necessary because the forged documents could have\\ntainted the jury’s verdict. So the mistrial and retrial did not\\namount to double jeopardy. And Orie did not show that her\\nsenate-rules expert’s testimony would have been material, so\\nshe had no constitutional right to call this witness. As to the\\nEthics Act convictions, we will thus vacate and remand with\\ninstructions to dismiss for lack of jurisdiction. We will other-\\nwise affirm.\\n I. BACKGROUND\\n Orie used her government-funded legislative staff to do po-\\nlitical fundraising and campaigning for her reelection. When\\nthe Commonwealth started investigating that behavior and\\nother alleged misconduct, she tried to hide and destroy docu-\\nments. The Commonwealth then charged Orie with several\\ncrimes related to using state employees for personal gain and\\nlater trying to cover it up. Her sisters, Joan Orie Melvin, a\\nPennsylvania Supreme Court Justice, and Janine Orie, Mel-\\nvin’s aide, were charged with similar crimes.\\n A. Orie’s first trial and the forged exhibits\\n In February 2011, Orie’s case went to trial in Pennsylvania\\nstate court. At trial, she argued that she had consistently in-\\nstructed her staff not to do political work on legislative time.\\nShe accused her chief of staff, Jamie Pavlot, of disobeying her\\ninstructions by letting staff do campaign work on the taxpay-\\ners’ dime. Orie introduced and authenticated a number of ex-\\nhibits with directives from her to Pavlot not to do political work\\non legislative time. But Orie claimed that Pavlot disregarded\\nthese directives.\\n\\n\\n\\n\\n 3\\n\\f Pavlot, who testified for the prosecution, said she did not\\nrecall seeing these directives. Orie’s lawyer found this incred-\\nible. Both in his cross-examination of her and in his closing\\nargument, he repeatedly questioned Pavlot’s failure to recog-\\nnize the documents.\\n But the prosecution quickly determined that at least two of\\nthese exhibits had forged signatures. See infra Appendix. Dur-\\ning the cross-examination of Orie, the prosecution pointed out\\nthat Pavlot’s signature line on one exhibit did not line up with\\nthe other words on the page. See infra Appendix Ex. 101B. And\\nthe prosecution claims that it noticed during jury deliberations\\nthat Pavlot’s signature on a different exhibit seemed to have\\nbeen copied and pasted from another document. Compare infra\\nAppendix Ex. 101A (original signature), with id. Ex. 110 (cop-\\nied-and-pasted signature). The prosecution made this discov-\\nery only three days after the defense belatedly turned over these\\nexhibits.\\n The court immediately held a hearing to figure out what to\\ndo about the alleged forgeries. At the hearing, the prosecution\\ncalled a handwriting expert, who testified that the signatures\\non the documents had been copied and pasted. The defense\\nchose neither to cross-examine the prosecution’s expert nor to\\nintroduce any evidence to contradict the expert’s testimony.\\nThe prosecution asked the court to give the jury a special in-\\nstruction on these forged documents. The defense objected to\\nany new jury instructions, saying that it would prefer a mistrial\\nto a new instruction. But Orie also objected to a mistrial and\\nsimply asked that jury deliberations resume. The court found\\nthat the forged documents were “a fraud on the Court,” the\\n\\n\\n\\n\\n 4\\n\\fjury, and the justice system; “call[ed] into suspicion every doc-\\nument that the defense offered”; and could undermine any ver-\\ndict that the jury might reach. App. 1573a. So it declared a mis-\\ntrial.\\n After the mistrial, the prosecution had the Secret Service\\ntest the authenticity of thirty-four original defense exhibits.\\nThe Secret Service found that well over a dozen of these ex-\\nhibits had handwriting that “may have been reproduced via\\nphotocopies.” App. 1695a. It also found evidence that Pavlot’s\\nsignature had been copied and pasted into three exhibits. As\\ndiscussed below, after her second trial, Orie was convicted of\\nforgery and evidence tampering for introducing fake exhibits\\nduring her first trial.\\n B. Orie’s second trial and exclusion of her expert\\n witness\\n In February 2012, Orie went to trial again on both her orig-\\ninal charges and new charges related to the fake exhibits. Dur-\\ning this second trial, the prosecution called an expert who tes-\\ntified that Orie’s office lease barred her staff from using that\\noffice for anything besides legislative work. Orie asked to call\\nan expert in rebuttal. She said that her expert would testify that\\nthe senate rules let staff do political work from senators’ legis-\\nlative offices on comp time. (Compensatory time, often called\\ncomp time, is time that an employee may take off work in re-\\nturn for having worked extra hours. See, e.g., 29 U.S.C.\\n§ 207(o).)\\n The prosecution argued that the senate rules were irrele-\\nvant. It pointed out that Orie’s behavior could break the law\\n\\n\\n\\n\\n 5\\n\\feven if her behavior did not violate the senate rules. The court\\nagreed. The court also worried that the jury might think her\\nexpert was opining on the law. So it excluded her senate-rules\\nexpert.\\n The jury convicted Orie of theft of services, conspiracy to\\ncommit theft of services, evidence tampering, and forgery. It\\nalso convicted her of using her political position for personal\\ngain, in violation of the Pennsylvania Ethics Act, 65 Pa. Cons.\\nStat. § 1103(a) (conflict of interest). See also id. § 1102 (defin-\\ning conflict of interest). The court sentenced Orie to prison for\\nher theft-of-services, conspiracy, evidence-tampering, and for-\\ngery convictions. But on the Ethics Act convictions, it imposed\\n“[n]o further penalty.” App. 1066a; see Pa. Cons. Stat. § 9723.\\n C. Post-conviction proceedings\\n Orie appealed her convictions in state court, but to no avail.\\nCommonwealth v. Orie, 88 A.3d 983 (Pa. Super. Ct.), appeal\\ndenied, 99 A.3d 925 (Pa. 2014). She then filed this federal ha-\\nbeas petition, which the District Court rejected on the merits.\\nWe granted a certificate of appealability. On appeal, she makes\\nthree arguments: first, that the Pennsylvania Ethics Act is un-\\nconstitutionally vague; second, that her retrial violated the\\nDouble Jeopardy Clause; and third, that excluding her senate-\\nrules expert violated her constitutional right to call witnesses\\nin her defense.\\n Besides disputing these claims on the merits, the Common-\\nwealth raises two procedural issues: First, it argues that we lack\\njurisdiction over Orie’s Ethics Act claim, because she received\\nno further penalty. Second, it argues that she failed to exhaust\\n\\n\\n\\n\\n 6\\n\\fher Sixth Amendment claim. Her habeas appeal was consoli-\\ndated with those of her sisters, who were also convicted of var-\\nious crimes. We will issue separate opinions in each case.\\n D. Standard of review\\n On federal habeas review of state convictions, we defer to\\nstate courts. “[W]e review the ‘last reasoned decision’ of the\\nstate courts on the petitioner’s claims.” Simmons v. Beard, 590\\nF.3d 223, 231–32 (3d Cir. 2009) (quoting Bond v. Beard, 539\\nF.3d 256, 289–90 (3d Cir. 2008)). We must presume that the\\nstate court’s factual findings are correct. 28 U.S.C.\\n§ 2254(e)(1). A petitioner can rebut this presumption only by\\noffering “clear and convincing evidence.” Id.\\n We also defer to state courts on issues of law: We must up-\\nhold their decisions of law unless they are “contrary to, or in-\\nvolve[ ] an unreasonable application of, clearly established\\nFederal law, as determined by the Supreme Court of the United\\nStates.” Id. § 2254(d)(1). So on federal habeas, “even ‘clear er-\\nror’ will not suffice.” White v. Woodall, 572 U.S. 415, 419\\n(2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76\\n(2003)). Instead, the state court must be wrong “beyond any\\npossibility for fairminded disagreement.” Id. at 420 (quoting\\nHarrington v. Richter, 562 U.S. 86, 103 (2011)).\\n II. WE LACK JURISDICTION OVER ORIE’S\\n ETHICS ACT CLAIM\\n Orie is not in custody for her Pennsylvania Ethics Act con-\\nvictions. We thus lack jurisdiction to reach the merits of her\\nclaim that the Ethics Act is unconstitutionally vague.\\n\\n\\n\\n\\n 7\\n\\f A federal court has habeas jurisdiction only if the petitioner\\nis “in custody.” 28 U.S.C. § 2254(a). She is in custody when\\nshe suffers a “non-negligible restraint on [her] physical liberty”\\nbecause of a particular conviction. Piasecki v. Court of Com-\\nmon Pleas, 917 F.3d 161, 166 (3d Cir. 2019) (internal quota-\\ntion marks omitted). We gauge custody for each offense inde-\\npendently. Maleng v. Cook, 490 U.S. 488, 490–92 (1989). In\\nother words, a defendant convicted of multiple offenses can be\\nin custody for one but not for another.\\n Orie was sentenced to “[n]o further penalty” on her Ethics\\nAct convictions. App. 1066a. She received no sentence of in-\\ncarceration or confinement of any kind on those counts. So\\nOrie suffered no physical restraint and thus was never in cus-\\ntody for these offenses.\\n Orie claims she was in custody for her Ethics Act convic-\\ntions because she suffered one “general sentence” for all her\\noffenses. Appellant’s Br. 24. But her sentencing order imposed\\na discrete sentence for each count of conviction. And the order\\nsaid that she would not be punished beyond a determination of\\nguilt for her Ethics Act convictions.\\n Orie also argues that she was in custody for her Ethics Act\\nconvictions because her conspiracy and theft-of-services con-\\nvictions were “predicated” on her Ethics Act convictions. Id.\\nThis argument fails as well. Her conspiracy conviction was\\npredicated instead on her agreement to commit theft of ser-\\nvices. And the theft-of-services statute does not depend on any\\nother offense. See 18 Pa. Cons. Stat. § 3926(b). Her convictions\\nmay have been based on the same behavior, but Orie’s Ethics\\nAct convictions were separate from her other convictions. She\\n\\n\\n\\n\\n 8\\n\\fis in custody for her conspiracy and theft-of-services convic-\\ntions, not her Ethics Act convictions. We thus lack habeas ju-\\nrisdiction over her Ethics Act claim.\\n III. THE SUPERIOR COURT PROPERLY UPHELD\\n ORIE’S RETRIAL\\n The Fifth Amendment’s Double Jeopardy Clause ordinarily\\nbars retrials. But a retrial after a mistrial does not amount to\\ndouble jeopardy when the mistrial was manifestly necessary.\\nArizona v. Washington, 434 U.S. 497, 505 (1978). Though\\nmanifest necessity requires a “high degree of necessity,” mak-\\ning that judgment call is “reserved to the broad discretion of\\nthe trial judge.” Renico v. Lett, 559 U.S. 766, 774 (2010) (in-\\nternal quotation marks omitted). We scrutinize a mistrial more\\nclosely if the trial judge has not exercised his “sound discre-\\ntion” or if the prosecutor appears to be “harass[ing]” or gaining\\na “tactical advantage over the accused.” Arizona v. Washing-\\nton, 434 U.S. at 508, 510 n.28. But absent such prosecutorial\\nmisconduct, if a trial judge grants a mistrial to prevent a jury\\nverdict from being tainted by other trial misconduct, that judg-\\nment “is entitled to special respect.” Id. at 510.\\n We are even more deferential on federal habeas review. We\\nlook to the last reasoned state-court decision, which here is the\\nPennsylvania Superior Court’s affirmance on direct appeal.\\nWe do not ask whether the trial judge should have declared a\\nmistrial, nor whether it abused its discretion by doing so. Ra-\\nther, we ask only whether the state appellate court’s finding\\nthat there was no abuse of discretion was “an unreasonable ap-\\nplication of . . . clearly established Federal law, as determined\\n\\n\\n\\n\\n 9\\n\\fby the Supreme Court of the United States.” 28 U.S.C.\\n§ 2254(d)(1); accord Renico, 559 U.S. at 772–73.\\n A. The Superior Court’s decision was reasonable\\n The Pennsylvania Superior Court’s decision more than sat-\\nisfies our deferential standard of review. To begin, it reasona-\\nbly set forth the federal principles governing appeals of a man-\\nifest-necessity finding. It explained that it was reviewing for\\nabuse of discretion, deferring to the trial court’s superior ability\\nto gauge potential bias and jury prejudice. 88 A.3d at 995–97;\\nsee Renico, 559 U.S. at 772–73 (standard of review); Arizona\\nv. Washington, 434 U.S. at 510 (deference). And it warned that\\ntrial courts should not declare mistrials too readily and should\\nresolve any doubts in favor of the defendant. 88 A.3d at 996;\\nsee Renico, 559 U.S. at 772–74.\\n Next, the Superior Court reasoned that the trial court had\\nlegal authority to grant a mistrial once it discovered that the\\nexhibits were forged. It reasonably held that “[o]nce the trial\\njudge realized forged documents had been admitted into evi-\\ndence, he could not allow those documents to enter into the\\njury’s deliberation and verdict.” 88 A.3d at 998. No Supreme\\nCourt case suggests otherwise. On the contrary, in so holding,\\nthe Superior Court cited and reasonably interpreted the Su-\\npreme Court’s guidance. See id. (citing trial court’s opinion as\\nin turn citing Hazel-Atlas Glass Co. v. Hartford-Empire Co.,\\n322 U.S. 238 (1944)); see also Hazel-Atlas, 322 U.S. at 246\\n(“The public welfare demands that the agencies of public jus-\\ntice be not so impotent that they must always be mute and help-\\nless victims of deception and fraud.”).\\n\\n\\n\\n\\n 10\\n\\f The Superior Court also reasonably upheld the trial court’s\\n“initial factual determination that the documents were forger-\\nies.” 88 A.3d at 998–99. In doing so, it made a series of rea-\\nsonable observations: The jury did not have enough evidence\\nto resolve that question. Id. at 998. Though the prosecution\\nbrought out Exhibit 101B’s defects on cross-examination of\\nOrie, it did not discover Exhibit 110’s forgery until after the\\njury had started deliberating. Id. The jury was never instructed\\nwhat to do if it found that documents were forged. Id. And be-\\ncause the defense did not let the prosecution inspect the docu-\\nments until the second-to-last day of trial, the prosecution\\ncould not have discovered the forgeries earlier. So the prose-\\ncution could not introduce evidence to help the jury evaluate\\nthe exhibits. Id. at 998–99. The record amply supports each of\\nthese observations.\\n Further, the Superior Court reasoned that the forged exhib-\\nits were material to the trial’s outcome. As it noted, Orie had\\nargued “that Pavlot had the complete authority to direct the\\nstaffers and that Pavlot acted on her own initiative and against\\nOrie’s directives that no improper political activity occur in the\\noffice.” Id. at 999. The forged documents supported that read-\\ning. Orie had introduced these documents to show that Pavlot\\nhad disobeyed Orie’s directives and let the staff do campaign\\nwork on legislative time. These and similar documents were\\nthe basis of Orie’s argument to the jury that Pavlot, not Orie,\\nwas responsible for the staffers’ actions. And when Pavlot\\ncould not remember any of the directives on cross-examina-\\ntion, the defense impugned her credibility.\\n\\n\\n\\n\\n 11\\n\\f Pavlot’s credibility was at the heart of the case. As Orie’s\\nlawyer argued in closing, “[t]he Commonwealth’s case rises\\nand falls on [Pavlot’s] truthfulness.” Tr. Pt. 7, 1st Trial (Mar.\\n2, 2011), p. 3180. So Pavlot’s forged signatures on those doc-\\numents greatly inflated the force of Orie’s arguments and her\\ncross-examination of Pavlot.\\n Finally, the Superior Court emphasized that while the trial\\ncourt had solicited and weighed alternative remedies, it had\\nreasonably found that nothing short of a mistrial would coun-\\nteract the fraud. 88 A.3d at 998–99. That reasoning is sound.\\nThe trial court repeatedly asked the parties what it should do\\nabout the forgeries, both before and after hearing from the\\nhandwriting expert. Twice, the prosecution suggested a cura-\\ntive instruction. But twice, the defense balked, insisting that\\n“[b]efore you do that then declare a mistrial” and that giving\\nan instruction “is absolutely not an option here.” App. 1557a,\\n1571a. Orie’s only proposed remedy, as the Superior Court\\nnoted, was to do nothing. See 88 A.3d at 999 & n.13; see also\\nApp. 1572a (“We are asking that [the jury’s] deliberations re-\\nsume immediately, and we are opposed to a mistrial.”). Given\\nthe importance of the forged documents, the threat to the integ-\\nrity of the verdict, and the lack of a good alternative remedy,\\nthe only solution was a mistrial. So we cannot say that the Su-\\nperior Court’s decision to uphold the grant of a mistrial was\\nunreasonable.\\n B. Orie’s objections fail\\n Orie challenges the decision upholding the mistrial on five\\ngrounds. Not one succeeds.\\n\\n\\n\\n\\n 12\\n\\f First, she criticizes the trial court’s decision to halt jury de-\\nliberations and seize the questioned exhibits after speaking\\nonly with the prosecution. But even if that is what happened,\\nthere is nothing wrong with that. When they learn of possible\\nmisconduct, judges often tell juries to stop deliberating without\\nfirst telling counsel. E.g., United States v. Bristol-Mártir, 570\\nF.3d 29, 36 (1st Cir. 2009). To resolve the forgery allegation\\nhere, the trial court needed the challenged exhibits, which the\\njury had. And there is no reason to think that asking for a pause\\ncaused incurable harm. The trial court told the jury only that\\n“there is a legal matter before the Court” and warned the bailiff\\nto retrieve the exhibits without talking to anyone. App. 1541a.\\n Besides, there was no significant ex parte communication.\\nThe prosecutor said exactly two sentences to the judge before\\nthe judge told him to wait for defense counsel. When the judge\\ntold him to wait, “[d]efense counsel was just entering the court-\\nroom.” App. 1589a. The judge did not see the forged docu-\\nments, hear the prosecutor’s arguments, or start to discuss a\\nmistrial before defense counsel got there. Nor is there any ban\\non declaring a mistrial sua sponte. United States v. Wecht, 541\\nF.3d 493, 504 (3d Cir. 2008).\\n Second, Orie claims that the prosecution had repeatedly\\nquestioned the defense exhibits’ credibility and meaning, so\\nthe jury was already on notice of potential forgery. But ques-\\ntioning evidence’s credibility and meaning is quite different\\nfrom showing that it is forged. The specter of forged trial ex-\\nhibits came up only briefly at trial—most notably when the\\nprosecution questioned Exhibit 101B’s authenticity on cross-\\nexamination.\\n\\n\\n\\n\\n 13\\n\\f Third, Orie argues that the trial judge usurped the jury’s\\nfactfinding role. She argues that the jury should have decided\\nthe question of forgery, not the judge. But there is no legal or\\nlogical reason why courts cannot find facts in granting mistri-\\nals. Indeed, they must do so, especially where the impropriety\\ngiving rise to the mistrial could prejudice the jury.\\n Fourth, Orie blames the prosecution for seeking a tactical\\nadvantage and intentionally provoking a mistrial. But the pros-\\necution never asked for a mistrial, even after the court dis-\\ncussed that possibility and even after the handwriting expert\\ntestified. Indeed, the remedies it did request were quite tame\\nand reasonable. At first, it asked the court to instruct the jury\\nto compare the two signatures and draw its own conclusions.\\nAfter the expert testified, the prosecution sought an instruction\\nor stipulation that the documents were forged and an instruc-\\ntion to consider the significance of the forgery. But Orie re-\\nfused to consider these options, instead preferring a mistrial. If\\nanyone provoked a mistrial, it was Orie herself.\\n Finally, Orie says that the trial court erred by “convicting”\\nher of forgery and fraud without evidence that she intentionally\\ndid anything wrong. Appellant’s Br. 50. She also objects that\\nPavlot had custody of the documents and so she could have\\nbeen responsible for the forgery. But the trial court never ac-\\ncused Orie herself of forgery. Rather, it said: “I don’t know\\nwho among the parties involved for the defense has done this,\\nbut I cannot allow this jury to continue with fraudulent infor-\\nmation in front of them.” App. 1573a.\\n What is more, the trial court acted reasonably in blaming\\nthe defense for the forgeries. Orie’s counsel told the court that\\n\\n\\n\\n\\n 14\\n\\fthe documents “were and are in [the defense’s] possession” un-\\ntil trial; the prosecution said that, as far as it knew, the docu-\\nments had come from Orie’s office; and Orie never contested\\nthat statement. App. 1555a.\\n In short, we see no basis to disturb the Superior Court’s re-\\njection of Orie’s double-jeopardy claim.\\n IV. EXCLUDING ORIE’S ETHICS EXPERT WAS PROPER\\n Orie argues that the trial court violated her constitutional\\nright to present her defense by excluding her expert witness on\\nthe senate rules. Though Orie may not have preserved this\\nclaim, the Commonwealth waived the exhaustion requirement.\\nStill, this claim is meritless. She had no right to call her witness\\nbecause the witness’s testimony would have been immaterial.\\n A. We will address the merits of Orie’s constitutional\\n claim\\n The Commonwealth waived its argument that Orie did not\\nexhaust her constitutional claim. Before we can review a state\\nhabeas petition, the petitioner must first exhaust her state rem-\\nedies. 28 U.S.C. § 2254(b)(1)(A). But a state can waive exhaus-\\ntion if it does so explicitly through counsel. Id. § 2254(b)(3).\\nThat waiver is valid even when lack of exhaustion would oth-\\nerwise have barred the petitioner’s claim. Sharrieff v. Cathel,\\n574 F.3d 225, 229 (3d Cir. 2009).\\n Here, in its answer to Orie’s habeas petition, the Common-\\nwealth waived the exhaustion requirement. It conceded that\\n“Petitioner’s claims are exhausted” and “Petitioner’s claims\\nare not procedurally defaulted.” D.C. ECF No. 64, pp. 34–35.\\n\\n\\n\\n\\n 15\\n\\fThese statements were in the answer signed by the Common-\\nwealth’s counsel and filed in the District Court. So the Com-\\nmonwealth waived exhaustion. We will decide her claim on the\\nmerits.\\n The parties quibble over whether Orie’s constitutional\\nclaim was before the Superior Court. Orie insists that she has\\nall along framed her challenge to the expert’s exclusion in con-\\nstitutional terms. (She now phrases it primarily in terms of the\\nSixth Amendment, but also touches lightly on due process.)\\nThe Commonwealth tells us that in state court, Orie made only\\nan evidentiary argument. And the Superior Court, for its part,\\nreasoned in evidentiary terms. 88 A.3d at 1000–01.\\n But we need not decide whether the Superior Court’s ruling\\nimplicitly addressed the merits of Orie’s constitutional argu-\\nment, and so would merit deference on habeas. Whether habeas\\ndeference applies or not, the trial court’s exclusion of the evi-\\ndence did not violate the Constitution. See Berghuis v. Thomp-\\nkins, 560 U.S. 370, 390 (2010).\\n We have seen “apparently little, if any, difference in the\\nanalysis” of excluding evidence under compulsory process or\\ndue process. Gov’t of the V.I. v. Mills, 956 F.2d 443, 445 n.4\\n(3d Cir. 1992). So we will focus, as Orie does, on the Sixth\\nAmendment.\\n B. Orie had no right to put on a senate-rules expert\\n because his testimony would not have been material\\n to her trial\\n Orie’s senate-rules expert would not have offered material\\ntestimony, so she had no Sixth Amendment right to call him.\\n\\n\\n\\n\\n 16\\n\\f The Sixth Amendment’s Compulsory Process Clause guar-\\nantees a defendant the right to call witnesses in her defense.\\nWashington v. Texas, 388 U.S. 14, 19 (1967). But it does not\\ngive a defendant the right to introduce any testimony she likes.\\nTaylor v. Illinois, 484 U.S. 400, 410 (1988). Courts may ex-\\nclude incompetent, privileged, or otherwise inadmissible testi-\\nmony under the rules of evidence. Id.; Montana v. Egelhoff,\\n518 U.S. 37, 42 (1996).\\n To make out a violation of this Sixth Amendment right to\\ncompulsory process, the defendant must show that the wit-\\nness’s “testimony would have been both material and favorable\\nto [the] defense.” United States v. Valenzuela-Bernal, 458 U.S.\\n858, 867 (1982). Not all relevant evidence is material. To be\\nmaterial, it must be reasonably likely to affect the trial’s out-\\ncome. Id. at 873–77.\\n Orie’s expert testimony was unlikely to affect her trial’s\\noutcome. Her witness was an expert on the senate’s rules. He\\nwould have testified that these rules let staff do political work\\nin legislative offices using comp time. But Orie was not ac-\\ncused of telling her staff to do political work during comp time.\\nOrie conceded as much. So the jury could not have convicted\\nher for that. Instead, to convict, the jury had to find that she\\ntold her staff to do political work on the state’s time. And her\\nexpert testimony about what employees could do on comp time\\ncould not have affected that finding.\\n Orie’s rejoinder depends on a misreading of the record. She\\nargues that the prosecution’s expert had inaccurately testified\\nthat the senate rules forbade all political work in legislative of-\\nfices. So, she says, she needed her expert to rebut that\\n\\n\\n\\n\\n 17\\n\\ffalsehood. But the prosecution’s expert never made such a\\nstatement. The prosecution’s expert had testified that Orie’s of-\\nfice lease, not the senate rules, barred using the office for any-\\nthing but legislative work. So her expert would not have rebut-\\nted the prosecution’s expert.\\n Not only was Orie’s expert testimony immaterial, but it\\ncould have confused the jury. Judges may exclude evidence\\nthat risks “confusing the issues, [or] misleading the jury.” Pa.\\nR. Evid. 403. Her expert could have led the jury to confuse\\nwhat the senate rules allowed with what Pennsylvania law al-\\nlowed. The trial court wanted the jury to learn the law from the\\ncourt’s instructions rather than from a witness’s testimony. The\\ncourt’s reasonable exclusion of evidence under the “standard\\nrules of evidence” does not violate the Sixth Amendment.\\nEgelhoff, 518 U.S. at 42 (quoting Taylor, 484 U.S. at 410).\\n * * * * *\\n All three of Orie’s arguments fail. She is not in custody for\\nher Ethics Act convictions, so we lack jurisdiction to hear her\\nchallenge to that statute. The Superior Court reasonably af-\\nfirmed the trial court’s finding that the forged documents made\\na mistrial manifestly necessary, so retrying her did not amount\\nto double jeopardy. And Orie’s expert testimony about senate\\nrules was immaterial to her case, so excluding her expert wit-\\nness did not violate her constitutional right to put on her de-\\nfense. As to the Ethics Act convictions, we will thus vacate and\\nremand with instructions to dismiss for lack of jurisdiction. We\\nwill otherwise affirm.\\n\\n\\n\\n\\n 18\\n\\f Appendix\\n Exhibit 101A\\n(Compare Pavlot’s signature with Exhibit 110)\\n\\n\\n\\n\\n 19\\n\\fExhibit 101B\\n\\n\\n\\n\\n 20\\n\\f Exhibit 110\\n(Compare Pavlot’s signature with Exhibit 101A)\\n\\n\\n\\n\\n 21\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4446798/\", \"author_raw\": \"BIBAS, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"JORDAN"},"judge2":{"kind":"string","value":"BIBAS"},"judge3":{"kind":"string","value":"MATEY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JORDAN\": \", Circuit\", \"BIBAS\": \", Circuit\", \"MATEY\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4669545/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Jane Orie v. Secretary Pennsylvania Departm\nCourt: U.S. Court of Appeals for the Third Circuit\nDate decided: 2019-10-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _______________\n\n No. 16-1685\n _______________\n\n JANE C. ORIE,\n Appellant\n\n v.\n\n SECRETARY PENNSYLVANIA DEPARTMENT OF\n CORRECTIONS\n _______________\n\n On Appeal from the United States District Court\n for the Western District of Pennsylvania\n (D.C. No. 2-15-cv-01153)\n Magistrate Judge: Honorable Robert C. Mitchell\n _______________\n\n Argued June 5, 2019\n\n Before: JORDAN, BIBAS, and MATEY, Circuit Judges\n\n (Filed: )\n _______________\n\nWilliam C. Costopoulos [ARGUED]\nCostopoulos Foster & Fields\n\f831 Market Street\nP.O. Box 222\nLemoyne, PA 17043\n Counsel for Appellants\n\nRonald M. Wabby, Jr. [ARGUED]\nAllegheny County Office of District Attorney\n436 Grant Street\nPittsburgh, PA 15219\n Counsel for Appellees\n _______________\n\n OPINION OF THE COURT\n _______________\n\nBIBAS, Circuit Judge.\n Forging evidence is one way to get a mistrial. Jane Orie, a\nformer Pennsylvania state senator, introduced forged evidence\nat her trial in state court. So the judge declared a mistrial. (The\nexhibits that triggered the mistrial are appended to this opin-\nion.) During Orie’s second trial, the court excluded her expert\nwitness because his testimony would have been irrelevant. Af-\nter her second trial, a jury convicted her of forgery, theft of\nservices, Pennsylvania Ethics Act violations, and related\ncrimes. Orie now brings a federal habeas petition challenging\nthese convictions.\n We hold that Orie’s convictions do not warrant habeas re-\nlief. To start, we lack jurisdiction to consider her challenge to\nher Ethics Act convictions because she is not in custody for\nthose convictions. On the merits, the state appellate court rea-\nsonably upheld the trial court’s finding that a mistrial was\n\n\n\n\n 2\n\fmanifestly necessary because the forged documents could have\ntainted the jury’s verdict. So the mistrial and retrial did not\namount to double jeopardy. And Orie did not show that her\nsenate-rules expert’s testimony would have been material, so\nshe had no constitutional right to call this witness. As to the\nEthics Act convictions, we will thus vacate and remand with\ninstructions to dismiss for lack of jurisdiction. We will other-\nwise affirm.\n I. BACKGROUND\n Orie used her government-funded legislative staff to do po-\nlitical fundraising and campaigning for her reelection. When\nthe Commonwealth started investigating that behavior and\nother alleged misconduct, she tried to hide and destroy docu-\nments. The Commonwealth then charged Orie with several\ncrimes related to using state employees for personal gain and\nlater trying to cover it up. Her sisters, Joan Orie Melvin, a\nPennsylvania Supreme Court Justice, and Janine Orie, Mel-\nvin’s aide, were charged with similar crimes.\n A. Orie’s first trial and the forged exhibits\n In February 2011, Orie’s case went to trial in Pennsylvania\nstate court. At trial, she argued that she had consistently in-\nstructed her staff not to do political work on legislative time.\nShe accused her chief of staff, Jamie Pavlot, of disobeying her\ninstructions by letting staff do campaign work on the taxpay-\ners’ dime. Orie introduced and authenticated a number of ex-\nhibits with directives from her to Pavlot not to do political work\non legislative time. But Orie claimed that Pavlot disregarded\nthese directives.\n\n\n\n\n 3\n\f Pavlot, who testified for the prosecution, said she did not\nrecall seeing these directives. Orie’s lawyer found this incred-\nible. Both in his cross-examination of her and in his closing\nargument, he repeatedly questioned Pavlot’s failure to recog-\nnize the documents.\n But the prosecution quickly determined that at least two of\nthese exhibits had forged signatures. See infra Appendix. Dur-\ning the cross-examination of Orie, the prosecution pointed out\nthat Pavlot’s signature line on one exhibit did not line up with\nthe other words on the page. See infra Appendix Ex. 101B. And\nthe prosecution claims that it noticed during jury deliberations\nthat Pavlot’s signature on a different exhibit seemed to have\nbeen copied and pasted from another document. Compare infra\nAppendix Ex. 101A (original signature), with id. Ex. 110 (cop-\nied-and-pasted signature). The prosecution made this discov-\nery only three days after the defense belatedly turned over these\nexhibits.\n The court immediately held a hearing to figure out what to\ndo about the alleged forgeries. At the hearing, the prosecution\ncalled a handwriting expert, who testified that the signatures\non the documents had been copied and pasted. The defense\nchose neither to cross-examine the prosecution’s expert nor to\nintroduce any evidence to contradict the expert’s testimony.\nThe prosecution asked the court to give the jury a special in-\nstruction on these forged documents. The defense objected to\nany new jury instructions, saying that it would prefer a mistrial\nto a new instruction. But Orie also objected to a mistrial and\nsimply asked that jury deliberations resume. The court found\nthat the forged documents were “a fraud on the Court,” the\n\n\n\n\n 4\n\fjury, and the justice system; “call[ed] into suspicion every doc-\nument that the defense offered”; and could undermine any ver-\ndict that the jury might reach. App. 1573a. So it declared a mis-\ntrial.\n After the mistrial, the prosecution had the Secret Service\ntest the authenticity of thirty-four original defense exhibits.\nThe Secret Service found that well over a dozen of these ex-\nhibits had handwriting that “may have been reproduced via\nphotocopies.” App. 1695a. It also found evidence that Pavlot’s\nsignature had been copied and pasted into three exhibits. As\ndiscussed below, after her second trial, Orie was convicted of\nforgery and evidence tampering for introducing fake exhibits\nduring her first trial.\n B. Orie’s second trial and exclusion of her expert\n witness\n In February 2012, Orie went to trial again on both her orig-\ninal charges and new charges related to the fake exhibits. Dur-\ning this second trial, the prosecution called an expert who tes-\ntified that Orie’s office lease barred her staff from using that\noffice for anything besides legislative work. Orie asked to call\nan expert in rebuttal. She said that her expert would testify that\nthe senate rules let staff do political work from senators’ legis-\nlative offices on comp time. (Compensatory time, often called\ncomp time, is time that an employee may take off work in re-\nturn for having worked extra hours. See, e.g., 29 U.S.C.\n§ 207(o).)\n The prosecution argued that the senate rules were irrele-\nvant. It pointed out that Orie’s behavior could break the law\n\n\n\n\n 5\n\feven if her behavior did not violate the senate rules. The court\nagreed. The court also worried that the jury might think her\nexpert was opining on the law. So it excluded her senate-rules\nexpert.\n The jury convicted Orie of theft of services, conspiracy to\ncommit theft of services, evidence tampering, and forgery. It\nalso convicted her of using her political position for personal\ngain, in violation of the Pennsylvania Ethics Act, 65 Pa. Cons.\nStat. § 1103(a) (conflict of interest). See also id. § 1102 (defin-\ning conflict of interest). The court sentenced Orie to prison for\nher theft-of-services, conspiracy, evidence-tampering, and for-\ngery convictions. But on the Ethics Act convictions, it imposed\n“[n]o further penalty.” App. 1066a; see Pa. Cons. Stat. § 9723.\n C. Post-conviction proceedings\n Orie appealed her convictions in state court, but to no avail.\nCommonwealth v. Orie, 88 A.3d 983 (Pa. Super. Ct.), appeal\ndenied, 99 A.3d 925 (Pa. 2014). She then filed this federal ha-\nbeas petition, which the District Court rejected on the merits.\nWe granted a certificate of appealability. On appeal, she makes\nthree arguments: first, that the Pennsylvania Ethics Act is un-\nconstitutionally vague; second, that her retrial violated the\nDouble Jeopardy Clause; and third, that excluding her senate-\nrules expert violated her constitutional right to call witnesses\nin her defense.\n Besides disputing these claims on the merits, the Common-\nwealth raises two procedural issues: First, it argues that we lack\njurisdiction over Orie’s Ethics Act claim, because she received\nno further penalty. Second, it argues that she failed to exhaust\n\n\n\n\n 6\n\fher Sixth Amendment claim. Her habeas appeal was consoli-\ndated with those of her sisters, who were also convicted of var-\nious crimes. We will issue separate opinions in each case.\n D. Standard of review\n On federal habeas review of state convictions, we defer to\nstate courts. “[W]e review the ‘last reasoned decision’ of the\nstate courts on the petitioner’s claims.” Simmons v. Beard, 590\nF.3d 223, 231–32 (3d Cir. 2009) (quoting Bond v. Beard, 539\nF.3d 256, 289–90 (3d Cir. 2008)). We must presume that the\nstate court’s factual findings are correct. 28 U.S.C.\n§ 2254(e)(1). A petitioner can rebut this presumption only by\noffering “clear and convincing evidence.” Id.\n We also defer to state courts on issues of law: We must up-\nhold their decisions of law unless they are “contrary to, or in-\nvolve[ ] an unreasonable application of, clearly established\nFederal law, as determined by the Supreme Court of the United\nStates.” Id. § 2254(d)(1). So on federal habeas, “even ‘clear er-\nror’ will not suffice.” White v. Woodall, 572 U.S. 415, 419\n(2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76\n(2003)). Instead, the state court must be wrong “beyond any\npossibility for fairminded disagreement.” Id. at 420 (quoting\nHarrington v. Richter, 562 U.S. 86, 103 (2011)).\n II. WE LACK JURISDICTION OVER ORIE’S\n ETHICS ACT CLAIM\n Orie is not in custody for her Pennsylvania Ethics Act con-\nvictions. We thus lack jurisdiction to reach the merits of her\nclaim that the Ethics Act is unconstitutionally vague.\n\n\n\n\n 7\n\f A federal court has habeas jurisdiction only if the petitioner\nis “in custody.” 28 U.S.C. § 2254(a). She is in custody when\nshe suffers a “non-negligible restraint on [her] physical liberty”\nbecause of a particular conviction. Piasecki v. Court of Com-\nmon Pleas, 917 F.3d 161, 166 (3d Cir. 2019) (internal quota-\ntion marks omitted). We gauge custody for each offense inde-\npendently. Maleng v. Cook, 490 U.S. 488, 490–92 (1989). In\nother words, a defendant convicted of multiple offenses can be\nin custody for one but not for another.\n Orie was sentenced to “[n]o further penalty” on her Ethics\nAct convictions. App. 1066a. She received no sentence of in-\ncarceration or confinement of any kind on those counts. So\nOrie suffered no physical restraint and thus was never in cus-\ntody for these offenses.\n Orie claims she was in custody for her Ethics Act convic-\ntions because she suffered one “general sentence” for all her\noffenses. Appellant’s Br. 24. But her sentencing order imposed\na discrete sentence for each count of conviction. And the order\nsaid that she would not be punished beyond a determination of\nguilt for her Ethics Act convictions.\n Orie also argues that she was in custody for her Ethics Act\nconvictions because her conspiracy and theft-of-services con-\nvictions were “predicated” on her Ethics Act convictions. Id.\nThis argument fails as well. Her conspiracy conviction was\npredicated instead on her agreement to commit theft of ser-\nvices. And the theft-of-services statute does not depend on any\nother offense. See 18 Pa. Cons. Stat. § 3926(b). Her convictions\nmay have been based on the same behavior, but Orie’s Ethics\nAct convictions were separate from her other convictions. She\n\n\n\n\n 8\n\fis in custody for her conspiracy and theft-of-services convic-\ntions, not her Ethics Act convictions. We thus lack habeas ju-\nrisdiction over her Ethics Act claim.\n III. THE SUPERIOR COURT PROPERLY UPHELD\n ORIE’S RETRIAL\n The Fifth Amendment’s Double Jeopardy Clause ordinarily\nbars retrials. But a retrial after a mistrial does not amount to\ndouble jeopardy when the mistrial was manifestly necessary.\nArizona v. Washington, 434 U.S. 497, 505 (1978). Though\nmanifest necessity requires a “high degree of necessity,” mak-\ning that judgment call is “reserved to the broad discretion of\nthe trial judge.” Renico v. Lett, 559 U.S. 766, 774 (2010) (in-\nternal quotation marks omitted). We scrutinize a mistrial more\nclosely if the trial judge has not exercised his “sound discre-\ntion” or if the prosecutor appears to be “harass[ing]” or gaining\na “tactical advantage over the accused.” Arizona v. Washing-\nton, 434 U.S. at 508, 510 n.28. But absent such prosecutorial\nmisconduct, if a trial judge grants a mistrial to prevent a jury\nverdict from being tainted by other trial misconduct, that judg-\nment “is entitled to special respect.” Id. at 510.\n We are even more deferential on federal habeas review. We\nlook to the last reasoned state-court decision, which here is the\nPennsylvania Superior Court’s affirmance on direct appeal.\nWe do not ask whether the trial judge should have declared a\nmistrial, nor whether it abused its discretion by doing so. Ra-\nther, we ask only whether the state appellate court’s finding\nthat there was no abuse of discretion was “an unreasonable ap-\nplication of . . . clearly established Federal law, as determined\n\n\n\n\n 9\n\fby the Supreme Court of the United States.” 28 U.S.C.\n§ 2254(d)(1); accord Renico, 559 U.S. at 772–73.\n A. The Superior Court’s decision was reasonable\n The Pennsylvania Superior Court’s decision more than sat-\nisfies our deferential standard of review. To begin, it reasona-\nbly set forth the federal principles governing appeals of a man-\nifest-necessity finding. It explained that it was reviewing for\nabuse of discretion, deferring to the trial court’s superior ability\nto gauge potential bias and jury prejudice. 88 A.3d at 995–97;\nsee Renico, 559 U.S. at 772–73 (standard of review); Arizona\nv. Washington, 434 U.S. at 510 (deference). And it warned that\ntrial courts should not declare mistrials too readily and should\nresolve any doubts in favor of the defendant. 88 A.3d at 996;\nsee Renico, 559 U.S. at 772–74.\n Next, the Superior Court reasoned that the trial court had\nlegal authority to grant a mistrial once it discovered that the\nexhibits were forged. It reasonably held that “[o]nce the trial\njudge realized forged documents had been admitted into evi-\ndence, he could not allow those documents to enter into the\njury’s deliberation and verdict.” 88 A.3d at 998. No Supreme\nCourt case suggests otherwise. On the contrary, in so holding,\nthe Superior Court cited and reasonably interpreted the Su-\npreme Court’s guidance. See id. (citing trial court’s opinion as\nin turn citing Hazel-Atlas Glass Co. v. Hartford-Empire Co.,\n322 U.S. 238 (1944)); see also Hazel-Atlas, 322 U.S. at 246\n(“The public welfare demands that the agencies of public jus-\ntice be not so impotent that they must always be mute and help-\nless victims of deception and fraud.”).\n\n\n\n\n 10\n\f The Superior Court also reasonably upheld the trial court’s\n“initial factual determination that the documents were forger-\nies.” 88 A.3d at 998–99. In doing so, it made a series of rea-\nsonable observations: The jury did not have enough evidence\nto resolve that question. Id. at 998. Though the prosecution\nbrought out Exhibit 101B’s defects on cross-examination of\nOrie, it did not discover Exhibit 110’s forgery until after the\njury had started deliberating. Id. The jury was never instructed\nwhat to do if it found that documents were forged. Id. And be-\ncause the defense did not let the prosecution inspect the docu-\nments until the second-to-last day of trial, the prosecution\ncould not have discovered the forgeries earlier. So the prose-\ncution could not introduce evidence to help the jury evaluate\nthe exhibits. Id. at 998–99. The record amply supports each of\nthese observations.\n Further, the Superior Court reasoned that the forged exhib-\nits were material to the trial’s outcome. As it noted, Orie had\nargued “that Pavlot had the complete authority to direct the\nstaffers and that Pavlot acted on her own initiative and against\nOrie’s directives that no improper political activity occur in the\noffice.” Id. at 999. The forged documents supported that read-\ning. Orie had introduced these documents to show that Pavlot\nhad disobeyed Orie’s directives and let the staff do campaign\nwork on legislative time. These and similar documents were\nthe basis of Orie’s argument to the jury that Pavlot, not Orie,\nwas responsible for the staffers’ actions. And when Pavlot\ncould not remember any of the directives on cross-examina-\ntion, the defense impugned her credibility.\n\n\n\n\n 11\n\f Pavlot’s credibility was at the heart of the case. As Orie’s\nlawyer argued in closing, “[t]he Commonwealth’s case rises\nand falls on [Pavlot’s] truthfulness.” Tr. Pt. 7, 1st Trial (Mar.\n2, 2011), p. 3180. So Pavlot’s forged signatures on those doc-\numents greatly inflated the force of Orie’s arguments and her\ncross-examination of Pavlot.\n Finally, the Superior Court emphasized that while the trial\ncourt had solicited and weighed alternative remedies, it had\nreasonably found that nothing short of a mistrial would coun-\nteract the fraud. 88 A.3d at 998–99. That reasoning is sound.\nThe trial court repeatedly asked the parties what it should do\nabout the forgeries, both before and after hearing from the\nhandwriting expert. Twice, the prosecution suggested a cura-\ntive instruction. But twice, the defense balked, insisting that\n“[b]efore you do that then declare a mistrial” and that giving\nan instruction “is absolutely not an option here.” App. 1557a,\n1571a. Orie’s only proposed remedy, as the Superior Court\nnoted, was to do nothing. See 88 A.3d at 999 & n.13; see also\nApp. 1572a (“We are asking that [the jury’s] deliberations re-\nsume immediately, and we are opposed to a mistrial.”). Given\nthe importance of the forged documents, the threat to the integ-\nrity of the verdict, and the lack of a good alternative remedy,\nthe only solution was a mistrial. So we cannot say that the Su-\nperior Court’s decision to uphold the grant of a mistrial was\nunreasonable.\n B. Orie’s objections fail\n Orie challenges the decision upholding the mistrial on five\ngrounds. Not one succeeds.\n\n\n\n\n 12\n\f First, she criticizes the trial court’s decision to halt jury de-\nliberations and seize the questioned exhibits after speaking\nonly with the prosecution. But even if that is what happened,\nthere is nothing wrong with that. When they learn of possible\nmisconduct, judges often tell juries to stop deliberating without\nfirst telling counsel. E.g., United States v. Bristol-Mártir, 570\nF.3d 29, 36 (1st Cir. 2009). To resolve the forgery allegation\nhere, the trial court needed the challenged exhibits, which the\njury had. And there is no reason to think that asking for a pause\ncaused incurable harm. The trial court told the jury only that\n“there is a legal matter before the Court” and warned the bailiff\nto retrieve the exhibits without talking to anyone. App. 1541a.\n Besides, there was no significant ex parte communication.\nThe prosecutor said exactly two sentences to the judge before\nthe judge told him to wait for defense counsel. When the judge\ntold him to wait, “[d]efense counsel was just entering the court-\nroom.” App. 1589a. The judge did not see the forged docu-\nments, hear the prosecutor’s arguments, or start to discuss a\nmistrial before defense counsel got there. Nor is there any ban\non declaring a mistrial sua sponte. United States v. Wecht, 541\nF.3d 493, 504 (3d Cir. 2008).\n Second, Orie claims that the prosecution had repeatedly\nquestioned the defense exhibits’ credibility and meaning, so\nthe jury was already on notice of potential forgery. But ques-\ntioning evidence’s credibility and meaning is quite different\nfrom showing that it is forged. The specter of forged trial ex-\nhibits came up only briefly at trial—most notably when the\nprosecution questioned Exhibit 101B’s authenticity on cross-\nexamination.\n\n\n\n\n 13\n\f Third, Orie argues that the trial judge usurped the jury’s\nfactfinding role. She argues that the jury should have decided\nthe question of forgery, not the judge. But there is no legal or\nlogical reason why courts cannot find facts in granting mistri-\nals. Indeed, they must do so, especially where the impropriety\ngiving rise to the mistrial could prejudice the jury.\n Fourth, Orie blames the prosecution for seeking a tactical\nadvantage and intentionally provoking a mistrial. But the pros-\necution never asked for a mistrial, even after the court dis-\ncussed that possibility and even after the handwriting expert\ntestified. Indeed, the remedies it did request were quite tame\nand reasonable. At first, it asked the court to instruct the jury\nto compare the two signatures and draw its own conclusions.\nAfter the expert testified, the prosecution sought an instruction\nor stipulation that the documents were forged and an instruc-\ntion to consider the significance of the forgery. But Orie re-\nfused to consider these options, instead preferring a mistrial. If\nanyone provoked a mistrial, it was Orie herself.\n Finally, Orie says that the trial court erred by “convicting”\nher of forgery and fraud without evidence that she intentionally\ndid anything wrong. Appellant’s Br. 50. She also objects that\nPavlot had custody of the documents and so she could have\nbeen responsible for the forgery. But the trial court never ac-\ncused Orie herself of forgery. Rather, it said: “I don’t know\nwho among the parties involved for the defense has done this,\nbut I cannot allow this jury to continue with fraudulent infor-\nmation in front of them.” App. 1573a.\n What is more, the trial court acted reasonably in blaming\nthe defense for the forgeries. Orie’s counsel told the court that\n\n\n\n\n 14\n\fthe documents “were and are in [the defense’s] possession” un-\ntil trial; the prosecution said that, as far as it knew, the docu-\nments had come from Orie’s office; and Orie never contested\nthat statement. App. 1555a.\n In short, we see no basis to disturb the Superior Court’s re-\njection of Orie’s double-jeopardy claim.\n IV. EXCLUDING ORIE’S ETHICS EXPERT WAS PROPER\n Orie argues that the trial court violated her constitutional\nright to present her defense by excluding her expert witness on\nthe senate rules. Though Orie may not have preserved this\nclaim, the Commonwealth waived the exhaustion requirement.\nStill, this claim is meritless. She had no right to call her witness\nbecause the witness’s testimony would have been immaterial.\n A. We will address the merits of Orie’s constitutional\n claim\n The Commonwealth waived its argument that Orie did not\nexhaust her constitutional claim. Before we can review a state\nhabeas petition, the petitioner must first exhaust her state rem-\nedies. 28 U.S.C. § 2254(b)(1)(A). But a state can waive exhaus-\ntion if it does so explicitly through counsel. Id. § 2254(b)(3).\nThat waiver is valid even when lack of exhaustion would oth-\nerwise have barred the petitioner’s claim. Sharrieff v. Cathel,\n574 F.3d 225, 229 (3d Cir. 2009).\n Here, in its answer to Orie’s habeas petition, the Common-\nwealth waived the exhaustion requirement. It conceded that\n“Petitioner’s claims are exhausted” and “Petitioner’s claims\nare not procedurally defaulted.” D.C. ECF No. 64, pp. 34–35.\n\n\n\n\n 15\n\fThese statements were in the answer signed by the Common-\nwealth’s counsel and filed in the District Court. So the Com-\nmonwealth waived exhaustion. We will decide her claim on the\nmerits.\n The parties quibble over whether Orie’s constitutional\nclaim was before the Superior Court. Orie insists that she has\nall along framed her challenge to the expert’s exclusion in con-\nstitutional terms. (She now phrases it primarily in terms of the\nSixth Amendment, but also touches lightly on due process.)\nThe Commonwealth tells us that in state court, Orie made only\nan evidentiary argument. And the Superior Court, for its part,\nreasoned in evidentiary terms. 88 A.3d at 1000–01.\n But we need not decide whether the Superior Court’s ruling\nimplicitly addressed the merits of Orie’s constitutional argu-\nment, and so would merit deference on habeas. Whether habeas\ndeference applies or not, the trial court’s exclusion of the evi-\ndence did not violate the Constitution. See Berghuis v. Thomp-\nkins, 560 U.S. 370, 390 (2010).\n We have seen “apparently little, if any, difference in the\nanalysis” of excluding evidence under compulsory process or\ndue process. Gov’t of the V.I. v. Mills, 956 F.2d 443, 445 n.4\n(3d Cir. 1992). So we will focus, as Orie does, on the Sixth\nAmendment.\n B. Orie had no right to put on a senate-rules expert\n because his testimony would not have been material\n to her trial\n Orie’s senate-rules expert would not have offered material\ntestimony, so she had no Sixth Amendment right to call him.\n\n\n\n\n 16\n\f The Sixth Amendment’s Compulsory Process Clause guar-\nantees a defendant the right to call witnesses in her defense.\nWashington v. Texas, 388 U.S. 14, 19 (1967). But it does not\ngive a defendant the right to introduce any testimony she likes.\nTaylor v. Illinois, 484 U.S. 400, 410 (1988). Courts may ex-\nclude incompetent, privileged, or otherwise inadmissible testi-\nmony under the rules of evidence. Id.; Montana v. Egelhoff,\n518 U.S. 37, 42 (1996).\n To make out a violation of this Sixth Amendment right to\ncompulsory process, the defendant must show that the wit-\nness’s “testimony would have been both material and favorable\nto [the] defense.” United States v. Valenzuela-Bernal, 458 U.S.\n858, 867 (1982). Not all relevant evidence is material. To be\nmaterial, it must be reasonably likely to affect the trial’s out-\ncome. Id. at 873–77.\n Orie’s expert testimony was unlikely to affect her trial’s\noutcome. Her witness was an expert on the senate’s rules. He\nwould have testified that these rules let staff do political work\nin legislative offices using comp time. But Orie was not ac-\ncused of telling her staff to do political work during comp time.\nOrie conceded as much. So the jury could not have convicted\nher for that. Instead, to convict, the jury had to find that she\ntold her staff to do political work on the state’s time. And her\nexpert testimony about what employees could do on comp time\ncould not have affected that finding.\n Orie’s rejoinder depends on a misreading of the record. She\nargues that the prosecution’s expert had inaccurately testified\nthat the senate rules forbade all political work in legislative of-\nfices. So, she says, she needed her expert to rebut that\n\n\n\n\n 17\n\ffalsehood. But the prosecution’s expert never made such a\nstatement. The prosecution’s expert had testified that Orie’s of-\nfice lease, not the senate rules, barred using the office for any-\nthing but legislative work. So her expert would not have rebut-\nted the prosecution’s expert.\n Not only was Orie’s expert testimony immaterial, but it\ncould have confused the jury. Judges may exclude evidence\nthat risks “confusing the issues, [or] misleading the jury.” Pa.\nR. Evid. 403. Her expert could have led the jury to confuse\nwhat the senate rules allowed with what Pennsylvania law al-\nlowed. The trial court wanted the jury to learn the law from the\ncourt’s instructions rather than from a witness’s testimony. The\ncourt’s reasonable exclusion of evidence under the “standard\nrules of evidence” does not violate the Sixth Amendment.\nEgelhoff, 518 U.S. at 42 (quoting Taylor, 484 U.S. at 410).\n * * * * *\n All three of Orie’s arguments fail. She is not in custody for\nher Ethics Act convictions, so we lack jurisdiction to hear her\nchallenge to that statute. The Superior Court reasonably af-\nfirmed the trial court’s finding that the forged documents made\na mistrial manifestly necessary, so retrying her did not amount\nto double jeopardy. And Orie’s expert testimony about senate\nrules was immaterial to her case, so excluding her expert wit-\nness did not violate her constitutional right to put on her de-\nfense. As to the Ethics Act convictions, we will thus vacate and\nremand with instructions to dismiss for lack of jurisdiction. We\nwill otherwise affirm.\n\n\n\n\n 18\n\f Appendix\n Exhibit 101A\n(Compare Pavlot’s signature with Exhibit 110)\n\n\n\n\n 19\n\fExhibit 101B\n\n\n\n\n 20\n\f Exhibit 110\n(Compare Pavlot’s signature with Exhibit 101A)\n\n\n\n\n 21\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Jane Orie v. Secretary Pennsylvania Departm\\nCourt: U.S. Court of Appeals for the Third Circuit\\nDate decided: 2019-10-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n _______________\\n\\n No. 16-1685\\n _______________\\n\\n JANE C. ORIE,\\n Appellant\\n\\n v.\\n\\n SECRETARY PENNSYLVANIA DEPARTMENT OF\\n CORRECTIONS\\n _______________\\n\\n On Appeal from the United States District Court\\n for the Western District of Pennsylvania\\n (D.C. No. 2-15-cv-01153)\\n Magistrate Judge: Honorable Robert C. Mitchell\\n _______________\\n\\n Argued June 5, 2019\\n\\n Before: JORDAN, BIBAS, and MATEY, Circuit Judges\\n\\n (Filed: )\\n _______________\\n\\nWilliam C. Costopoulos [ARGUED]\\nCostopoulos Foster & Fields\\n\\f831 Market Street\\nP.O. Box 222\\nLemoyne, PA 17043\\n Counsel for Appellants\\n\\nRonald M. Wabby, Jr. [ARGUED]\\nAllegheny County Office of District Attorney\\n436 Grant Street\\nPittsburgh, PA 15219\\n Counsel for Appellees\\n _______________\\n\\n OPINION OF THE COURT\\n _______________\\n\\nBIBAS, Circuit Judge.\\n Forging evidence is one way to get a mistrial. Jane Orie, a\\nformer Pennsylvania state senator, introduced forged evidence\\nat her trial in state court. So the judge declared a mistrial. (The\\nexhibits that triggered the mistrial are appended to this opin-\\nion.) During Orie’s second trial, the court excluded her expert\\nwitness because his testimony would have been irrelevant. Af-\\nter her second trial, a jury convicted her of forgery, theft of\\nservices, Pennsylvania Ethics Act violations, and related\\ncrimes. Orie now brings a federal habeas petition challenging\\nthese convictions.\\n We hold that Orie’s convictions do not warrant habeas re-\\nlief. To start, we lack jurisdiction to consider her challenge to\\nher Ethics Act convictions because she is not in custody for\\nthose convictions. On the merits, the state appellate court rea-\\nsonably upheld the trial court’s finding that a mistrial was\\n\\n\\n\\n\\n 2\\n\\fmanifestly necessary because the forged documents could have\\ntainted the jury’s verdict. So the mistrial and retrial did not\\namount to double jeopardy. And Orie did not show that her\\nsenate-rules expert’s testimony would have been material, so\\nshe had no constitutional right to call this witness. As to the\\nEthics Act convictions, we will thus vacate and remand with\\ninstructions to dismiss for lack of jurisdiction. We will other-\\nwise affirm.\\n I. BACKGROUND\\n Orie used her government-funded legislative staff to do po-\\nlitical fundraising and campaigning for her reelection. When\\nthe Commonwealth started investigating that behavior and\\nother alleged misconduct, she tried to hide and destroy docu-\\nments. The Commonwealth then charged Orie with several\\ncrimes related to using state employees for personal gain and\\nlater trying to cover it up. Her sisters, Joan Orie Melvin, a\\nPennsylvania Supreme Court Justice, and Janine Orie, Mel-\\nvin’s aide, were charged with similar crimes.\\n A. Orie’s first trial and the forged exhibits\\n In February 2011, Orie’s case went to trial in Pennsylvania\\nstate court. At trial, she argued that she had consistently in-\\nstructed her staff not to do political work on legislative time.\\nShe accused her chief of staff, Jamie Pavlot, of disobeying her\\ninstructions by letting staff do campaign work on the taxpay-\\ners’ dime. Orie introduced and authenticated a number of ex-\\nhibits with directives from her to Pavlot not to do political work\\non legislative time. But Orie claimed that Pavlot disregarded\\nthese directives.\\n\\n\\n\\n\\n 3\\n\\f Pavlot, who testified for the prosecution, said she did not\\nrecall seeing these directives. Orie’s lawyer found this incred-\\nible. Both in his cross-examination of her and in his closing\\nargument, he repeatedly questioned Pavlot’s failure to recog-\\nnize the documents.\\n But the prosecution quickly determined that at least two of\\nthese exhibits had forged signatures. See infra Appendix. Dur-\\ning the cross-examination of Orie, the prosecution pointed out\\nthat Pavlot’s signature line on one exhibit did not line up with\\nthe other words on the page. See infra Appendix Ex. 101B. And\\nthe prosecution claims that it noticed during jury deliberations\\nthat Pavlot’s signature on a different exhibit seemed to have\\nbeen copied and pasted from another document. Compare infra\\nAppendix Ex. 101A (original signature), with id. Ex. 110 (cop-\\nied-and-pasted signature). The prosecution made this discov-\\nery only three days after the defense belatedly turned over these\\nexhibits.\\n The court immediately held a hearing to figure out what to\\ndo about the alleged forgeries. At the hearing, the prosecution\\ncalled a handwriting expert, who testified that the signatures\\non the documents had been copied and pasted. The defense\\nchose neither to cross-examine the prosecution’s expert nor to\\nintroduce any evidence to contradict the expert’s testimony.\\nThe prosecution asked the court to give the jury a special in-\\nstruction on these forged documents. The defense objected to\\nany new jury instructions, saying that it would prefer a mistrial\\nto a new instruction. But Orie also objected to a mistrial and\\nsimply asked that jury deliberations resume. The court found\\nthat the forged documents were “a fraud on the Court,” the\\n\\n\\n\\n\\n 4\\n\\fjury, and the justice system; “call[ed] into suspicion every doc-\\nument that the defense offered”; and could undermine any ver-\\ndict that the jury might reach. App. 1573a. So it declared a mis-\\ntrial.\\n After the mistrial, the prosecution had the Secret Service\\ntest the authenticity of thirty-four original defense exhibits.\\nThe Secret Service found that well over a dozen of these ex-\\nhibits had handwriting that “may have been reproduced via\\nphotocopies.” App. 1695a. It also found evidence that Pavlot’s\\nsignature had been copied and pasted into three exhibits. As\\ndiscussed below, after her second trial, Orie was convicted of\\nforgery and evidence tampering for introducing fake exhibits\\nduring her first trial.\\n B. Orie’s second trial and exclusion of her expert\\n witness\\n In February 2012, Orie went to trial again on both her orig-\\ninal charges and new charges related to the fake exhibits. Dur-\\ning this second trial, the prosecution called an expert who tes-\\ntified that Orie’s office lease barred her staff from using that\\noffice for anything besides legislative work. Orie asked to call\\nan expert in rebuttal. She said that her expert would testify that\\nthe senate rules let staff do political work from senators’ legis-\\nlative offices on comp time. (Compensatory time, often called\\ncomp time, is time that an employee may take off work in re-\\nturn for having worked extra hours. See, e.g., 29 U.S.C.\\n§ 207(o).)\\n The prosecution argued that the senate rules were irrele-\\nvant. It pointed out that Orie’s behavior could break the law\\n\\n\\n\\n\\n 5\\n\\feven if her behavior did not violate the senate rules. The court\\nagreed. The court also worried that the jury might think her\\nexpert was opining on the law. So it excluded her senate-rules\\nexpert.\\n The jury convicted Orie of theft of services, conspiracy to\\ncommit theft of services, evidence tampering, and forgery. It\\nalso convicted her of using her political position for personal\\ngain, in violation of the Pennsylvania Ethics Act, 65 Pa. Cons.\\nStat. § 1103(a) (conflict of interest). See also id. § 1102 (defin-\\ning conflict of interest). The court sentenced Orie to prison for\\nher theft-of-services, conspiracy, evidence-tampering, and for-\\ngery convictions. But on the Ethics Act convictions, it imposed\\n“[n]o further penalty.” App. 1066a; see Pa. Cons. Stat. § 9723.\\n C. Post-conviction proceedings\\n Orie appealed her convictions in state court, but to no avail.\\nCommonwealth v. Orie, 88 A.3d 983 (Pa. Super. Ct.), appeal\\ndenied, 99 A.3d 925 (Pa. 2014). She then filed this federal ha-\\nbeas petition, which the District Court rejected on the merits.\\nWe granted a certificate of appealability. On appeal, she makes\\nthree arguments: first, that the Pennsylvania Ethics Act is un-\\nconstitutionally vague; second, that her retrial violated the\\nDouble Jeopardy Clause; and third, that excluding her senate-\\nrules expert violated her constitutional right to call witnesses\\nin her defense.\\n Besides disputing these claims on the merits, the Common-\\nwealth raises two procedural issues: First, it argues that we lack\\njurisdiction over Orie’s Ethics Act claim, because she received\\nno further penalty. Second, it argues that she failed to exhaust\\n\\n\\n\\n\\n 6\\n\\fher Sixth Amendment claim. Her habeas appeal was consoli-\\ndated with those of her sisters, who were also convicted of var-\\nious crimes. We will issue separate opinions in each case.\\n D. Standard of review\\n On federal habeas review of state convictions, we defer to\\nstate courts. “[W]e review the ‘last reasoned decision’ of the\\nstate courts on the petitioner’s claims.” Simmons v. Beard, 590\\nF.3d 223, 231–32 (3d Cir. 2009) (quoting Bond v. Beard, 539\\nF.3d 256, 289–90 (3d Cir. 2008)). We must presume that the\\nstate court’s factual findings are correct. 28 U.S.C.\\n§ 2254(e)(1). A petitioner can rebut this presumption only by\\noffering “clear and convincing evidence.” Id.\\n We also defer to state courts on issues of law: We must up-\\nhold their decisions of law unless they are “contrary to, or in-\\nvolve[ ] an unreasonable application of, clearly established\\nFederal law, as determined by the Supreme Court of the United\\nStates.” Id. § 2254(d)(1). So on federal habeas, “even ‘clear er-\\nror’ will not suffice.” White v. Woodall, 572 U.S. 415, 419\\n(2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76\\n(2003)). Instead, the state court must be wrong “beyond any\\npossibility for fairminded disagreement.” Id. at 420 (quoting\\nHarrington v. Richter, 562 U.S. 86, 103 (2011)).\\n II. WE LACK JURISDICTION OVER ORIE’S\\n ETHICS ACT CLAIM\\n Orie is not in custody for her Pennsylvania Ethics Act con-\\nvictions. We thus lack jurisdiction to reach the merits of her\\nclaim that the Ethics Act is unconstitutionally vague.\\n\\n\\n\\n\\n 7\\n\\f A federal court has habeas jurisdiction only if the petitioner\\nis “in custody.” 28 U.S.C. § 2254(a). She is in custody when\\nshe suffers a “non-negligible restraint on [her] physical liberty”\\nbecause of a particular conviction. Piasecki v. Court of Com-\\nmon Pleas, 917 F.3d 161, 166 (3d Cir. 2019) (internal quota-\\ntion marks omitted). We gauge custody for each offense inde-\\npendently. Maleng v. Cook, 490 U.S. 488, 490–92 (1989). In\\nother words, a defendant convicted of multiple offenses can be\\nin custody for one but not for another.\\n Orie was sentenced to “[n]o further penalty” on her Ethics\\nAct convictions. App. 1066a. She received no sentence of in-\\ncarceration or confinement of any kind on those counts. So\\nOrie suffered no physical restraint and thus was never in cus-\\ntody for these offenses.\\n Orie claims she was in custody for her Ethics Act convic-\\ntions because she suffered one “general sentence” for all her\\noffenses. Appellant’s Br. 24. But her sentencing order imposed\\na discrete sentence for each count of conviction. And the order\\nsaid that she would not be punished beyond a determination of\\nguilt for her Ethics Act convictions.\\n Orie also argues that she was in custody for her Ethics Act\\nconvictions because her conspiracy and theft-of-services con-\\nvictions were “predicated” on her Ethics Act convictions. Id.\\nThis argument fails as well. Her conspiracy conviction was\\npredicated instead on her agreement to commit theft of ser-\\nvices. And the theft-of-services statute does not depend on any\\nother offense. See 18 Pa. Cons. Stat. § 3926(b). Her convictions\\nmay have been based on the same behavior, but Orie’s Ethics\\nAct convictions were separate from her other convictions. She\\n\\n\\n\\n\\n 8\\n\\fis in custody for her conspiracy and theft-of-services convic-\\ntions, not her Ethics Act convictions. We thus lack habeas ju-\\nrisdiction over her Ethics Act claim.\\n III. THE SUPERIOR COURT PROPERLY UPHELD\\n ORIE’S RETRIAL\\n The Fifth Amendment’s Double Jeopardy Clause ordinarily\\nbars retrials. But a retrial after a mistrial does not amount to\\ndouble jeopardy when the mistrial was manifestly necessary.\\nArizona v. Washington, 434 U.S. 497, 505 (1978). Though\\nmanifest necessity requires a “high degree of necessity,” mak-\\ning that judgment call is “reserved to the broad discretion of\\nthe trial judge.” Renico v. Lett, 559 U.S. 766, 774 (2010) (in-\\nternal quotation marks omitted). We scrutinize a mistrial more\\nclosely if the trial judge has not exercised his “sound discre-\\ntion” or if the prosecutor appears to be “harass[ing]” or gaining\\na “tactical advantage over the accused.” Arizona v. Washing-\\nton, 434 U.S. at 508, 510 n.28. But absent such prosecutorial\\nmisconduct, if a trial judge grants a mistrial to prevent a jury\\nverdict from being tainted by other trial misconduct, that judg-\\nment “is entitled to special respect.” Id. at 510.\\n We are even more deferential on federal habeas review. We\\nlook to the last reasoned state-court decision, which here is the\\nPennsylvania Superior Court’s affirmance on direct appeal.\\nWe do not ask whether the trial judge should have declared a\\nmistrial, nor whether it abused its discretion by doing so. Ra-\\nther, we ask only whether the state appellate court’s finding\\nthat there was no abuse of discretion was “an unreasonable ap-\\nplication of . . . clearly established Federal law, as determined\\n\\n\\n\\n\\n 9\\n\\fby the Supreme Court of the United States.” 28 U.S.C.\\n§ 2254(d)(1); accord Renico, 559 U.S. at 772–73.\\n A. The Superior Court’s decision was reasonable\\n The Pennsylvania Superior Court’s decision more than sat-\\nisfies our deferential standard of review. To begin, it reasona-\\nbly set forth the federal principles governing appeals of a man-\\nifest-necessity finding. It explained that it was reviewing for\\nabuse of discretion, deferring to the trial court’s superior ability\\nto gauge potential bias and jury prejudice. 88 A.3d at 995–97;\\nsee Renico, 559 U.S. at 772–73 (standard of review); Arizona\\nv. Washington, 434 U.S. at 510 (deference). And it warned that\\ntrial courts should not declare mistrials too readily and should\\nresolve any doubts in favor of the defendant. 88 A.3d at 996;\\nsee Renico, 559 U.S. at 772–74.\\n Next, the Superior Court reasoned that the trial court had\\nlegal authority to grant a mistrial once it discovered that the\\nexhibits were forged. It reasonably held that “[o]nce the trial\\njudge realized forged documents had been admitted into evi-\\ndence, he could not allow those documents to enter into the\\njury’s deliberation and verdict.” 88 A.3d at 998. No Supreme\\nCourt case suggests otherwise. On the contrary, in so holding,\\nthe Superior Court cited and reasonably interpreted the Su-\\npreme Court’s guidance. See id. (citing trial court’s opinion as\\nin turn citing Hazel-Atlas Glass Co. v. Hartford-Empire Co.,\\n322 U.S. 238 (1944)); see also Hazel-Atlas, 322 U.S. at 246\\n(“The public welfare demands that the agencies of public jus-\\ntice be not so impotent that they must always be mute and help-\\nless victims of deception and fraud.”).\\n\\n\\n\\n\\n 10\\n\\f The Superior Court also reasonably upheld the trial court’s\\n“initial factual determination that the documents were forger-\\nies.” 88 A.3d at 998–99. In doing so, it made a series of rea-\\nsonable observations: The jury did not have enough evidence\\nto resolve that question. Id. at 998. Though the prosecution\\nbrought out Exhibit 101B’s defects on cross-examination of\\nOrie, it did not discover Exhibit 110’s forgery until after the\\njury had started deliberating. Id. The jury was never instructed\\nwhat to do if it found that documents were forged. Id. And be-\\ncause the defense did not let the prosecution inspect the docu-\\nments until the second-to-last day of trial, the prosecution\\ncould not have discovered the forgeries earlier. So the prose-\\ncution could not introduce evidence to help the jury evaluate\\nthe exhibits. Id. at 998–99. The record amply supports each of\\nthese observations.\\n Further, the Superior Court reasoned that the forged exhib-\\nits were material to the trial’s outcome. As it noted, Orie had\\nargued “that Pavlot had the complete authority to direct the\\nstaffers and that Pavlot acted on her own initiative and against\\nOrie’s directives that no improper political activity occur in the\\noffice.” Id. at 999. The forged documents supported that read-\\ning. Orie had introduced these documents to show that Pavlot\\nhad disobeyed Orie’s directives and let the staff do campaign\\nwork on legislative time. These and similar documents were\\nthe basis of Orie’s argument to the jury that Pavlot, not Orie,\\nwas responsible for the staffers’ actions. And when Pavlot\\ncould not remember any of the directives on cross-examina-\\ntion, the defense impugned her credibility.\\n\\n\\n\\n\\n 11\\n\\f Pavlot’s credibility was at the heart of the case. As Orie’s\\nlawyer argued in closing, “[t]he Commonwealth’s case rises\\nand falls on [Pavlot’s] truthfulness.” Tr. Pt. 7, 1st Trial (Mar.\\n2, 2011), p. 3180. So Pavlot’s forged signatures on those doc-\\numents greatly inflated the force of Orie’s arguments and her\\ncross-examination of Pavlot.\\n Finally, the Superior Court emphasized that while the trial\\ncourt had solicited and weighed alternative remedies, it had\\nreasonably found that nothing short of a mistrial would coun-\\nteract the fraud. 88 A.3d at 998–99. That reasoning is sound.\\nThe trial court repeatedly asked the parties what it should do\\nabout the forgeries, both before and after hearing from the\\nhandwriting expert. Twice, the prosecution suggested a cura-\\ntive instruction. But twice, the defense balked, insisting that\\n“[b]efore you do that then declare a mistrial” and that giving\\nan instruction “is absolutely not an option here.” App. 1557a,\\n1571a. Orie’s only proposed remedy, as the Superior Court\\nnoted, was to do nothing. See 88 A.3d at 999 & n.13; see also\\nApp. 1572a (“We are asking that [the jury’s] deliberations re-\\nsume immediately, and we are opposed to a mistrial.”). Given\\nthe importance of the forged documents, the threat to the integ-\\nrity of the verdict, and the lack of a good alternative remedy,\\nthe only solution was a mistrial. So we cannot say that the Su-\\nperior Court’s decision to uphold the grant of a mistrial was\\nunreasonable.\\n B. Orie’s objections fail\\n Orie challenges the decision upholding the mistrial on five\\ngrounds. Not one succeeds.\\n\\n\\n\\n\\n 12\\n\\f First, she criticizes the trial court’s decision to halt jury de-\\nliberations and seize the questioned exhibits after speaking\\nonly with the prosecution. But even if that is what happened,\\nthere is nothing wrong with that. When they learn of possible\\nmisconduct, judges often tell juries to stop deliberating without\\nfirst telling counsel. E.g., United States v. Bristol-Mártir, 570\\nF.3d 29, 36 (1st Cir. 2009). To resolve the forgery allegation\\nhere, the trial court needed the challenged exhibits, which the\\njury had. And there is no reason to think that asking for a pause\\ncaused incurable harm. The trial court told the jury only that\\n“there is a legal matter before the Court” and warned the bailiff\\nto retrieve the exhibits without talking to anyone. App. 1541a.\\n Besides, there was no significant ex parte communication.\\nThe prosecutor said exactly two sentences to the judge before\\nthe judge told him to wait for defense counsel. When the judge\\ntold him to wait, “[d]efense counsel was just entering the court-\\nroom.” App. 1589a. The judge did not see the forged docu-\\nments, hear the prosecutor’s arguments, or start to discuss a\\nmistrial before defense counsel got there. Nor is there any ban\\non declaring a mistrial sua sponte. United States v. Wecht, 541\\nF.3d 493, 504 (3d Cir. 2008).\\n Second, Orie claims that the prosecution had repeatedly\\nquestioned the defense exhibits’ credibility and meaning, so\\nthe jury was already on notice of potential forgery. But ques-\\ntioning evidence’s credibility and meaning is quite different\\nfrom showing that it is forged. The specter of forged trial ex-\\nhibits came up only briefly at trial—most notably when the\\nprosecution questioned Exhibit 101B’s authenticity on cross-\\nexamination.\\n\\n\\n\\n\\n 13\\n\\f Third, Orie argues that the trial judge usurped the jury’s\\nfactfinding role. She argues that the jury should have decided\\nthe question of forgery, not the judge. But there is no legal or\\nlogical reason why courts cannot find facts in granting mistri-\\nals. Indeed, they must do so, especially where the impropriety\\ngiving rise to the mistrial could prejudice the jury.\\n Fourth, Orie blames the prosecution for seeking a tactical\\nadvantage and intentionally provoking a mistrial. But the pros-\\necution never asked for a mistrial, even after the court dis-\\ncussed that possibility and even after the handwriting expert\\ntestified. Indeed, the remedies it did request were quite tame\\nand reasonable. At first, it asked the court to instruct the jury\\nto compare the two signatures and draw its own conclusions.\\nAfter the expert testified, the prosecution sought an instruction\\nor stipulation that the documents were forged and an instruc-\\ntion to consider the significance of the forgery. But Orie re-\\nfused to consider these options, instead preferring a mistrial. If\\nanyone provoked a mistrial, it was Orie herself.\\n Finally, Orie says that the trial court erred by “convicting”\\nher of forgery and fraud without evidence that she intentionally\\ndid anything wrong. Appellant’s Br. 50. She also objects that\\nPavlot had custody of the documents and so she could have\\nbeen responsible for the forgery. But the trial court never ac-\\ncused Orie herself of forgery. Rather, it said: “I don’t know\\nwho among the parties involved for the defense has done this,\\nbut I cannot allow this jury to continue with fraudulent infor-\\nmation in front of them.” App. 1573a.\\n What is more, the trial court acted reasonably in blaming\\nthe defense for the forgeries. Orie’s counsel told the court that\\n\\n\\n\\n\\n 14\\n\\fthe documents “were and are in [the defense’s] possession” un-\\ntil trial; the prosecution said that, as far as it knew, the docu-\\nments had come from Orie’s office; and Orie never contested\\nthat statement. App. 1555a.\\n In short, we see no basis to disturb the Superior Court’s re-\\njection of Orie’s double-jeopardy claim.\\n IV. EXCLUDING ORIE’S ETHICS EXPERT WAS PROPER\\n Orie argues that the trial court violated her constitutional\\nright to present her defense by excluding her expert witness on\\nthe senate rules. Though Orie may not have preserved this\\nclaim, the Commonwealth waived the exhaustion requirement.\\nStill, this claim is meritless. She had no right to call her witness\\nbecause the witness’s testimony would have been immaterial.\\n A. We will address the merits of Orie’s constitutional\\n claim\\n The Commonwealth waived its argument that Orie did not\\nexhaust her constitutional claim. Before we can review a state\\nhabeas petition, the petitioner must first exhaust her state rem-\\nedies. 28 U.S.C. § 2254(b)(1)(A). But a state can waive exhaus-\\ntion if it does so explicitly through counsel. Id. § 2254(b)(3).\\nThat waiver is valid even when lack of exhaustion would oth-\\nerwise have barred the petitioner’s claim. Sharrieff v. Cathel,\\n574 F.3d 225, 229 (3d Cir. 2009).\\n Here, in its answer to Orie’s habeas petition, the Common-\\nwealth waived the exhaustion requirement. It conceded that\\n“Petitioner’s claims are exhausted” and “Petitioner’s claims\\nare not procedurally defaulted.” D.C. ECF No. 64, pp. 34–35.\\n\\n\\n\\n\\n 15\\n\\fThese statements were in the answer signed by the Common-\\nwealth’s counsel and filed in the District Court. So the Com-\\nmonwealth waived exhaustion. We will decide her claim on the\\nmerits.\\n The parties quibble over whether Orie’s constitutional\\nclaim was before the Superior Court. Orie insists that she has\\nall along framed her challenge to the expert’s exclusion in con-\\nstitutional terms. (She now phrases it primarily in terms of the\\nSixth Amendment, but also touches lightly on due process.)\\nThe Commonwealth tells us that in state court, Orie made only\\nan evidentiary argument. And the Superior Court, for its part,\\nreasoned in evidentiary terms. 88 A.3d at 1000–01.\\n But we need not decide whether the Superior Court’s ruling\\nimplicitly addressed the merits of Orie’s constitutional argu-\\nment, and so would merit deference on habeas. Whether habeas\\ndeference applies or not, the trial court’s exclusion of the evi-\\ndence did not violate the Constitution. See Berghuis v. Thomp-\\nkins, 560 U.S. 370, 390 (2010).\\n We have seen “apparently little, if any, difference in the\\nanalysis” of excluding evidence under compulsory process or\\ndue process. Gov’t of the V.I. v. Mills, 956 F.2d 443, 445 n.4\\n(3d Cir. 1992). So we will focus, as Orie does, on the Sixth\\nAmendment.\\n B. Orie had no right to put on a senate-rules expert\\n because his testimony would not have been material\\n to her trial\\n Orie’s senate-rules expert would not have offered material\\ntestimony, so she had no Sixth Amendment right to call him.\\n\\n\\n\\n\\n 16\\n\\f The Sixth Amendment’s Compulsory Process Clause guar-\\nantees a defendant the right to call witnesses in her defense.\\nWashington v. Texas, 388 U.S. 14, 19 (1967). But it does not\\ngive a defendant the right to introduce any testimony she likes.\\nTaylor v. Illinois, 484 U.S. 400, 410 (1988). Courts may ex-\\nclude incompetent, privileged, or otherwise inadmissible testi-\\nmony under the rules of evidence. Id.; Montana v. Egelhoff,\\n518 U.S. 37, 42 (1996).\\n To make out a violation of this Sixth Amendment right to\\ncompulsory process, the defendant must show that the wit-\\nness’s “testimony would have been both material and favorable\\nto [the] defense.” United States v. Valenzuela-Bernal, 458 U.S.\\n858, 867 (1982). Not all relevant evidence is material. To be\\nmaterial, it must be reasonably likely to affect the trial’s out-\\ncome. Id. at 873–77.\\n Orie’s expert testimony was unlikely to affect her trial’s\\noutcome. Her witness was an expert on the senate’s rules. He\\nwould have testified that these rules let staff do political work\\nin legislative offices using comp time. But Orie was not ac-\\ncused of telling her staff to do political work during comp time.\\nOrie conceded as much. So the jury could not have convicted\\nher for that. Instead, to convict, the jury had to find that she\\ntold her staff to do political work on the state’s time. And her\\nexpert testimony about what employees could do on comp time\\ncould not have affected that finding.\\n Orie’s rejoinder depends on a misreading of the record. She\\nargues that the prosecution’s expert had inaccurately testified\\nthat the senate rules forbade all political work in legislative of-\\nfices. So, she says, she needed her expert to rebut that\\n\\n\\n\\n\\n 17\\n\\ffalsehood. But the prosecution’s expert never made such a\\nstatement. The prosecution’s expert had testified that Orie’s of-\\nfice lease, not the senate rules, barred using the office for any-\\nthing but legislative work. So her expert would not have rebut-\\nted the prosecution’s expert.\\n Not only was Orie’s expert testimony immaterial, but it\\ncould have confused the jury. Judges may exclude evidence\\nthat risks “confusing the issues, [or] misleading the jury.” Pa.\\nR. Evid. 403. Her expert could have led the jury to confuse\\nwhat the senate rules allowed with what Pennsylvania law al-\\nlowed. The trial court wanted the jury to learn the law from the\\ncourt’s instructions rather than from a witness’s testimony. The\\ncourt’s reasonable exclusion of evidence under the “standard\\nrules of evidence” does not violate the Sixth Amendment.\\nEgelhoff, 518 U.S. at 42 (quoting Taylor, 484 U.S. at 410).\\n * * * * *\\n All three of Orie’s arguments fail. She is not in custody for\\nher Ethics Act convictions, so we lack jurisdiction to hear her\\nchallenge to that statute. The Superior Court reasonably af-\\nfirmed the trial court’s finding that the forged documents made\\na mistrial manifestly necessary, so retrying her did not amount\\nto double jeopardy. And Orie’s expert testimony about senate\\nrules was immaterial to her case, so excluding her expert wit-\\nness did not violate her constitutional right to put on her de-\\nfense. As to the Ethics Act convictions, we will thus vacate and\\nremand with instructions to dismiss for lack of jurisdiction. We\\nwill otherwise affirm.\\n\\n\\n\\n\\n 18\\n\\f Appendix\\n Exhibit 101A\\n(Compare Pavlot’s signature with Exhibit 110)\\n\\n\\n\\n\\n 19\\n\\fExhibit 101B\\n\\n\\n\\n\\n 20\\n\\f Exhibit 110\\n(Compare Pavlot’s signature with Exhibit 101A)\\n\\n\\n\\n\\n 21\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4560,"cells":{"id":{"kind":"number","value":4670819,"string":"4,670,819"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Jane Orie v. Secretary Pennsylvania Departm"},"decision_date":{"kind":"string","value":"2019-10-15"},"docket_number":{"kind":"string","value":"16-1685"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Third Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: JORDAN, BIBAS, and MATEY, Circuit Judges (\", \"parties\": \"\", \"opinions\": [{\"author\": \"BIBAS, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"PRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n _______________\\n\\n No. 16-1685\\n _______________\\n\\n JANE C. ORIE,\\n Appellant\\n\\n v.\\n\\n SECRETARY PENNSYLVANIA DEPARTMENT OF\\n CORRECTIONS\\n _______________\\n\\n On Appeal from the United States District Court\\n for the Western District of Pennsylvania\\n (D.C. No. 2-15-cv-01153)\\n Magistrate Judge: Honorable Robert C. Mitchell\\n _______________\\n\\n Argued June 5, 2019\\n\\n Before: JORDAN, BIBAS, and MATEY, Circuit Judges\\n\\n (Filed: October 15, 2019)\\n _______________\\n\\nWilliam C. Costopoulos [ARGUED]\\nCostopoulos Foster & Fields\\n\\f831 Market Street\\nP.O. Box 222\\nLemoyne, PA 17043\\n Counsel for Appellant\\n\\nRonald M. Wabby, Jr. [ARGUED]\\nAllegheny County Office of District Attorney\\n436 Grant Street\\nPittsburgh, PA 15219\\n Counsel for Appellee\\n _______________\\n\\n OPINION OF THE COURT\\n _______________\\n\\nBIBAS, Circuit Judge.\\n Forging evidence is one way to get a mistrial. Jane Orie, a\\nformer Pennsylvania state senator, introduced forged evidence\\nat her trial in state court. So the judge declared a mistrial. (The\\nexhibits that triggered the mistrial are appended to this opin-\\nion.) During Orie’s second trial, the court excluded her expert\\nwitness because his testimony would have been irrelevant. Af-\\nter her second trial, a jury convicted her of forgery, theft of\\nservices, Pennsylvania Ethics Act violations, and related\\ncrimes. Orie now brings a federal habeas petition challenging\\nthese convictions.\\n We hold that Orie’s convictions do not warrant habeas re-\\nlief. To start, we lack jurisdiction to consider her challenge to\\nher Ethics Act convictions because she is not in custody for\\nthose convictions. On the merits, the state appellate court rea-\\nsonably upheld the trial court’s finding that a mistrial was\\n\\n\\n\\n\\n 2\\n\\fmanifestly necessary because the forged documents could have\\ntainted the jury’s verdict. So the mistrial and retrial did not\\namount to double jeopardy. And Orie did not show that her\\nsenate-rules expert’s testimony would have been material, so\\nshe had no constitutional right to call this witness. As to the\\nEthics Act convictions, we will thus vacate and remand with\\ninstructions to dismiss for lack of jurisdiction. We will other-\\nwise affirm.\\n I. BACKGROUND\\n Orie used her government-funded legislative staff to do po-\\nlitical fundraising and campaigning for her reelection. When\\nthe Commonwealth started investigating that behavior and\\nother alleged misconduct, she tried to hide and destroy docu-\\nments. The Commonwealth then charged Orie with several\\ncrimes related to using state employees for personal gain and\\nlater trying to cover it up. Her sisters, Joan Orie Melvin, a\\nPennsylvania Supreme Court Justice, and Janine Orie, Mel-\\nvin’s aide, were charged with similar crimes.\\n A. Orie’s first trial and the forged exhibits\\n In February 2011, Orie’s case went to trial in Pennsylvania\\nstate court. At trial, she argued that she had consistently in-\\nstructed her staff not to do political work on legislative time.\\nShe accused her chief of staff, Jamie Pavlot, of disobeying her\\ninstructions by letting staff do campaign work on the taxpay-\\ners’ dime. Orie introduced and authenticated a number of ex-\\nhibits with directives from her to Pavlot not to do political work\\non legislative time. But Orie claimed that Pavlot disregarded\\nthese directives.\\n\\n\\n\\n\\n 3\\n\\f Pavlot, who testified for the prosecution, said she did not\\nrecall seeing these directives. Orie’s lawyer found this incred-\\nible. Both in his cross-examination of her and in his closing\\nargument, he repeatedly questioned Pavlot’s failure to recog-\\nnize the documents.\\n But the prosecution quickly determined that at least two of\\nthese exhibits had forged signatures. See infra Appendix. Dur-\\ning the cross-examination of Orie, the prosecution pointed out\\nthat Pavlot’s signature line on one exhibit did not line up with\\nthe other words on the page. See infra Appendix Ex. 101B. And\\nthe prosecution claims that it noticed during jury deliberations\\nthat Pavlot’s signature on a different exhibit seemed to have\\nbeen copied and pasted from another document. Compare infra\\nAppendix Ex. 101A (original signature), with id. Ex. 110 (cop-\\nied-and-pasted signature). The prosecution made this discov-\\nery only three days after the defense belatedly turned over these\\nexhibits.\\n The court immediately held a hearing to figure out what to\\ndo about the alleged forgeries. At the hearing, the prosecution\\ncalled a handwriting expert, who testified that the signatures\\non the documents had been copied and pasted. The defense\\nchose neither to cross-examine the prosecution’s expert nor to\\nintroduce any evidence to contradict the expert’s testimony.\\nThe prosecution asked the court to give the jury a special in-\\nstruction on these forged documents. The defense objected to\\nany new jury instructions, saying that it would prefer a mistrial\\nto a new instruction. But Orie also objected to a mistrial and\\nsimply asked that jury deliberations resume. The court found\\nthat the forged documents were “a fraud on the Court,” the\\n\\n\\n\\n\\n 4\\n\\fjury, and the justice system; “call[ed] into suspicion every doc-\\nument that the defense offered”; and could undermine any ver-\\ndict that the jury might reach. App. 1573a. So it declared a mis-\\ntrial.\\n After the mistrial, the prosecution had the Secret Service\\ntest the authenticity of thirty-four original defense exhibits.\\nThe Secret Service found that well over a dozen of these ex-\\nhibits had handwriting that “may have been reproduced via\\nphotocopies.” App. 1695a. It also found evidence that Pavlot’s\\nsignature had been copied and pasted into three exhibits. As\\ndiscussed below, after her second trial, Orie was convicted of\\nforgery and evidence tampering for introducing fake exhibits\\nduring her first trial.\\n B. Orie’s second trial and exclusion of her expert\\n witness\\n In February 2012, Orie went to trial again on both her orig-\\ninal charges and new charges related to the fake exhibits. Dur-\\ning this second trial, the prosecution called an expert who tes-\\ntified that Orie’s office lease barred her staff from using that\\noffice for anything besides legislative work. Orie asked to call\\nan expert in rebuttal. She said that her expert would testify that\\nthe senate rules let staff do political work from senators’ legis-\\nlative offices on comp time. (Compensatory time, often called\\ncomp time, is time that an employee may take off work in re-\\nturn for having worked extra hours. See, e.g., 29 U.S.C.\\n§ 207(o).)\\n The prosecution argued that the senate rules were irrele-\\nvant. It pointed out that Orie’s behavior could break the law\\n\\n\\n\\n\\n 5\\n\\feven if her behavior did not violate the senate rules. The court\\nagreed. The court also worried that the jury might think her\\nexpert was opining on the law. So it excluded her senate-rules\\nexpert.\\n The jury convicted Orie of theft of services, conspiracy to\\ncommit theft of services, evidence tampering, and forgery. It\\nalso convicted her of using her political position for personal\\ngain, in violation of the Pennsylvania Ethics Act, 65 Pa. Cons.\\nStat. § 1103(a) (conflict of interest). See also id. § 1102 (defin-\\ning conflict of interest). The court sentenced Orie to prison for\\nher theft-of-services, conspiracy, evidence-tampering, and for-\\ngery convictions. But on the Ethics Act convictions, it imposed\\n“[n]o further penalty.” App. 1066a; see Pa. Cons. Stat. § 9723.\\n C. Post-conviction proceedings\\n Orie appealed her convictions in state court, but to no avail.\\nCommonwealth v. Orie, 88 A.3d 983 (Pa. Super. Ct.), appeal\\ndenied, 99 A.3d 925 (Pa. 2014). She then filed this federal ha-\\nbeas petition, which the District Court rejected on the merits.\\nWe granted a certificate of appealability. On appeal, she makes\\nthree arguments: first, that the Pennsylvania Ethics Act is un-\\nconstitutionally vague; second, that her retrial violated the\\nDouble Jeopardy Clause; and third, that excluding her senate-\\nrules expert violated her constitutional right to call witnesses\\nin her defense.\\n Besides disputing these claims on the merits, the Common-\\nwealth raises two procedural issues: First, it argues that we lack\\njurisdiction over Orie’s Ethics Act claim, because she received\\nno further penalty. Second, it argues that she failed to exhaust\\n\\n\\n\\n\\n 6\\n\\fher Sixth Amendment claim. Her habeas appeal was consoli-\\ndated with those of her sisters, who were also convicted of var-\\nious crimes. We will issue separate opinions in each case.\\n D. Standard of review\\n On federal habeas review of state convictions, we defer to\\nstate courts. “[W]e review the ‘last reasoned decision’ of the\\nstate courts on the petitioner’s claims.” Simmons v. Beard, 590\\nF.3d 223, 231–32 (3d Cir. 2009) (quoting Bond v. Beard, 539\\nF.3d 256, 289–90 (3d Cir. 2008)). We must presume that the\\nstate court’s factual findings are correct. 28 U.S.C.\\n§ 2254(e)(1). A petitioner can rebut this presumption only by\\noffering “clear and convincing evidence.” Id.\\n We also defer to state courts on issues of law: We must up-\\nhold their decisions of law unless they are “contrary to, or in-\\nvolve[ ] an unreasonable application of, clearly established\\nFederal law, as determined by the Supreme Court of the United\\nStates.” Id. § 2254(d)(1). So on federal habeas, “even ‘clear er-\\nror’ will not suffice.” White v. Woodall, 572 U.S. 415, 419\\n(2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76\\n(2003)). Instead, the state court must be wrong “beyond any\\npossibility for fairminded disagreement.” Id. at 420 (quoting\\nHarrington v. Richter, 562 U.S. 86, 103 (2011)).\\n II. WE LACK JURISDICTION OVER ORIE’S\\n ETHICS ACT CLAIM\\n Orie is not in custody for her Pennsylvania Ethics Act con-\\nvictions. We thus lack jurisdiction to reach the merits of her\\nclaim that the Ethics Act is unconstitutionally vague.\\n\\n\\n\\n\\n 7\\n\\f A federal court has habeas jurisdiction only if the petitioner\\nis “in custody.” 28 U.S.C. § 2254(a). She is in custody when\\nshe suffers a “non-negligible restraint on [her] physical liberty”\\nbecause of a particular conviction. Piasecki v. Court of Com-\\nmon Pleas, 917 F.3d 161, 166 (3d Cir. 2019) (internal quota-\\ntion marks omitted). We gauge custody for each offense inde-\\npendently. Maleng v. Cook, 490 U.S. 488, 490–92 (1989). In\\nother words, a defendant convicted of multiple offenses can be\\nin custody for one but not for another.\\n Orie was sentenced to “[n]o further penalty” on her Ethics\\nAct convictions. App. 1066a. She received no sentence of in-\\ncarceration or confinement of any kind on those counts. So\\nOrie suffered no physical restraint and thus was never in cus-\\ntody for these offenses.\\n Orie claims she was in custody for her Ethics Act convic-\\ntions because she suffered one “general sentence” for all her\\noffenses. Appellant’s Br. 24. But her sentencing order imposed\\na discrete sentence for each count of conviction. And the order\\nsaid that she would not be punished beyond a determination of\\nguilt for her Ethics Act convictions.\\n Orie also argues that she was in custody for her Ethics Act\\nconvictions because her conspiracy and theft-of-services con-\\nvictions were “predicated” on her Ethics Act convictions. Id.\\nThis argument fails as well. Her conspiracy conviction was\\npredicated instead on her agreement to commit theft of ser-\\nvices. And the theft-of-services statute does not depend on any\\nother offense. See 18 Pa. Cons. Stat. § 3926(b). Her convictions\\nmay have been based on the same behavior, but Orie’s Ethics\\nAct convictions were separate from her other convictions. She\\n\\n\\n\\n\\n 8\\n\\fis in custody for her conspiracy and theft-of-services convic-\\ntions, not her Ethics Act convictions. We thus lack habeas ju-\\nrisdiction over her Ethics Act claim.\\n III. THE SUPERIOR COURT PROPERLY UPHELD\\n ORIE’S RETRIAL\\n The Fifth Amendment’s Double Jeopardy Clause ordinarily\\nbars retrials. But a retrial after a mistrial does not amount to\\ndouble jeopardy when the mistrial was manifestly necessary.\\nArizona v. Washington, 434 U.S. 497, 505 (1978). Though\\nmanifest necessity requires a “high degree of necessity,” mak-\\ning that judgment call is “reserved to the broad discretion of\\nthe trial judge.” Renico v. Lett, 559 U.S. 766, 774 (2010) (in-\\nternal quotation marks omitted). We scrutinize a mistrial more\\nclosely if the trial judge has not exercised his “sound discre-\\ntion” or if the prosecutor appears to be “harass[ing]” or gaining\\na “tactical advantage over the accused.” Arizona v. Washing-\\nton, 434 U.S. at 508, 510 n.28. But absent such prosecutorial\\nmisconduct, if a trial judge grants a mistrial to prevent a jury\\nverdict from being tainted by other trial misconduct, that judg-\\nment “is entitled to special respect.” Id. at 510.\\n We are even more deferential on federal habeas review. We\\nlook to the last reasoned state-court decision, which here is the\\nPennsylvania Superior Court’s affirmance on direct appeal.\\nWe do not ask whether the trial judge should have declared a\\nmistrial, nor whether it abused its discretion by doing so. Ra-\\nther, we ask only whether the state appellate court’s finding\\nthat there was no abuse of discretion was “an unreasonable ap-\\nplication of . . . clearly established Federal law, as determined\\n\\n\\n\\n\\n 9\\n\\fby the Supreme Court of the United States.” 28 U.S.C.\\n§ 2254(d)(1); accord Renico, 559 U.S. at 772–73.\\n A. The Superior Court’s decision was reasonable\\n The Pennsylvania Superior Court’s decision more than sat-\\nisfies our deferential standard of review. To begin, it reasona-\\nbly set forth the federal principles governing appeals of a man-\\nifest-necessity finding. It explained that it was reviewing for\\nabuse of discretion, deferring to the trial court’s superior ability\\nto gauge potential bias and jury prejudice. 88 A.3d at 995–97;\\nsee Renico, 559 U.S. at 772–73 (standard of review); Arizona\\nv. Washington, 434 U.S. at 510 (deference). And it warned that\\ntrial courts should not declare mistrials too readily and should\\nresolve any doubts in favor of the defendant. 88 A.3d at 996;\\nsee Renico, 559 U.S. at 772–74.\\n Next, the Superior Court reasoned that the trial court had\\nlegal authority to grant a mistrial once it discovered that the\\nexhibits were forged. It reasonably held that “[o]nce the trial\\njudge realized forged documents had been admitted into evi-\\ndence, he could not allow those documents to enter into the\\njury’s deliberation and verdict.” 88 A.3d at 998. No Supreme\\nCourt case suggests otherwise. On the contrary, in so holding,\\nthe Superior Court cited and reasonably interpreted the Su-\\npreme Court’s guidance. See id. (citing trial court’s opinion as\\nin turn citing Hazel-Atlas Glass Co. v. Hartford-Empire Co.,\\n322 U.S. 238 (1944)); see also Hazel-Atlas, 322 U.S. at 246\\n(“The public welfare demands that the agencies of public jus-\\ntice be not so impotent that they must always be mute and help-\\nless victims of deception and fraud.”).\\n\\n\\n\\n\\n 10\\n\\f The Superior Court also reasonably upheld the trial court’s\\n“initial factual determination that the documents were forger-\\nies.” 88 A.3d at 998–99. In doing so, it made a series of rea-\\nsonable observations: The jury did not have enough evidence\\nto resolve that question. Id. at 998. Though the prosecution\\nbrought out Exhibit 101B’s defects on cross-examination of\\nOrie, it did not discover Exhibit 110’s forgery until after the\\njury had started deliberating. Id. The jury was never instructed\\nwhat to do if it found that documents were forged. Id. And be-\\ncause the defense did not let the prosecution inspect the docu-\\nments until the second-to-last day of trial, the prosecution\\ncould not have discovered the forgeries earlier. So the prose-\\ncution could not introduce evidence to help the jury evaluate\\nthe exhibits. Id. at 998–99. The record amply supports each of\\nthese observations.\\n Further, the Superior Court reasoned that the forged exhib-\\nits were material to the trial’s outcome. As it noted, Orie had\\nargued “that Pavlot had the complete authority to direct the\\nstaffers and that Pavlot acted on her own initiative and against\\nOrie’s directives that no improper political activity occur in the\\noffice.” Id. at 999. The forged documents supported that read-\\ning. Orie had introduced these documents to show that Pavlot\\nhad disobeyed Orie’s directives and let the staff do campaign\\nwork on legislative time. These and similar documents were\\nthe basis of Orie’s argument to the jury that Pavlot, not Orie,\\nwas responsible for the staffers’ actions. And when Pavlot\\ncould not remember any of the directives on cross-examina-\\ntion, the defense impugned her credibility.\\n\\n\\n\\n\\n 11\\n\\f Pavlot’s credibility was at the heart of the case. As Orie’s\\nlawyer argued in closing, “[t]he Commonwealth’s case rises\\nand falls on [Pavlot’s] truthfulness.” Tr. Pt. 7, 1st Trial (Mar.\\n2, 2011), p. 3180. So Pavlot’s forged signatures on those doc-\\numents greatly inflated the force of Orie’s arguments and her\\ncross-examination of Pavlot.\\n Finally, the Superior Court emphasized that while the trial\\ncourt had solicited and weighed alternative remedies, it had\\nreasonably found that nothing short of a mistrial would coun-\\nteract the fraud. 88 A.3d at 998–99. That reasoning is sound.\\nThe trial court repeatedly asked the parties what it should do\\nabout the forgeries, both before and after hearing from the\\nhandwriting expert. Twice, the prosecution suggested a cura-\\ntive instruction. But twice, the defense balked, insisting that\\n“[b]efore you do that then declare a mistrial” and that giving\\nan instruction “is absolutely not an option here.” App. 1557a,\\n1571a. Orie’s only proposed remedy, as the Superior Court\\nnoted, was to do nothing. See 88 A.3d at 999 & n.13; see also\\nApp. 1572a (“We are asking that [the jury’s] deliberations re-\\nsume immediately, and we are opposed to a mistrial.”). Given\\nthe importance of the forged documents, the threat to the integ-\\nrity of the verdict, and the lack of a good alternative remedy,\\nthe only solution was a mistrial. So we cannot say that the Su-\\nperior Court’s decision to uphold the grant of a mistrial was\\nunreasonable.\\n B. Orie’s objections fail\\n Orie challenges the decision upholding the mistrial on five\\ngrounds. Not one succeeds.\\n\\n\\n\\n\\n 12\\n\\f First, she criticizes the trial court’s decision to halt jury de-\\nliberations and seize the questioned exhibits after speaking\\nonly with the prosecution. But even if that is what happened,\\nthere is nothing wrong with that. When they learn of possible\\nmisconduct, judges often tell juries to stop deliberating without\\nfirst telling counsel. E.g., United States v. Bristol-Mártir, 570\\nF.3d 29, 36 (1st Cir. 2009). To resolve the forgery allegation\\nhere, the trial court needed the challenged exhibits, which the\\njury had. And there is no reason to think that asking for a pause\\ncaused incurable harm. The trial court told the jury only that\\n“there is a legal matter before the Court” and warned the bailiff\\nto retrieve the exhibits without talking to anyone. App. 1541a.\\n Besides, there was no significant ex parte communication.\\nThe prosecutor said exactly two sentences to the judge before\\nthe judge told him to wait for defense counsel. When the judge\\ntold him to wait, “[d]efense counsel was just entering the court-\\nroom.” App. 1589a. The judge did not see the forged docu-\\nments, hear the prosecutor’s arguments, or start to discuss a\\nmistrial before defense counsel got there. Nor is there any ban\\non declaring a mistrial sua sponte. United States v. Wecht, 541\\nF.3d 493, 504 (3d Cir. 2008).\\n Second, Orie claims that the prosecution had repeatedly\\nquestioned the defense exhibits’ credibility and meaning, so\\nthe jury was already on notice of potential forgery. But ques-\\ntioning evidence’s credibility and meaning is quite different\\nfrom showing that it is forged. The specter of forged trial ex-\\nhibits came up only briefly at trial—most notably when the\\nprosecution questioned Exhibit 101B’s authenticity on cross-\\nexamination.\\n\\n\\n\\n\\n 13\\n\\f Third, Orie argues that the trial judge usurped the jury’s\\nfactfinding role. She argues that the jury should have decided\\nthe question of forgery, not the judge. But there is no legal or\\nlogical reason why courts cannot find facts in granting mistri-\\nals. Indeed, they must do so, especially where the impropriety\\ngiving rise to the mistrial could prejudice the jury.\\n Fourth, Orie blames the prosecution for seeking a tactical\\nadvantage and intentionally provoking a mistrial. But the pros-\\necution never asked for a mistrial, even after the court dis-\\ncussed that possibility and even after the handwriting expert\\ntestified. Indeed, the remedies it did request were quite tame\\nand reasonable. At first, it asked the court to instruct the jury\\nto compare the two signatures and draw its own conclusions.\\nAfter the expert testified, the prosecution sought an instruction\\nor stipulation that the documents were forged and an instruc-\\ntion to consider the significance of the forgery. But Orie re-\\nfused to consider these options, instead preferring a mistrial. If\\nanyone provoked a mistrial, it was Orie herself.\\n Finally, Orie says that the trial court erred by “convicting”\\nher of forgery and fraud without evidence that she intentionally\\ndid anything wrong. Appellant’s Br. 50. She also objects that\\nPavlot had custody of the documents and so she could have\\nbeen responsible for the forgery. But the trial court never ac-\\ncused Orie herself of forgery. Rather, it said: “I don’t know\\nwho among the parties involved for the defense has done this,\\nbut I cannot allow this jury to continue with fraudulent infor-\\nmation in front of them.” App. 1573a.\\n What is more, the trial court acted reasonably in blaming\\nthe defense for the forgeries. Orie’s counsel told the court that\\n\\n\\n\\n\\n 14\\n\\fthe documents “were and are in [the defense’s] possession” un-\\ntil trial; the prosecution said that, as far as it knew, the docu-\\nments had come from Orie’s office; and Orie never contested\\nthat statement. App. 1555a.\\n In short, we see no basis to disturb the Superior Court’s re-\\njection of Orie’s double-jeopardy claim.\\n IV. EXCLUDING ORIE’S ETHICS EXPERT WAS PROPER\\n Orie argues that the trial court violated her constitutional\\nright to present her defense by excluding her expert witness on\\nthe senate rules. Though Orie may not have preserved this\\nclaim, the Commonwealth waived the exhaustion requirement.\\nStill, this claim is meritless. She had no right to call her witness\\nbecause the witness’s testimony would have been immaterial.\\n A. We will address the merits of Orie’s constitutional\\n claim\\n The Commonwealth waived its argument that Orie did not\\nexhaust her constitutional claim. Before we can review a state\\nhabeas petition, the petitioner must first exhaust her state rem-\\nedies. 28 U.S.C. § 2254(b)(1)(A). But a state can waive exhaus-\\ntion if it does so explicitly through counsel. Id. § 2254(b)(3).\\nThat waiver is valid even when lack of exhaustion would oth-\\nerwise have barred the petitioner’s claim. Sharrieff v. Cathel,\\n574 F.3d 225, 229 (3d Cir. 2009).\\n Here, in its answer to Orie’s habeas petition, the Common-\\nwealth waived the exhaustion requirement. It conceded that\\n“Petitioner’s claims are exhausted” and “Petitioner’s claims\\nare not procedurally defaulted.” D.C. ECF No. 64, pp. 34–35.\\n\\n\\n\\n\\n 15\\n\\fThese statements were in the answer signed by the Common-\\nwealth’s counsel and filed in the District Court. So the Com-\\nmonwealth waived exhaustion. We will decide her claim on the\\nmerits.\\n The parties quibble over whether Orie’s constitutional\\nclaim was before the Superior Court. Orie insists that she has\\nall along framed her challenge to the expert’s exclusion in con-\\nstitutional terms. (She now phrases it primarily in terms of the\\nSixth Amendment, but also touches lightly on due process.)\\nThe Commonwealth tells us that in state court, Orie made only\\nan evidentiary argument. And the Superior Court, for its part,\\nreasoned in evidentiary terms. 88 A.3d at 1000–01.\\n But we need not decide whether the Superior Court’s ruling\\nimplicitly addressed the merits of Orie’s constitutional argu-\\nment, and so would merit deference on habeas. Whether habeas\\ndeference applies or not, the trial court’s exclusion of the evi-\\ndence did not violate the Constitution. See Berghuis v. Thomp-\\nkins, 560 U.S. 370, 390 (2010).\\n We have seen “apparently little, if any, difference in the\\nanalysis” of excluding evidence under compulsory process or\\ndue process. Gov’t of the V.I. v. Mills, 956 F.2d 443, 445 n.4\\n(3d Cir. 1992). So we will focus, as Orie does, on the Sixth\\nAmendment.\\n B. Orie had no right to put on a senate-rules expert\\n because his testimony would not have been material\\n to her trial\\n Orie’s senate-rules expert would not have offered material\\ntestimony, so she had no Sixth Amendment right to call him.\\n\\n\\n\\n\\n 16\\n\\f The Sixth Amendment’s Compulsory Process Clause guar-\\nantees a defendant the right to call witnesses in her defense.\\nWashington v. Texas, 388 U.S. 14, 19 (1967). But it does not\\ngive a defendant the right to introduce any testimony she likes.\\nTaylor v. Illinois, 484 U.S. 400, 410 (1988). Courts may ex-\\nclude incompetent, privileged, or otherwise inadmissible testi-\\nmony under the rules of evidence. Id.; Montana v. Egelhoff,\\n518 U.S. 37, 42 (1996).\\n To make out a violation of this Sixth Amendment right to\\ncompulsory process, the defendant must show that the wit-\\nness’s “testimony would have been both material and favorable\\nto [the] defense.” United States v. Valenzuela-Bernal, 458 U.S.\\n858, 867 (1982). Not all relevant evidence is material. To be\\nmaterial, it must be reasonably likely to affect the trial’s out-\\ncome. Id. at 873–77.\\n Orie’s expert testimony was unlikely to affect her trial’s\\noutcome. Her witness was an expert on the senate’s rules. He\\nwould have testified that these rules let staff do political work\\nin legislative offices using comp time. But Orie was not ac-\\ncused of telling her staff to do political work during comp time.\\nOrie conceded as much. So the jury could not have convicted\\nher for that. Instead, to convict, the jury had to find that she\\ntold her staff to do political work on the state’s time. And her\\nexpert testimony about what employees could do on comp time\\ncould not have affected that finding.\\n Orie’s rejoinder depends on a misreading of the record. She\\nargues that the prosecution’s expert had inaccurately testified\\nthat the senate rules forbade all political work in legislative of-\\nfices. So, she says, she needed her expert to rebut that\\n\\n\\n\\n\\n 17\\n\\ffalsehood. But the prosecution’s expert never made such a\\nstatement. The prosecution’s expert had testified that Orie’s of-\\nfice lease, not the senate rules, barred using the office for any-\\nthing but legislative work. So her expert would not have rebut-\\nted the prosecution’s expert.\\n Not only was Orie’s expert testimony immaterial, but it\\ncould have confused the jury. Judges may exclude evidence\\nthat risks “confusing the issues, [or] misleading the jury.” Pa.\\nR. Evid. 403. Her expert could have led the jury to confuse\\nwhat the senate rules allowed with what Pennsylvania law al-\\nlowed. The trial court wanted the jury to learn the law from the\\ncourt’s instructions rather than from a witness’s testimony. The\\ncourt’s reasonable exclusion of evidence under the “standard\\nrules of evidence” does not violate the Sixth Amendment.\\nEgelhoff, 518 U.S. at 42 (quoting Taylor, 484 U.S. at 410).\\n * * * * *\\n All three of Orie’s arguments fail. She is not in custody for\\nher Ethics Act convictions, so we lack jurisdiction to hear her\\nchallenge to that statute. The Superior Court reasonably af-\\nfirmed the trial court’s finding that the forged documents made\\na mistrial manifestly necessary, so retrying her did not amount\\nto double jeopardy. And Orie’s expert testimony about senate\\nrules was immaterial to her case, so excluding her expert wit-\\nness did not violate her constitutional right to put on her de-\\nfense. As to the Ethics Act convictions, we will thus vacate and\\nremand with instructions to dismiss for lack of jurisdiction. We\\nwill otherwise affirm.\\n\\n\\n\\n\\n 18\\n\\f Appendix\\n Exhibit 101A\\n(Compare Pavlot’s signature with Exhibit 110)\\n\\n\\n\\n\\n 19\\n\\fExhibit 101B\\n\\n\\n\\n\\n 20\\n\\f Exhibit 110\\n(Compare Pavlot’s signature with Exhibit 101A)\\n\\n\\n\\n\\n 21\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4448072/\", \"author_raw\": \"BIBAS, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"JORDAN"},"judge2":{"kind":"string","value":"BIBAS"},"judge3":{"kind":"string","value":"MATEY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JORDAN\": \", Circuit\", \"BIBAS\": \", Circuit\", \"MATEY\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4670819/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Jane Orie v. Secretary Pennsylvania Departm\nCourt: U.S. Court of Appeals for the Third Circuit\nDate decided: 2019-10-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _______________\n\n No. 16-1685\n _______________\n\n JANE C. ORIE,\n Appellant\n\n v.\n\n SECRETARY PENNSYLVANIA DEPARTMENT OF\n CORRECTIONS\n _______________\n\n On Appeal from the United States District Court\n for the Western District of Pennsylvania\n (D.C. No. 2-15-cv-01153)\n Magistrate Judge: Honorable Robert C. Mitchell\n _______________\n\n Argued June 5, 2019\n\n Before: JORDAN, BIBAS, and MATEY, Circuit Judges\n\n (Filed: October 15, 2019)\n _______________\n\nWilliam C. Costopoulos [ARGUED]\nCostopoulos Foster & Fields\n\f831 Market Street\nP.O. Box 222\nLemoyne, PA 17043\n Counsel for Appellant\n\nRonald M. Wabby, Jr. [ARGUED]\nAllegheny County Office of District Attorney\n436 Grant Street\nPittsburgh, PA 15219\n Counsel for Appellee\n _______________\n\n OPINION OF THE COURT\n _______________\n\nBIBAS, Circuit Judge.\n Forging evidence is one way to get a mistrial. Jane Orie, a\nformer Pennsylvania state senator, introduced forged evidence\nat her trial in state court. So the judge declared a mistrial. (The\nexhibits that triggered the mistrial are appended to this opin-\nion.) During Orie’s second trial, the court excluded her expert\nwitness because his testimony would have been irrelevant. Af-\nter her second trial, a jury convicted her of forgery, theft of\nservices, Pennsylvania Ethics Act violations, and related\ncrimes. Orie now brings a federal habeas petition challenging\nthese convictions.\n We hold that Orie’s convictions do not warrant habeas re-\nlief. To start, we lack jurisdiction to consider her challenge to\nher Ethics Act convictions because she is not in custody for\nthose convictions. On the merits, the state appellate court rea-\nsonably upheld the trial court’s finding that a mistrial was\n\n\n\n\n 2\n\fmanifestly necessary because the forged documents could have\ntainted the jury’s verdict. So the mistrial and retrial did not\namount to double jeopardy. And Orie did not show that her\nsenate-rules expert’s testimony would have been material, so\nshe had no constitutional right to call this witness. As to the\nEthics Act convictions, we will thus vacate and remand with\ninstructions to dismiss for lack of jurisdiction. We will other-\nwise affirm.\n I. BACKGROUND\n Orie used her government-funded legislative staff to do po-\nlitical fundraising and campaigning for her reelection. When\nthe Commonwealth started investigating that behavior and\nother alleged misconduct, she tried to hide and destroy docu-\nments. The Commonwealth then charged Orie with several\ncrimes related to using state employees for personal gain and\nlater trying to cover it up. Her sisters, Joan Orie Melvin, a\nPennsylvania Supreme Court Justice, and Janine Orie, Mel-\nvin’s aide, were charged with similar crimes.\n A. Orie’s first trial and the forged exhibits\n In February 2011, Orie’s case went to trial in Pennsylvania\nstate court. At trial, she argued that she had consistently in-\nstructed her staff not to do political work on legislative time.\nShe accused her chief of staff, Jamie Pavlot, of disobeying her\ninstructions by letting staff do campaign work on the taxpay-\ners’ dime. Orie introduced and authenticated a number of ex-\nhibits with directives from her to Pavlot not to do political work\non legislative time. But Orie claimed that Pavlot disregarded\nthese directives.\n\n\n\n\n 3\n\f Pavlot, who testified for the prosecution, said she did not\nrecall seeing these directives. Orie’s lawyer found this incred-\nible. Both in his cross-examination of her and in his closing\nargument, he repeatedly questioned Pavlot’s failure to recog-\nnize the documents.\n But the prosecution quickly determined that at least two of\nthese exhibits had forged signatures. See infra Appendix. Dur-\ning the cross-examination of Orie, the prosecution pointed out\nthat Pavlot’s signature line on one exhibit did not line up with\nthe other words on the page. See infra Appendix Ex. 101B. And\nthe prosecution claims that it noticed during jury deliberations\nthat Pavlot’s signature on a different exhibit seemed to have\nbeen copied and pasted from another document. Compare infra\nAppendix Ex. 101A (original signature), with id. Ex. 110 (cop-\nied-and-pasted signature). The prosecution made this discov-\nery only three days after the defense belatedly turned over these\nexhibits.\n The court immediately held a hearing to figure out what to\ndo about the alleged forgeries. At the hearing, the prosecution\ncalled a handwriting expert, who testified that the signatures\non the documents had been copied and pasted. The defense\nchose neither to cross-examine the prosecution’s expert nor to\nintroduce any evidence to contradict the expert’s testimony.\nThe prosecution asked the court to give the jury a special in-\nstruction on these forged documents. The defense objected to\nany new jury instructions, saying that it would prefer a mistrial\nto a new instruction. But Orie also objected to a mistrial and\nsimply asked that jury deliberations resume. The court found\nthat the forged documents were “a fraud on the Court,” the\n\n\n\n\n 4\n\fjury, and the justice system; “call[ed] into suspicion every doc-\nument that the defense offered”; and could undermine any ver-\ndict that the jury might reach. App. 1573a. So it declared a mis-\ntrial.\n After the mistrial, the prosecution had the Secret Service\ntest the authenticity of thirty-four original defense exhibits.\nThe Secret Service found that well over a dozen of these ex-\nhibits had handwriting that “may have been reproduced via\nphotocopies.” App. 1695a. It also found evidence that Pavlot’s\nsignature had been copied and pasted into three exhibits. As\ndiscussed below, after her second trial, Orie was convicted of\nforgery and evidence tampering for introducing fake exhibits\nduring her first trial.\n B. Orie’s second trial and exclusion of her expert\n witness\n In February 2012, Orie went to trial again on both her orig-\ninal charges and new charges related to the fake exhibits. Dur-\ning this second trial, the prosecution called an expert who tes-\ntified that Orie’s office lease barred her staff from using that\noffice for anything besides legislative work. Orie asked to call\nan expert in rebuttal. She said that her expert would testify that\nthe senate rules let staff do political work from senators’ legis-\nlative offices on comp time. (Compensatory time, often called\ncomp time, is time that an employee may take off work in re-\nturn for having worked extra hours. See, e.g., 29 U.S.C.\n§ 207(o).)\n The prosecution argued that the senate rules were irrele-\nvant. It pointed out that Orie’s behavior could break the law\n\n\n\n\n 5\n\feven if her behavior did not violate the senate rules. The court\nagreed. The court also worried that the jury might think her\nexpert was opining on the law. So it excluded her senate-rules\nexpert.\n The jury convicted Orie of theft of services, conspiracy to\ncommit theft of services, evidence tampering, and forgery. It\nalso convicted her of using her political position for personal\ngain, in violation of the Pennsylvania Ethics Act, 65 Pa. Cons.\nStat. § 1103(a) (conflict of interest). See also id. § 1102 (defin-\ning conflict of interest). The court sentenced Orie to prison for\nher theft-of-services, conspiracy, evidence-tampering, and for-\ngery convictions. But on the Ethics Act convictions, it imposed\n“[n]o further penalty.” App. 1066a; see Pa. Cons. Stat. § 9723.\n C. Post-conviction proceedings\n Orie appealed her convictions in state court, but to no avail.\nCommonwealth v. Orie, 88 A.3d 983 (Pa. Super. Ct.), appeal\ndenied, 99 A.3d 925 (Pa. 2014). She then filed this federal ha-\nbeas petition, which the District Court rejected on the merits.\nWe granted a certificate of appealability. On appeal, she makes\nthree arguments: first, that the Pennsylvania Ethics Act is un-\nconstitutionally vague; second, that her retrial violated the\nDouble Jeopardy Clause; and third, that excluding her senate-\nrules expert violated her constitutional right to call witnesses\nin her defense.\n Besides disputing these claims on the merits, the Common-\nwealth raises two procedural issues: First, it argues that we lack\njurisdiction over Orie’s Ethics Act claim, because she received\nno further penalty. Second, it argues that she failed to exhaust\n\n\n\n\n 6\n\fher Sixth Amendment claim. Her habeas appeal was consoli-\ndated with those of her sisters, who were also convicted of var-\nious crimes. We will issue separate opinions in each case.\n D. Standard of review\n On federal habeas review of state convictions, we defer to\nstate courts. “[W]e review the ‘last reasoned decision’ of the\nstate courts on the petitioner’s claims.” Simmons v. Beard, 590\nF.3d 223, 231–32 (3d Cir. 2009) (quoting Bond v. Beard, 539\nF.3d 256, 289–90 (3d Cir. 2008)). We must presume that the\nstate court’s factual findings are correct. 28 U.S.C.\n§ 2254(e)(1). A petitioner can rebut this presumption only by\noffering “clear and convincing evidence.” Id.\n We also defer to state courts on issues of law: We must up-\nhold their decisions of law unless they are “contrary to, or in-\nvolve[ ] an unreasonable application of, clearly established\nFederal law, as determined by the Supreme Court of the United\nStates.” Id. § 2254(d)(1). So on federal habeas, “even ‘clear er-\nror’ will not suffice.” White v. Woodall, 572 U.S. 415, 419\n(2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76\n(2003)). Instead, the state court must be wrong “beyond any\npossibility for fairminded disagreement.” Id. at 420 (quoting\nHarrington v. Richter, 562 U.S. 86, 103 (2011)).\n II. WE LACK JURISDICTION OVER ORIE’S\n ETHICS ACT CLAIM\n Orie is not in custody for her Pennsylvania Ethics Act con-\nvictions. We thus lack jurisdiction to reach the merits of her\nclaim that the Ethics Act is unconstitutionally vague.\n\n\n\n\n 7\n\f A federal court has habeas jurisdiction only if the petitioner\nis “in custody.” 28 U.S.C. § 2254(a). She is in custody when\nshe suffers a “non-negligible restraint on [her] physical liberty”\nbecause of a particular conviction. Piasecki v. Court of Com-\nmon Pleas, 917 F.3d 161, 166 (3d Cir. 2019) (internal quota-\ntion marks omitted). We gauge custody for each offense inde-\npendently. Maleng v. Cook, 490 U.S. 488, 490–92 (1989). In\nother words, a defendant convicted of multiple offenses can be\nin custody for one but not for another.\n Orie was sentenced to “[n]o further penalty” on her Ethics\nAct convictions. App. 1066a. She received no sentence of in-\ncarceration or confinement of any kind on those counts. So\nOrie suffered no physical restraint and thus was never in cus-\ntody for these offenses.\n Orie claims she was in custody for her Ethics Act convic-\ntions because she suffered one “general sentence” for all her\noffenses. Appellant’s Br. 24. But her sentencing order imposed\na discrete sentence for each count of conviction. And the order\nsaid that she would not be punished beyond a determination of\nguilt for her Ethics Act convictions.\n Orie also argues that she was in custody for her Ethics Act\nconvictions because her conspiracy and theft-of-services con-\nvictions were “predicated” on her Ethics Act convictions. Id.\nThis argument fails as well. Her conspiracy conviction was\npredicated instead on her agreement to commit theft of ser-\nvices. And the theft-of-services statute does not depend on any\nother offense. See 18 Pa. Cons. Stat. § 3926(b). Her convictions\nmay have been based on the same behavior, but Orie’s Ethics\nAct convictions were separate from her other convictions. She\n\n\n\n\n 8\n\fis in custody for her conspiracy and theft-of-services convic-\ntions, not her Ethics Act convictions. We thus lack habeas ju-\nrisdiction over her Ethics Act claim.\n III. THE SUPERIOR COURT PROPERLY UPHELD\n ORIE’S RETRIAL\n The Fifth Amendment’s Double Jeopardy Clause ordinarily\nbars retrials. But a retrial after a mistrial does not amount to\ndouble jeopardy when the mistrial was manifestly necessary.\nArizona v. Washington, 434 U.S. 497, 505 (1978). Though\nmanifest necessity requires a “high degree of necessity,” mak-\ning that judgment call is “reserved to the broad discretion of\nthe trial judge.” Renico v. Lett, 559 U.S. 766, 774 (2010) (in-\nternal quotation marks omitted). We scrutinize a mistrial more\nclosely if the trial judge has not exercised his “sound discre-\ntion” or if the prosecutor appears to be “harass[ing]” or gaining\na “tactical advantage over the accused.” Arizona v. Washing-\nton, 434 U.S. at 508, 510 n.28. But absent such prosecutorial\nmisconduct, if a trial judge grants a mistrial to prevent a jury\nverdict from being tainted by other trial misconduct, that judg-\nment “is entitled to special respect.” Id. at 510.\n We are even more deferential on federal habeas review. We\nlook to the last reasoned state-court decision, which here is the\nPennsylvania Superior Court’s affirmance on direct appeal.\nWe do not ask whether the trial judge should have declared a\nmistrial, nor whether it abused its discretion by doing so. Ra-\nther, we ask only whether the state appellate court’s finding\nthat there was no abuse of discretion was “an unreasonable ap-\nplication of . . . clearly established Federal law, as determined\n\n\n\n\n 9\n\fby the Supreme Court of the United States.” 28 U.S.C.\n§ 2254(d)(1); accord Renico, 559 U.S. at 772–73.\n A. The Superior Court’s decision was reasonable\n The Pennsylvania Superior Court’s decision more than sat-\nisfies our deferential standard of review. To begin, it reasona-\nbly set forth the federal principles governing appeals of a man-\nifest-necessity finding. It explained that it was reviewing for\nabuse of discretion, deferring to the trial court’s superior ability\nto gauge potential bias and jury prejudice. 88 A.3d at 995–97;\nsee Renico, 559 U.S. at 772–73 (standard of review); Arizona\nv. Washington, 434 U.S. at 510 (deference). And it warned that\ntrial courts should not declare mistrials too readily and should\nresolve any doubts in favor of the defendant. 88 A.3d at 996;\nsee Renico, 559 U.S. at 772–74.\n Next, the Superior Court reasoned that the trial court had\nlegal authority to grant a mistrial once it discovered that the\nexhibits were forged. It reasonably held that “[o]nce the trial\njudge realized forged documents had been admitted into evi-\ndence, he could not allow those documents to enter into the\njury’s deliberation and verdict.” 88 A.3d at 998. No Supreme\nCourt case suggests otherwise. On the contrary, in so holding,\nthe Superior Court cited and reasonably interpreted the Su-\npreme Court’s guidance. See id. (citing trial court’s opinion as\nin turn citing Hazel-Atlas Glass Co. v. Hartford-Empire Co.,\n322 U.S. 238 (1944)); see also Hazel-Atlas, 322 U.S. at 246\n(“The public welfare demands that the agencies of public jus-\ntice be not so impotent that they must always be mute and help-\nless victims of deception and fraud.”).\n\n\n\n\n 10\n\f The Superior Court also reasonably upheld the trial court’s\n“initial factual determination that the documents were forger-\nies.” 88 A.3d at 998–99. In doing so, it made a series of rea-\nsonable observations: The jury did not have enough evidence\nto resolve that question. Id. at 998. Though the prosecution\nbrought out Exhibit 101B’s defects on cross-examination of\nOrie, it did not discover Exhibit 110’s forgery until after the\njury had started deliberating. Id. The jury was never instructed\nwhat to do if it found that documents were forged. Id. And be-\ncause the defense did not let the prosecution inspect the docu-\nments until the second-to-last day of trial, the prosecution\ncould not have discovered the forgeries earlier. So the prose-\ncution could not introduce evidence to help the jury evaluate\nthe exhibits. Id. at 998–99. The record amply supports each of\nthese observations.\n Further, the Superior Court reasoned that the forged exhib-\nits were material to the trial’s outcome. As it noted, Orie had\nargued “that Pavlot had the complete authority to direct the\nstaffers and that Pavlot acted on her own initiative and against\nOrie’s directives that no improper political activity occur in the\noffice.” Id. at 999. The forged documents supported that read-\ning. Orie had introduced these documents to show that Pavlot\nhad disobeyed Orie’s directives and let the staff do campaign\nwork on legislative time. These and similar documents were\nthe basis of Orie’s argument to the jury that Pavlot, not Orie,\nwas responsible for the staffers’ actions. And when Pavlot\ncould not remember any of the directives on cross-examina-\ntion, the defense impugned her credibility.\n\n\n\n\n 11\n\f Pavlot’s credibility was at the heart of the case. As Orie’s\nlawyer argued in closing, “[t]he Commonwealth’s case rises\nand falls on [Pavlot’s] truthfulness.” Tr. Pt. 7, 1st Trial (Mar.\n2, 2011), p. 3180. So Pavlot’s forged signatures on those doc-\numents greatly inflated the force of Orie’s arguments and her\ncross-examination of Pavlot.\n Finally, the Superior Court emphasized that while the trial\ncourt had solicited and weighed alternative remedies, it had\nreasonably found that nothing short of a mistrial would coun-\nteract the fraud. 88 A.3d at 998–99. That reasoning is sound.\nThe trial court repeatedly asked the parties what it should do\nabout the forgeries, both before and after hearing from the\nhandwriting expert. Twice, the prosecution suggested a cura-\ntive instruction. But twice, the defense balked, insisting that\n“[b]efore you do that then declare a mistrial” and that giving\nan instruction “is absolutely not an option here.” App. 1557a,\n1571a. Orie’s only proposed remedy, as the Superior Court\nnoted, was to do nothing. See 88 A.3d at 999 & n.13; see also\nApp. 1572a (“We are asking that [the jury’s] deliberations re-\nsume immediately, and we are opposed to a mistrial.”). Given\nthe importance of the forged documents, the threat to the integ-\nrity of the verdict, and the lack of a good alternative remedy,\nthe only solution was a mistrial. So we cannot say that the Su-\nperior Court’s decision to uphold the grant of a mistrial was\nunreasonable.\n B. Orie’s objections fail\n Orie challenges the decision upholding the mistrial on five\ngrounds. Not one succeeds.\n\n\n\n\n 12\n\f First, she criticizes the trial court’s decision to halt jury de-\nliberations and seize the questioned exhibits after speaking\nonly with the prosecution. But even if that is what happened,\nthere is nothing wrong with that. When they learn of possible\nmisconduct, judges often tell juries to stop deliberating without\nfirst telling counsel. E.g., United States v. Bristol-Mártir, 570\nF.3d 29, 36 (1st Cir. 2009). To resolve the forgery allegation\nhere, the trial court needed the challenged exhibits, which the\njury had. And there is no reason to think that asking for a pause\ncaused incurable harm. The trial court told the jury only that\n“there is a legal matter before the Court” and warned the bailiff\nto retrieve the exhibits without talking to anyone. App. 1541a.\n Besides, there was no significant ex parte communication.\nThe prosecutor said exactly two sentences to the judge before\nthe judge told him to wait for defense counsel. When the judge\ntold him to wait, “[d]efense counsel was just entering the court-\nroom.” App. 1589a. The judge did not see the forged docu-\nments, hear the prosecutor’s arguments, or start to discuss a\nmistrial before defense counsel got there. Nor is there any ban\non declaring a mistrial sua sponte. United States v. Wecht, 541\nF.3d 493, 504 (3d Cir. 2008).\n Second, Orie claims that the prosecution had repeatedly\nquestioned the defense exhibits’ credibility and meaning, so\nthe jury was already on notice of potential forgery. But ques-\ntioning evidence’s credibility and meaning is quite different\nfrom showing that it is forged. The specter of forged trial ex-\nhibits came up only briefly at trial—most notably when the\nprosecution questioned Exhibit 101B’s authenticity on cross-\nexamination.\n\n\n\n\n 13\n\f Third, Orie argues that the trial judge usurped the jury’s\nfactfinding role. She argues that the jury should have decided\nthe question of forgery, not the judge. But there is no legal or\nlogical reason why courts cannot find facts in granting mistri-\nals. Indeed, they must do so, especially where the impropriety\ngiving rise to the mistrial could prejudice the jury.\n Fourth, Orie blames the prosecution for seeking a tactical\nadvantage and intentionally provoking a mistrial. But the pros-\necution never asked for a mistrial, even after the court dis-\ncussed that possibility and even after the handwriting expert\ntestified. Indeed, the remedies it did request were quite tame\nand reasonable. At first, it asked the court to instruct the jury\nto compare the two signatures and draw its own conclusions.\nAfter the expert testified, the prosecution sought an instruction\nor stipulation that the documents were forged and an instruc-\ntion to consider the significance of the forgery. But Orie re-\nfused to consider these options, instead preferring a mistrial. If\nanyone provoked a mistrial, it was Orie herself.\n Finally, Orie says that the trial court erred by “convicting”\nher of forgery and fraud without evidence that she intentionally\ndid anything wrong. Appellant’s Br. 50. She also objects that\nPavlot had custody of the documents and so she could have\nbeen responsible for the forgery. But the trial court never ac-\ncused Orie herself of forgery. Rather, it said: “I don’t know\nwho among the parties involved for the defense has done this,\nbut I cannot allow this jury to continue with fraudulent infor-\nmation in front of them.” App. 1573a.\n What is more, the trial court acted reasonably in blaming\nthe defense for the forgeries. Orie’s counsel told the court that\n\n\n\n\n 14\n\fthe documents “were and are in [the defense’s] possession” un-\ntil trial; the prosecution said that, as far as it knew, the docu-\nments had come from Orie’s office; and Orie never contested\nthat statement. App. 1555a.\n In short, we see no basis to disturb the Superior Court’s re-\njection of Orie’s double-jeopardy claim.\n IV. EXCLUDING ORIE’S ETHICS EXPERT WAS PROPER\n Orie argues that the trial court violated her constitutional\nright to present her defense by excluding her expert witness on\nthe senate rules. Though Orie may not have preserved this\nclaim, the Commonwealth waived the exhaustion requirement.\nStill, this claim is meritless. She had no right to call her witness\nbecause the witness’s testimony would have been immaterial.\n A. We will address the merits of Orie’s constitutional\n claim\n The Commonwealth waived its argument that Orie did not\nexhaust her constitutional claim. Before we can review a state\nhabeas petition, the petitioner must first exhaust her state rem-\nedies. 28 U.S.C. § 2254(b)(1)(A). But a state can waive exhaus-\ntion if it does so explicitly through counsel. Id. § 2254(b)(3).\nThat waiver is valid even when lack of exhaustion would oth-\nerwise have barred the petitioner’s claim. Sharrieff v. Cathel,\n574 F.3d 225, 229 (3d Cir. 2009).\n Here, in its answer to Orie’s habeas petition, the Common-\nwealth waived the exhaustion requirement. It conceded that\n“Petitioner’s claims are exhausted” and “Petitioner’s claims\nare not procedurally defaulted.” D.C. ECF No. 64, pp. 34–35.\n\n\n\n\n 15\n\fThese statements were in the answer signed by the Common-\nwealth’s counsel and filed in the District Court. So the Com-\nmonwealth waived exhaustion. We will decide her claim on the\nmerits.\n The parties quibble over whether Orie’s constitutional\nclaim was before the Superior Court. Orie insists that she has\nall along framed her challenge to the expert’s exclusion in con-\nstitutional terms. (She now phrases it primarily in terms of the\nSixth Amendment, but also touches lightly on due process.)\nThe Commonwealth tells us that in state court, Orie made only\nan evidentiary argument. And the Superior Court, for its part,\nreasoned in evidentiary terms. 88 A.3d at 1000–01.\n But we need not decide whether the Superior Court’s ruling\nimplicitly addressed the merits of Orie’s constitutional argu-\nment, and so would merit deference on habeas. Whether habeas\ndeference applies or not, the trial court’s exclusion of the evi-\ndence did not violate the Constitution. See Berghuis v. Thomp-\nkins, 560 U.S. 370, 390 (2010).\n We have seen “apparently little, if any, difference in the\nanalysis” of excluding evidence under compulsory process or\ndue process. Gov’t of the V.I. v. Mills, 956 F.2d 443, 445 n.4\n(3d Cir. 1992). So we will focus, as Orie does, on the Sixth\nAmendment.\n B. Orie had no right to put on a senate-rules expert\n because his testimony would not have been material\n to her trial\n Orie’s senate-rules expert would not have offered material\ntestimony, so she had no Sixth Amendment right to call him.\n\n\n\n\n 16\n\f The Sixth Amendment’s Compulsory Process Clause guar-\nantees a defendant the right to call witnesses in her defense.\nWashington v. Texas, 388 U.S. 14, 19 (1967). But it does not\ngive a defendant the right to introduce any testimony she likes.\nTaylor v. Illinois, 484 U.S. 400, 410 (1988). Courts may ex-\nclude incompetent, privileged, or otherwise inadmissible testi-\nmony under the rules of evidence. Id.; Montana v. Egelhoff,\n518 U.S. 37, 42 (1996).\n To make out a violation of this Sixth Amendment right to\ncompulsory process, the defendant must show that the wit-\nness’s “testimony would have been both material and favorable\nto [the] defense.” United States v. Valenzuela-Bernal, 458 U.S.\n858, 867 (1982). Not all relevant evidence is material. To be\nmaterial, it must be reasonably likely to affect the trial’s out-\ncome. Id. at 873–77.\n Orie’s expert testimony was unlikely to affect her trial’s\noutcome. Her witness was an expert on the senate’s rules. He\nwould have testified that these rules let staff do political work\nin legislative offices using comp time. But Orie was not ac-\ncused of telling her staff to do political work during comp time.\nOrie conceded as much. So the jury could not have convicted\nher for that. Instead, to convict, the jury had to find that she\ntold her staff to do political work on the state’s time. And her\nexpert testimony about what employees could do on comp time\ncould not have affected that finding.\n Orie’s rejoinder depends on a misreading of the record. She\nargues that the prosecution’s expert had inaccurately testified\nthat the senate rules forbade all political work in legislative of-\nfices. So, she says, she needed her expert to rebut that\n\n\n\n\n 17\n\ffalsehood. But the prosecution’s expert never made such a\nstatement. The prosecution’s expert had testified that Orie’s of-\nfice lease, not the senate rules, barred using the office for any-\nthing but legislative work. So her expert would not have rebut-\nted the prosecution’s expert.\n Not only was Orie’s expert testimony immaterial, but it\ncould have confused the jury. Judges may exclude evidence\nthat risks “confusing the issues, [or] misleading the jury.” Pa.\nR. Evid. 403. Her expert could have led the jury to confuse\nwhat the senate rules allowed with what Pennsylvania law al-\nlowed. The trial court wanted the jury to learn the law from the\ncourt’s instructions rather than from a witness’s testimony. The\ncourt’s reasonable exclusion of evidence under the “standard\nrules of evidence” does not violate the Sixth Amendment.\nEgelhoff, 518 U.S. at 42 (quoting Taylor, 484 U.S. at 410).\n * * * * *\n All three of Orie’s arguments fail. She is not in custody for\nher Ethics Act convictions, so we lack jurisdiction to hear her\nchallenge to that statute. The Superior Court reasonably af-\nfirmed the trial court’s finding that the forged documents made\na mistrial manifestly necessary, so retrying her did not amount\nto double jeopardy. And Orie’s expert testimony about senate\nrules was immaterial to her case, so excluding her expert wit-\nness did not violate her constitutional right to put on her de-\nfense. As to the Ethics Act convictions, we will thus vacate and\nremand with instructions to dismiss for lack of jurisdiction. We\nwill otherwise affirm.\n\n\n\n\n 18\n\f Appendix\n Exhibit 101A\n(Compare Pavlot’s signature with Exhibit 110)\n\n\n\n\n 19\n\fExhibit 101B\n\n\n\n\n 20\n\f Exhibit 110\n(Compare Pavlot’s signature with Exhibit 101A)\n\n\n\n\n 21\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Jane Orie v. Secretary Pennsylvania Departm\\nCourt: U.S. Court of Appeals for the Third Circuit\\nDate decided: 2019-10-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n _______________\\n\\n No. 16-1685\\n _______________\\n\\n JANE C. ORIE,\\n Appellant\\n\\n v.\\n\\n SECRETARY PENNSYLVANIA DEPARTMENT OF\\n CORRECTIONS\\n _______________\\n\\n On Appeal from the United States District Court\\n for the Western District of Pennsylvania\\n (D.C. No. 2-15-cv-01153)\\n Magistrate Judge: Honorable Robert C. Mitchell\\n _______________\\n\\n Argued June 5, 2019\\n\\n Before: JORDAN, BIBAS, and MATEY, Circuit Judges\\n\\n (Filed: October 15, 2019)\\n _______________\\n\\nWilliam C. Costopoulos [ARGUED]\\nCostopoulos Foster & Fields\\n\\f831 Market Street\\nP.O. Box 222\\nLemoyne, PA 17043\\n Counsel for Appellant\\n\\nRonald M. Wabby, Jr. [ARGUED]\\nAllegheny County Office of District Attorney\\n436 Grant Street\\nPittsburgh, PA 15219\\n Counsel for Appellee\\n _______________\\n\\n OPINION OF THE COURT\\n _______________\\n\\nBIBAS, Circuit Judge.\\n Forging evidence is one way to get a mistrial. Jane Orie, a\\nformer Pennsylvania state senator, introduced forged evidence\\nat her trial in state court. So the judge declared a mistrial. (The\\nexhibits that triggered the mistrial are appended to this opin-\\nion.) During Orie’s second trial, the court excluded her expert\\nwitness because his testimony would have been irrelevant. Af-\\nter her second trial, a jury convicted her of forgery, theft of\\nservices, Pennsylvania Ethics Act violations, and related\\ncrimes. Orie now brings a federal habeas petition challenging\\nthese convictions.\\n We hold that Orie’s convictions do not warrant habeas re-\\nlief. To start, we lack jurisdiction to consider her challenge to\\nher Ethics Act convictions because she is not in custody for\\nthose convictions. On the merits, the state appellate court rea-\\nsonably upheld the trial court’s finding that a mistrial was\\n\\n\\n\\n\\n 2\\n\\fmanifestly necessary because the forged documents could have\\ntainted the jury’s verdict. So the mistrial and retrial did not\\namount to double jeopardy. And Orie did not show that her\\nsenate-rules expert’s testimony would have been material, so\\nshe had no constitutional right to call this witness. As to the\\nEthics Act convictions, we will thus vacate and remand with\\ninstructions to dismiss for lack of jurisdiction. We will other-\\nwise affirm.\\n I. BACKGROUND\\n Orie used her government-funded legislative staff to do po-\\nlitical fundraising and campaigning for her reelection. When\\nthe Commonwealth started investigating that behavior and\\nother alleged misconduct, she tried to hide and destroy docu-\\nments. The Commonwealth then charged Orie with several\\ncrimes related to using state employees for personal gain and\\nlater trying to cover it up. Her sisters, Joan Orie Melvin, a\\nPennsylvania Supreme Court Justice, and Janine Orie, Mel-\\nvin’s aide, were charged with similar crimes.\\n A. Orie’s first trial and the forged exhibits\\n In February 2011, Orie’s case went to trial in Pennsylvania\\nstate court. At trial, she argued that she had consistently in-\\nstructed her staff not to do political work on legislative time.\\nShe accused her chief of staff, Jamie Pavlot, of disobeying her\\ninstructions by letting staff do campaign work on the taxpay-\\ners’ dime. Orie introduced and authenticated a number of ex-\\nhibits with directives from her to Pavlot not to do political work\\non legislative time. But Orie claimed that Pavlot disregarded\\nthese directives.\\n\\n\\n\\n\\n 3\\n\\f Pavlot, who testified for the prosecution, said she did not\\nrecall seeing these directives. Orie’s lawyer found this incred-\\nible. Both in his cross-examination of her and in his closing\\nargument, he repeatedly questioned Pavlot’s failure to recog-\\nnize the documents.\\n But the prosecution quickly determined that at least two of\\nthese exhibits had forged signatures. See infra Appendix. Dur-\\ning the cross-examination of Orie, the prosecution pointed out\\nthat Pavlot’s signature line on one exhibit did not line up with\\nthe other words on the page. See infra Appendix Ex. 101B. And\\nthe prosecution claims that it noticed during jury deliberations\\nthat Pavlot’s signature on a different exhibit seemed to have\\nbeen copied and pasted from another document. Compare infra\\nAppendix Ex. 101A (original signature), with id. Ex. 110 (cop-\\nied-and-pasted signature). The prosecution made this discov-\\nery only three days after the defense belatedly turned over these\\nexhibits.\\n The court immediately held a hearing to figure out what to\\ndo about the alleged forgeries. At the hearing, the prosecution\\ncalled a handwriting expert, who testified that the signatures\\non the documents had been copied and pasted. The defense\\nchose neither to cross-examine the prosecution’s expert nor to\\nintroduce any evidence to contradict the expert’s testimony.\\nThe prosecution asked the court to give the jury a special in-\\nstruction on these forged documents. The defense objected to\\nany new jury instructions, saying that it would prefer a mistrial\\nto a new instruction. But Orie also objected to a mistrial and\\nsimply asked that jury deliberations resume. The court found\\nthat the forged documents were “a fraud on the Court,” the\\n\\n\\n\\n\\n 4\\n\\fjury, and the justice system; “call[ed] into suspicion every doc-\\nument that the defense offered”; and could undermine any ver-\\ndict that the jury might reach. App. 1573a. So it declared a mis-\\ntrial.\\n After the mistrial, the prosecution had the Secret Service\\ntest the authenticity of thirty-four original defense exhibits.\\nThe Secret Service found that well over a dozen of these ex-\\nhibits had handwriting that “may have been reproduced via\\nphotocopies.” App. 1695a. It also found evidence that Pavlot’s\\nsignature had been copied and pasted into three exhibits. As\\ndiscussed below, after her second trial, Orie was convicted of\\nforgery and evidence tampering for introducing fake exhibits\\nduring her first trial.\\n B. Orie’s second trial and exclusion of her expert\\n witness\\n In February 2012, Orie went to trial again on both her orig-\\ninal charges and new charges related to the fake exhibits. Dur-\\ning this second trial, the prosecution called an expert who tes-\\ntified that Orie’s office lease barred her staff from using that\\noffice for anything besides legislative work. Orie asked to call\\nan expert in rebuttal. She said that her expert would testify that\\nthe senate rules let staff do political work from senators’ legis-\\nlative offices on comp time. (Compensatory time, often called\\ncomp time, is time that an employee may take off work in re-\\nturn for having worked extra hours. See, e.g., 29 U.S.C.\\n§ 207(o).)\\n The prosecution argued that the senate rules were irrele-\\nvant. It pointed out that Orie’s behavior could break the law\\n\\n\\n\\n\\n 5\\n\\feven if her behavior did not violate the senate rules. The court\\nagreed. The court also worried that the jury might think her\\nexpert was opining on the law. So it excluded her senate-rules\\nexpert.\\n The jury convicted Orie of theft of services, conspiracy to\\ncommit theft of services, evidence tampering, and forgery. It\\nalso convicted her of using her political position for personal\\ngain, in violation of the Pennsylvania Ethics Act, 65 Pa. Cons.\\nStat. § 1103(a) (conflict of interest). See also id. § 1102 (defin-\\ning conflict of interest). The court sentenced Orie to prison for\\nher theft-of-services, conspiracy, evidence-tampering, and for-\\ngery convictions. But on the Ethics Act convictions, it imposed\\n“[n]o further penalty.” App. 1066a; see Pa. Cons. Stat. § 9723.\\n C. Post-conviction proceedings\\n Orie appealed her convictions in state court, but to no avail.\\nCommonwealth v. Orie, 88 A.3d 983 (Pa. Super. Ct.), appeal\\ndenied, 99 A.3d 925 (Pa. 2014). She then filed this federal ha-\\nbeas petition, which the District Court rejected on the merits.\\nWe granted a certificate of appealability. On appeal, she makes\\nthree arguments: first, that the Pennsylvania Ethics Act is un-\\nconstitutionally vague; second, that her retrial violated the\\nDouble Jeopardy Clause; and third, that excluding her senate-\\nrules expert violated her constitutional right to call witnesses\\nin her defense.\\n Besides disputing these claims on the merits, the Common-\\nwealth raises two procedural issues: First, it argues that we lack\\njurisdiction over Orie’s Ethics Act claim, because she received\\nno further penalty. Second, it argues that she failed to exhaust\\n\\n\\n\\n\\n 6\\n\\fher Sixth Amendment claim. Her habeas appeal was consoli-\\ndated with those of her sisters, who were also convicted of var-\\nious crimes. We will issue separate opinions in each case.\\n D. Standard of review\\n On federal habeas review of state convictions, we defer to\\nstate courts. “[W]e review the ‘last reasoned decision’ of the\\nstate courts on the petitioner’s claims.” Simmons v. Beard, 590\\nF.3d 223, 231–32 (3d Cir. 2009) (quoting Bond v. Beard, 539\\nF.3d 256, 289–90 (3d Cir. 2008)). We must presume that the\\nstate court’s factual findings are correct. 28 U.S.C.\\n§ 2254(e)(1). A petitioner can rebut this presumption only by\\noffering “clear and convincing evidence.” Id.\\n We also defer to state courts on issues of law: We must up-\\nhold their decisions of law unless they are “contrary to, or in-\\nvolve[ ] an unreasonable application of, clearly established\\nFederal law, as determined by the Supreme Court of the United\\nStates.” Id. § 2254(d)(1). So on federal habeas, “even ‘clear er-\\nror’ will not suffice.” White v. Woodall, 572 U.S. 415, 419\\n(2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76\\n(2003)). Instead, the state court must be wrong “beyond any\\npossibility for fairminded disagreement.” Id. at 420 (quoting\\nHarrington v. Richter, 562 U.S. 86, 103 (2011)).\\n II. WE LACK JURISDICTION OVER ORIE’S\\n ETHICS ACT CLAIM\\n Orie is not in custody for her Pennsylvania Ethics Act con-\\nvictions. We thus lack jurisdiction to reach the merits of her\\nclaim that the Ethics Act is unconstitutionally vague.\\n\\n\\n\\n\\n 7\\n\\f A federal court has habeas jurisdiction only if the petitioner\\nis “in custody.” 28 U.S.C. § 2254(a). She is in custody when\\nshe suffers a “non-negligible restraint on [her] physical liberty”\\nbecause of a particular conviction. Piasecki v. Court of Com-\\nmon Pleas, 917 F.3d 161, 166 (3d Cir. 2019) (internal quota-\\ntion marks omitted). We gauge custody for each offense inde-\\npendently. Maleng v. Cook, 490 U.S. 488, 490–92 (1989). In\\nother words, a defendant convicted of multiple offenses can be\\nin custody for one but not for another.\\n Orie was sentenced to “[n]o further penalty” on her Ethics\\nAct convictions. App. 1066a. She received no sentence of in-\\ncarceration or confinement of any kind on those counts. So\\nOrie suffered no physical restraint and thus was never in cus-\\ntody for these offenses.\\n Orie claims she was in custody for her Ethics Act convic-\\ntions because she suffered one “general sentence” for all her\\noffenses. Appellant’s Br. 24. But her sentencing order imposed\\na discrete sentence for each count of conviction. And the order\\nsaid that she would not be punished beyond a determination of\\nguilt for her Ethics Act convictions.\\n Orie also argues that she was in custody for her Ethics Act\\nconvictions because her conspiracy and theft-of-services con-\\nvictions were “predicated” on her Ethics Act convictions. Id.\\nThis argument fails as well. Her conspiracy conviction was\\npredicated instead on her agreement to commit theft of ser-\\nvices. And the theft-of-services statute does not depend on any\\nother offense. See 18 Pa. Cons. Stat. § 3926(b). Her convictions\\nmay have been based on the same behavior, but Orie’s Ethics\\nAct convictions were separate from her other convictions. She\\n\\n\\n\\n\\n 8\\n\\fis in custody for her conspiracy and theft-of-services convic-\\ntions, not her Ethics Act convictions. We thus lack habeas ju-\\nrisdiction over her Ethics Act claim.\\n III. THE SUPERIOR COURT PROPERLY UPHELD\\n ORIE’S RETRIAL\\n The Fifth Amendment’s Double Jeopardy Clause ordinarily\\nbars retrials. But a retrial after a mistrial does not amount to\\ndouble jeopardy when the mistrial was manifestly necessary.\\nArizona v. Washington, 434 U.S. 497, 505 (1978). Though\\nmanifest necessity requires a “high degree of necessity,” mak-\\ning that judgment call is “reserved to the broad discretion of\\nthe trial judge.” Renico v. Lett, 559 U.S. 766, 774 (2010) (in-\\nternal quotation marks omitted). We scrutinize a mistrial more\\nclosely if the trial judge has not exercised his “sound discre-\\ntion” or if the prosecutor appears to be “harass[ing]” or gaining\\na “tactical advantage over the accused.” Arizona v. Washing-\\nton, 434 U.S. at 508, 510 n.28. But absent such prosecutorial\\nmisconduct, if a trial judge grants a mistrial to prevent a jury\\nverdict from being tainted by other trial misconduct, that judg-\\nment “is entitled to special respect.” Id. at 510.\\n We are even more deferential on federal habeas review. We\\nlook to the last reasoned state-court decision, which here is the\\nPennsylvania Superior Court’s affirmance on direct appeal.\\nWe do not ask whether the trial judge should have declared a\\nmistrial, nor whether it abused its discretion by doing so. Ra-\\nther, we ask only whether the state appellate court’s finding\\nthat there was no abuse of discretion was “an unreasonable ap-\\nplication of . . . clearly established Federal law, as determined\\n\\n\\n\\n\\n 9\\n\\fby the Supreme Court of the United States.” 28 U.S.C.\\n§ 2254(d)(1); accord Renico, 559 U.S. at 772–73.\\n A. The Superior Court’s decision was reasonable\\n The Pennsylvania Superior Court’s decision more than sat-\\nisfies our deferential standard of review. To begin, it reasona-\\nbly set forth the federal principles governing appeals of a man-\\nifest-necessity finding. It explained that it was reviewing for\\nabuse of discretion, deferring to the trial court’s superior ability\\nto gauge potential bias and jury prejudice. 88 A.3d at 995–97;\\nsee Renico, 559 U.S. at 772–73 (standard of review); Arizona\\nv. Washington, 434 U.S. at 510 (deference). And it warned that\\ntrial courts should not declare mistrials too readily and should\\nresolve any doubts in favor of the defendant. 88 A.3d at 996;\\nsee Renico, 559 U.S. at 772–74.\\n Next, the Superior Court reasoned that the trial court had\\nlegal authority to grant a mistrial once it discovered that the\\nexhibits were forged. It reasonably held that “[o]nce the trial\\njudge realized forged documents had been admitted into evi-\\ndence, he could not allow those documents to enter into the\\njury’s deliberation and verdict.” 88 A.3d at 998. No Supreme\\nCourt case suggests otherwise. On the contrary, in so holding,\\nthe Superior Court cited and reasonably interpreted the Su-\\npreme Court’s guidance. See id. (citing trial court’s opinion as\\nin turn citing Hazel-Atlas Glass Co. v. Hartford-Empire Co.,\\n322 U.S. 238 (1944)); see also Hazel-Atlas, 322 U.S. at 246\\n(“The public welfare demands that the agencies of public jus-\\ntice be not so impotent that they must always be mute and help-\\nless victims of deception and fraud.”).\\n\\n\\n\\n\\n 10\\n\\f The Superior Court also reasonably upheld the trial court’s\\n“initial factual determination that the documents were forger-\\nies.” 88 A.3d at 998–99. In doing so, it made a series of rea-\\nsonable observations: The jury did not have enough evidence\\nto resolve that question. Id. at 998. Though the prosecution\\nbrought out Exhibit 101B’s defects on cross-examination of\\nOrie, it did not discover Exhibit 110’s forgery until after the\\njury had started deliberating. Id. The jury was never instructed\\nwhat to do if it found that documents were forged. Id. And be-\\ncause the defense did not let the prosecution inspect the docu-\\nments until the second-to-last day of trial, the prosecution\\ncould not have discovered the forgeries earlier. So the prose-\\ncution could not introduce evidence to help the jury evaluate\\nthe exhibits. Id. at 998–99. The record amply supports each of\\nthese observations.\\n Further, the Superior Court reasoned that the forged exhib-\\nits were material to the trial’s outcome. As it noted, Orie had\\nargued “that Pavlot had the complete authority to direct the\\nstaffers and that Pavlot acted on her own initiative and against\\nOrie’s directives that no improper political activity occur in the\\noffice.” Id. at 999. The forged documents supported that read-\\ning. Orie had introduced these documents to show that Pavlot\\nhad disobeyed Orie’s directives and let the staff do campaign\\nwork on legislative time. These and similar documents were\\nthe basis of Orie’s argument to the jury that Pavlot, not Orie,\\nwas responsible for the staffers’ actions. And when Pavlot\\ncould not remember any of the directives on cross-examina-\\ntion, the defense impugned her credibility.\\n\\n\\n\\n\\n 11\\n\\f Pavlot’s credibility was at the heart of the case. As Orie’s\\nlawyer argued in closing, “[t]he Commonwealth’s case rises\\nand falls on [Pavlot’s] truthfulness.” Tr. Pt. 7, 1st Trial (Mar.\\n2, 2011), p. 3180. So Pavlot’s forged signatures on those doc-\\numents greatly inflated the force of Orie’s arguments and her\\ncross-examination of Pavlot.\\n Finally, the Superior Court emphasized that while the trial\\ncourt had solicited and weighed alternative remedies, it had\\nreasonably found that nothing short of a mistrial would coun-\\nteract the fraud. 88 A.3d at 998–99. That reasoning is sound.\\nThe trial court repeatedly asked the parties what it should do\\nabout the forgeries, both before and after hearing from the\\nhandwriting expert. Twice, the prosecution suggested a cura-\\ntive instruction. But twice, the defense balked, insisting that\\n“[b]efore you do that then declare a mistrial” and that giving\\nan instruction “is absolutely not an option here.” App. 1557a,\\n1571a. Orie’s only proposed remedy, as the Superior Court\\nnoted, was to do nothing. See 88 A.3d at 999 & n.13; see also\\nApp. 1572a (“We are asking that [the jury’s] deliberations re-\\nsume immediately, and we are opposed to a mistrial.”). Given\\nthe importance of the forged documents, the threat to the integ-\\nrity of the verdict, and the lack of a good alternative remedy,\\nthe only solution was a mistrial. So we cannot say that the Su-\\nperior Court’s decision to uphold the grant of a mistrial was\\nunreasonable.\\n B. Orie’s objections fail\\n Orie challenges the decision upholding the mistrial on five\\ngrounds. Not one succeeds.\\n\\n\\n\\n\\n 12\\n\\f First, she criticizes the trial court’s decision to halt jury de-\\nliberations and seize the questioned exhibits after speaking\\nonly with the prosecution. But even if that is what happened,\\nthere is nothing wrong with that. When they learn of possible\\nmisconduct, judges often tell juries to stop deliberating without\\nfirst telling counsel. E.g., United States v. Bristol-Mártir, 570\\nF.3d 29, 36 (1st Cir. 2009). To resolve the forgery allegation\\nhere, the trial court needed the challenged exhibits, which the\\njury had. And there is no reason to think that asking for a pause\\ncaused incurable harm. The trial court told the jury only that\\n“there is a legal matter before the Court” and warned the bailiff\\nto retrieve the exhibits without talking to anyone. App. 1541a.\\n Besides, there was no significant ex parte communication.\\nThe prosecutor said exactly two sentences to the judge before\\nthe judge told him to wait for defense counsel. When the judge\\ntold him to wait, “[d]efense counsel was just entering the court-\\nroom.” App. 1589a. The judge did not see the forged docu-\\nments, hear the prosecutor’s arguments, or start to discuss a\\nmistrial before defense counsel got there. Nor is there any ban\\non declaring a mistrial sua sponte. United States v. Wecht, 541\\nF.3d 493, 504 (3d Cir. 2008).\\n Second, Orie claims that the prosecution had repeatedly\\nquestioned the defense exhibits’ credibility and meaning, so\\nthe jury was already on notice of potential forgery. But ques-\\ntioning evidence’s credibility and meaning is quite different\\nfrom showing that it is forged. The specter of forged trial ex-\\nhibits came up only briefly at trial—most notably when the\\nprosecution questioned Exhibit 101B’s authenticity on cross-\\nexamination.\\n\\n\\n\\n\\n 13\\n\\f Third, Orie argues that the trial judge usurped the jury’s\\nfactfinding role. She argues that the jury should have decided\\nthe question of forgery, not the judge. But there is no legal or\\nlogical reason why courts cannot find facts in granting mistri-\\nals. Indeed, they must do so, especially where the impropriety\\ngiving rise to the mistrial could prejudice the jury.\\n Fourth, Orie blames the prosecution for seeking a tactical\\nadvantage and intentionally provoking a mistrial. But the pros-\\necution never asked for a mistrial, even after the court dis-\\ncussed that possibility and even after the handwriting expert\\ntestified. Indeed, the remedies it did request were quite tame\\nand reasonable. At first, it asked the court to instruct the jury\\nto compare the two signatures and draw its own conclusions.\\nAfter the expert testified, the prosecution sought an instruction\\nor stipulation that the documents were forged and an instruc-\\ntion to consider the significance of the forgery. But Orie re-\\nfused to consider these options, instead preferring a mistrial. If\\nanyone provoked a mistrial, it was Orie herself.\\n Finally, Orie says that the trial court erred by “convicting”\\nher of forgery and fraud without evidence that she intentionally\\ndid anything wrong. Appellant’s Br. 50. She also objects that\\nPavlot had custody of the documents and so she could have\\nbeen responsible for the forgery. But the trial court never ac-\\ncused Orie herself of forgery. Rather, it said: “I don’t know\\nwho among the parties involved for the defense has done this,\\nbut I cannot allow this jury to continue with fraudulent infor-\\nmation in front of them.” App. 1573a.\\n What is more, the trial court acted reasonably in blaming\\nthe defense for the forgeries. Orie’s counsel told the court that\\n\\n\\n\\n\\n 14\\n\\fthe documents “were and are in [the defense’s] possession” un-\\ntil trial; the prosecution said that, as far as it knew, the docu-\\nments had come from Orie’s office; and Orie never contested\\nthat statement. App. 1555a.\\n In short, we see no basis to disturb the Superior Court’s re-\\njection of Orie’s double-jeopardy claim.\\n IV. EXCLUDING ORIE’S ETHICS EXPERT WAS PROPER\\n Orie argues that the trial court violated her constitutional\\nright to present her defense by excluding her expert witness on\\nthe senate rules. Though Orie may not have preserved this\\nclaim, the Commonwealth waived the exhaustion requirement.\\nStill, this claim is meritless. She had no right to call her witness\\nbecause the witness’s testimony would have been immaterial.\\n A. We will address the merits of Orie’s constitutional\\n claim\\n The Commonwealth waived its argument that Orie did not\\nexhaust her constitutional claim. Before we can review a state\\nhabeas petition, the petitioner must first exhaust her state rem-\\nedies. 28 U.S.C. § 2254(b)(1)(A). But a state can waive exhaus-\\ntion if it does so explicitly through counsel. Id. § 2254(b)(3).\\nThat waiver is valid even when lack of exhaustion would oth-\\nerwise have barred the petitioner’s claim. Sharrieff v. Cathel,\\n574 F.3d 225, 229 (3d Cir. 2009).\\n Here, in its answer to Orie’s habeas petition, the Common-\\nwealth waived the exhaustion requirement. It conceded that\\n“Petitioner’s claims are exhausted” and “Petitioner’s claims\\nare not procedurally defaulted.” D.C. ECF No. 64, pp. 34–35.\\n\\n\\n\\n\\n 15\\n\\fThese statements were in the answer signed by the Common-\\nwealth’s counsel and filed in the District Court. So the Com-\\nmonwealth waived exhaustion. We will decide her claim on the\\nmerits.\\n The parties quibble over whether Orie’s constitutional\\nclaim was before the Superior Court. Orie insists that she has\\nall along framed her challenge to the expert’s exclusion in con-\\nstitutional terms. (She now phrases it primarily in terms of the\\nSixth Amendment, but also touches lightly on due process.)\\nThe Commonwealth tells us that in state court, Orie made only\\nan evidentiary argument. And the Superior Court, for its part,\\nreasoned in evidentiary terms. 88 A.3d at 1000–01.\\n But we need not decide whether the Superior Court’s ruling\\nimplicitly addressed the merits of Orie’s constitutional argu-\\nment, and so would merit deference on habeas. Whether habeas\\ndeference applies or not, the trial court’s exclusion of the evi-\\ndence did not violate the Constitution. See Berghuis v. Thomp-\\nkins, 560 U.S. 370, 390 (2010).\\n We have seen “apparently little, if any, difference in the\\nanalysis” of excluding evidence under compulsory process or\\ndue process. Gov’t of the V.I. v. Mills, 956 F.2d 443, 445 n.4\\n(3d Cir. 1992). So we will focus, as Orie does, on the Sixth\\nAmendment.\\n B. Orie had no right to put on a senate-rules expert\\n because his testimony would not have been material\\n to her trial\\n Orie’s senate-rules expert would not have offered material\\ntestimony, so she had no Sixth Amendment right to call him.\\n\\n\\n\\n\\n 16\\n\\f The Sixth Amendment’s Compulsory Process Clause guar-\\nantees a defendant the right to call witnesses in her defense.\\nWashington v. Texas, 388 U.S. 14, 19 (1967). But it does not\\ngive a defendant the right to introduce any testimony she likes.\\nTaylor v. Illinois, 484 U.S. 400, 410 (1988). Courts may ex-\\nclude incompetent, privileged, or otherwise inadmissible testi-\\nmony under the rules of evidence. Id.; Montana v. Egelhoff,\\n518 U.S. 37, 42 (1996).\\n To make out a violation of this Sixth Amendment right to\\ncompulsory process, the defendant must show that the wit-\\nness’s “testimony would have been both material and favorable\\nto [the] defense.” United States v. Valenzuela-Bernal, 458 U.S.\\n858, 867 (1982). Not all relevant evidence is material. To be\\nmaterial, it must be reasonably likely to affect the trial’s out-\\ncome. Id. at 873–77.\\n Orie’s expert testimony was unlikely to affect her trial’s\\noutcome. Her witness was an expert on the senate’s rules. He\\nwould have testified that these rules let staff do political work\\nin legislative offices using comp time. But Orie was not ac-\\ncused of telling her staff to do political work during comp time.\\nOrie conceded as much. So the jury could not have convicted\\nher for that. Instead, to convict, the jury had to find that she\\ntold her staff to do political work on the state’s time. And her\\nexpert testimony about what employees could do on comp time\\ncould not have affected that finding.\\n Orie’s rejoinder depends on a misreading of the record. She\\nargues that the prosecution’s expert had inaccurately testified\\nthat the senate rules forbade all political work in legislative of-\\nfices. So, she says, she needed her expert to rebut that\\n\\n\\n\\n\\n 17\\n\\ffalsehood. But the prosecution’s expert never made such a\\nstatement. The prosecution’s expert had testified that Orie’s of-\\nfice lease, not the senate rules, barred using the office for any-\\nthing but legislative work. So her expert would not have rebut-\\nted the prosecution’s expert.\\n Not only was Orie’s expert testimony immaterial, but it\\ncould have confused the jury. Judges may exclude evidence\\nthat risks “confusing the issues, [or] misleading the jury.” Pa.\\nR. Evid. 403. Her expert could have led the jury to confuse\\nwhat the senate rules allowed with what Pennsylvania law al-\\nlowed. The trial court wanted the jury to learn the law from the\\ncourt’s instructions rather than from a witness’s testimony. The\\ncourt’s reasonable exclusion of evidence under the “standard\\nrules of evidence” does not violate the Sixth Amendment.\\nEgelhoff, 518 U.S. at 42 (quoting Taylor, 484 U.S. at 410).\\n * * * * *\\n All three of Orie’s arguments fail. She is not in custody for\\nher Ethics Act convictions, so we lack jurisdiction to hear her\\nchallenge to that statute. The Superior Court reasonably af-\\nfirmed the trial court’s finding that the forged documents made\\na mistrial manifestly necessary, so retrying her did not amount\\nto double jeopardy. And Orie’s expert testimony about senate\\nrules was immaterial to her case, so excluding her expert wit-\\nness did not violate her constitutional right to put on her de-\\nfense. As to the Ethics Act convictions, we will thus vacate and\\nremand with instructions to dismiss for lack of jurisdiction. We\\nwill otherwise affirm.\\n\\n\\n\\n\\n 18\\n\\f Appendix\\n Exhibit 101A\\n(Compare Pavlot’s signature with Exhibit 110)\\n\\n\\n\\n\\n 19\\n\\fExhibit 101B\\n\\n\\n\\n\\n 20\\n\\f Exhibit 110\\n(Compare Pavlot’s signature with Exhibit 101A)\\n\\n\\n\\n\\n 21\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4561,"cells":{"id":{"kind":"number","value":4670818,"string":"4,670,818"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Nikki Bruni v. City of Pittsburgh"},"decision_date":{"kind":"string","value":"2019-10-18"},"docket_number":{"kind":"string","value":"18-1084"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Third Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: HARDIMAN, KRAUSE, and GREENBERG, Circuit Judges (Opinion\", \"parties\": \"\", \"opinions\": [{\"author\": \"KRAUSE, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"PRECEDENTIAL\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n _______________\\n\\n No. 18-1084\\n _______________\\n\\n NIKKI BRUNI; JULIE COSENTINO;\\n CYNTHIA RINALDI; KATHLEEN LASLOW;\\n PATRICK MALLEY,\\n Appellants\\n\\n v.\\n\\nCITY OF PITTSBURGH; PITTSBURGH CITY COUNCIL;\\n MAYOR PITTSBURGH\\n _______________\\n\\n On Appeal from the United States District Court\\n for the Western District of Pennsylvania\\n (W.D. Pa. No. 2-14-cv-01197)\\n Honorable Cathy Bissoon, U.S. District Judge\\n _______________\\n\\n Argued: February 6, 2019\\n\\nBefore: HARDIMAN, KRAUSE, and GREENBERG, Circuit\\n Judges\\n\\n (Opinion Filed: October 18, 2019)\\n\\nKenneth J. Connelly\\nElissa M. Graves\\nKevin H. Theriot [ARGUED]\\nKristen K. Waggoner\\nDavid A. Cortman\\nAlliance Defending Freedom\\n15100 North 90th Street\\nScottsdale, AZ 85260\\n\\nLawrence G. Paladin, Jr.\\nSuite 6C\\n15 Duff Road\\nPittsburgh, PA 15235\\n\\n Counsel for Plaintiff-Appellants Nikki Bruni, Julie\\n Cosentino, Cynthia Rinaldi, Kathleen Laslow, and\\n Patrick Malley\\n\\nJulie E. Koren\\nMatthew S. McHale ∗ [ARGUED]\\nYvonne S. Hilton\\nCity of Pittsburgh\\nDepartment of Law\\n414 Grant Street\\n313 City County Building\\nPittsburgh, PA 15219\\n\\n ∗\\n Matthew S. McHale withdrew as counsel on July 3,\\n2019, prior to the issuance of this opinion.\\n\\n\\n\\n\\n 2\\n\\n Counsel for Defendant-Appellees City of Pittsburgh,\\n Pittsburgh City Council, Mayor Pittsburgh\\n\\nWilliam A. Bonner, I\\n12 Veterans Square\\nP.O. Box 259\\nMedia, PA 19063\\n\\n Counsel for Amicus Curiae Life Legal Defense\\n Foundation\\n\\nJamie Cohn\\nStephen M. Juris\\nJanice Mac Avoy\\nFried Frank Harris Shriver & Jacobson\\nOne New York Plaza\\nNew York, NY 10004\\n\\nSusan J. Frietsche\\nWomen’s Law Project\\nWestern Pennsylvania Office\\n428 Forbes Avenue\\nSuite 1710\\nPittsburgh, PA 15219\\n\\n Counsel for Amici Curiae Women Law Project,\\n National Abortion Federation\\n\\nStephen M. Crampton\\nP.O. Box 4506\\nTupelo, MS 38803\\n\\n\\n\\n\\n 3\\n\\n Counsel for Amici Curiae Pro Life Action League,\\n Sidewalk Advocates for Life\\n\\nSteven W. Fitschen\\nThe National Legal Foundation\\n524 Chesapeake\\nChesapeake, VA 23322\\n\\n Counsel for Amici Curiae Pacific Justice Institute,\\n Concerned Women for America, National Legal\\n Foundation\\n\\nMatthew D. Staver\\nHoratio G Mihet\\nRoger K. Gannam\\nLiberty Counsel\\nP.O. Box 540774\\nOrlando, FL 32854\\n\\n Counsel for Amici Curiae Colleen Reilly and Becky\\n Biter\\n\\nErek L. Barron\\nWhiteford Taylor & Preston\\n111 Rockville Pike\\nSuite 800\\nRockville, MD 20850\\n\\n Counsel for Amicus Curiae International Municipal\\n Lawyers\\n\\n _______________\\n\\n\\n\\n\\n 4\\n\\n OPINION OF THE COURT\\n _______________\\n\\nKRAUSE, Circuit Judge.\\n\\n This case requires us to determine the constitutionality\\nof a Pittsburgh ordinance that creates a fifteen-foot “buffer\\nzone” outside the entrance of any hospital or healthcare\\nfacility. Pittsburgh, Pa., Code § 623.04 (2005) [hereinafter\\n“the Ordinance” or “Pitts. Code”]. In relevant part, the\\nOrdinance states that “[n]o person or persons shall knowingly\\ncongregate, patrol, picket or demonstrate” in the prescribed\\nzone. Id. Outside of a Planned Parenthood in downtown\\nPittsburgh, Plaintiffs engage in leafletting and “peaceful . . .\\none-on-one conversations” conducted “at a normal\\nconversational level and distance” intended to dissuade\\nlisteners from obtaining an abortion. Appellants’ Br. 9, 17–18.\\nAs the City has asserted that the Ordinance applies to this\\nspeech, known as “sidewalk counseling,” Plaintiffs argue that\\nthe Ordinance is facially unconstitutional under the First\\nAmendment and the District Court erred in granting summary\\njudgment in the City’s favor. Because we conclude that the\\nOrdinance does not cover sidewalk counseling and thus does\\nnot impose a significant burden on speech, we will affirm.\\n\\n\\n\\n\\n 5\\n\\nI. Background\\n\\n A. Factual Background 1\\n\\n 1. History of the Ordinance\\n\\n In the mid- and late 1990s, Planned Parenthood was the\\nsite of numerous clashes between opponents and advocates of\\nabortion rights as well as individuals seeking the facility’s\\nservices. 2 In addition to seeing “hundreds” of people at the\\nfacility on a Saturday—“pro and anti”—the clinic was plagued\\nby bomb threats, vandalism, and blockades of its entrance. JA\\n322a. To address these incidents, the Bureau of Police\\ndeployed an overtime detail of “up to ten officers and a\\nsergeant” to maintain order and security, often using crowd-\\ncontrol barriers to separate demonstrators from each other and\\nfrom patients trying to enter the clinic. JA 1024a.\\n\\n\\n\\n 1\\n The background summarized here is drawn from the\\nrecord and our prior opinion in this case, Bruni v. City of\\nPittsburgh (Bruni I), 824 F.3d 353, 357–59 (3d Cir. 2016).\\nBecause we are reviewing a district court’s grant of summary\\njudgment, we consider the facts in the light most favorable to\\nthe non-movants and draw all reasonable inferences in their\\nfavor. See Hugh v. Butler Cty. Family YMCA, 418 F.3d 265,\\n266–67 (3d Cir. 2005).\\n 2\\n The same was true of Allegheny Reproductive Health\\nCenter, another clinic that provides abortions, which, in\\naddition to seeing hundreds of protestors, was fire bombed,\\nintentionally flooded, and had its windows shot out.\\n\\n\\n\\n\\n 6\\n\\n In 2002, Planned Parenthood moved to its current\\nlocation at 933 Liberty Avenue. Although the incidents\\nlessened in severity, contemporaneous police logs and\\ntestimony from Sergeant William Hohos indicate that “the\\npushing,” “the shoving,” and “the blocking of the doors”\\ncontinued, and the overtime detail, reduced in size, continued\\nto provide a police presence. JA 323a, JA 834a, JA 837a.\\nAfter Pittsburgh was declared a financially distressed\\nmunicipality in late 2003, however, fiscal constraints and the\\nneed for redeployment of limited police resources required the\\ndetail to be discontinued, and police were called to address the\\ncontinuing incidents at the site on an as-needed basis. In the\\nwake of the detail’s discontinuation, the clinic reported an\\n“obvious escalation in the efforts of the protestors,” JA 357a,\\nincluding an increase in “aggressive pushing, shoving and . . .\\nharassing behavior that included shoving literature into\\npeople’s pockets, hitting them with signs and blocking their\\nentrance into the building,” JA 352a.\\n\\n In November 2005, the City Council held hearings on\\nproposed legislation that eventually resulted in the Ordinance.\\nAmong those who testified were sidewalk counselors, clinic\\nescorts, patients, and other concerned members of the\\ncommunity. Several witnesses insisted the Ordinance was\\nunnecessary either because they had never observed violent\\nincidents or were unaware of “significant violence” outside the\\nclinic. JA 348a. But other witnesses reported being personally\\nharassed and prevented from entering the clinic, being yelled\\nat through the glass doors of the clinic, and seeing patients\\nbeing surrounded on the sidewalk. A Planned Parenthood\\ncounselor described patients entering the clinic in a\\n“psychological state [of] situational crisis,” threatening their\\nhealth. JA 355a. And “without [police] supervision,” the\\n\\n\\n\\n\\n 7\\n\\nPresident and CEO of Planned Parenthood of Western\\nPennsylvania said, “there ha[d] been an increase in unlawful\\nbehavior that . . . put[] . . . patients, their families, pedestrians\\nand . . . protestors at risk.” JA 352a.\\n\\n The City Council also heard from Commander\\nDonaldson of the Pittsburgh Police Department. He reported\\nthat police had been summoned to Planned Parenthood twenty-\\ntwo times in the past six months alone to “mediate\\nconfrontations” and respond to incidents ranging from signs\\n“obstructing the front of the building” to protestors\\n“follow[ing] . . . people to the doorway.” JA 404a. They had\\nnot made any arrests, however. According to Commander\\nDonaldson, the City had on its books “laws . . . that would\\naddress obstructing traffic or passageways or . . . the [clinic’s]\\ndoorway,” but those laws would not address the precise\\nproblem that was occurring, namely attempts to block people\\nfrom entering the facility before they reached its front door. 3\\nJA 398a.\\n\\n The debate on the Ordinance was extensive. Many\\nwitnesses, both for and against the legislation, expounded on\\nthe competing interests at stake and expressed a desire to\\nprotect both free speech and access to healthcare, including\\nabortions.\\n\\n 3\\n The City’s designated representative, who had been a\\nmember of the overtime detail before it was disbanded,\\nlikewise attested that the criminal laws were not adequate to\\ndeal with protestors and demonstrators outside the clinic\\nbecause the obstructive conduct “[wasn’t] rising to those\\nlevels. It was all the underlying stuff in between.” JA 1057a.\\n\\n\\n\\n\\n 8\\n\\n 2. The Ordinance\\n\\n Shortly after these hearings, the City Council adopted\\nthe Ordinance, and the mayor signed it into law. See Bruni v.\\nCity of Pittsburgh (Bruni I), 824 F.3d 353, 357 (3d Cir. 2016).\\nCodified as Chapter 623 of the Pittsburgh Code of Ordinances,\\nthe Ordinance states, in relevant part:\\n\\n No person or persons shall knowingly\\n congregate, patrol, picket or demonstrate in a\\n zone extending 15 feet from any entrance to the\\n hospital and or health care facility. This section\\n shall not apply to police and public safety\\n officers . . . in the course of their official\\n business, or to authorized security personnel\\n employees or agents of the hospital, medical\\n office or clinic engaged in assisting patients and\\n other persons to enter or exit the hospital,\\n medical office, or clinic. 4\\n\\nPitts. Code § 623.04. The Council also ratified a preamble that\\nset forth the City’s goals in adopting the Ordinance, including\\n\\n 4\\n Although the Chapter does not define “health care\\nfacility,” a “[m]edical [o]ffice/[c]linic” is defined as “an\\nestablishment providing therapeutic, preventative, corrective,\\nhealing and health-building treatment services on an out-\\npatient basis by physicians, dentists and other practitioners.”\\nPitts. Code § 623.02. Penalties for violating the Ordinance\\nrange from a $50 fine for a first offense to a thirty-day\\nmaximum (and three-day minimum) jail sentence for a fourth\\nviolation within five years. Id. § 623.05.\\n\\n\\n\\n\\n 9\\n\\n“provid[ing] unobstructed access to health care facilities” and\\n“medical services,” “avoid[ing] violent confrontations,”\\n“provid[ing] a more efficient and wider deployment” of City\\nservices, and “ensuring that the First Amendment rights of\\ndemonstrators to communicate their message . . . [are] not\\nimpaired.” Id. § 623.01.\\n\\n As originally passed, the Ordinance also included an\\n“[e]ight-foot personal bubble zone,” extending one hundred\\nfeet around clinics, in which people could not be approached\\nwithout their consent “for the purpose of passing a leaflet or\\nhandbill to, displaying a sign to, or engaging in oral protest,\\neducation or counseling.” Id. § 623.03. Following a facial\\nchallenge to the Ordinance, we concluded that the Ordinance\\nwas content neutral and each zone was constitutionally\\npermissible but the combination of the two zones was not. See\\nBrown v. City of Pittsburgh, 586 F.3d 263, 273, 276–81 (3d\\nCir. 2009). On remand, the City chose to abandon the floating\\nbubble zone and retain only the fixed buffer zone that\\nprohibited “congregat[ing], patrol[ling], picket[ing] or\\ndemonstrat[ing].” Pitts. Code § 623.04. That choice was\\neffectuated by the District Court, which permanently enjoined\\nthe bubble zone and required the City to demarcate any fixed\\nbuffer zone prior to enforcement. 5\\n\\n\\n\\n\\n 5\\n The injunction also required that the buffer zone be\\nconstrued to prohibit “any person” from “picket[ing] or\\ndemonstrat[ing]” within the zone, including those allowed to\\nenter the zone pursuant to their official duties. See Brown, 586\\nF.3d at 275.\\n\\n\\n\\n\\n 10\\n\\n 3. Application of the Ordinance and\\n Plaintiffs’ Activities\\n\\n Today, the City has demarcated buffer zones at two\\nlocations, both of which provide reproductive health services\\nincluding abortions. Bruni I, 824 F.3d at 358. Plaintiffs Nikki\\nBruni, Cynthia Rinaldi, Kathleen Laslow, Julie Cosentino, and\\nPatrick Malley engage in the bulk of their anti-abortion\\nactivities outside the buffer zone at Planned Parenthood. See\\nid. at 359. In contrast to the conduct that gave rise to the\\nOrdinance, Plaintiffs do not physically block patients’ ingress\\nor egress or engage in violent tactics. Instead, they engage in\\nwhat they call “sidewalk counseling,” meaning “calm” and\\n“quiet conversations” in which they “offer assistance and\\ninformation to” women they believe are considering having an\\nabortion “by providing them pamphlets describing local\\npregnancy resources, praying, and . . . peacefully express[ing]\\n[a] message of caring support.” 6 JA 59a; see Appellants’ Br.\\n9. That message, Plaintiffs explain, “can only be\\ncommunicated through close, caring, and personal\\n\\n 6\\n We will use the term “sidewalk counseling” in this\\nopinion with the meaning given to it by Plaintiffs. By contrast,\\nthe title “sidewalk counselor” has sometimes been claimed by\\nthose who engage in “‘in your face’ yelling . . . pushing,\\nshoving, and grabbing” consistent with aggressive\\ndemonstration. Schenck v. Pro-Choice Network of W. N.Y.,\\n519 U.S. 357, 363 (1997). As Plaintiffs here have explained,\\nhowever, such conduct does not constitute sidewalk counseling\\nas they use the term and is “counter-productive to [their]\\nmessage of kindness, love, hope, gentleness, and help.” JA\\n574a.\\n\\n\\n\\n\\n 11\\n\\nconversations, and cannot be conveyed through protests.” JA\\n62a. Nonetheless, the City takes the position that Plaintiffs’\\nsidewalk counseling falls within the prohibition on\\n“demonstrating”—if not “congregating,” “patrolling,” and\\n“picketing” too, see JA 334a–37a—so while they can engage\\nin sidewalk counseling outside the zone, they cannot once\\nwithin its bounds. See Bruni I, 824 F.3d at 359.\\n\\n Plaintiffs describe various ways that the buffer zone has\\nhindered their ability to effectively communicate their\\nmessage. The street noise makes it difficult for people to hear\\nthem, forcing them to raise their voices in a way inconsistent\\nwith sidewalk counseling. And at the distance at which they\\nare forced to stand, they are unable to differentiate between\\npassersby and individuals who intend to enter the facility,\\ncausing them to miss opportunities to engage with their desired\\naudience through either speech or leafleting.\\n\\n In addition to “sidewalk counseling,” Plaintiff Nikki\\nBruni is the local leader of a group participating in the “Forty\\nDays for Life” movement, a global anti-abortion campaign. 7\\nTwice a year, campaign participants, including Plaintiffs, pray\\noutside of abortion clinics from 7 AM to 7 PM continuously\\nfor forty days. They do so in shifts, and many participants wear\\n\\n 7\\n The movement describes its mission as “to bring\\ntogether the body of Christ in a spirit of unity during a focused\\n40 day campaign of prayer, fasting, and peaceful activism, with\\nthe purpose of repentance, to seek God’s favor to turn hearts\\nand minds from a culture of death to a culture of life, thus\\nbringing an end to abortion.” Bruni v. City of Pittsburgh, 283\\nF. Supp. 3d 357, 363 (W.D. Pa. 2017).\\n\\n\\n\\n\\n 12\\n\\nor carry signs. As the leader of the group, Bruni organizes local\\nchurches to ensure people are always outside of the clinic so\\n“there’s always groups on the sidewalk present during the 40\\nDays all day every day.” JA 141a. Although the exact number\\nof participants is disputed, the record reflects a daily presence\\nof somewhere between ten and forty people.\\n\\n B. Procedural Background\\n\\n About five years after we upheld the buffer-zone\\ncomponent of the Ordinance in Brown as a content-neutral\\ntime, place, and manner regulation, the Supreme Court decided\\nMcCullen v. Coakley, striking down as insufficiently narrowly\\ntailored a Massachusetts law that created a thirty-five-foot\\nbuffer zone in front of health facilities where abortions were\\nperformed. 573 U.S. 464, 493–97 (2014). The Court found\\nthe law “extreme,” id. at 497, and “truly exceptional,” id. at\\n490: although congestion occurred at one clinic in one city\\nonce a week, the law applied statewide to all reproductive\\nhealth facilities and, with few exceptions, prohibited any\\nperson from even “standing” in the zone, id. at 480, 493. To\\njustify this “significant . . . burden” on speech, id. at 489, the\\nCourt held, the government must “show[] that it seriously\\nundertook to address the problem with less intrusive tools\\nreadily available to it,” such as arrests, prosecutions, or\\ntargeted injunctions, or “that it considered different methods\\nthat other jurisdictions . . . found effective,” id. at 494.\\n\\n In light of McCullen, Plaintiffs filed a complaint,\\nchallenging the Ordinance, pursuant to 42 U.S.C. § 1983,\\nunder the First and Fourteenth Amendments. Bruni I, 824 F.3d\\nat 359. The District Court granted the City’s motion to dismiss\\n\\n\\n\\n\\n 13\\n\\nPlaintiffs’ First Amendment claims, and Plaintiffs appealed. 8\\nId. at 360.\\n\\n We vacated the District Court’s dismissal. Id. at 357,\\n373–74. Taking as true the complaint’s allegations that the\\nOrdinance had been enforced against Plaintiffs and had\\nsignificantly hindered their speech, id. at 369, we concluded\\nthat the Ordinance “impose[d] a similar burden as that in\\nMcCullen,” id. at 368 n.15, so that the City had the same\\nobligation as in McCullen to demonstrate “either that\\nsubstantially less-restrictive alternatives were tried and failed,\\nor that the alternatives were closely examined and ruled out for\\ngood reason,” id. at 370. We thus remanded for factfinding on\\nthese issues, as well as a determination about “the proper scope\\nof the Ordinance.” Id. at 357, 374. Notwithstanding our earlier\\nholding as to content neutrality in Brown, 586 F.3d at 273, 275,\\n277, we also directed the District Court to consider whether the\\nOrdinance should still be considered content neutral in light of\\n\\n 8\\n Plaintiffs also filed a motion for a preliminary\\ninjunction to prevent the City from enforcing the Ordinance\\nagainst them, which the District Court denied and Plaintiffs did\\nnot appeal. Bruni I, 824 F.3d at 359–60. In addition to\\ndismissing Plaintiffs’ First Amendment claims, the District\\nCourt granted the City’s motion to dismiss Plaintiffs’\\nFourteenth Amendment Due Process Clause challenge, a\\ndecision we affirmed in Bruni I and that therefore is not on\\nappeal here. See id. at 360, 374–75. Earlier in this litigation,\\nPlaintiffs voluntarily dismissed their as-applied challenges to\\nthe Ordinance, their claim under the Equal Protection Clause,\\nand their claim of selective enforcement against the mayor. Id.\\nat 359 n.5.\\n\\n\\n\\n\\n 14\\n\\nReed v. Town of Gilbert, 135 S. Ct. 2218 (2015), the Supreme\\nCourt’s most recent pronouncement on the dividing line\\nbetween content-neutral and content-based restrictions. Bruni\\nI, 824 F.3d at 365 n.14.\\n\\n On remand, the District Court accepted the City’s\\ncontention that the Ordinance covered Plaintiffs’ sidewalk\\ncounseling as a form of demonstrating and held that the\\nOrdinance was content neutral, even under Reed. Bruni v. City\\nof Pittsburgh, 283 F. Supp. 3d 357, 361, 367–68 (W.D. Pa.\\n2017). It also distinguished the Ordinance from the statute in\\nMcCullen as creating a smaller buffer zone and allowing\\nPlaintiffs to reach their audience through sidewalk counseling\\ndespite the buffer zone and therefore concluded that the\\nOrdinance imposed “only a minimal burden on Plaintiffs’\\nspeech.” Id. at 369–71. Accordingly, it held that the City\\n“ha[d] no obligation to demonstrate that it tried—or considered\\nand rejected”—the alternatives identified in McCullen, such as\\narrests or targeted injunctions, and even if the City did have\\nsuch an obligation, it had been satisfied. Id. at 371–72. The\\nCourt therefore granted the City’s motion for summary\\njudgment. Id. at 373. This appeal followed.\\n\\nII. Jurisdiction and Standard of Review\\n\\n The District Court had jurisdiction under 28 U.S.C.\\n§ 1331, and we have jurisdiction under 28 U.S.C. § 1291. We\\nreview a district court’s grant or denial of summary judgment\\nde novo, see EEOC v. Allstate Ins. Co., 778 F.3d 444, 448 (3d\\nCir. 2015), and may affirm on any basis supported by the\\nrecord, Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009).\\nSummary judgment is appropriate only where “there is no\\ngenuine dispute as to any material fact and the movant is\\n\\n\\n\\n\\n 15\\n\\nentitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).\\nIn the context of a First Amendment claim, we “examine\\nindependently the facts in the record and ‘draw our own\\ninferences’ from them.” Tenafly Eruv Ass’n v. Borough of\\nTenafly, 309 F.3d 144, 157 (3d Cir. 2002) (quoting Christ’s\\nBride Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242,\\n247 (3d Cir. 1998)). Like the District Court, however, we\\nreview the facts in the light most favorable to the nonmoving\\nparty. See Hugh, 418 F.3d at 267.\\n\\nIII. Discussion\\n\\n On appeal, Plaintiffs argue that the Ordinance violates\\nthe Free Speech and Free Press Clauses 9 of the First\\nAmendment for three reasons: first, the Ordinance is content\\nbased and therefore subject to strict scrutiny; second, even if it\\nis content neutral, the Ordinance is not narrowly tailored and\\nthus does not survive intermediate scrutiny; and third, the\\nOrdinance is overbroad. After providing an overview of the\\ngeneral framework that guides our analysis, we address each\\nof these arguments.\\n\\n\\n\\n\\n 9\\n For the reasons articulated in Bruni I, we treat\\nPlaintiffs’ free speech and free press claims together. See 824\\nF.3d at 373 (“Plaintiffs’ free press claim is . . . properly\\nconsidered a subset of their broader free speech claim, given\\nthat the Freedom of the Press Clause and the Free Speech\\nClause both protect leafleting from government\\ninterference.”).\\n\\n\\n\\n\\n 16\\n\\n A. General Framework\\n\\n Plaintiffs allege that the Ordinance is unconstitutional\\non its face. See Bruni I, 824 F.3d at 362. A facial challenge\\n“seeks to vindicate not only [a plaintiff’s] own rights,” as in an\\nas-applied challenge, but also “those of others who may . . . be\\nadversely impacted by the statute in question.” Id. (quoting\\nCMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 623\\n(3d Cir. 2013)). Although facial challenges in the First\\nAmendment context are more forgiving than those in other\\ncontexts, see United States v. Salerno, 481 U.S. 739, 745\\n(1987), “all agree that a facial challenge [under the First\\nAmendment] must fail where the statute has a plainly\\nlegitimate sweep,” Wash. State Grange v. Wash. State\\nRepublican Party, 552 U.S. 442, 449 (2008) (citation omitted).\\n\\n As we explained in Bruni I, however, “the distinction\\nbetween facial and as-applied challenges is not so well defined\\nthat it has some automatic effect or that it must always control\\nthe . . . disposition in every case involving a constitutional\\nchallenge.” 824 F.3d at 363 (quoting Citizens United v. FEC,\\n558 U.S. 310, 331 (2010)). Courts therefore look to “[t]he\\nrelevant constitutional test” to resolve the inquiry, id. (citation\\nomitted), bearing in mind that a party seeking to invalidate a\\nlaw in its entirety bears a heavy burden, see Wash. State\\nGrange, 552 U.S. at 450–51; Brown, 586 F.3d at 269.\\n\\n Here, the relevant test is that governing free speech\\nclaims. The government’s ability to restrict speech in a\\ntraditional public forum, such as a sidewalk, is “very limited.”\\nMcCullen, 573 U.S. at 477 (citation omitted). That is because\\ntraditional public fora “are areas that have historically been\\nopen to the public for speech activities.” Id. at 476. In such\\n\\n\\n\\n\\n 17\\n\\nfora, the government may not restrict speech based on its\\n“communicative content,” Bruni I, 824 F.3d at 364 (quoting\\nReed, 135 S. Ct. at 2226)—that is, the government “has no\\npower to restrict expression because of its message, its ideas,\\nits subject matter, or its content,” id. at 363 (quoting Ashcroft\\nv. ACLU, 535 U.S. 564, 573 (2002)).\\n\\n By contrast, the government has greater leeway to\\nregulate “features of speech unrelated to its content.”\\nMcCullen, 573 U.S. at 477. Thus, “[e]ven in a public forum\\nthe government may impose reasonable restrictions on the\\ntime, place, or manner of protected speech, provided the\\nrestrictions ‘are justified without reference to the content of the\\nregulated speech, that they are narrowly tailored to serve a\\nsignificant governmental interest, and that they leave open\\nample alternative channels for communication of the\\ninformation.’” Id. (quoting Ward v. Rock Against Racism, 491\\nU.S. 781, 791 (1989)).\\n\\n The level of scrutiny a court applies to a restriction on\\nspeech depends on whether it is content based or content\\nneutral. If the restriction is content based, it is subject to strict\\nscrutiny and is therefore “presumptively unconstitutional and\\nmay be justified only if the government proves that [it is]\\nnarrowly tailored to serve compelling state interests.” Reed,\\n135 S. Ct. at 2226; see McCullen, 573 U.S. at 478. If a\\nrestriction is content neutral, “we apply intermediate scrutiny\\nand ask whether it is ‘narrowly tailored to serve a significant\\ngovernmental interest.’” Bruni I, 824 F.3d at 363–64 (quoting\\nMadsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 764\\n\\n\\n\\n\\n 18\\n\\n(1994)). The threshold question, therefore, is whether the\\nrestriction here is content based or content neutral. 10\\n\\n B. Content Neutrality\\n\\n Plaintiffs contend that the Ordinance is content based\\nand thus subject to strict scrutiny because it regulates speech\\n“based on subject matter, function, or purpose,” rendering it\\ncontent based under Reed. 11 Appellants’ Br. 34. For the\\nreasons that follow, we disagree.\\n\\n 10\\n Although the parties begin their briefing with an\\napplication of intermediate scrutiny, we follow the Supreme\\nCourt’s lead in McCullen by addressing first whether the\\nOrdinance is content based because the answer to that question\\ndetermines the correct level of scrutiny to apply. See 573 U.S.\\nat 478–79.\\n 11\\n Plaintiffs make additional arguments in passing, but\\nthey are not persuasive. First, Plaintiffs contend that the City’s\\npurpose in adopting the Ordinance was to “target anti-abortion\\ncontent” because the City Council’s discussion about the\\nOrdinance “centered entirely on abortion and the speech\\noutside of abortion facilities in Pittsburgh.” Appellants’ Br.\\n40–41. But the Supreme Court explicitly rejected this\\nargument in McCullen. See 573 U.S. at 481–82 (“States adopt\\nlaws to address the problems that confront them. The First\\nAmendment does not require States to regulate for problems\\nthat do not exist.” (quoting Burson v. Freeman, 504 U.S. 191,\\n207 (1992) (plurality opinion))). Second, Plaintiffs argue that\\nthe Ordinance is content based as applied because it is enforced\\nonly outside of reproductive health facilities and therefore\\naffects only abortion-related speech. Plaintiffs did not make\\n\\n\\n\\n\\n 19\\n\\n In Reed, the Supreme Court considered the\\nconstitutionality of an ordinance that regulated the manner of\\ndisplay of outdoor signs depending on their subject matter. 134\\nS. Ct. at 2224–25. For example, the ordinance allowed\\n“Political Signs” to be bigger in size and remain posted longer\\nthan those it defined as “Temporary Directional Signs.” Id. at\\n2224–25, 2227. The Court held that the regulation was content\\nbased because the restrictions applied differently “depend[ing]\\nentirely on the communicative content of the sign[s].” Id. at\\n2227. As relevant here, the Court noted that whereas “[s]ome\\nfacial distinctions . . . are obvious,” such as “defining regulated\\nspeech by particular subject matter,” others are more “subtle,”\\nsuch as “defining regulated speech by its function or purpose.”\\nId.\\n\\n The thrust of Plaintiffs’ argument is that the Ordinance\\nis content based because the City interprets the word\\n“demonstrating” to apply to sidewalk counseling but not to\\npeaceful one-on-one communication about other subjects, like\\nsports teams, and, as a result, law enforcement must examine\\nthe content of any speech to determine if it is prohibited.\\nHowever, despite the assumptions of both parties, 12 nothing in\\n\\n\\nthis argument at summary judgment below, and it is therefore\\nforfeited. See Keenan v. City of Philadelphia, 983 F.2d 459,\\n471 (3d Cir. 1992). In any event, “a facially neutral law does\\nnot become content based simply because it may\\ndisproportionally affect speech on certain topics.” McCullen,\\n573 U.S. at 480. Reed, decided one year after McCullen, does\\nnot speak to these aspects of McCullen’s analysis.\\n 12\\n Although Plaintiffs contend that the City “enforces”\\nthe Ordinance “to suppress [their] leafletting and sidewalk\\n\\n\\n\\n\\n 20\\n\\nthe plain language of the Ordinance supports a construction\\nthat prohibits peaceful one-on-one conversations on any topic\\nor conducted for any purpose at a normal conversational\\nvolume or distance. In short, the Ordinance as written does not\\nprohibit the sidewalk counseling in which Plaintiffs seek to\\nengage within the zone.\\n\\n No doubt, if the Ordinance by its terms did prohibit one-\\non-one conversations about abortion but not about other\\nsubjects within the zone, it would be highly problematic, see\\nReed, 135 S. Ct. at 2230, particularly where, as here, the speech\\nalleged to be prohibited occurs on a public sidewalk and\\nconstitutes one-on-one “normal conversation and leafletting,”\\nMcCullen, 573 U.S. at 488—“core political speech entitled to\\nthe maximum protection afforded by the First Amendment,”\\nBruni I, 824 F.3d at 357. But under the doctrine of\\nconstitutional avoidance, “[i]t has long been a tenet of First\\nAmendment law that in determining a facial challenge to a\\nstatute, if it be ‘readily susceptible’ to a narrowing construction\\n\\n\\nconversations” within the buffer zone, Appellants’ Br. 17, the\\nrecord does not reflect any prosecution, arrest, or even citation.\\nInstead, it reflects that, except for isolated instances in which\\npolice were called to Planned Parenthood but took no action,\\nPlaintiffs avoided the buffer zone based on an assumption,\\nshared by the City, about the scope of the Ordinance. The\\nrealistic threat of the City’s enforcement is sufficient for\\npurposes of Plaintiffs’ standing. See Susan B. Anthony List v.\\nDriehaus, 573 U.S. 149, 158 (2014). As we explain below,\\nhowever, it does not preclude us under the doctrine of\\nconstitutional avoidance from adopting a narrowing\\nconstruction of the Ordinance.\\n\\n\\n\\n\\n 21\\n\\nthat would make it constitutional, it will be upheld.” 13 Virginia\\nv. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988); see\\nalso Ayotte v. Planned Parenthood of N. New England, 546\\nU.S. 320, 328–29 (2006) (“Generally speaking, when\\nconfronting a constitutional flaw in a statute, we try to limit the\\nsolution to the problem.”).\\n\\n Of course, we may not “rewrite a . . . law to conform it\\nto constitutional requirements,” United States v. Stevens, 559\\nU.S. 460, 481 (2010) (citation omitted), but, as we have\\nrecognized on many occasions, “[i]n the absence of a limiting\\nconstruction from a state authority, we must ‘presume any\\nnarrowing construction or practice to which the law is fairly\\nsusceptible.’” 14 Brown, 586 F.3d at 274 (quoting City of\\n\\n 13\\n As we said in Brown, “[t]his principle of\\ninterpretation is consistent with Pennsylvania law.” 586 F.3d\\nat 274 n.13 (citing Commonwealth v. Monumental Props., Inc.,\\n329 A.2d 812, 827 (Pa. 1974); and Dole v. City of Philadelphia,\\n11 A.2d 163, 168–69 (Pa. 1940)). And this is a particularly\\ncompelling case in which to apply the doctrine given the\\nconstitutional concerns inherent in restricting this kind of\\nspeech. As the Court explained in McCullen, “‘one-on-one\\ncommunication’ is ‘the most effective, fundamental, and\\nperhaps economical avenue of political discourse.’” 573 U.S.\\nat 488 (quoting Meyer v. Grant, 486 U.S. 414, 424 (1988)).\\nIndeed, “[l]eafletting and commenting on matters of public\\nconcern are classic forms of speech that lie at the heart of the\\nFirst Amendment.” Id. at 489 (quoting Schenck, 519 U.S. at\\n377).\\n 14\\n That is not to say that the City’s interpretation of the\\nOrdinance is irrelevant—it is a consideration in a court’s\\n\\n\\n\\n\\n 22\\n\\nLakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770 n.11\\n(1988)); see Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200,\\n215 n.10 (3d Cir. 2001) (explaining that where a state court has\\nnot authoritatively construed the terms of a stated policy, “we\\nare . . . required to give it a reasonable narrowing construction\\nif necessary to save it from unconstitutionality”); see also\\n\\n\\ndetermination of whether to adopt a limiting construction. See\\nForsyth County v. Nationalist Movement, 505 U.S. 123, 131\\n(1992); see also Ward, 491 U.S. at 795–96. But the City’s\\ninterpretation has not been adopted by any Pennsylvania court,\\nand where no state court has weighed in and the Ordinance is\\nreadily susceptible to a “reinterpretation” consistent with the\\nOrdinance’s text, the City’s position is not dispositive. Free\\nSpeech Coal., Inc. v. Attorney Gen. of the U.S., 677 F.3d 519,\\n539 (3d Cir. 2012); Saxe v. State Coll. Area Sch. Dist., 240 F.3d\\n200, 215–16, 215 n.10 (3d Cir. 2001); see also U.S. Nat’l Bank\\nof Ore. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447\\n(1993) (stating, outside of the constitutional avoidance context,\\nthat litigants cannot “extract the opinion of a court on\\nhypothetical Acts of Congress or dubious constitutional\\nprinciples” by agreeing on the proper construction of the law);\\nComite de Jornaleros de Redondo Beach v. City of Redondo\\nBeach, 657 F.3d 936, 946 (9th Cir. 2011) (“[W]e are not\\nrequired to . . . adopt an interpretation precluded by the plain\\nlanguage of the ordinance.” (citation omitted)). While other\\nCourts of Appeals take a contrary approach, see United Food\\n& Commercial Workers Int’l Union v. IBP, Inc., 857 F.2d 422,\\n431 (8th Cir. 1988); Hill v. City of Houston, 789 F.2d 1103,\\n1112 (5th Cir. 1986), our precedent is clear, see Free Speech\\nCoal., Inc., 677 F.3d at 539; Brown, 586 F.3d at 274; Saxe, 240\\nF.3d at 215–16, 215 n.10.\\n\\n\\n\\n\\n 23\\n\\nFrisby v. Schultz, 487 U.S. 474, 483 (1988) (“To the extent\\nthey endorsed a broad reading of the ordinance, the lower\\ncourts ran afoul of the well-established principle that statutes\\nwill be interpreted to avoid constitutional difficulties.”).\\n\\n Here, the Ordinance is readily susceptible to a\\nnarrowing construction. The text of the Ordinance says\\nnothing about leafletting or peaceful one-on-one\\nconversations, let alone on a particular topic or for a particular\\npurpose. And, to put a fine point on it, the floating bubble\\nzone, which was enjoined years ago, did prohibit “passing a\\nleaflet,” “educating,” or “counseling.” Pitts. Code § 623.03.\\nThose are not the activities that remain prohibited in the zone,\\nand “when the legislature uses certain language in one part of\\nthe statute and different language in another, the court assumes\\ndifferent meanings were intended.” Sosa v. Alvarez-Machain,\\n542 U.S. 692, 711 n.9 (2004) (quoting 2A N. Singer, Statutes\\nand Statutory Construction § 46:06, at 194 (6th rev. ed. 2000)).\\n\\n The Ordinance prohibits four—and only four—\\nactivities within the zone: “congregat[ing],” “patrol[ling],”\\n“picket[ing],” and “demonstrat[ing].” Pitts. Code\\n§ 623.04. And none of those terms, as commonly understood,\\nencompasses the sidewalk counseling in which Plaintiffs\\nengage. 15\\n\\n 15\\n In its briefing and at oral argument, the City justified\\nits interpretation by noting that in Schenck, the injunction at\\nissue referred to “sidewalk counseling” as a “form of\\ndemonstrating,” and the Supreme Court did not reject that\\ncharacterization. See Appellees’ Br. 48 (citation omitted). But\\nthe Court made clear that the term as used by some protestors\\nin that case was misleading given their aggressive actions, see\\n\\n\\n\\n\\n 24\\n\\n To “congregate” means “to collect into a group or\\ncrowd.” Congregate, Merriam-Webster’s Collegiate\\nDictionary 262 (11th ed. 2005) [hereinafter Merriam-\\nWebster’s]; see also Congregate, The American Heritage\\nDictionary of the English Language 388 (4th ed. 2006)\\n[hereinafter American Heritage] (defining “congregate” as\\n“bring or come together in a group, crowd, or assembly”). To\\n“patrol” is “to carry out a patrol,” defined in turn as “the action\\nof traversing a district or beat or of going the rounds along a\\nchain of guards for observation or the maintenance of\\nsecurity,” Patrol, Merriam-Webster’s 909, and “[t]he act of\\nmoving about an area especially by an authorized and trained\\nperson . . . for purposes of observation, inspection, or security,”\\nPatrol, American Heritage 1290. To “picket” is to “serve as a\\npicket,” defined as “a person posted for a demonstration or\\nprotest.” Picket, Merriam-Webster’s 937; see also Picket,\\nAmerican Heritage 1327 (defining “picket” as “to post as a\\npicket” where “picket” is defined as “[a] person or group of\\npersons present outside a building to protest”). And to\\n“demonstrate” is defined as “to make a demonstration,” which\\nis defined in turn as “an outward expression or display” and “a\\npublic display of group feelings toward a person or cause.”\\nDemonstrate, Merriam-Webster’s 332; see also Demonstrate,\\nAmerican Heritage 484 (defining “demonstrate” as “[t]o\\nparticipate in a public display of opinion”).\\n\\n Plaintiffs’ sidewalk counseling does not meet any of\\nthese definitions. While the Supreme Court has noted that a\\n\\n\\nSchenck, 519 U.S. at 363, 381–82, and, as discussed, see supra\\nnote 6, such conduct falls far outside Plaintiffs’ definition of\\nsidewalk counseling.\\n\\n\\n\\n\\n 25\\n\\ngrouping of three or more people may constitute\\n“congregat[ing],” see Boos v. Barry, 485 U.S. 312, 316–17\\n(1988), approaching someone individually to engage in a one-\\non-one conversation no more constitutes “congregat[ing]” than\\nwalking alongside another person constitutes “patrol[ling].”\\nAnd while signs and raised voices may constitute “picket[ing]”\\nor “demonstrat[ing],” speaking to someone at a normal\\nconversational volume and distance surely does not. Simply\\ncalling peaceful one-on-one conversations “demonstrating” or\\n“picketing” does not make it so when the plain meaning of\\nthose terms does not encompass that speech. 16\\n\\n Moreover, the activities that the Ordinance does\\nprohibit render it content neutral under binding Supreme Court\\nprecedent. No doubt due to the easily identifiable nature and\\nvisibility of “congregat[ing], patrol[ling], picket[ing] or\\ndemonstrat[ing],” Pitts. Code § 623.04, the Court has\\nrepeatedly considered regulation of those activities to be based\\non the manner in which expressive activity occurs, not its\\ncontent, and held such regulation content neutral. See Madsen,\\n\\n 16\\n Perhaps because of this disconnect between the\\nOrdinance’s text and the specific expressive activities to which\\nthe parties have assumed the Ordinance applies, the City’s own\\nwitness struggled during his deposition to explain which\\nspecific prohibition was even applicable to Plaintiffs’ sidewalk\\ncounseling. For example, when asked “[w]hat part of the\\nOrdinance” would prohibit a sidewalk counselor from crossing\\ninto the buffer zone while talking to a patient, the City’s\\ndesignated witness replied, “[c]all it congregating, patrolling,\\npicketing, or demonstrating, or any name you wish to give it.”\\nJA 337a.\\n\\n\\n\\n\\n 26\\n\\n512 U.S. at 759, 763–64 (addressing the precise language at\\nissue here, “congregating, picketing, patrolling, [and]\\ndemonstrating,” and concluding that the injunction prohibiting\\nthose activities was content neutral); see also Snyder v. Phelps,\\n562 U.S. 443, 456 (2011); Hill, 530 U.S. at 721; Schenck, 519\\nU.S. at 383–85; United States v. Grace, 461 U.S. 171, 181–82\\n(1983). 17 Nor does Reed alter that conclusion. See Reed, 135\\nS. Ct. at 2228–29.\\n\\n In short, the doctrine of constitutional avoidance\\ncounsels that we impose a limiting construction where, as here,\\na statute has not been construed by a state court and is not only\\nsusceptible to a narrowing construction but also demands that\\nconstruction on its face. See Am. Booksellers, 484 U.S. at 397;\\nBrown, 586 F.3d at 274; Saxe, 240 F.3d at 215 n.10. Because\\n\\n 17\\n We have continued to rely on Hill since McCullen and\\nReed were handed down, see, e.g., Turco v. City of Englewood,\\n935 F.3d 155, 165 (3d Cir. 2019) (declining to strike down\\neight-foot buffer zone as a matter of law because “such a\\nconclusion would be directly at odds with the Supreme Court’s\\ndecision in Hill v. Colorado” (citation omitted)), as have some\\nof our sister circuits, e.g., March v. Mills, 867 F.3d 46, 64 (1st\\nCir. 2017); Act Now to Stop War & End Racism Coal. &\\nMuslim Am. Soc’y Freedom Found., 846 F.3d 391, 403–04\\n(D.C. Cir. 2017). We note, however, that other Courts of\\nAppeals have observed that, even if “neither McCullen nor\\nReed overruled Hill, so it remains binding on us,” the content\\nneutrality holding of Hill may be “hard to reconcile with both\\nMcCullen and Reed,” Price v. City of Chicago, 915 F.3d 1107,\\n1109 (7th Cir. 2019) (Sykes, J.), petition for cert. filed, No. 18-\\n1516 (U.S. June 6, 2019).\\n\\n\\n\\n\\n 27\\n\\nthe Ordinance, as properly interpreted, does not extend to\\nsidewalk counseling—or any other calm and peaceful one-on-\\none conversations—there is no need for law enforcement “to\\nexamine the content of the message . . . to determine whether\\na violation has occurred.” McCullen, 573 U.S. at 479 (citation\\nomitted). The Ordinance so read is thus content neutral and\\nsubject to intermediate scrutiny.\\n\\n C. Application of Intermediate Scrutiny\\n\\n Because we conclude the Ordinance does not implicate\\nPlaintiffs’ speech, we could end our analysis here if this were\\nan as-applied challenge. But because Plaintiffs have brought a\\nfacial challenge, we briefly consider whether the Ordinance as\\napplied to the remaining expressive activity of congregating,\\npatrolling, picketing, or demonstrating within fifteen feet of the\\nclinic entrance is “narrowly tailored to serve a significant\\ngovernmental interest.” 18 Id. at 477 (quoting Ward, 491 U.S.\\nat 791). We easily conclude that it is.\\n\\n\\n\\n 18\\n To satisfy intermediate scrutiny, the government\\nbears the burden of demonstrating that a restriction on speech\\nis “narrowly tailored to serve a significant governmental\\ninterest” and “leave[s] open ample alternative channels for\\ncommunication of the information.” McCullen, 573 U.S. at\\n477 (quoting Ward, 491 U.S. at 791). Plaintiffs do not dispute\\nthe “ample alternatives” prong and, with its narrowing\\nconstruction, “the limited nature of the prohibition makes it\\nvirtually self-evident that ample alternatives remain.” Frisby,\\n487 U.S. at 483. We therefore focus our inquiry, as do the\\nparties, on the issue of narrow tailoring.\\n\\n\\n\\n\\n 28\\n\\n As Plaintiffs acknowledge, the interests that the City\\nseeks to protect—unimpeded access to pregnancy-related\\nservices, ensuring public safety, and eliminating “neglect” of\\nlaw enforcement needs—are legitimate. 19 Bruni I, 824 F.3d at\\n368 (quoting Pitts. Code § 623.01); see McCullen, 573 U.S. at\\n487, 496–97 (describing these interests as “undeniably\\nsignificant” interests that are “clearly serve[d]” by buffer\\nzones); see also Turco v. City of Englewood, 935 F.3d 155, 166\\n(3d Cir. 2019) (recognizing the government’s significant\\ninterest in “protecting the health and safety of its citizens,\\nwhich ‘may justify a special focus on unimpeded access to\\nhealth care facilities and the avoidance of potential trauma to\\npatients associated with confrontational protests’”) (citation\\n\\n\\n\\n 19\\n To the extent Plaintiffs argue that the City’s stated\\ninterests were not substantiated on remand, the record—\\nincluding reports of violent incidents, obstruction of patients’\\ningress and egress, and aggressive confrontations—establishes\\notherwise. See supra Section I.A.1. Plaintiffs’ additional\\nargument that there has been no obstructive conduct preventing\\naccess to the clinic’s entrance in recent years and, therefore,\\nthat the Ordinance is no longer necessary is also belied by the\\nrecord. For starters, there is evidence in the record to the\\ncontrary. For example, a clinic escort declared in 2014 that she\\nwas “aware of incidents at [Planned Parenthood] in which\\nescorts were pushed by a protester and where protesters placed\\ntheir hands on patients and thrust their leaflets inside patients’\\ncoat pockets or handbags.” JA 709a–10a. More importantly,\\nthe fact that an otherwise constitutional restriction on speech is\\nsuccessful in serving the interests for which it was intended is\\nhardly a reason to strike it down.\\n\\n\\n\\n\\n 29\\n\\nomitted). Instead, Plaintiffs argue that the Ordinance is not\\nnarrowly tailored to those interests.\\n\\n To be narrowly tailored, a regulation must not “burden\\nsubstantially more speech than is necessary to further the\\ngovernment’s legitimate interests.” McCullen, 573 U.S. at 486\\n(quoting Ward, 491 U.S. at 799). At the same time, it “‘need\\nnot be the least restrictive or least intrusive means of’ serving\\nthe government’s interest,” id. (quoting Ward, 491 U.S. at\\n798), and we “afford[] some deference to a municipality’s\\njudgment in adopting a content-neutral restriction on speech,”\\nBruni I, 824 F.3d at 370.\\n\\n In arguing that the restriction on speech here is not\\nnarrowly tailored, Plaintiffs do not distinguish between the\\nOrdinance as read to include sidewalk counseling and the\\nOrdinance as read to exclude it. Rather, quoting Bruni I, they\\ncontend we “already made clear that ‘the City has the same\\nobligation to use less restrictive alternatives to its buffer zone\\nas . . . Massachusetts had with respect to the buffer zone at\\nissue in McCullen.’” Appellants’ Br. 25 (quoting Bruni I, 824\\nF.3d at 369). So, say Plaintiffs, just as in McCullen, the City\\nhad to demonstrate on remand that “substantially less-\\nrestrictive alternatives,” including arrests, prosecutions, and\\ninjunctions, “were tried and failed, or . . . were closely\\nexamined and ruled out for good reason.” Bruni I, 824 F.3d at\\n370. Because the City here concededly failed to make a\\nshowing of that magnitude, Plaintiffs contend the Ordinance\\nnecessarily fails intermediate scrutiny.\\n\\n Plaintiffs mistake the import of Bruni I in two respects.\\nFirst, in reviewing the District Court’s dismissal of Plaintiffs’\\ncomplaint, we did not conclusively determine that the City\\n\\n\\n\\n\\n 30\\n\\n“ha[d] the same obligation to use less restrictive alternatives”\\nas in McCullen. Bruni I, 824 F.3d at 369. As appropriate at\\nthe pleading stage, we “accept[ed] all [of Plaintiffs’] factual\\nallegations as true,” id. at 360 (citation omitted), and held that\\n“[b]ecause of the significant burden on speech that the\\nOrdinance allegedly imposes, the City ha[d] the same\\nobligation to use,” id. at 369 (emphasis added), or show that it\\n“seriously considered, substantially less restrictive\\nalternatives,” id. at 357, as in McCullen. On that basis, we\\nremanded for a determination of the proper scope of the\\nOrdinance, the actual burden on Plaintiffs’ speech, and a\\nmeans–ends analysis “by the standard that McCullen now\\nrequires.” Id. at 375.\\n\\n Second, to the extent Plaintiffs’ argument is that\\nMcCullen imposes on a municipality “the same obligation” as\\non Massachusetts—even in the absence of a “significant\\nburden on speech,” id. at 369—they are mistaken. As we\\nrecognized in Bruni I, where the burden on speech is de\\nminimis, a regulation may “be viewed as narrowly tailored,\\neven at the pleading stage,” id. at 372 n.20, and McCullen and\\nBruni I both observed that where there is only “a slight burden\\non speech, any challengers would struggle to show that\\n‘alternative measures [would] burden substantially less\\nspeech,’” id. (alteration in original) (quoting McCullen, 573\\nU.S. at 495). In short, while McCullen and Bruni I made clear\\nthat a “rigorous and fact-intensive” inquiry will be required\\nwhere a restriction imposes a significant burden on speech,\\nBruni I, 824 F.3d at 372, they also made clear (and logic\\ndictates) that a less demanding inquiry is called for where the\\nburden on speech is not significant—whether due to a\\n\\n\\n\\n\\n 31\\n\\nrestriction’s scope, the size of the speech-free zone, or some\\ncombination of the two. 20\\n\\n In this case, now that we have before us both a\\ndeveloped record and a narrow construction of the Ordinance,\\nit is apparent that the burden it imposes is different from\\nMcCullen both in scope and size and is instead akin to that\\nimposed by the thirty-six-foot and fifteen-foot buffer zones\\nthat the Supreme Court upheld in Madsen v. Women’s Health\\nCenter, Inc., 512 U.S. at 757, 776, and Schenck v. Pro-Choice\\nNetwork of Western New York, 519 U.S. at 364, 380,\\nrespectively.\\n\\n 20\\n In Bruni I, we explained that when dealing with core\\nspeech, such as sidewalk counseling, whether a restriction is\\nless burdensome in “degree”—meaning size in the context we\\nused it—is not necessarily dispositive of whether the burden\\non speech is significant. 824 F.3d at 368. A court must also\\nconsider the burden as “a matter of . . . kind,” referring to the\\ntype of speech a restriction prohibits. Id. Elsewhere in the\\nopinion, however, we also recognized that there may be cases\\nwhere the “degree” of burden is so minimal that it, alone, will\\ndetermine whether the burden on speech should be considered\\nsignificant, thus potentially negating any need for the\\ngovernment to show that substantially less-restrictive\\nalternatives were tried and failed or seriously considered and\\nreasonably rejected. See id. at 372 n.20 (quoting McCullen,\\n573 U.S. at 495). As “degree” could refer to the size of the\\nzone or significance of the burden, depending on the context,\\nand both subjects are mentioned in today’s opinion, we will use\\nthe terms “scope” and “size,” rather than “kind” and “degree,”\\nfor the sake of clarity.\\n\\n\\n\\n\\n 32\\n\\n As to scope, although the restrictions in those cases\\nwere more targeted in that they were created by way of\\ninjunction, not legislation, see Schenck, 519 U.S. at 361;\\nMadsen, 512 U.S. at 757, the Ordinance is narrower in scope\\nbecause it limits only congregating, patrolling, picketing, and\\ndemonstrating within a fifteen-foot buffer zone, and does not\\nsweep in the “one-on-one communication,” including “normal\\nconversation and leafletting,” that McCullen emphasized “have\\nhistorically been more closely associated with the transmission\\nof ideas,” 573 U.S. at 488. Thus, so long as she is not\\n“congregating” with others in the buffer zone, an individual\\nplaintiff is not barred by the Ordinance from engaging in\\nsidewalk counseling inside its borders. Cf. Schenck, 519 U.S.\\nat 367, 369–70, 383–84 (describing and upholding the district\\ncourt’s decision to allow only two sidewalk counselors inside\\nthe fifteen-foot buffer zone); Madsen, 512 U.S. at 759\\n(prohibiting not only “congregating, picketing, patrolling,\\n[and] demonstrating” within the zone but also “entering”).\\n\\n And as to size, the relatively small buffer zone imposed\\nby the Ordinance, like those in Madsen and Schenck, does not\\nprevent groups like Forty Days for Life from congregating\\nwithin sight and earshot of the clinic. Nor does it prevent\\nprotestors, demonstrators, or picketers from being seen and\\nheard, or any of these persons from speaking outside the zone\\nwith willing listeners who are entering or exiting. See Schenck,\\n519 U.S. at 384–85; Madsen, 512 U.S. at 770. And size, while\\nnot necessarily in and of itself dispositive, see Bruni I, 824 F.3d\\nat 368, is still a “substantial distinction” that must factor into a\\ncourt’s analysis of the relative burden on speech, Turco, 935\\nF.3d at 163.\\n\\n\\n\\n\\n 33\\n\\n Also as in Madsen and Schenck, the record shows that\\nthe City resorted to a fixed buffer zone not in the first instance\\nbut after attempting or considering some less burdensome\\nalternatives and concluding they were unsuccessful in meeting\\nthe legitimate interests at issue. See Schenck, 519 U.S. at 380–\\n82; Madsen, 512 U.S. at 769–70. These included an overtime\\npolice detail in front of Planned Parenthood until the cost\\nbecame prohibitive once the City was declared a financially\\ndistressed municipality; 21 incident-based responses by the\\npolice that proved unsuccessful in preventing or deterring\\naggressive incidents and congestion; and consideration of\\ncriminal laws that the police were finding inadequate to\\naddress the problem of protestors following patients and\\nobstructing their way to the clinic.\\n\\n True, as Plaintiffs point out, this record does not reflect\\nthat the City tried or seriously considered arrests, prosecutions,\\nor targeted injunctions, which Plaintiffs would have us treat as\\ndispositive. But where the burden imposed by a restriction on\\n\\n 21\\n In McCullen, Massachusetts did not assert such\\neconomic hardships. While the Court noted that “the prime\\nobjective of the First Amendment is not efficiency,” McCullen,\\n573 U.S. at 495, it did not have occasion to consider\\ncircumstances where “the limitations of ‘manpower’ and the\\nneed to be able to deploy officers in response to emergencies”\\nmade it “not feasible to permanently provide a significantly\\nincreased police presence at the clinic,” Turco, 935 F.3d at 167.\\nAs we recently recognized, however, the facts “that the police\\ndepartment ha[s] finite resources,” id. (citation omitted), and a\\ncity has “financial restraints,” id. at 167–68, are relevant to the\\nnarrow tailoring analysis.\\n\\n\\n\\n\\n 34\\n\\nspeech is not significant, the government need demonstrate\\nneither that “it has tried or considered every less burdensome\\nalternative,” Bruni I, 824 F.3d at 370, nor that it tried or\\nconsidered every less burdensome alternative discussed in\\nMcCullen. Instead, as we reiterated in Turco, this is an\\n“intensely factual . . . inquiry,” 935 F.3d at 170, that must\\naccount for “the ‘broad principle of deference to legislative\\njudgments’ and that a legislative body ‘need not meticulously\\nvet every less burdensome alternative,’” id. at 171 (quoting\\nBruni I, 824 F.3d at 370 n.18). And, as we recognized there in\\nremanding for further fact-finding, a municipality can\\ndemonstrate that it “attempted . . . [or] considered alternative\\nmeans of bringing order to the sidewalk” even if it “ha[s] not\\n‘prosecute[d] any protestors for activities taking place on the\\nsidewalk’ and ‘did not seek injunctive relief against individuals\\nwhose conduct was the impetus for the Ordinance.’” Id. at 167\\n(second alteration in original) (quoting Turco v. City of\\nEnglewood, No. 2:15-cv-03008, 2017 WL 5479509, at *5\\n(D.N.J. Nov. 14, 2017)). The ultimate question remains\\nwhether a restriction on speech “burden[s] substantially more\\nspeech than is necessary to further the government’s legitimate\\ninterests.” McCullen, 573 U.S. at 486 (emphasis added)\\n(quoting Ward, 491 U.S. at 799).\\n\\n Consistent with Madsen and Schenck, the Ordinance, as\\nwe have construed it, does not do so. 22 The Ordinance\\n\\n 22\\n We recognize that the City may have a legitimate\\nconcern about access to healthcare facilities if it transpires that\\nmultiple one-on-one conversations impair access to the\\nfacilities, see McCullen, 573 U.S. at 486–87, and that the City\\nmay then have occasion to revisit the terms of the Ordinance\\nhaving developed a record that would satisfy McCullen and\\n\\n\\n\\n\\n 35\\n\\ntherefore is “narrowly tailored to serve a significant\\ngovernmental interest,” McCullen, 573 U.S. at 477 (quoting\\nWard, 491 U.S. at 791), and it satisfies intermediate scrutiny.\\n\\n D. Overbreadth\\n\\n Finally, Plaintiffs argue that the Ordinance is\\nunconstitutionally overbroad because it authorizes the City to\\ncreate buffer zones at any health facility in the City, regardless\\nof whether the City has identified a problem at the location in\\nthe past. A law may be overbroad under the First Amendment\\nwhere “a substantial number of its applications are\\nunconstitutional, judged in relation to the [law’s] plainly\\nlegitimate sweep.” Bruni I, 824 F.3d at 374 (quoting Stevens,\\n559 U.S. at 473). The overbreadth doctrine is “strong\\nmedicine,” Kreimer v. Bureau of Police, 958 F.2d 1242, 1265\\n(3d Cir. 1992) (citation omitted), should therefore be “used\\nsparingly,” id., and will “not be[] invoked when a limiting\\nconstruction has been or could be placed on the challenged”\\nlaw, Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).\\n\\n Plaintiffs’ overbreadth challenge is not well-founded.\\nAs a general matter, “[t]he fact that the coverage of a statute is\\nbroader than the specific concern that led to its enactment is of\\nno constitutional significance,” Hill, 530 U.S. at 730–31, and\\nits applicability more generally is one of the reasons that we\\nconsider it to be a content-neutral restriction on speech, see id.\\nat 731. For that reason, “[w]hen a buffer zone broadly applies\\nto health care facilities” to include “buffer zones at non-\\n\\nBruni I, as well as the content-neutrality requirement of Reed.\\nSee Turco, 935 F.3d at 162–63. That, however, is not the\\nOrdinance before us today.\\n\\n\\n\\n\\n 36\\n\\nabortion related locations,” we may then “conclude ‘the\\ncomprehensiveness of the statute is a virtue, not a vice, because\\nit is evidence against there being a discriminatory\\ngovernmental motive.’” Turco, 935 F.3d at 171 (quoting Hill,\\n530 U.S. at 730–31).\\n\\n Nor is the Ordinance overbroad because it affords the\\nCity discretion to select particular health facilities at which it\\nwill demarcate a buffer zone. Since the demarcation\\nrequirement was put in place approximately ten years ago, the\\nCity has exercised that discretion as to only two facilities, both\\nof which suffered from violence and obstruction in the past.\\nYet we may not, as Plaintiffs suggest, simply assume that “the\\nstatute’s very existence may cause others not before the court\\nto refrain from constitutionally protected speech or\\nexpression.” Broadrick, 413 U.S. at 612. Instead, we revert\\nagain to the “principle . . . well-established in First\\nAmendment jurisprudence”—“our duty to ‘accord a measure\\nof deference to the judgment’ of [the] city council,’” Turco,\\n935 F.3d at 171 (quoting Hill, 530 U.S. at 727), considering\\n“[the] statute’s application to real-world conduct, not fanciful\\nhypotheticals,” id. at 172 (quoting Stevens, 559 U.S. at 485).\\nApplying that principle here, we conclude the Ordinance is not\\nsubstantially overbroad.\\n\\n In sum, Plaintiffs have not carried their “burden of\\ndemonstrating, ‘from the text of [the law] and from actual fact,’\\nthat substantial overbreadth exists.” Virginia v. Hicks, 539\\nU.S. 113, 122 (2003) (alteration in original) (citation omitted).\\nWe therefore affirm the District Court’s grant of summary\\njudgment to the City on this claim.\\n\\n\\n\\n\\n 37\\n\\nIV. Conclusion\\n\\n For the foregoing reasons, we will affirm the District\\nCourt’s order granting summary judgment.\\n\\n\\n\\n\\n 38\\n\\nNikki Bruni et al. v. City of Pittsburgh et al. (Bruni II), No. 18-\\n1084\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4448071/\", \"author_raw\": \"KRAUSE, Circuit Judge.\"}, {\"author\": \"HARDIMAN, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"HARDIMAN, Circuit Judge, concurring.\\n\\n I join the Court’s opinion because it rightly construes\\nthe Pittsburgh Ordinance to allow conversation on a public\\nsidewalk. I write separately to highlight the impact of Reed v.\\nTown of Gilbert, 135 S. Ct. 2218 (2015). In my view, Reed\\nweakened precedents cited in the Court’s content neutrality\\nanalysis and will constrain Pittsburgh’s enforcement of the\\nOrdinance going forward.\\n\\n I\\n\\n It is true that the Supreme Court has held that restricting\\n“congregating, picketing, patrolling, [and] demonstrating”\\naround abortion clinics is facially content neutral. Madsen v.\\nWomen’s Health Ctr., Inc., 512 U.S. 753, 759, 757–65 (1994);\\nsee Op. 26–27. The Court has even extended this content\\nneutrality to “wildly expansive definitions” of “demonstrate”\\nand “picket.” Hill v. Colorado, 530 U.S. 703, 744 (2000)\\n(Scalia, J., dissenting); see id. at 721–22 (majority opinion)\\n(“defining ‘demonstrate’ as ‘to make a public display of\\nsentiment for or against a person or cause’ and ‘picket’ as an\\neffort ‘to persuade or otherwise influence’” (quoting Webster’s\\nThird New International Dictionary 600, 1710 (1993))); see\\nalso Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357,\\n374 n.6, 381–82 (1997) (upholding injunction against\\n“demonstrating,” even though it would target some “stationary,\\nnonobstructive demonstrations”).\\n\\n The continued vitality of this content neutrality analysis\\nis questionable after Reed. Before Reed, the Court vacillated\\n\\nbetween two tests for content neutrality. See generally\\nGenevieve Lakier, Reed v Town of Gilbert, Arizona, and the\\nRise of the Anticlassificatory First Amendment, 2016 Sup. Ct.\\nRev. 233; Elena Kagan, Private Speech, Public Purpose: The\\nRole of Governmental Motive in First Amendment Doctrine,\\n63 U. Chi. L. Rev. 413 (1996). In cases like Hill, Schenck, and\\nMadsen, the “government’s purpose [w]as the threshold\\nconsideration.” Madsen, 512 U.S. at 763; see Hill, 530 U.S. at\\n719; Schenck, 519 U.S. at 371–74 & n.6 (relying solely on\\nMadsen to hold injunction content neutral). But in other cases,\\nthe Court’s first consideration was whether a law “draw[s]\\ncontent-based distinctions on its face.” McCullen v. Coakley,\\n573 U.S. 464, 479 (2014). Any law that did so was necessarily\\ncontent based, no matter the government’s purpose. See, e.g.,\\nSimon & Schuster, Inc. v. Members of N.Y. State Crime Victims\\nBd., 502 U.S. 105, 116–17, 122 n.* (1991).\\n\\n Reed adopted the latter test for content neutrality. It held\\nthat “[a] law that is content based on its face is subject to strict\\nscrutiny regardless of the government’s benign motive,\\ncontent-neutral justification, or lack of ‘animus toward the\\nideas contained’ in the regulated speech.” 135 S. Ct. at 2228\\n(quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410,\\n429 (1993)); see id. at 2237–39 (Kagan, J., concurring in the\\njudgment). By doing so, Reed “overturn[ed] the standard that\\n[the Court] had previously used to resolve a particular class of\\ncases”—a class that includes cases like this one and Hill. Brian\\nA. Garner et al., The Law of Judicial Precedent 31 (2016)\\n(citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66–67\\n(1996), and Planned Parenthood of Se. Pa. v. Casey, 947 F.2d\\n682, 691–93 (3d Cir. 1991), aff’d in part, rev’d in part, 505\\nU.S. 833 (1992)). In fact, Reed rebuked Hill several times: by\\nnoting that the errant Court of Appeals relied on it, 135 S. Ct.\\n\\n\\n\\n\\n 2\\n\\nat 2226; and by favorably citing dissents in Hill authored by\\nJustices Scalia and Kennedy, id. at 2229.\\n\\n Reed also seems to have expanded the types of laws that\\nare facially content based. Facial distinctions, the Court\\nexplained, may not only be “obvious, defining regulated\\nspeech by particular subject matter.” Id. at 2227. They may also\\nbe “subtle, defining regulated speech by its function or\\npurpose.” Id. Two cases discussed in Reed exemplify this\\nsubtle content discrimination.\\n\\n The first, Sorrell v. IMS Health Inc., involved a law that\\nrestricted the sale, disclosure, and use of information about\\ndrug prescriptions. See 564 U.S. 552, 563–64 (2011); Reed,\\n135 S. Ct. at 2227. The Court held content based a provision\\nthat allowed the sale of that information for “‘educational\\ncommunications,’” but not for “marketing.” Sorrell, 564 U.S.\\nat 564 (quoting Vt. Stat. Ann., tit. 18, § 4631(e)(4) (Supp.\\n2010)). “[E]ducation[ ]” and “marketing” are examples of\\nspeech’s “function or purpose” under Reed. 135 S. Ct. at 2227.\\nThey explain how or why a speaker speaks, not what is said. Id.\\n\\n The second case that underscores the protection\\nafforded to speech’s function or purpose is NAACP v. Button,\\n371 U.S. 415 (1963). See Reed, 135 S. Ct. at 2229. In that case,\\nVirginia “attempt[ed] to use a statute prohibiting ‘improper\\nsolicitation’ by attorneys to outlaw litigation-related speech of\\nthe National Association for the Advancement of Colored\\nPeople.” Id. (quoting Button, 371 U.S. at 438). The Button\\nCourt rejected that attempt, holding that “advocacy” and “‘the\\nopportunity to persuade to action’” are First Amendment\\nrights. 371 U.S. at 437–38 (quoting Thomas v. Collins, 323\\nU.S. 516, 537 (1945)). Describing the Virginia law over 50\\n\\n\\n\\n\\n 3\\n\\nyears later, the Reed Court called it “facially content-based.”\\n135 S. Ct. at 2229.\\n\\n So Reed demands that we construe the Ordinance\\nnarrowly. And it steers us away from precedents that focused\\non a law’s purpose rather than its facial effect. For laws once\\nheld content neutral because of purpose may well be facially\\ncontent based after Reed. Compare, e.g., Hill, 530 U.S. at 720–\\n21 (holding content neutral a ban on “picketing,”\\n“demonstrating,” “protest, education, or counseling” even\\nthough it may require the government “to review the content\\nof the statements made”), with McCullen, 573 U.S. at 479\\n(“The [buffer zone law] would be content based if it required\\n‘enforcement authorities’ to ‘examine the content of the\\nmessage that is conveyed . . . .’” (quoting FCC v. League of\\nWomen Voters of Ca., 468 U.S. 364, 383 (1984))), and Reed,\\n135 S. Ct. at 2227–29 (highlighting facially content based laws\\nthat target solicitation and educational communications). Even\\nsome purposes previously held content neutral may now be\\ncontent based. Compare, e.g., Hill, 530 U.S. at 716 (citing\\n“[t]he unwilling listener’s interest in avoiding unwanted\\ncommunication”), and Turco v. City of Englewood, 935 F.3d\\n155, 162, 166-67 (3d Cir. 2019) (citing that interest to support\\nnarrow tailoring of concededly content neutral law), with\\nMcCullen, 573 U.S. at 481 (“To be clear, the Act would not be\\ncontent neutral if it were concerned with undesirable effects\\nthat arise from ‘the direct impact of speech on its audience’ or\\n‘[l]isteners’ reactions to speech.’” (quoting Boos v. Barry, 485\\nU.S. 312, 321 (1988))), and Reed, 135 S. Ct. at 2227\\n(protecting speech’s “function or purpose”).\\n\\n\\n\\n\\n 4\\n\\n II\\n\\n Today our Court does what Reed requires. We hold that\\n“[b]ecause the Ordinance, as properly interpreted, does not\\nextend to sidewalk counseling—or any other calm and\\npeaceful one-on-one conversations,” the City cannot examine\\nthe content of a conversation to decide whether a violation has\\noccurred. Op. 27–28. It will instead examine, for example,\\ndecibel level, the distance between persons, the number of\\npersons, the flow of traffic, and other things usually unrelated\\nto the content or intent of speech. See, e.g., Reed, 135 S. Ct. at\\n2228 (confirming that banning sound amplification is content\\nneutral); id. at 2232 (stating that “entirely forbidding the\\nposting of signs” is content neutral); McCullen, 573 U.S. at\\n491–92 (collecting laws that, by penalizing conduct like\\nobstruction or assault, may pass intermediate scrutiny).\\n\\n The Court’s decision constrains the City’s enforcement\\ndiscretion. Pittsburgh cannot target quiet conversations even if\\nthey are not in a tone of “kindness, love, hope, gentleness, and\\nhelp.” Op. 11 n.6 (quoting JA 574a); see, e.g., id. at 25–26. It\\nmust allow not only conversations that help and love, but also\\nthose that serve any other “function or purpose” within the\\nbounds of protected speech. Reed, 135 S. Ct. at 2227; see, e.g.,\\nid. at 2228–29 (discussing Sorrell, 564 U.S. at 563–64\\n(“educati[ng]” and “marketing”), and Button, 371 U.S. at 438–\\n40 (“solicit[ing],” “advoca[ting],” and “urg[ing]”)).\\n\\n And the City’s enforcement of the Ordinance must be\\nevenhanded. Consider clinic employees and agents who, under\\nthe injunction issued in Brown v. City of Pittsburgh, can\\n“congregate” or “patrol” when helping persons enter or exit a\\nclinic. See 586 F.3d 263, 273–75 (3d Cir. 2009); Brown v. City\\nof Pittsburgh, 2010 WL 2207935, at *2 n.2 (W.D. Pa. May 27,\\n\\n\\n\\n\\n 5\\n\\n2010); JA 1324a (permanent injunction order). Before today,\\nthe City’s broad and amorphous interpretation of the Ordinance\\nrisked allowing those employees to engage in speech that\\nothers could not. That sort of disparate treatment would now\\nbe content or viewpoint based. See Reed, 135 S. Ct. at 2230\\n(citing Rosenberger v. Rector and Visitors of Univ. of Va., 515\\nU.S. 819 (1995), and Citizens United v. FEC, 558 U.S. 310\\n(2010)). Our decision today clarifies that the words\\n“congregate” and “patrol” address conduct—the assembly of\\npeople in one place or the action of pacing back and forth. See\\nOp. 25. So interpreted, the Brown injunction’s narrow\\nexception does not discriminate between types of speech.\\n\\n With these understandings, I join the Court’s opinion.\\n\\n\\n\\n\\n 6\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4448071/\", \"author_raw\": \"HARDIMAN, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"HARDIMAN"},"judge2":{"kind":"string","value":"KRAUSE"},"judge3":{"kind":"string","value":"GREENBERG"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"HARDIMAN\": \", Circuit\", \"KRAUSE\": \", Circuit\", \"GREENBERG\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4670818/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Nikki Bruni v. City of Pittsburgh\nCourt: U.S. Court of Appeals for the Third Circuit\nDate decided: 2019-10-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nPRECEDENTIAL\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _______________\n\n No. 18-1084\n _______________\n\n NIKKI BRUNI; JULIE COSENTINO;\n CYNTHIA RINALDI; KATHLEEN LASLOW;\n PATRICK MALLEY,\n Appellants\n\n v.\n\nCITY OF PITTSBURGH; PITTSBURGH CITY COUNCIL;\n MAYOR PITTSBURGH\n _______________\n\n On Appeal from the United States District Court\n for the Western District of Pennsylvania\n (W.D. Pa. No. 2-14-cv-01197)\n Honorable Cathy Bissoon, U.S. District Judge\n _______________\n\n Argued: February 6, 2019\n\nBefore: HARDIMAN, KRAUSE, and GREENBERG, Circuit\n Judges\n\n (Opinion Filed: October 18, 2019)\n\nKenneth J. Connelly\nElissa M. Graves\nKevin H. Theriot [ARGUED]\nKristen K. Waggoner\nDavid A. Cortman\nAlliance Defending Freedom\n15100 North 90th Street\nScottsdale, AZ 85260\n\nLawrence G. Paladin, Jr.\nSuite 6C\n15 Duff Road\nPittsburgh, PA 15235\n\n Counsel for Plaintiff-Appellants Nikki Bruni, Julie\n Cosentino, Cynthia Rinaldi, Kathleen Laslow, and\n Patrick Malley\n\nJulie E. Koren\nMatthew S. McHale ∗ [ARGUED]\nYvonne S. Hilton\nCity of Pittsburgh\nDepartment of Law\n414 Grant Street\n313 City County Building\nPittsburgh, PA 15219\n\n ∗\n Matthew S. McHale withdrew as counsel on July 3,\n2019, prior to the issuance of this opinion.\n\n\n\n\n 2\n\n Counsel for Defendant-Appellees City of Pittsburgh,\n Pittsburgh City Council, Mayor Pittsburgh\n\nWilliam A. Bonner, I\n12 Veterans Square\nP.O. Box 259\nMedia, PA 19063\n\n Counsel for Amicus Curiae Life Legal Defense\n Foundation\n\nJamie Cohn\nStephen M. Juris\nJanice Mac Avoy\nFried Frank Harris Shriver & Jacobson\nOne New York Plaza\nNew York, NY 10004\n\nSusan J. Frietsche\nWomen’s Law Project\nWestern Pennsylvania Office\n428 Forbes Avenue\nSuite 1710\nPittsburgh, PA 15219\n\n Counsel for Amici Curiae Women Law Project,\n National Abortion Federation\n\nStephen M. Crampton\nP.O. Box 4506\nTupelo, MS 38803\n\n\n\n\n 3\n\n Counsel for Amici Curiae Pro Life Action League,\n Sidewalk Advocates for Life\n\nSteven W. Fitschen\nThe National Legal Foundation\n524 Chesapeake\nChesapeake, VA 23322\n\n Counsel for Amici Curiae Pacific Justice Institute,\n Concerned Women for America, National Legal\n Foundation\n\nMatthew D. Staver\nHoratio G Mihet\nRoger K. Gannam\nLiberty Counsel\nP.O. Box 540774\nOrlando, FL 32854\n\n Counsel for Amici Curiae Colleen Reilly and Becky\n Biter\n\nErek L. Barron\nWhiteford Taylor & Preston\n111 Rockville Pike\nSuite 800\nRockville, MD 20850\n\n Counsel for Amicus Curiae International Municipal\n Lawyers\n\n _______________\n\n\n\n\n 4\n\n OPINION OF THE COURT\n _______________\n\nKRAUSE, Circuit Judge.\n\n This case requires us to determine the constitutionality\nof a Pittsburgh ordinance that creates a fifteen-foot “buffer\nzone” outside the entrance of any hospital or healthcare\nfacility. Pittsburgh, Pa., Code § 623.04 (2005) [hereinafter\n“the Ordinance” or “Pitts. Code”]. In relevant part, the\nOrdinance states that “[n]o person or persons shall knowingly\ncongregate, patrol, picket or demonstrate” in the prescribed\nzone. Id. Outside of a Planned Parenthood in downtown\nPittsburgh, Plaintiffs engage in leafletting and “peaceful . . .\none-on-one conversations” conducted “at a normal\nconversational level and distance” intended to dissuade\nlisteners from obtaining an abortion. Appellants’ Br. 9, 17–18.\nAs the City has asserted that the Ordinance applies to this\nspeech, known as “sidewalk counseling,” Plaintiffs argue that\nthe Ordinance is facially unconstitutional under the First\nAmendment and the District Court erred in granting summary\njudgment in the City’s favor. Because we conclude that the\nOrdinance does not cover sidewalk counseling and thus does\nnot impose a significant burden on speech, we will affirm.\n\n\n\n\n 5\n\nI. Background\n\n A. Factual Background 1\n\n 1. History of the Ordinance\n\n In the mid- and late 1990s, Planned Parenthood was the\nsite of numerous clashes between opponents and advocates of\nabortion rights as well as individuals seeking the facility’s\nservices. 2 In addition to seeing “hundreds” of people at the\nfacility on a Saturday—“pro and anti”—the clinic was plagued\nby bomb threats, vandalism, and blockades of its entrance. JA\n322a. To address these incidents, the Bureau of Police\ndeployed an overtime detail of “up to ten officers and a\nsergeant” to maintain order and security, often using crowd-\ncontrol barriers to separate demonstrators from each other and\nfrom patients trying to enter the clinic. JA 1024a.\n\n\n\n 1\n The background summarized here is drawn from the\nrecord and our prior opinion in this case, Bruni v. City of\nPittsburgh (Bruni I), 824 F.3d 353, 357–59 (3d Cir. 2016).\nBecause we are reviewing a district court’s grant of summary\njudgment, we consider the facts in the light most favorable to\nthe non-movants and draw all reasonable inferences in their\nfavor. See Hugh v. Butler Cty. Family YMCA, 418 F.3d 265,\n266–67 (3d Cir. 2005).\n 2\n The same was true of Allegheny Reproductive Health\nCenter, another clinic that provides abortions, which, in\naddition to seeing hundreds of protestors, was fire bombed,\nintentionally flooded, and had its windows shot out.\n\n\n\n\n 6\n\n In 2002, Planned Parenthood moved to its current\nlocation at 933 Liberty Avenue. Although the incidents\nlessened in severity, contemporaneous police logs and\ntestimony from Sergeant William Hohos indicate that “the\npushing,” “the shoving,” and “the blocking of the doors”\ncontinued, and the overtime detail, reduced in size, continued\nto provide a police presence. JA 323a, JA 834a, JA 837a.\nAfter Pittsburgh was declared a financially distressed\nmunicipality in late 2003, however, fiscal constraints and the\nneed for redeployment of limited police resources required the\ndetail to be discontinued, and police were called to address the\ncontinuing incidents at the site on an as-needed basis. In the\nwake of the detail’s discontinuation, the clinic reported an\n“obvious escalation in the efforts of the protestors,” JA 357a,\nincluding an increase in “aggressive pushing, shoving and . . .\nharassing behavior that included shoving literature into\npeople’s pockets, hitting them with signs and blocking their\nentrance into the building,” JA 352a.\n\n In November 2005, the City Council held hearings on\nproposed legislation that eventually resulted in the Ordinance.\nAmong those who testified were sidewalk counselors, clinic\nescorts, patients, and other concerned members of the\ncommunity. Several witnesses insisted the Ordinance was\nunnecessary either because they had never observed violent\nincidents or were unaware of “significant violence” outside the\nclinic. JA 348a. But other witnesses reported being personally\nharassed and prevented from entering the clinic, being yelled\nat through the glass doors of the clinic, and seeing patients\nbeing surrounded on the sidewalk. A Planned Parenthood\ncounselor described patients entering the clinic in a\n“psychological state [of] situational crisis,” threatening their\nhealth. JA 355a. And “without [police] supervision,” the\n\n\n\n\n 7\n\nPresident and CEO of Planned Parenthood of Western\nPennsylvania said, “there ha[d] been an increase in unlawful\nbehavior that . . . put[] . . . patients, their families, pedestrians\nand . . . protestors at risk.” JA 352a.\n\n The City Council also heard from Commander\nDonaldson of the Pittsburgh Police Department. He reported\nthat police had been summoned to Planned Parenthood twenty-\ntwo times in the past six months alone to “mediate\nconfrontations” and respond to incidents ranging from signs\n“obstructing the front of the building” to protestors\n“follow[ing] . . . people to the doorway.” JA 404a. They had\nnot made any arrests, however. According to Commander\nDonaldson, the City had on its books “laws . . . that would\naddress obstructing traffic or passageways or . . . the [clinic’s]\ndoorway,” but those laws would not address the precise\nproblem that was occurring, namely attempts to block people\nfrom entering the facility before they reached its front door. 3\nJA 398a.\n\n The debate on the Ordinance was extensive. Many\nwitnesses, both for and against the legislation, expounded on\nthe competing interests at stake and expressed a desire to\nprotect both free speech and access to healthcare, including\nabortions.\n\n 3\n The City’s designated representative, who had been a\nmember of the overtime detail before it was disbanded,\nlikewise attested that the criminal laws were not adequate to\ndeal with protestors and demonstrators outside the clinic\nbecause the obstructive conduct “[wasn’t] rising to those\nlevels. It was all the underlying stuff in between.” JA 1057a.\n\n\n\n\n 8\n\n 2. The Ordinance\n\n Shortly after these hearings, the City Council adopted\nthe Ordinance, and the mayor signed it into law. See Bruni v.\nCity of Pittsburgh (Bruni I), 824 F.3d 353, 357 (3d Cir. 2016).\nCodified as Chapter 623 of the Pittsburgh Code of Ordinances,\nthe Ordinance states, in relevant part:\n\n No person or persons shall knowingly\n congregate, patrol, picket or demonstrate in a\n zone extending 15 feet from any entrance to the\n hospital and or health care facility. This section\n shall not apply to police and public safety\n officers . . . in the course of their official\n business, or to authorized security personnel\n employees or agents of the hospital, medical\n office or clinic engaged in assisting patients and\n other persons to enter or exit the hospital,\n medical office, or clinic. 4\n\nPitts. Code § 623.04. The Council also ratified a preamble that\nset forth the City’s goals in adopting the Ordinance, including\n\n 4\n Although the Chapter does not define “health care\nfacility,” a “[m]edical [o]ffice/[c]linic” is defined as “an\nestablishment providing therapeutic, preventative, corrective,\nhealing and health-building treatment services on an out-\npatient basis by physicians, dentists and other practitioners.”\nPitts. Code § 623.02. Penalties for violating the Ordinance\nrange from a $50 fine for a first offense to a thirty-day\nmaximum (and three-day minimum) jail sentence for a fourth\nviolation within five years. Id. § 623.05.\n\n\n\n\n 9\n\n“provid[ing] unobstructed access to health care facilities” and\n“medical services,” “avoid[ing] violent confrontations,”\n“provid[ing] a more efficient and wider deployment” of City\nservices, and “ensuring that the First Amendment rights of\ndemonstrators to communicate their message . . . [are] not\nimpaired.” Id. § 623.01.\n\n As originally passed, the Ordinance also included an\n“[e]ight-foot personal bubble zone,” extending one hundred\nfeet around clinics, in which people could not be approached\nwithout their consent “for the purpose of passing a leaflet or\nhandbill to, displaying a sign to, or engaging in oral protest,\neducation or counseling.” Id. § 623.03. Following a facial\nchallenge to the Ordinance, we concluded that the Ordinance\nwas content neutral and each zone was constitutionally\npermissible but the combination of the two zones was not. See\nBrown v. City of Pittsburgh, 586 F.3d 263, 273, 276–81 (3d\nCir. 2009). On remand, the City chose to abandon the floating\nbubble zone and retain only the fixed buffer zone that\nprohibited “congregat[ing], patrol[ling], picket[ing] or\ndemonstrat[ing].” Pitts. Code § 623.04. That choice was\neffectuated by the District Court, which permanently enjoined\nthe bubble zone and required the City to demarcate any fixed\nbuffer zone prior to enforcement. 5\n\n\n\n\n 5\n The injunction also required that the buffer zone be\nconstrued to prohibit “any person” from “picket[ing] or\ndemonstrat[ing]” within the zone, including those allowed to\nenter the zone pursuant to their official duties. See Brown, 586\nF.3d at 275.\n\n\n\n\n 10\n\n 3. Application of the Ordinance and\n Plaintiffs’ Activities\n\n Today, the City has demarcated buffer zones at two\nlocations, both of which provide reproductive health services\nincluding abortions. Bruni I, 824 F.3d at 358. Plaintiffs Nikki\nBruni, Cynthia Rinaldi, Kathleen Laslow, Julie Cosentino, and\nPatrick Malley engage in the bulk of their anti-abortion\nactivities outside the buffer zone at Planned Parenthood. See\nid. at 359. In contrast to the conduct that gave rise to the\nOrdinance, Plaintiffs do not physically block patients’ ingress\nor egress or engage in violent tactics. Instead, they engage in\nwhat they call “sidewalk counseling,” meaning “calm” and\n“quiet conversations” in which they “offer assistance and\ninformation to” women they believe are considering having an\nabortion “by providing them pamphlets describing local\npregnancy resources, praying, and . . . peacefully express[ing]\n[a] message of caring support.” 6 JA 59a; see Appellants’ Br.\n9. That message, Plaintiffs explain, “can only be\ncommunicated through close, caring, and personal\n\n 6\n We will use the term “sidewalk counseling” in this\nopinion with the meaning given to it by Plaintiffs. By contrast,\nthe title “sidewalk counselor” has sometimes been claimed by\nthose who engage in “‘in your face’ yelling . . . pushing,\nshoving, and grabbing” consistent with aggressive\ndemonstration. Schenck v. Pro-Choice Network of W. N.Y.,\n519 U.S. 357, 363 (1997). As Plaintiffs here have explained,\nhowever, such conduct does not constitute sidewalk counseling\nas they use the term and is “counter-productive to [their]\nmessage of kindness, love, hope, gentleness, and help.” JA\n574a.\n\n\n\n\n 11\n\nconversations, and cannot be conveyed through protests.” JA\n62a. Nonetheless, the City takes the position that Plaintiffs’\nsidewalk counseling falls within the prohibition on\n“demonstrating”—if not “congregating,” “patrolling,” and\n“picketing” too, see JA 334a–37a—so while they can engage\nin sidewalk counseling outside the zone, they cannot once\nwithin its bounds. See Bruni I, 824 F.3d at 359.\n\n Plaintiffs describe various ways that the buffer zone has\nhindered their ability to effectively communicate their\nmessage. The street noise makes it difficult for people to hear\nthem, forcing them to raise their voices in a way inconsistent\nwith sidewalk counseling. And at the distance at which they\nare forced to stand, they are unable to differentiate between\npassersby and individuals who intend to enter the facility,\ncausing them to miss opportunities to engage with their desired\naudience through either speech or leafleting.\n\n In addition to “sidewalk counseling,” Plaintiff Nikki\nBruni is the local leader of a group participating in the “Forty\nDays for Life” movement, a global anti-abortion campaign. 7\nTwice a year, campaign participants, including Plaintiffs, pray\noutside of abortion clinics from 7 AM to 7 PM continuously\nfor forty days. They do so in shifts, and many participants wear\n\n 7\n The movement describes its mission as “to bring\ntogether the body of Christ in a spirit of unity during a focused\n40 day campaign of prayer, fasting, and peaceful activism, with\nthe purpose of repentance, to seek God’s favor to turn hearts\nand minds from a culture of death to a culture of life, thus\nbringing an end to abortion.” Bruni v. City of Pittsburgh, 283\nF. Supp. 3d 357, 363 (W.D. Pa. 2017).\n\n\n\n\n 12\n\nor carry signs. As the leader of the group, Bruni organizes local\nchurches to ensure people are always outside of the clinic so\n“there’s always groups on the sidewalk present during the 40\nDays all day every day.” JA 141a. Although the exact number\nof participants is disputed, the record reflects a daily presence\nof somewhere between ten and forty people.\n\n B. Procedural Background\n\n About five years after we upheld the buffer-zone\ncomponent of the Ordinance in Brown as a content-neutral\ntime, place, and manner regulation, the Supreme Court decided\nMcCullen v. Coakley, striking down as insufficiently narrowly\ntailored a Massachusetts law that created a thirty-five-foot\nbuffer zone in front of health facilities where abortions were\nperformed. 573 U.S. 464, 493–97 (2014). The Court found\nthe law “extreme,” id. at 497, and “truly exceptional,” id. at\n490: although congestion occurred at one clinic in one city\nonce a week, the law applied statewide to all reproductive\nhealth facilities and, with few exceptions, prohibited any\nperson from even “standing” in the zone, id. at 480, 493. To\njustify this “significant . . . burden” on speech, id. at 489, the\nCourt held, the government must “show[] that it seriously\nundertook to address the problem with less intrusive tools\nreadily available to it,” such as arrests, prosecutions, or\ntargeted injunctions, or “that it considered different methods\nthat other jurisdictions . . . found effective,” id. at 494.\n\n In light of McCullen, Plaintiffs filed a complaint,\nchallenging the Ordinance, pursuant to 42 U.S.C. § 1983,\nunder the First and Fourteenth Amendments. Bruni I, 824 F.3d\nat 359. The District Court granted the City’s motion to dismiss\n\n\n\n\n 13\n\nPlaintiffs’ First Amendment claims, and Plaintiffs appealed. 8\nId. at 360.\n\n We vacated the District Court’s dismissal. Id. at 357,\n373–74. Taking as true the complaint’s allegations that the\nOrdinance had been enforced against Plaintiffs and had\nsignificantly hindered their speech, id. at 369, we concluded\nthat the Ordinance “impose[d] a similar burden as that in\nMcCullen,” id. at 368 n.15, so that the City had the same\nobligation as in McCullen to demonstrate “either that\nsubstantially less-restrictive alternatives were tried and failed,\nor that the alternatives were closely examined and ruled out for\ngood reason,” id. at 370. We thus remanded for factfinding on\nthese issues, as well as a determination about “the proper scope\nof the Ordinance.” Id. at 357, 374. Notwithstanding our earlier\nholding as to content neutrality in Brown, 586 F.3d at 273, 275,\n277, we also directed the District Court to consider whether the\nOrdinance should still be considered content neutral in light of\n\n 8\n Plaintiffs also filed a motion for a preliminary\ninjunction to prevent the City from enforcing the Ordinance\nagainst them, which the District Court denied and Plaintiffs did\nnot appeal. Bruni I, 824 F.3d at 359–60. In addition to\ndismissing Plaintiffs’ First Amendment claims, the District\nCourt granted the City’s motion to dismiss Plaintiffs’\nFourteenth Amendment Due Process Clause challenge, a\ndecision we affirmed in Bruni I and that therefore is not on\nappeal here. See id. at 360, 374–75. Earlier in this litigation,\nPlaintiffs voluntarily dismissed their as-applied challenges to\nthe Ordinance, their claim under the Equal Protection Clause,\nand their claim of selective enforcement against the mayor. Id.\nat 359 n.5.\n\n\n\n\n 14\n\nReed v. Town of Gilbert, 135 S. Ct. 2218 (2015), the Supreme\nCourt’s most recent pronouncement on the dividing line\nbetween content-neutral and content-based restrictions. Bruni\nI, 824 F.3d at 365 n.14.\n\n On remand, the District Court accepted the City’s\ncontention that the Ordinance covered Plaintiffs’ sidewalk\ncounseling as a form of demonstrating and held that the\nOrdinance was content neutral, even under Reed. Bruni v. City\nof Pittsburgh, 283 F. Supp. 3d 357, 361, 367–68 (W.D. Pa.\n2017). It also distinguished the Ordinance from the statute in\nMcCullen as creating a smaller buffer zone and allowing\nPlaintiffs to reach their audience through sidewalk counseling\ndespite the buffer zone and therefore concluded that the\nOrdinance imposed “only a minimal burden on Plaintiffs’\nspeech.” Id. at 369–71. Accordingly, it held that the City\n“ha[d] no obligation to demonstrate that it tried—or considered\nand rejected”—the alternatives identified in McCullen, such as\narrests or targeted injunctions, and even if the City did have\nsuch an obligation, it had been satisfied. Id. at 371–72. The\nCourt therefore granted the City’s motion for summary\njudgment. Id. at 373. This appeal followed.\n\nII. Jurisdiction and Standard of Review\n\n The District Court had jurisdiction under 28 U.S.C.\n§ 1331, and we have jurisdiction under 28 U.S.C. § 1291. We\nreview a district court’s grant or denial of summary judgment\nde novo, see EEOC v. Allstate Ins. Co., 778 F.3d 444, 448 (3d\nCir. 2015), and may affirm on any basis supported by the\nrecord, Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009).\nSummary judgment is appropriate only where “there is no\ngenuine dispute as to any material fact and the movant is\n\n\n\n\n 15\n\nentitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).\nIn the context of a First Amendment claim, we “examine\nindependently the facts in the record and ‘draw our own\ninferences’ from them.” Tenafly Eruv Ass’n v. Borough of\nTenafly, 309 F.3d 144, 157 (3d Cir. 2002) (quoting Christ’s\nBride Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242,\n247 (3d Cir. 1998)). Like the District Court, however, we\nreview the facts in the light most favorable to the nonmoving\nparty. See Hugh, 418 F.3d at 267.\n\nIII. Discussion\n\n On appeal, Plaintiffs argue that the Ordinance violates\nthe Free Speech and Free Press Clauses 9 of the First\nAmendment for three reasons: first, the Ordinance is content\nbased and therefore subject to strict scrutiny; second, even if it\nis content neutral, the Ordinance is not narrowly tailored and\nthus does not survive intermediate scrutiny; and third, the\nOrdinance is overbroad. After providing an overview of the\ngeneral framework that guides our analysis, we address each\nof these arguments.\n\n\n\n\n 9\n For the reasons articulated in Bruni I, we treat\nPlaintiffs’ free speech and free press claims together. See 824\nF.3d at 373 (“Plaintiffs’ free press claim is . . . properly\nconsidered a subset of their broader free speech claim, given\nthat the Freedom of the Press Clause and the Free Speech\nClause both protect leafleting from government\ninterference.”).\n\n\n\n\n 16\n\n A. General Framework\n\n Plaintiffs allege that the Ordinance is unconstitutional\non its face. See Bruni I, 824 F.3d at 362. A facial challenge\n“seeks to vindicate not only [a plaintiff’s] own rights,” as in an\nas-applied challenge, but also “those of others who may . . . be\nadversely impacted by the statute in question.” Id. (quoting\nCMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 623\n(3d Cir. 2013)). Although facial challenges in the First\nAmendment context are more forgiving than those in other\ncontexts, see United States v. Salerno, 481 U.S. 739, 745\n(1987), “all agree that a facial challenge [under the First\nAmendment] must fail where the statute has a plainly\nlegitimate sweep,” Wash. State Grange v. Wash. State\nRepublican Party, 552 U.S. 442, 449 (2008) (citation omitted).\n\n As we explained in Bruni I, however, “the distinction\nbetween facial and as-applied challenges is not so well defined\nthat it has some automatic effect or that it must always control\nthe . . . disposition in every case involving a constitutional\nchallenge.” 824 F.3d at 363 (quoting Citizens United v. FEC,\n558 U.S. 310, 331 (2010)). Courts therefore look to “[t]he\nrelevant constitutional test” to resolve the inquiry, id. (citation\nomitted), bearing in mind that a party seeking to invalidate a\nlaw in its entirety bears a heavy burden, see Wash. State\nGrange, 552 U.S. at 450–51; Brown, 586 F.3d at 269.\n\n Here, the relevant test is that governing free speech\nclaims. The government’s ability to restrict speech in a\ntraditional public forum, such as a sidewalk, is “very limited.”\nMcCullen, 573 U.S. at 477 (citation omitted). That is because\ntraditional public fora “are areas that have historically been\nopen to the public for speech activities.” Id. at 476. In such\n\n\n\n\n 17\n\nfora, the government may not restrict speech based on its\n“communicative content,” Bruni I, 824 F.3d at 364 (quoting\nReed, 135 S. Ct. at 2226)—that is, the government “has no\npower to restrict expression because of its message, its ideas,\nits subject matter, or its content,” id. at 363 (quoting Ashcroft\nv. ACLU, 535 U.S. 564, 573 (2002)).\n\n By contrast, the government has greater leeway to\nregulate “features of speech unrelated to its content.”\nMcCullen, 573 U.S. at 477. Thus, “[e]ven in a public forum\nthe government may impose reasonable restrictions on the\ntime, place, or manner of protected speech, provided the\nrestrictions ‘are justified without reference to the content of the\nregulated speech, that they are narrowly tailored to serve a\nsignificant governmental interest, and that they leave open\nample alternative channels for communication of the\ninformation.’” Id. (quoting Ward v. Rock Against Racism, 491\nU.S. 781, 791 (1989)).\n\n The level of scrutiny a court applies to a restriction on\nspeech depends on whether it is content based or content\nneutral. If the restriction is content based, it is subject to strict\nscrutiny and is therefore “presumptively unconstitutional and\nmay be justified only if the government proves that [it is]\nnarrowly tailored to serve compelling state interests.” Reed,\n135 S. Ct. at 2226; see McCullen, 573 U.S. at 478. If a\nrestriction is content neutral, “we apply intermediate scrutiny\nand ask whether it is ‘narrowly tailored to serve a significant\ngovernmental interest.’” Bruni I, 824 F.3d at 363–64 (quoting\nMadsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 764\n\n\n\n\n 18\n\n(1994)). The threshold question, therefore, is whether the\nrestriction here is content based or content neutral. 10\n\n B. Content Neutrality\n\n Plaintiffs contend that the Ordinance is content based\nand thus subject to strict scrutiny because it regulates speech\n“based on subject matter, function, or purpose,” rendering it\ncontent based under Reed. 11 Appellants’ Br. 34. For the\nreasons that follow, we disagree.\n\n 10\n Although the parties begin their briefing with an\napplication of intermediate scrutiny, we follow the Supreme\nCourt’s lead in McCullen by addressing first whether the\nOrdinance is content based because the answer to that question\ndetermines the correct level of scrutiny to apply. See 573 U.S.\nat 478–79.\n 11\n Plaintiffs make additional arguments in passing, but\nthey are not persuasive. First, Plaintiffs contend that the City’s\npurpose in adopting the Ordinance was to “target anti-abortion\ncontent” because the City Council’s discussion about the\nOrdinance “centered entirely on abortion and the speech\noutside of abortion facilities in Pittsburgh.” Appellants’ Br.\n40–41. But the Supreme Court explicitly rejected this\nargument in McCullen. See 573 U.S. at 481–82 (“States adopt\nlaws to address the problems that confront them. The First\nAmendment does not require States to regulate for problems\nthat do not exist.” (quoting Burson v. Freeman, 504 U.S. 191,\n207 (1992) (plurality opinion))). Second, Plaintiffs argue that\nthe Ordinance is content based as applied because it is enforced\nonly outside of reproductive health facilities and therefore\naffects only abortion-related speech. Plaintiffs did not make\n\n\n\n\n 19\n\n In Reed, the Supreme Court considered the\nconstitutionality of an ordinance that regulated the manner of\ndisplay of outdoor signs depending on their subject matter. 134\nS. Ct. at 2224–25. For example, the ordinance allowed\n“Political Signs” to be bigger in size and remain posted longer\nthan those it defined as “Temporary Directional Signs.” Id. at\n2224–25, 2227. The Court held that the regulation was content\nbased because the restrictions applied differently “depend[ing]\nentirely on the communicative content of the sign[s].” Id. at\n2227. As relevant here, the Court noted that whereas “[s]ome\nfacial distinctions . . . are obvious,” such as “defining regulated\nspeech by particular subject matter,” others are more “subtle,”\nsuch as “defining regulated speech by its function or purpose.”\nId.\n\n The thrust of Plaintiffs’ argument is that the Ordinance\nis content based because the City interprets the word\n“demonstrating” to apply to sidewalk counseling but not to\npeaceful one-on-one communication about other subjects, like\nsports teams, and, as a result, law enforcement must examine\nthe content of any speech to determine if it is prohibited.\nHowever, despite the assumptions of both parties, 12 nothing in\n\n\nthis argument at summary judgment below, and it is therefore\nforfeited. See Keenan v. City of Philadelphia, 983 F.2d 459,\n471 (3d Cir. 1992). In any event, “a facially neutral law does\nnot become content based simply because it may\ndisproportionally affect speech on certain topics.” McCullen,\n573 U.S. at 480. Reed, decided one year after McCullen, does\nnot speak to these aspects of McCullen’s analysis.\n 12\n Although Plaintiffs contend that the City “enforces”\nthe Ordinance “to suppress [their] leafletting and sidewalk\n\n\n\n\n 20\n\nthe plain language of the Ordinance supports a construction\nthat prohibits peaceful one-on-one conversations on any topic\nor conducted for any purpose at a normal conversational\nvolume or distance. In short, the Ordinance as written does not\nprohibit the sidewalk counseling in which Plaintiffs seek to\nengage within the zone.\n\n No doubt, if the Ordinance by its terms did prohibit one-\non-one conversations about abortion but not about other\nsubjects within the zone, it would be highly problematic, see\nReed, 135 S. Ct. at 2230, particularly where, as here, the speech\nalleged to be prohibited occurs on a public sidewalk and\nconstitutes one-on-one “normal conversation and leafletting,”\nMcCullen, 573 U.S. at 488—“core political speech entitled to\nthe maximum protection afforded by the First Amendment,”\nBruni I, 824 F.3d at 357. But under the doctrine of\nconstitutional avoidance, “[i]t has long been a tenet of First\nAmendment law that in determining a facial challenge to a\nstatute, if it be ‘readily susceptible’ to a narrowing construction\n\n\nconversations” within the buffer zone, Appellants’ Br. 17, the\nrecord does not reflect any prosecution, arrest, or even citation.\nInstead, it reflects that, except for isolated instances in which\npolice were called to Planned Parenthood but took no action,\nPlaintiffs avoided the buffer zone based on an assumption,\nshared by the City, about the scope of the Ordinance. The\nrealistic threat of the City’s enforcement is sufficient for\npurposes of Plaintiffs’ standing. See Susan B. Anthony List v.\nDriehaus, 573 U.S. 149, 158 (2014). As we explain below,\nhowever, it does not preclude us under the doctrine of\nconstitutional avoidance from adopting a narrowing\nconstruction of the Ordinance.\n\n\n\n\n 21\n\nthat would make it constitutional, it will be upheld.” 13 Virginia\nv. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988); see\nalso Ayotte v. Planned Parenthood of N. New England, 546\nU.S. 320, 328–29 (2006) (“Generally speaking, when\nconfronting a constitutional flaw in a statute, we try to limit the\nsolution to the problem.”).\n\n Of course, we may not “rewrite a . . . law to conform it\nto constitutional requirements,” United States v. Stevens, 559\nU.S. 460, 481 (2010) (citation omitted), but, as we have\nrecognized on many occasions, “[i]n the absence of a limiting\nconstruction from a state authority, we must ‘presume any\nnarrowing construction or practice to which the law is fairly\nsusceptible.’” 14 Brown, 586 F.3d at 274 (quoting City of\n\n 13\n As we said in Brown, “[t]his principle of\ninterpretation is consistent with Pennsylvania law.” 586 F.3d\nat 274 n.13 (citing Commonwealth v. Monumental Props., Inc.,\n329 A.2d 812, 827 (Pa. 1974); and Dole v. City of Philadelphia,\n11 A.2d 163, 168–69 (Pa. 1940)). And this is a particularly\ncompelling case in which to apply the doctrine given the\nconstitutional concerns inherent in restricting this kind of\nspeech. As the Court explained in McCullen, “‘one-on-one\ncommunication’ is ‘the most effective, fundamental, and\nperhaps economical avenue of political discourse.’” 573 U.S.\nat 488 (quoting Meyer v. Grant, 486 U.S. 414, 424 (1988)).\nIndeed, “[l]eafletting and commenting on matters of public\nconcern are classic forms of speech that lie at the heart of the\nFirst Amendment.” Id. at 489 (quoting Schenck, 519 U.S. at\n377).\n 14\n That is not to say that the City’s interpretation of the\nOrdinance is irrelevant—it is a consideration in a court’s\n\n\n\n\n 22\n\nLakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770 n.11\n(1988)); see Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200,\n215 n.10 (3d Cir. 2001) (explaining that where a state court has\nnot authoritatively construed the terms of a stated policy, “we\nare . . . required to give it a reasonable narrowing construction\nif necessary to save it from unconstitutionality”); see also\n\n\ndetermination of whether to adopt a limiting construction. See\nForsyth County v. Nationalist Movement, 505 U.S. 123, 131\n(1992); see also Ward, 491 U.S. at 795–96. But the City’s\ninterpretation has not been adopted by any Pennsylvania court,\nand where no state court has weighed in and the Ordinance is\nreadily susceptible to a “reinterpretation” consistent with the\nOrdinance’s text, the City’s position is not dispositive. Free\nSpeech Coal., Inc. v. Attorney Gen. of the U.S., 677 F.3d 519,\n539 (3d Cir. 2012); Saxe v. State Coll. Area Sch. Dist., 240 F.3d\n200, 215–16, 215 n.10 (3d Cir. 2001); see also U.S. Nat’l Bank\nof Ore. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447\n(1993) (stating, outside of the constitutional avoidance context,\nthat litigants cannot “extract the opinion of a court on\nhypothetical Acts of Congress or dubious constitutional\nprinciples” by agreeing on the proper construction of the law);\nComite de Jornaleros de Redondo Beach v. City of Redondo\nBeach, 657 F.3d 936, 946 (9th Cir. 2011) (“[W]e are not\nrequired to . . . adopt an interpretation precluded by the plain\nlanguage of the ordinance.” (citation omitted)). While other\nCourts of Appeals take a contrary approach, see United Food\n& Commercial Workers Int’l Union v. IBP, Inc., 857 F.2d 422,\n431 (8th Cir. 1988); Hill v. City of Houston, 789 F.2d 1103,\n1112 (5th Cir. 1986), our precedent is clear, see Free Speech\nCoal., Inc., 677 F.3d at 539; Brown, 586 F.3d at 274; Saxe, 240\nF.3d at 215–16, 215 n.10.\n\n\n\n\n 23\n\nFrisby v. Schultz, 487 U.S. 474, 483 (1988) (“To the extent\nthey endorsed a broad reading of the ordinance, the lower\ncourts ran afoul of the well-established principle that statutes\nwill be interpreted to avoid constitutional difficulties.”).\n\n Here, the Ordinance is readily susceptible to a\nnarrowing construction. The text of the Ordinance says\nnothing about leafletting or peaceful one-on-one\nconversations, let alone on a particular topic or for a particular\npurpose. And, to put a fine point on it, the floating bubble\nzone, which was enjoined years ago, did prohibit “passing a\nleaflet,” “educating,” or “counseling.” Pitts. Code § 623.03.\nThose are not the activities that remain prohibited in the zone,\nand “when the legislature uses certain language in one part of\nthe statute and different language in another, the court assumes\ndifferent meanings were intended.” Sosa v. Alvarez-Machain,\n542 U.S. 692, 711 n.9 (2004) (quoting 2A N. Singer, Statutes\nand Statutory Construction § 46:06, at 194 (6th rev. ed. 2000)).\n\n The Ordinance prohibits four—and only four—\nactivities within the zone: “congregat[ing],” “patrol[ling],”\n“picket[ing],” and “demonstrat[ing].” Pitts. Code\n§ 623.04. And none of those terms, as commonly understood,\nencompasses the sidewalk counseling in which Plaintiffs\nengage. 15\n\n 15\n In its briefing and at oral argument, the City justified\nits interpretation by noting that in Schenck, the injunction at\nissue referred to “sidewalk counseling” as a “form of\ndemonstrating,” and the Supreme Court did not reject that\ncharacterization. See Appellees’ Br. 48 (citation omitted). But\nthe Court made clear that the term as used by some protestors\nin that case was misleading given their aggressive actions, see\n\n\n\n\n 24\n\n To “congregate” means “to collect into a group or\ncrowd.” Congregate, Merriam-Webster’s Collegiate\nDictionary 262 (11th ed. 2005) [hereinafter Merriam-\nWebster’s]; see also Congregate, The American Heritage\nDictionary of the English Language 388 (4th ed. 2006)\n[hereinafter American Heritage] (defining “congregate” as\n“bring or come together in a group, crowd, or assembly”). To\n“patrol” is “to carry out a patrol,” defined in turn as “the action\nof traversing a district or beat or of going the rounds along a\nchain of guards for observation or the maintenance of\nsecurity,” Patrol, Merriam-Webster’s 909, and “[t]he act of\nmoving about an area especially by an authorized and trained\nperson . . . for purposes of observation, inspection, or security,”\nPatrol, American Heritage 1290. To “picket” is to “serve as a\npicket,” defined as “a person posted for a demonstration or\nprotest.” Picket, Merriam-Webster’s 937; see also Picket,\nAmerican Heritage 1327 (defining “picket” as “to post as a\npicket” where “picket” is defined as “[a] person or group of\npersons present outside a building to protest”). And to\n“demonstrate” is defined as “to make a demonstration,” which\nis defined in turn as “an outward expression or display” and “a\npublic display of group feelings toward a person or cause.”\nDemonstrate, Merriam-Webster’s 332; see also Demonstrate,\nAmerican Heritage 484 (defining “demonstrate” as “[t]o\nparticipate in a public display of opinion”).\n\n Plaintiffs’ sidewalk counseling does not meet any of\nthese definitions. While the Supreme Court has noted that a\n\n\nSchenck, 519 U.S. at 363, 381–82, and, as discussed, see supra\nnote 6, such conduct falls far outside Plaintiffs’ definition of\nsidewalk counseling.\n\n\n\n\n 25\n\ngrouping of three or more people may constitute\n“congregat[ing],” see Boos v. Barry, 485 U.S. 312, 316–17\n(1988), approaching someone individually to engage in a one-\non-one conversation no more constitutes “congregat[ing]” than\nwalking alongside another person constitutes “patrol[ling].”\nAnd while signs and raised voices may constitute “picket[ing]”\nor “demonstrat[ing],” speaking to someone at a normal\nconversational volume and distance surely does not. Simply\ncalling peaceful one-on-one conversations “demonstrating” or\n“picketing” does not make it so when the plain meaning of\nthose terms does not encompass that speech. 16\n\n Moreover, the activities that the Ordinance does\nprohibit render it content neutral under binding Supreme Court\nprecedent. No doubt due to the easily identifiable nature and\nvisibility of “congregat[ing], patrol[ling], picket[ing] or\ndemonstrat[ing],” Pitts. Code § 623.04, the Court has\nrepeatedly considered regulation of those activities to be based\non the manner in which expressive activity occurs, not its\ncontent, and held such regulation content neutral. See Madsen,\n\n 16\n Perhaps because of this disconnect between the\nOrdinance’s text and the specific expressive activities to which\nthe parties have assumed the Ordinance applies, the City’s own\nwitness struggled during his deposition to explain which\nspecific prohibition was even applicable to Plaintiffs’ sidewalk\ncounseling. For example, when asked “[w]hat part of the\nOrdinance” would prohibit a sidewalk counselor from crossing\ninto the buffer zone while talking to a patient, the City’s\ndesignated witness replied, “[c]all it congregating, patrolling,\npicketing, or demonstrating, or any name you wish to give it.”\nJA 337a.\n\n\n\n\n 26\n\n512 U.S. at 759, 763–64 (addressing the precise language at\nissue here, “congregating, picketing, patrolling, [and]\ndemonstrating,” and concluding that the injunction prohibiting\nthose activities was content neutral); see also Snyder v. Phelps,\n562 U.S. 443, 456 (2011); Hill, 530 U.S. at 721; Schenck, 519\nU.S. at 383–85; United States v. Grace, 461 U.S. 171, 181–82\n(1983). 17 Nor does Reed alter that conclusion. See Reed, 135\nS. Ct. at 2228–29.\n\n In short, the doctrine of constitutional avoidance\ncounsels that we impose a limiting construction where, as here,\na statute has not been construed by a state court and is not only\nsusceptible to a narrowing construction but also demands that\nconstruction on its face. See Am. Booksellers, 484 U.S. at 397;\nBrown, 586 F.3d at 274; Saxe, 240 F.3d at 215 n.10. Because\n\n 17\n We have continued to rely on Hill since McCullen and\nReed were handed down, see, e.g., Turco v. City of Englewood,\n935 F.3d 155, 165 (3d Cir. 2019) (declining to strike down\neight-foot buffer zone as a matter of law because “such a\nconclusion would be directly at odds with the Supreme Court’s\ndecision in Hill v. Colorado” (citation omitted)), as have some\nof our sister circuits, e.g., March v. Mills, 867 F.3d 46, 64 (1st\nCir. 2017); Act Now to Stop War & End Racism Coal. &\nMuslim Am. Soc’y Freedom Found., 846 F.3d 391, 403–04\n(D.C. Cir. 2017). We note, however, that other Courts of\nAppeals have observed that, even if “neither McCullen nor\nReed overruled Hill, so it remains binding on us,” the content\nneutrality holding of Hill may be “hard to reconcile with both\nMcCullen and Reed,” Price v. City of Chicago, 915 F.3d 1107,\n1109 (7th Cir. 2019) (Sykes, J.), petition for cert. filed, No. 18-\n1516 (U.S. June 6, 2019).\n\n\n\n\n 27\n\nthe Ordinance, as properly interpreted, does not extend to\nsidewalk counseling—or any other calm and peaceful one-on-\none conversations—there is no need for law enforcement “to\nexamine the content of the message . . . to determine whether\na violation has occurred.” McCullen, 573 U.S. at 479 (citation\nomitted). The Ordinance so read is thus content neutral and\nsubject to intermediate scrutiny.\n\n C. Application of Intermediate Scrutiny\n\n Because we conclude the Ordinance does not implicate\nPlaintiffs’ speech, we could end our analysis here if this were\nan as-applied challenge. But because Plaintiffs have brought a\nfacial challenge, we briefly consider whether the Ordinance as\napplied to the remaining expressive activity of congregating,\npatrolling, picketing, or demonstrating within fifteen feet of the\nclinic entrance is “narrowly tailored to serve a significant\ngovernmental interest.” 18 Id. at 477 (quoting Ward, 491 U.S.\nat 791). We easily conclude that it is.\n\n\n\n 18\n To satisfy intermediate scrutiny, the government\nbears the burden of demonstrating that a restriction on speech\nis “narrowly tailored to serve a significant governmental\ninterest” and “leave[s] open ample alternative channels for\ncommunication of the information.” McCullen, 573 U.S. at\n477 (quoting Ward, 491 U.S. at 791). Plaintiffs do not dispute\nthe “ample alternatives” prong and, with its narrowing\nconstruction, “the limited nature of the prohibition makes it\nvirtually self-evident that ample alternatives remain.” Frisby,\n487 U.S. at 483. We therefore focus our inquiry, as do the\nparties, on the issue of narrow tailoring.\n\n\n\n\n 28\n\n As Plaintiffs acknowledge, the interests that the City\nseeks to protect—unimpeded access to pregnancy-related\nservices, ensuring public safety, and eliminating “neglect” of\nlaw enforcement needs—are legitimate. 19 Bruni I, 824 F.3d at\n368 (quoting Pitts. Code § 623.01); see McCullen, 573 U.S. at\n487, 496–97 (describing these interests as “undeniably\nsignificant” interests that are “clearly serve[d]” by buffer\nzones); see also Turco v. City of Englewood, 935 F.3d 155, 166\n(3d Cir. 2019) (recognizing the government’s significant\ninterest in “protecting the health and safety of its citizens,\nwhich ‘may justify a special focus on unimpeded access to\nhealth care facilities and the avoidance of potential trauma to\npatients associated with confrontational protests’”) (citation\n\n\n\n 19\n To the extent Plaintiffs argue that the City’s stated\ninterests were not substantiated on remand, the record—\nincluding reports of violent incidents, obstruction of patients’\ningress and egress, and aggressive confrontations—establishes\notherwise. See supra Section I.A.1. Plaintiffs’ additional\nargument that there has been no obstructive conduct preventing\naccess to the clinic’s entrance in recent years and, therefore,\nthat the Ordinance is no longer necessary is also belied by the\nrecord. For starters, there is evidence in the record to the\ncontrary. For example, a clinic escort declared in 2014 that she\nwas “aware of incidents at [Planned Parenthood] in which\nescorts were pushed by a protester and where protesters placed\ntheir hands on patients and thrust their leaflets inside patients’\ncoat pockets or handbags.” JA 709a–10a. More importantly,\nthe fact that an otherwise constitutional restriction on speech is\nsuccessful in serving the interests for which it was intended is\nhardly a reason to strike it down.\n\n\n\n\n 29\n\nomitted). Instead, Plaintiffs argue that the Ordinance is not\nnarrowly tailored to those interests.\n\n To be narrowly tailored, a regulation must not “burden\nsubstantially more speech than is necessary to further the\ngovernment’s legitimate interests.” McCullen, 573 U.S. at 486\n(quoting Ward, 491 U.S. at 799). At the same time, it “‘need\nnot be the least restrictive or least intrusive means of’ serving\nthe government’s interest,” id. (quoting Ward, 491 U.S. at\n798), and we “afford[] some deference to a municipality’s\njudgment in adopting a content-neutral restriction on speech,”\nBruni I, 824 F.3d at 370.\n\n In arguing that the restriction on speech here is not\nnarrowly tailored, Plaintiffs do not distinguish between the\nOrdinance as read to include sidewalk counseling and the\nOrdinance as read to exclude it. Rather, quoting Bruni I, they\ncontend we “already made clear that ‘the City has the same\nobligation to use less restrictive alternatives to its buffer zone\nas . . . Massachusetts had with respect to the buffer zone at\nissue in McCullen.’” Appellants’ Br. 25 (quoting Bruni I, 824\nF.3d at 369). So, say Plaintiffs, just as in McCullen, the City\nhad to demonstrate on remand that “substantially less-\nrestrictive alternatives,” including arrests, prosecutions, and\ninjunctions, “were tried and failed, or . . . were closely\nexamined and ruled out for good reason.” Bruni I, 824 F.3d at\n370. Because the City here concededly failed to make a\nshowing of that magnitude, Plaintiffs contend the Ordinance\nnecessarily fails intermediate scrutiny.\n\n Plaintiffs mistake the import of Bruni I in two respects.\nFirst, in reviewing the District Court’s dismissal of Plaintiffs’\ncomplaint, we did not conclusively determine that the City\n\n\n\n\n 30\n\n“ha[d] the same obligation to use less restrictive alternatives”\nas in McCullen. Bruni I, 824 F.3d at 369. As appropriate at\nthe pleading stage, we “accept[ed] all [of Plaintiffs’] factual\nallegations as true,” id. at 360 (citation omitted), and held that\n“[b]ecause of the significant burden on speech that the\nOrdinance allegedly imposes, the City ha[d] the same\nobligation to use,” id. at 369 (emphasis added), or show that it\n“seriously considered, substantially less restrictive\nalternatives,” id. at 357, as in McCullen. On that basis, we\nremanded for a determination of the proper scope of the\nOrdinance, the actual burden on Plaintiffs’ speech, and a\nmeans–ends analysis “by the standard that McCullen now\nrequires.” Id. at 375.\n\n Second, to the extent Plaintiffs’ argument is that\nMcCullen imposes on a municipality “the same obligation” as\non Massachusetts—even in the absence of a “significant\nburden on speech,” id. at 369—they are mistaken. As we\nrecognized in Bruni I, where the burden on speech is de\nminimis, a regulation may “be viewed as narrowly tailored,\neven at the pleading stage,” id. at 372 n.20, and McCullen and\nBruni I both observed that where there is only “a slight burden\non speech, any challengers would struggle to show that\n‘alternative measures [would] burden substantially less\nspeech,’” id. (alteration in original) (quoting McCullen, 573\nU.S. at 495). In short, while McCullen and Bruni I made clear\nthat a “rigorous and fact-intensive” inquiry will be required\nwhere a restriction imposes a significant burden on speech,\nBruni I, 824 F.3d at 372, they also made clear (and logic\ndictates) that a less demanding inquiry is called for where the\nburden on speech is not significant—whether due to a\n\n\n\n\n 31\n\nrestriction’s scope, the size of the speech-free zone, or some\ncombination of the two. 20\n\n In this case, now that we have before us both a\ndeveloped record and a narrow construction of the Ordinance,\nit is apparent that the burden it imposes is different from\nMcCullen both in scope and size and is instead akin to that\nimposed by the thirty-six-foot and fifteen-foot buffer zones\nthat the Supreme Court upheld in Madsen v. Women’s Health\nCenter, Inc., 512 U.S. at 757, 776, and Schenck v. Pro-Choice\nNetwork of Western New York, 519 U.S. at 364, 380,\nrespectively.\n\n 20\n In Bruni I, we explained that when dealing with core\nspeech, such as sidewalk counseling, whether a restriction is\nless burdensome in “degree”—meaning size in the context we\nused it—is not necessarily dispositive of whether the burden\non speech is significant. 824 F.3d at 368. A court must also\nconsider the burden as “a matter of . . . kind,” referring to the\ntype of speech a restriction prohibits. Id. Elsewhere in the\nopinion, however, we also recognized that there may be cases\nwhere the “degree” of burden is so minimal that it, alone, will\ndetermine whether the burden on speech should be considered\nsignificant, thus potentially negating any need for the\ngovernment to show that substantially less-restrictive\nalternatives were tried and failed or seriously considered and\nreasonably rejected. See id. at 372 n.20 (quoting McCullen,\n573 U.S. at 495). As “degree” could refer to the size of the\nzone or significance of the burden, depending on the context,\nand both subjects are mentioned in today’s opinion, we will use\nthe terms “scope” and “size,” rather than “kind” and “degree,”\nfor the sake of clarity.\n\n\n\n\n 32\n\n As to scope, although the restrictions in those cases\nwere more targeted in that they were created by way of\ninjunction, not legislation, see Schenck, 519 U.S. at 361;\nMadsen, 512 U.S. at 757, the Ordinance is narrower in scope\nbecause it limits only congregating, patrolling, picketing, and\ndemonstrating within a fifteen-foot buffer zone, and does not\nsweep in the “one-on-one communication,” including “normal\nconversation and leafletting,” that McCullen emphasized “have\nhistorically been more closely associated with the transmission\nof ideas,” 573 U.S. at 488. Thus, so long as she is not\n“congregating” with others in the buffer zone, an individual\nplaintiff is not barred by the Ordinance from engaging in\nsidewalk counseling inside its borders. Cf. Schenck, 519 U.S.\nat 367, 369–70, 383–84 (describing and upholding the district\ncourt’s decision to allow only two sidewalk counselors inside\nthe fifteen-foot buffer zone); Madsen, 512 U.S. at 759\n(prohibiting not only “congregating, picketing, patrolling,\n[and] demonstrating” within the zone but also “entering”).\n\n And as to size, the relatively small buffer zone imposed\nby the Ordinance, like those in Madsen and Schenck, does not\nprevent groups like Forty Days for Life from congregating\nwithin sight and earshot of the clinic. Nor does it prevent\nprotestors, demonstrators, or picketers from being seen and\nheard, or any of these persons from speaking outside the zone\nwith willing listeners who are entering or exiting. See Schenck,\n519 U.S. at 384–85; Madsen, 512 U.S. at 770. And size, while\nnot necessarily in and of itself dispositive, see Bruni I, 824 F.3d\nat 368, is still a “substantial distinction” that must factor into a\ncourt’s analysis of the relative burden on speech, Turco, 935\nF.3d at 163.\n\n\n\n\n 33\n\n Also as in Madsen and Schenck, the record shows that\nthe City resorted to a fixed buffer zone not in the first instance\nbut after attempting or considering some less burdensome\nalternatives and concluding they were unsuccessful in meeting\nthe legitimate interests at issue. See Schenck, 519 U.S. at 380–\n82; Madsen, 512 U.S. at 769–70. These included an overtime\npolice detail in front of Planned Parenthood until the cost\nbecame prohibitive once the City was declared a financially\ndistressed municipality; 21 incident-based responses by the\npolice that proved unsuccessful in preventing or deterring\naggressive incidents and congestion; and consideration of\ncriminal laws that the police were finding inadequate to\naddress the problem of protestors following patients and\nobstructing their way to the clinic.\n\n True, as Plaintiffs point out, this record does not reflect\nthat the City tried or seriously considered arrests, prosecutions,\nor targeted injunctions, which Plaintiffs would have us treat as\ndispositive. But where the burden imposed by a restriction on\n\n 21\n In McCullen, Massachusetts did not assert such\neconomic hardships. While the Court noted that “the prime\nobjective of the First Amendment is not efficiency,” McCullen,\n573 U.S. at 495, it did not have occasion to consider\ncircumstances where “the limitations of ‘manpower’ and the\nneed to be able to deploy officers in response to emergencies”\nmade it “not feasible to permanently provide a significantly\nincreased police presence at the clinic,” Turco, 935 F.3d at 167.\nAs we recently recognized, however, the facts “that the police\ndepartment ha[s] finite resources,” id. (citation omitted), and a\ncity has “financial restraints,” id. at 167–68, are relevant to the\nnarrow tailoring analysis.\n\n\n\n\n 34\n\nspeech is not significant, the government need demonstrate\nneither that “it has tried or considered every less burdensome\nalternative,” Bruni I, 824 F.3d at 370, nor that it tried or\nconsidered every less burdensome alternative discussed in\nMcCullen. Instead, as we reiterated in Turco, this is an\n“intensely factual . . . inquiry,” 935 F.3d at 170, that must\naccount for “the ‘broad principle of deference to legislative\njudgments’ and that a legislative body ‘need not meticulously\nvet every less burdensome alternative,’” id. at 171 (quoting\nBruni I, 824 F.3d at 370 n.18). And, as we recognized there in\nremanding for further fact-finding, a municipality can\ndemonstrate that it “attempted . . . [or] considered alternative\nmeans of bringing order to the sidewalk” even if it “ha[s] not\n‘prosecute[d] any protestors for activities taking place on the\nsidewalk’ and ‘did not seek injunctive relief against individuals\nwhose conduct was the impetus for the Ordinance.’” Id. at 167\n(second alteration in original) (quoting Turco v. City of\nEnglewood, No. 2:15-cv-03008, 2017 WL 5479509, at *5\n(D.N.J. Nov. 14, 2017)). The ultimate question remains\nwhether a restriction on speech “burden[s] substantially more\nspeech than is necessary to further the government’s legitimate\ninterests.” McCullen, 573 U.S. at 486 (emphasis added)\n(quoting Ward, 491 U.S. at 799).\n\n Consistent with Madsen and Schenck, the Ordinance, as\nwe have construed it, does not do so. 22 The Ordinance\n\n 22\n We recognize that the City may have a legitimate\nconcern about access to healthcare facilities if it transpires that\nmultiple one-on-one conversations impair access to the\nfacilities, see McCullen, 573 U.S. at 486–87, and that the City\nmay then have occasion to revisit the terms of the Ordinance\nhaving developed a record that would satisfy McCullen and\n\n\n\n\n 35\n\ntherefore is “narrowly tailored to serve a significant\ngovernmental interest,” McCullen, 573 U.S. at 477 (quoting\nWard, 491 U.S. at 791), and it satisfies intermediate scrutiny.\n\n D. Overbreadth\n\n Finally, Plaintiffs argue that the Ordinance is\nunconstitutionally overbroad because it authorizes the City to\ncreate buffer zones at any health facility in the City, regardless\nof whether the City has identified a problem at the location in\nthe past. A law may be overbroad under the First Amendment\nwhere “a substantial number of its applications are\nunconstitutional, judged in relation to the [law’s] plainly\nlegitimate sweep.” Bruni I, 824 F.3d at 374 (quoting Stevens,\n559 U.S. at 473). The overbreadth doctrine is “strong\nmedicine,” Kreimer v. Bureau of Police, 958 F.2d 1242, 1265\n(3d Cir. 1992) (citation omitted), should therefore be “used\nsparingly,” id., and will “not be[] invoked when a limiting\nconstruction has been or could be placed on the challenged”\nlaw, Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).\n\n Plaintiffs’ overbreadth challenge is not well-founded.\nAs a general matter, “[t]he fact that the coverage of a statute is\nbroader than the specific concern that led to its enactment is of\nno constitutional significance,” Hill, 530 U.S. at 730–31, and\nits applicability more generally is one of the reasons that we\nconsider it to be a content-neutral restriction on speech, see id.\nat 731. For that reason, “[w]hen a buffer zone broadly applies\nto health care facilities” to include “buffer zones at non-\n\nBruni I, as well as the content-neutrality requirement of Reed.\nSee Turco, 935 F.3d at 162–63. That, however, is not the\nOrdinance before us today.\n\n\n\n\n 36\n\nabortion related locations,” we may then “conclude ‘the\ncomprehensiveness of the statute is a virtue, not a vice, because\nit is evidence against there being a discriminatory\ngovernmental motive.’” Turco, 935 F.3d at 171 (quoting Hill,\n530 U.S. at 730–31).\n\n Nor is the Ordinance overbroad because it affords the\nCity discretion to select particular health facilities at which it\nwill demarcate a buffer zone. Since the demarcation\nrequirement was put in place approximately ten years ago, the\nCity has exercised that discretion as to only two facilities, both\nof which suffered from violence and obstruction in the past.\nYet we may not, as Plaintiffs suggest, simply assume that “the\nstatute’s very existence may cause others not before the court\nto refrain from constitutionally protected speech or\nexpression.” Broadrick, 413 U.S. at 612. Instead, we revert\nagain to the “principle . . . well-established in First\nAmendment jurisprudence”—“our duty to ‘accord a measure\nof deference to the judgment’ of [the] city council,’” Turco,\n935 F.3d at 171 (quoting Hill, 530 U.S. at 727), considering\n“[the] statute’s application to real-world conduct, not fanciful\nhypotheticals,” id. at 172 (quoting Stevens, 559 U.S. at 485).\nApplying that principle here, we conclude the Ordinance is not\nsubstantially overbroad.\n\n In sum, Plaintiffs have not carried their “burden of\ndemonstrating, ‘from the text of [the law] and from actual fact,’\nthat substantial overbreadth exists.” Virginia v. Hicks, 539\nU.S. 113, 122 (2003) (alteration in original) (citation omitted).\nWe therefore affirm the District Court’s grant of summary\njudgment to the City on this claim.\n\n\n\n\n 37\n\nIV. Conclusion\n\n For the foregoing reasons, we will affirm the District\nCourt’s order granting summary judgment.\n\n\n\n\n 38\n\nNikki Bruni et al. v. City of Pittsburgh et al. (Bruni II), No. 18-\n1084\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Nikki Bruni v. City of Pittsburgh\\nCourt: U.S. Court of Appeals for the Third Circuit\\nDate decided: 2019-10-18\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPRECEDENTIAL\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n _______________\\n\\n No. 18-1084\\n _______________\\n\\n NIKKI BRUNI; JULIE COSENTINO;\\n CYNTHIA RINALDI; KATHLEEN LASLOW;\\n PATRICK MALLEY,\\n Appellants\\n\\n v.\\n\\nCITY OF PITTSBURGH; PITTSBURGH CITY COUNCIL;\\n MAYOR PITTSBURGH\\n _______________\\n\\n On Appeal from the United States District Court\\n for the Western District of Pennsylvania\\n (W.D. Pa. No. 2-14-cv-01197)\\n Honorable Cathy Bissoon, U.S. District Judge\\n _______________\\n\\n Argued: February 6, 2019\\n\\nBefore: HARDIMAN, KRAUSE, and GREENBERG, Circuit\\n Judges\\n\\n (Opinion Filed: October 18, 2019)\\n\\nKenneth J. Connelly\\nElissa M. Graves\\nKevin H. Theriot [ARGUED]\\nKristen K. Waggoner\\nDavid A. Cortman\\nAlliance Defending Freedom\\n15100 North 90th Street\\nScottsdale, AZ 85260\\n\\nLawrence G. Paladin, Jr.\\nSuite 6C\\n15 Duff Road\\nPittsburgh, PA 15235\\n\\n Counsel for Plaintiff-Appellants Nikki Bruni, Julie\\n Cosentino, Cynthia Rinaldi, Kathleen Laslow, and\\n Patrick Malley\\n\\nJulie E. Koren\\nMatthew S. McHale ∗ [ARGUED]\\nYvonne S. Hilton\\nCity of Pittsburgh\\nDepartment of Law\\n414 Grant Street\\n313 City County Building\\nPittsburgh, PA 15219\\n\\n ∗\\n Matthew S. McHale withdrew as counsel on July 3,\\n2019, prior to the issuance of this opinion.\\n\\n\\n\\n\\n 2\\n\\n Counsel for Defendant-Appellees City of Pittsburgh,\\n Pittsburgh City Council, Mayor Pittsburgh\\n\\nWilliam A. Bonner, I\\n12 Veterans Square\\nP.O. Box 259\\nMedia, PA 19063\\n\\n Counsel for Amicus Curiae Life Legal Defense\\n Foundation\\n\\nJamie Cohn\\nStephen M. Juris\\nJanice Mac Avoy\\nFried Frank Harris Shriver & Jacobson\\nOne New York Plaza\\nNew York, NY 10004\\n\\nSusan J. Frietsche\\nWomen’s Law Project\\nWestern Pennsylvania Office\\n428 Forbes Avenue\\nSuite 1710\\nPittsburgh, PA 15219\\n\\n Counsel for Amici Curiae Women Law Project,\\n National Abortion Federation\\n\\nStephen M. Crampton\\nP.O. Box 4506\\nTupelo, MS 38803\\n\\n\\n\\n\\n 3\\n\\n Counsel for Amici Curiae Pro Life Action League,\\n Sidewalk Advocates for Life\\n\\nSteven W. Fitschen\\nThe National Legal Foundation\\n524 Chesapeake\\nChesapeake, VA 23322\\n\\n Counsel for Amici Curiae Pacific Justice Institute,\\n Concerned Women for America, National Legal\\n Foundation\\n\\nMatthew D. Staver\\nHoratio G Mihet\\nRoger K. Gannam\\nLiberty Counsel\\nP.O. Box 540774\\nOrlando, FL 32854\\n\\n Counsel for Amici Curiae Colleen Reilly and Becky\\n Biter\\n\\nErek L. Barron\\nWhiteford Taylor & Preston\\n111 Rockville Pike\\nSuite 800\\nRockville, MD 20850\\n\\n Counsel for Amicus Curiae International Municipal\\n Lawyers\\n\\n _______________\\n\\n\\n\\n\\n 4\\n\\n OPINION OF THE COURT\\n _______________\\n\\nKRAUSE, Circuit Judge.\\n\\n This case requires us to determine the constitutionality\\nof a Pittsburgh ordinance that creates a fifteen-foot “buffer\\nzone” outside the entrance of any hospital or healthcare\\nfacility. Pittsburgh, Pa., Code § 623.04 (2005) [hereinafter\\n“the Ordinance” or “Pitts. Code”]. In relevant part, the\\nOrdinance states that “[n]o person or persons shall knowingly\\ncongregate, patrol, picket or demonstrate” in the prescribed\\nzone. Id. Outside of a Planned Parenthood in downtown\\nPittsburgh, Plaintiffs engage in leafletting and “peaceful . . .\\none-on-one conversations” conducted “at a normal\\nconversational level and distance” intended to dissuade\\nlisteners from obtaining an abortion. Appellants’ Br. 9, 17–18.\\nAs the City has asserted that the Ordinance applies to this\\nspeech, known as “sidewalk counseling,” Plaintiffs argue that\\nthe Ordinance is facially unconstitutional under the First\\nAmendment and the District Court erred in granting summary\\njudgment in the City’s favor. Because we conclude that the\\nOrdinance does not cover sidewalk counseling and thus does\\nnot impose a significant burden on speech, we will affirm.\\n\\n\\n\\n\\n 5\\n\\nI. Background\\n\\n A. Factual Background 1\\n\\n 1. History of the Ordinance\\n\\n In the mid- and late 1990s, Planned Parenthood was the\\nsite of numerous clashes between opponents and advocates of\\nabortion rights as well as individuals seeking the facility’s\\nservices. 2 In addition to seeing “hundreds” of people at the\\nfacility on a Saturday—“pro and anti”—the clinic was plagued\\nby bomb threats, vandalism, and blockades of its entrance. JA\\n322a. To address these incidents, the Bureau of Police\\ndeployed an overtime detail of “up to ten officers and a\\nsergeant” to maintain order and security, often using crowd-\\ncontrol barriers to separate demonstrators from each other and\\nfrom patients trying to enter the clinic. JA 1024a.\\n\\n\\n\\n 1\\n The background summarized here is drawn from the\\nrecord and our prior opinion in this case, Bruni v. City of\\nPittsburgh (Bruni I), 824 F.3d 353, 357–59 (3d Cir. 2016).\\nBecause we are reviewing a district court’s grant of summary\\njudgment, we consider the facts in the light most favorable to\\nthe non-movants and draw all reasonable inferences in their\\nfavor. See Hugh v. Butler Cty. Family YMCA, 418 F.3d 265,\\n266–67 (3d Cir. 2005).\\n 2\\n The same was true of Allegheny Reproductive Health\\nCenter, another clinic that provides abortions, which, in\\naddition to seeing hundreds of protestors, was fire bombed,\\nintentionally flooded, and had its windows shot out.\\n\\n\\n\\n\\n 6\\n\\n In 2002, Planned Parenthood moved to its current\\nlocation at 933 Liberty Avenue. Although the incidents\\nlessened in severity, contemporaneous police logs and\\ntestimony from Sergeant William Hohos indicate that “the\\npushing,” “the shoving,” and “the blocking of the doors”\\ncontinued, and the overtime detail, reduced in size, continued\\nto provide a police presence. JA 323a, JA 834a, JA 837a.\\nAfter Pittsburgh was declared a financially distressed\\nmunicipality in late 2003, however, fiscal constraints and the\\nneed for redeployment of limited police resources required the\\ndetail to be discontinued, and police were called to address the\\ncontinuing incidents at the site on an as-needed basis. In the\\nwake of the detail’s discontinuation, the clinic reported an\\n“obvious escalation in the efforts of the protestors,” JA 357a,\\nincluding an increase in “aggressive pushing, shoving and . . .\\nharassing behavior that included shoving literature into\\npeople’s pockets, hitting them with signs and blocking their\\nentrance into the building,” JA 352a.\\n\\n In November 2005, the City Council held hearings on\\nproposed legislation that eventually resulted in the Ordinance.\\nAmong those who testified were sidewalk counselors, clinic\\nescorts, patients, and other concerned members of the\\ncommunity. Several witnesses insisted the Ordinance was\\nunnecessary either because they had never observed violent\\nincidents or were unaware of “significant violence” outside the\\nclinic. JA 348a. But other witnesses reported being personally\\nharassed and prevented from entering the clinic, being yelled\\nat through the glass doors of the clinic, and seeing patients\\nbeing surrounded on the sidewalk. A Planned Parenthood\\ncounselor described patients entering the clinic in a\\n“psychological state [of] situational crisis,” threatening their\\nhealth. JA 355a. And “without [police] supervision,” the\\n\\n\\n\\n\\n 7\\n\\nPresident and CEO of Planned Parenthood of Western\\nPennsylvania said, “there ha[d] been an increase in unlawful\\nbehavior that . . . put[] . . . patients, their families, pedestrians\\nand . . . protestors at risk.” JA 352a.\\n\\n The City Council also heard from Commander\\nDonaldson of the Pittsburgh Police Department. He reported\\nthat police had been summoned to Planned Parenthood twenty-\\ntwo times in the past six months alone to “mediate\\nconfrontations” and respond to incidents ranging from signs\\n“obstructing the front of the building” to protestors\\n“follow[ing] . . . people to the doorway.” JA 404a. They had\\nnot made any arrests, however. According to Commander\\nDonaldson, the City had on its books “laws . . . that would\\naddress obstructing traffic or passageways or . . . the [clinic’s]\\ndoorway,” but those laws would not address the precise\\nproblem that was occurring, namely attempts to block people\\nfrom entering the facility before they reached its front door. 3\\nJA 398a.\\n\\n The debate on the Ordinance was extensive. Many\\nwitnesses, both for and against the legislation, expounded on\\nthe competing interests at stake and expressed a desire to\\nprotect both free speech and access to healthcare, including\\nabortions.\\n\\n 3\\n The City’s designated representative, who had been a\\nmember of the overtime detail before it was disbanded,\\nlikewise attested that the criminal laws were not adequate to\\ndeal with protestors and demonstrators outside the clinic\\nbecause the obstructive conduct “[wasn’t] rising to those\\nlevels. It was all the underlying stuff in between.” JA 1057a.\\n\\n\\n\\n\\n 8\\n\\n 2. The Ordinance\\n\\n Shortly after these hearings, the City Council adopted\\nthe Ordinance, and the mayor signed it into law. See Bruni v.\\nCity of Pittsburgh (Bruni I), 824 F.3d 353, 357 (3d Cir. 2016).\\nCodified as Chapter 623 of the Pittsburgh Code of Ordinances,\\nthe Ordinance states, in relevant part:\\n\\n No person or persons shall knowingly\\n congregate, patrol, picket or demonstrate in a\\n zone extending 15 feet from any entrance to the\\n hospital and or health care facility. This section\\n shall not apply to police and public safety\\n officers . . . in the course of their official\\n business, or to authorized security personnel\\n employees or agents of the hospital, medical\\n office or clinic engaged in assisting patients and\\n other persons to enter or exit the hospital,\\n medical office, or clinic. 4\\n\\nPitts. Code § 623.04. The Council also ratified a preamble that\\nset forth the City’s goals in adopting the Ordinance, including\\n\\n 4\\n Although the Chapter does not define “health care\\nfacility,” a “[m]edical [o]ffice/[c]linic” is defined as “an\\nestablishment providing therapeutic, preventative, corrective,\\nhealing and health-building treatment services on an out-\\npatient basis by physicians, dentists and other practitioners.”\\nPitts. Code § 623.02. Penalties for violating the Ordinance\\nrange from a $50 fine for a first offense to a thirty-day\\nmaximum (and three-day minimum) jail sentence for a fourth\\nviolation within five years. Id. § 623.05.\\n\\n\\n\\n\\n 9\\n\\n“provid[ing] unobstructed access to health care facilities” and\\n“medical services,” “avoid[ing] violent confrontations,”\\n“provid[ing] a more efficient and wider deployment” of City\\nservices, and “ensuring that the First Amendment rights of\\ndemonstrators to communicate their message . . . [are] not\\nimpaired.” Id. § 623.01.\\n\\n As originally passed, the Ordinance also included an\\n“[e]ight-foot personal bubble zone,” extending one hundred\\nfeet around clinics, in which people could not be approached\\nwithout their consent “for the purpose of passing a leaflet or\\nhandbill to, displaying a sign to, or engaging in oral protest,\\neducation or counseling.” Id. § 623.03. Following a facial\\nchallenge to the Ordinance, we concluded that the Ordinance\\nwas content neutral and each zone was constitutionally\\npermissible but the combination of the two zones was not. See\\nBrown v. City of Pittsburgh, 586 F.3d 263, 273, 276–81 (3d\\nCir. 2009). On remand, the City chose to abandon the floating\\nbubble zone and retain only the fixed buffer zone that\\nprohibited “congregat[ing], patrol[ling], picket[ing] or\\ndemonstrat[ing].” Pitts. Code § 623.04. That choice was\\neffectuated by the District Court, which permanently enjoined\\nthe bubble zone and required the City to demarcate any fixed\\nbuffer zone prior to enforcement. 5\\n\\n\\n\\n\\n 5\\n The injunction also required that the buffer zone be\\nconstrued to prohibit “any person” from “picket[ing] or\\ndemonstrat[ing]” within the zone, including those allowed to\\nenter the zone pursuant to their official duties. See Brown, 586\\nF.3d at 275.\\n\\n\\n\\n\\n 10\\n\\n 3. Application of the Ordinance and\\n Plaintiffs’ Activities\\n\\n Today, the City has demarcated buffer zones at two\\nlocations, both of which provide reproductive health services\\nincluding abortions. Bruni I, 824 F.3d at 358. Plaintiffs Nikki\\nBruni, Cynthia Rinaldi, Kathleen Laslow, Julie Cosentino, and\\nPatrick Malley engage in the bulk of their anti-abortion\\nactivities outside the buffer zone at Planned Parenthood. See\\nid. at 359. In contrast to the conduct that gave rise to the\\nOrdinance, Plaintiffs do not physically block patients’ ingress\\nor egress or engage in violent tactics. Instead, they engage in\\nwhat they call “sidewalk counseling,” meaning “calm” and\\n“quiet conversations” in which they “offer assistance and\\ninformation to” women they believe are considering having an\\nabortion “by providing them pamphlets describing local\\npregnancy resources, praying, and . . . peacefully express[ing]\\n[a] message of caring support.” 6 JA 59a; see Appellants’ Br.\\n9. That message, Plaintiffs explain, “can only be\\ncommunicated through close, caring, and personal\\n\\n 6\\n We will use the term “sidewalk counseling” in this\\nopinion with the meaning given to it by Plaintiffs. By contrast,\\nthe title “sidewalk counselor” has sometimes been claimed by\\nthose who engage in “‘in your face’ yelling . . . pushing,\\nshoving, and grabbing” consistent with aggressive\\ndemonstration. Schenck v. Pro-Choice Network of W. N.Y.,\\n519 U.S. 357, 363 (1997). As Plaintiffs here have explained,\\nhowever, such conduct does not constitute sidewalk counseling\\nas they use the term and is “counter-productive to [their]\\nmessage of kindness, love, hope, gentleness, and help.” JA\\n574a.\\n\\n\\n\\n\\n 11\\n\\nconversations, and cannot be conveyed through protests.” JA\\n62a. Nonetheless, the City takes the position that Plaintiffs’\\nsidewalk counseling falls within the prohibition on\\n“demonstrating”—if not “congregating,” “patrolling,” and\\n“picketing” too, see JA 334a–37a—so while they can engage\\nin sidewalk counseling outside the zone, they cannot once\\nwithin its bounds. See Bruni I, 824 F.3d at 359.\\n\\n Plaintiffs describe various ways that the buffer zone has\\nhindered their ability to effectively communicate their\\nmessage. The street noise makes it difficult for people to hear\\nthem, forcing them to raise their voices in a way inconsistent\\nwith sidewalk counseling. And at the distance at which they\\nare forced to stand, they are unable to differentiate between\\npassersby and individuals who intend to enter the facility,\\ncausing them to miss opportunities to engage with their desired\\naudience through either speech or leafleting.\\n\\n In addition to “sidewalk counseling,” Plaintiff Nikki\\nBruni is the local leader of a group participating in the “Forty\\nDays for Life” movement, a global anti-abortion campaign. 7\\nTwice a year, campaign participants, including Plaintiffs, pray\\noutside of abortion clinics from 7 AM to 7 PM continuously\\nfor forty days. They do so in shifts, and many participants wear\\n\\n 7\\n The movement describes its mission as “to bring\\ntogether the body of Christ in a spirit of unity during a focused\\n40 day campaign of prayer, fasting, and peaceful activism, with\\nthe purpose of repentance, to seek God’s favor to turn hearts\\nand minds from a culture of death to a culture of life, thus\\nbringing an end to abortion.” Bruni v. City of Pittsburgh, 283\\nF. Supp. 3d 357, 363 (W.D. Pa. 2017).\\n\\n\\n\\n\\n 12\\n\\nor carry signs. As the leader of the group, Bruni organizes local\\nchurches to ensure people are always outside of the clinic so\\n“there’s always groups on the sidewalk present during the 40\\nDays all day every day.” JA 141a. Although the exact number\\nof participants is disputed, the record reflects a daily presence\\nof somewhere between ten and forty people.\\n\\n B. Procedural Background\\n\\n About five years after we upheld the buffer-zone\\ncomponent of the Ordinance in Brown as a content-neutral\\ntime, place, and manner regulation, the Supreme Court decided\\nMcCullen v. Coakley, striking down as insufficiently narrowly\\ntailored a Massachusetts law that created a thirty-five-foot\\nbuffer zone in front of health facilities where abortions were\\nperformed. 573 U.S. 464, 493–97 (2014). The Court found\\nthe law “extreme,” id. at 497, and “truly exceptional,” id. at\\n490: although congestion occurred at one clinic in one city\\nonce a week, the law applied statewide to all reproductive\\nhealth facilities and, with few exceptions, prohibited any\\nperson from even “standing” in the zone, id. at 480, 493. To\\njustify this “significant . . . burden” on speech, id. at 489, the\\nCourt held, the government must “show[] that it seriously\\nundertook to address the problem with less intrusive tools\\nreadily available to it,” such as arrests, prosecutions, or\\ntargeted injunctions, or “that it considered different methods\\nthat other jurisdictions . . . found effective,” id. at 494.\\n\\n In light of McCullen, Plaintiffs filed a complaint,\\nchallenging the Ordinance, pursuant to 42 U.S.C. § 1983,\\nunder the First and Fourteenth Amendments. Bruni I, 824 F.3d\\nat 359. The District Court granted the City’s motion to dismiss\\n\\n\\n\\n\\n 13\\n\\nPlaintiffs’ First Amendment claims, and Plaintiffs appealed. 8\\nId. at 360.\\n\\n We vacated the District Court’s dismissal. Id. at 357,\\n373–74. Taking as true the complaint’s allegations that the\\nOrdinance had been enforced against Plaintiffs and had\\nsignificantly hindered their speech, id. at 369, we concluded\\nthat the Ordinance “impose[d] a similar burden as that in\\nMcCullen,” id. at 368 n.15, so that the City had the same\\nobligation as in McCullen to demonstrate “either that\\nsubstantially less-restrictive alternatives were tried and failed,\\nor that the alternatives were closely examined and ruled out for\\ngood reason,” id. at 370. We thus remanded for factfinding on\\nthese issues, as well as a determination about “the proper scope\\nof the Ordinance.” Id. at 357, 374. Notwithstanding our earlier\\nholding as to content neutrality in Brown, 586 F.3d at 273, 275,\\n277, we also directed the District Court to consider whether the\\nOrdinance should still be considered content neutral in light of\\n\\n 8\\n Plaintiffs also filed a motion for a preliminary\\ninjunction to prevent the City from enforcing the Ordinance\\nagainst them, which the District Court denied and Plaintiffs did\\nnot appeal. Bruni I, 824 F.3d at 359–60. In addition to\\ndismissing Plaintiffs’ First Amendment claims, the District\\nCourt granted the City’s motion to dismiss Plaintiffs’\\nFourteenth Amendment Due Process Clause challenge, a\\ndecision we affirmed in Bruni I and that therefore is not on\\nappeal here. See id. at 360, 374–75. Earlier in this litigation,\\nPlaintiffs voluntarily dismissed their as-applied challenges to\\nthe Ordinance, their claim under the Equal Protection Clause,\\nand their claim of selective enforcement against the mayor. Id.\\nat 359 n.5.\\n\\n\\n\\n\\n 14\\n\\nReed v. Town of Gilbert, 135 S. Ct. 2218 (2015), the Supreme\\nCourt’s most recent pronouncement on the dividing line\\nbetween content-neutral and content-based restrictions. Bruni\\nI, 824 F.3d at 365 n.14.\\n\\n On remand, the District Court accepted the City’s\\ncontention that the Ordinance covered Plaintiffs’ sidewalk\\ncounseling as a form of demonstrating and held that the\\nOrdinance was content neutral, even under Reed. Bruni v. City\\nof Pittsburgh, 283 F. Supp. 3d 357, 361, 367–68 (W.D. Pa.\\n2017). It also distinguished the Ordinance from the statute in\\nMcCullen as creating a smaller buffer zone and allowing\\nPlaintiffs to reach their audience through sidewalk counseling\\ndespite the buffer zone and therefore concluded that the\\nOrdinance imposed “only a minimal burden on Plaintiffs’\\nspeech.” Id. at 369–71. Accordingly, it held that the City\\n“ha[d] no obligation to demonstrate that it tried—or considered\\nand rejected”—the alternatives identified in McCullen, such as\\narrests or targeted injunctions, and even if the City did have\\nsuch an obligation, it had been satisfied. Id. at 371–72. The\\nCourt therefore granted the City’s motion for summary\\njudgment. Id. at 373. This appeal followed.\\n\\nII. Jurisdiction and Standard of Review\\n\\n The District Court had jurisdiction under 28 U.S.C.\\n§ 1331, and we have jurisdiction under 28 U.S.C. § 1291. We\\nreview a district court’s grant or denial of summary judgment\\nde novo, see EEOC v. Allstate Ins. Co., 778 F.3d 444, 448 (3d\\nCir. 2015), and may affirm on any basis supported by the\\nrecord, Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009).\\nSummary judgment is appropriate only where “there is no\\ngenuine dispute as to any material fact and the movant is\\n\\n\\n\\n\\n 15\\n\\nentitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).\\nIn the context of a First Amendment claim, we “examine\\nindependently the facts in the record and ‘draw our own\\ninferences’ from them.” Tenafly Eruv Ass’n v. Borough of\\nTenafly, 309 F.3d 144, 157 (3d Cir. 2002) (quoting Christ’s\\nBride Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242,\\n247 (3d Cir. 1998)). Like the District Court, however, we\\nreview the facts in the light most favorable to the nonmoving\\nparty. See Hugh, 418 F.3d at 267.\\n\\nIII. Discussion\\n\\n On appeal, Plaintiffs argue that the Ordinance violates\\nthe Free Speech and Free Press Clauses 9 of the First\\nAmendment for three reasons: first, the Ordinance is content\\nbased and therefore subject to strict scrutiny; second, even if it\\nis content neutral, the Ordinance is not narrowly tailored and\\nthus does not survive intermediate scrutiny; and third, the\\nOrdinance is overbroad. After providing an overview of the\\ngeneral framework that guides our analysis, we address each\\nof these arguments.\\n\\n\\n\\n\\n 9\\n For the reasons articulated in Bruni I, we treat\\nPlaintiffs’ free speech and free press claims together. See 824\\nF.3d at 373 (“Plaintiffs’ free press claim is . . . properly\\nconsidered a subset of their broader free speech claim, given\\nthat the Freedom of the Press Clause and the Free Speech\\nClause both protect leafleting from government\\ninterference.”).\\n\\n\\n\\n\\n 16\\n\\n A. General Framework\\n\\n Plaintiffs allege that the Ordinance is unconstitutional\\non its face. See Bruni I, 824 F.3d at 362. A facial challenge\\n“seeks to vindicate not only [a plaintiff’s] own rights,” as in an\\nas-applied challenge, but also “those of others who may . . . be\\nadversely impacted by the statute in question.” Id. (quoting\\nCMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 623\\n(3d Cir. 2013)). Although facial challenges in the First\\nAmendment context are more forgiving than those in other\\ncontexts, see United States v. Salerno, 481 U.S. 739, 745\\n(1987), “all agree that a facial challenge [under the First\\nAmendment] must fail where the statute has a plainly\\nlegitimate sweep,” Wash. State Grange v. Wash. State\\nRepublican Party, 552 U.S. 442, 449 (2008) (citation omitted).\\n\\n As we explained in Bruni I, however, “the distinction\\nbetween facial and as-applied challenges is not so well defined\\nthat it has some automatic effect or that it must always control\\nthe . . . disposition in every case involving a constitutional\\nchallenge.” 824 F.3d at 363 (quoting Citizens United v. FEC,\\n558 U.S. 310, 331 (2010)). Courts therefore look to “[t]he\\nrelevant constitutional test” to resolve the inquiry, id. (citation\\nomitted), bearing in mind that a party seeking to invalidate a\\nlaw in its entirety bears a heavy burden, see Wash. State\\nGrange, 552 U.S. at 450–51; Brown, 586 F.3d at 269.\\n\\n Here, the relevant test is that governing free speech\\nclaims. The government’s ability to restrict speech in a\\ntraditional public forum, such as a sidewalk, is “very limited.”\\nMcCullen, 573 U.S. at 477 (citation omitted). That is because\\ntraditional public fora “are areas that have historically been\\nopen to the public for speech activities.” Id. at 476. In such\\n\\n\\n\\n\\n 17\\n\\nfora, the government may not restrict speech based on its\\n“communicative content,” Bruni I, 824 F.3d at 364 (quoting\\nReed, 135 S. Ct. at 2226)—that is, the government “has no\\npower to restrict expression because of its message, its ideas,\\nits subject matter, or its content,” id. at 363 (quoting Ashcroft\\nv. ACLU, 535 U.S. 564, 573 (2002)).\\n\\n By contrast, the government has greater leeway to\\nregulate “features of speech unrelated to its content.”\\nMcCullen, 573 U.S. at 477. Thus, “[e]ven in a public forum\\nthe government may impose reasonable restrictions on the\\ntime, place, or manner of protected speech, provided the\\nrestrictions ‘are justified without reference to the content of the\\nregulated speech, that they are narrowly tailored to serve a\\nsignificant governmental interest, and that they leave open\\nample alternative channels for communication of the\\ninformation.’” Id. (quoting Ward v. Rock Against Racism, 491\\nU.S. 781, 791 (1989)).\\n\\n The level of scrutiny a court applies to a restriction on\\nspeech depends on whether it is content based or content\\nneutral. If the restriction is content based, it is subject to strict\\nscrutiny and is therefore “presumptively unconstitutional and\\nmay be justified only if the government proves that [it is]\\nnarrowly tailored to serve compelling state interests.” Reed,\\n135 S. Ct. at 2226; see McCullen, 573 U.S. at 478. If a\\nrestriction is content neutral, “we apply intermediate scrutiny\\nand ask whether it is ‘narrowly tailored to serve a significant\\ngovernmental interest.’” Bruni I, 824 F.3d at 363–64 (quoting\\nMadsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 764\\n\\n\\n\\n\\n 18\\n\\n(1994)). The threshold question, therefore, is whether the\\nrestriction here is content based or content neutral. 10\\n\\n B. Content Neutrality\\n\\n Plaintiffs contend that the Ordinance is content based\\nand thus subject to strict scrutiny because it regulates speech\\n“based on subject matter, function, or purpose,” rendering it\\ncontent based under Reed. 11 Appellants’ Br. 34. For the\\nreasons that follow, we disagree.\\n\\n 10\\n Although the parties begin their briefing with an\\napplication of intermediate scrutiny, we follow the Supreme\\nCourt’s lead in McCullen by addressing first whether the\\nOrdinance is content based because the answer to that question\\ndetermines the correct level of scrutiny to apply. See 573 U.S.\\nat 478–79.\\n 11\\n Plaintiffs make additional arguments in passing, but\\nthey are not persuasive. First, Plaintiffs contend that the City’s\\npurpose in adopting the Ordinance was to “target anti-abortion\\ncontent” because the City Council’s discussion about the\\nOrdinance “centered entirely on abortion and the speech\\noutside of abortion facilities in Pittsburgh.” Appellants’ Br.\\n40–41. But the Supreme Court explicitly rejected this\\nargument in McCullen. See 573 U.S. at 481–82 (“States adopt\\nlaws to address the problems that confront them. The First\\nAmendment does not require States to regulate for problems\\nthat do not exist.” (quoting Burson v. Freeman, 504 U.S. 191,\\n207 (1992) (plurality opinion))). Second, Plaintiffs argue that\\nthe Ordinance is content based as applied because it is enforced\\nonly outside of reproductive health facilities and therefore\\naffects only abortion-related speech. Plaintiffs did not make\\n\\n\\n\\n\\n 19\\n\\n In Reed, the Supreme Court considered the\\nconstitutionality of an ordinance that regulated the manner of\\ndisplay of outdoor signs depending on their subject matter. 134\\nS. Ct. at 2224–25. For example, the ordinance allowed\\n“Political Signs” to be bigger in size and remain posted longer\\nthan those it defined as “Temporary Directional Signs.” Id. at\\n2224–25, 2227. The Court held that the regulation was content\\nbased because the restrictions applied differently “depend[ing]\\nentirely on the communicative content of the sign[s].” Id. at\\n2227. As relevant here, the Court noted that whereas “[s]ome\\nfacial distinctions . . . are obvious,” such as “defining regulated\\nspeech by particular subject matter,” others are more “subtle,”\\nsuch as “defining regulated speech by its function or purpose.”\\nId.\\n\\n The thrust of Plaintiffs’ argument is that the Ordinance\\nis content based because the City interprets the word\\n“demonstrating” to apply to sidewalk counseling but not to\\npeaceful one-on-one communication about other subjects, like\\nsports teams, and, as a result, law enforcement must examine\\nthe content of any speech to determine if it is prohibited.\\nHowever, despite the assumptions of both parties, 12 nothing in\\n\\n\\nthis argument at summary judgment below, and it is therefore\\nforfeited. See Keenan v. City of Philadelphia, 983 F.2d 459,\\n471 (3d Cir. 1992). In any event, “a facially neutral law does\\nnot become content based simply because it may\\ndisproportionally affect speech on certain topics.” McCullen,\\n573 U.S. at 480. Reed, decided one year after McCullen, does\\nnot speak to these aspects of McCullen’s analysis.\\n 12\\n Although Plaintiffs contend that the City “enforces”\\nthe Ordinance “to suppress [their] leafletting and sidewalk\\n\\n\\n\\n\\n 20\\n\\nthe plain language of the Ordinance supports a construction\\nthat prohibits peaceful one-on-one conversations on any topic\\nor conducted for any purpose at a normal conversational\\nvolume or distance. In short, the Ordinance as written does not\\nprohibit the sidewalk counseling in which Plaintiffs seek to\\nengage within the zone.\\n\\n No doubt, if the Ordinance by its terms did prohibit one-\\non-one conversations about abortion but not about other\\nsubjects within the zone, it would be highly problematic, see\\nReed, 135 S. Ct. at 2230, particularly where, as here, the speech\\nalleged to be prohibited occurs on a public sidewalk and\\nconstitutes one-on-one “normal conversation and leafletting,”\\nMcCullen, 573 U.S. at 488—“core political speech entitled to\\nthe maximum protection afforded by the First Amendment,”\\nBruni I, 824 F.3d at 357. But under the doctrine of\\nconstitutional avoidance, “[i]t has long been a tenet of First\\nAmendment law that in determining a facial challenge to a\\nstatute, if it be ‘readily susceptible’ to a narrowing construction\\n\\n\\nconversations” within the buffer zone, Appellants’ Br. 17, the\\nrecord does not reflect any prosecution, arrest, or even citation.\\nInstead, it reflects that, except for isolated instances in which\\npolice were called to Planned Parenthood but took no action,\\nPlaintiffs avoided the buffer zone based on an assumption,\\nshared by the City, about the scope of the Ordinance. The\\nrealistic threat of the City’s enforcement is sufficient for\\npurposes of Plaintiffs’ standing. See Susan B. Anthony List v.\\nDriehaus, 573 U.S. 149, 158 (2014). As we explain below,\\nhowever, it does not preclude us under the doctrine of\\nconstitutional avoidance from adopting a narrowing\\nconstruction of the Ordinance.\\n\\n\\n\\n\\n 21\\n\\nthat would make it constitutional, it will be upheld.” 13 Virginia\\nv. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988); see\\nalso Ayotte v. Planned Parenthood of N. New England, 546\\nU.S. 320, 328–29 (2006) (“Generally speaking, when\\nconfronting a constitutional flaw in a statute, we try to limit the\\nsolution to the problem.”).\\n\\n Of course, we may not “rewrite a . . . law to conform it\\nto constitutional requirements,” United States v. Stevens, 559\\nU.S. 460, 481 (2010) (citation omitted), but, as we have\\nrecognized on many occasions, “[i]n the absence of a limiting\\nconstruction from a state authority, we must ‘presume any\\nnarrowing construction or practice to which the law is fairly\\nsusceptible.’” 14 Brown, 586 F.3d at 274 (quoting City of\\n\\n 13\\n As we said in Brown, “[t]his principle of\\ninterpretation is consistent with Pennsylvania law.” 586 F.3d\\nat 274 n.13 (citing Commonwealth v. Monumental Props., Inc.,\\n329 A.2d 812, 827 (Pa. 1974); and Dole v. City of Philadelphia,\\n11 A.2d 163, 168–69 (Pa. 1940)). And this is a particularly\\ncompelling case in which to apply the doctrine given the\\nconstitutional concerns inherent in restricting this kind of\\nspeech. As the Court explained in McCullen, “‘one-on-one\\ncommunication’ is ‘the most effective, fundamental, and\\nperhaps economical avenue of political discourse.’” 573 U.S.\\nat 488 (quoting Meyer v. Grant, 486 U.S. 414, 424 (1988)).\\nIndeed, “[l]eafletting and commenting on matters of public\\nconcern are classic forms of speech that lie at the heart of the\\nFirst Amendment.” Id. at 489 (quoting Schenck, 519 U.S. at\\n377).\\n 14\\n That is not to say that the City’s interpretation of the\\nOrdinance is irrelevant—it is a consideration in a court’s\\n\\n\\n\\n\\n 22\\n\\nLakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770 n.11\\n(1988)); see Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200,\\n215 n.10 (3d Cir. 2001) (explaining that where a state court has\\nnot authoritatively construed the terms of a stated policy, “we\\nare . . . required to give it a reasonable narrowing construction\\nif necessary to save it from unconstitutionality”); see also\\n\\n\\ndetermination of whether to adopt a limiting construction. See\\nForsyth County v. Nationalist Movement, 505 U.S. 123, 131\\n(1992); see also Ward, 491 U.S. at 795–96. But the City’s\\ninterpretation has not been adopted by any Pennsylvania court,\\nand where no state court has weighed in and the Ordinance is\\nreadily susceptible to a “reinterpretation” consistent with the\\nOrdinance’s text, the City’s position is not dispositive. Free\\nSpeech Coal., Inc. v. Attorney Gen. of the U.S., 677 F.3d 519,\\n539 (3d Cir. 2012); Saxe v. State Coll. Area Sch. Dist., 240 F.3d\\n200, 215–16, 215 n.10 (3d Cir. 2001); see also U.S. Nat’l Bank\\nof Ore. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447\\n(1993) (stating, outside of the constitutional avoidance context,\\nthat litigants cannot “extract the opinion of a court on\\nhypothetical Acts of Congress or dubious constitutional\\nprinciples” by agreeing on the proper construction of the law);\\nComite de Jornaleros de Redondo Beach v. City of Redondo\\nBeach, 657 F.3d 936, 946 (9th Cir. 2011) (“[W]e are not\\nrequired to . . . adopt an interpretation precluded by the plain\\nlanguage of the ordinance.” (citation omitted)). While other\\nCourts of Appeals take a contrary approach, see United Food\\n& Commercial Workers Int’l Union v. IBP, Inc., 857 F.2d 422,\\n431 (8th Cir. 1988); Hill v. City of Houston, 789 F.2d 1103,\\n1112 (5th Cir. 1986), our precedent is clear, see Free Speech\\nCoal., Inc., 677 F.3d at 539; Brown, 586 F.3d at 274; Saxe, 240\\nF.3d at 215–16, 215 n.10.\\n\\n\\n\\n\\n 23\\n\\nFrisby v. Schultz, 487 U.S. 474, 483 (1988) (“To the extent\\nthey endorsed a broad reading of the ordinance, the lower\\ncourts ran afoul of the well-established principle that statutes\\nwill be interpreted to avoid constitutional difficulties.”).\\n\\n Here, the Ordinance is readily susceptible to a\\nnarrowing construction. The text of the Ordinance says\\nnothing about leafletting or peaceful one-on-one\\nconversations, let alone on a particular topic or for a particular\\npurpose. And, to put a fine point on it, the floating bubble\\nzone, which was enjoined years ago, did prohibit “passing a\\nleaflet,” “educating,” or “counseling.” Pitts. Code § 623.03.\\nThose are not the activities that remain prohibited in the zone,\\nand “when the legislature uses certain language in one part of\\nthe statute and different language in another, the court assumes\\ndifferent meanings were intended.” Sosa v. Alvarez-Machain,\\n542 U.S. 692, 711 n.9 (2004) (quoting 2A N. Singer, Statutes\\nand Statutory Construction § 46:06, at 194 (6th rev. ed. 2000)).\\n\\n The Ordinance prohibits four—and only four—\\nactivities within the zone: “congregat[ing],” “patrol[ling],”\\n“picket[ing],” and “demonstrat[ing].” Pitts. Code\\n§ 623.04. And none of those terms, as commonly understood,\\nencompasses the sidewalk counseling in which Plaintiffs\\nengage. 15\\n\\n 15\\n In its briefing and at oral argument, the City justified\\nits interpretation by noting that in Schenck, the injunction at\\nissue referred to “sidewalk counseling” as a “form of\\ndemonstrating,” and the Supreme Court did not reject that\\ncharacterization. See Appellees’ Br. 48 (citation omitted). But\\nthe Court made clear that the term as used by some protestors\\nin that case was misleading given their aggressive actions, see\\n\\n\\n\\n\\n 24\\n\\n To “congregate” means “to collect into a group or\\ncrowd.” Congregate, Merriam-Webster’s Collegiate\\nDictionary 262 (11th ed. 2005) [hereinafter Merriam-\\nWebster’s]; see also Congregate, The American Heritage\\nDictionary of the English Language 388 (4th ed. 2006)\\n[hereinafter American Heritage] (defining “congregate” as\\n“bring or come together in a group, crowd, or assembly”). To\\n“patrol” is “to carry out a patrol,” defined in turn as “the action\\nof traversing a district or beat or of going the rounds along a\\nchain of guards for observation or the maintenance of\\nsecurity,” Patrol, Merriam-Webster’s 909, and “[t]he act of\\nmoving about an area especially by an authorized and trained\\nperson . . . for purposes of observation, inspection, or security,”\\nPatrol, American Heritage 1290. To “picket” is to “serve as a\\npicket,” defined as “a person posted for a demonstration or\\nprotest.” Picket, Merriam-Webster’s 937; see also Picket,\\nAmerican Heritage 1327 (defining “picket” as “to post as a\\npicket” where “picket” is defined as “[a] person or group of\\npersons present outside a building to protest”). And to\\n“demonstrate” is defined as “to make a demonstration,” which\\nis defined in turn as “an outward expression or display” and “a\\npublic display of group feelings toward a person or cause.”\\nDemonstrate, Merriam-Webster’s 332; see also Demonstrate,\\nAmerican Heritage 484 (defining “demonstrate” as “[t]o\\nparticipate in a public display of opinion”).\\n\\n Plaintiffs’ sidewalk counseling does not meet any of\\nthese definitions. While the Supreme Court has noted that a\\n\\n\\nSchenck, 519 U.S. at 363, 381–82, and, as discussed, see supra\\nnote 6, such conduct falls far outside Plaintiffs’ definition of\\nsidewalk counseling.\\n\\n\\n\\n\\n 25\\n\\ngrouping of three or more people may constitute\\n“congregat[ing],” see Boos v. Barry, 485 U.S. 312, 316–17\\n(1988), approaching someone individually to engage in a one-\\non-one conversation no more constitutes “congregat[ing]” than\\nwalking alongside another person constitutes “patrol[ling].”\\nAnd while signs and raised voices may constitute “picket[ing]”\\nor “demonstrat[ing],” speaking to someone at a normal\\nconversational volume and distance surely does not. Simply\\ncalling peaceful one-on-one conversations “demonstrating” or\\n“picketing” does not make it so when the plain meaning of\\nthose terms does not encompass that speech. 16\\n\\n Moreover, the activities that the Ordinance does\\nprohibit render it content neutral under binding Supreme Court\\nprecedent. No doubt due to the easily identifiable nature and\\nvisibility of “congregat[ing], patrol[ling], picket[ing] or\\ndemonstrat[ing],” Pitts. Code § 623.04, the Court has\\nrepeatedly considered regulation of those activities to be based\\non the manner in which expressive activity occurs, not its\\ncontent, and held such regulation content neutral. See Madsen,\\n\\n 16\\n Perhaps because of this disconnect between the\\nOrdinance’s text and the specific expressive activities to which\\nthe parties have assumed the Ordinance applies, the City’s own\\nwitness struggled during his deposition to explain which\\nspecific prohibition was even applicable to Plaintiffs’ sidewalk\\ncounseling. For example, when asked “[w]hat part of the\\nOrdinance” would prohibit a sidewalk counselor from crossing\\ninto the buffer zone while talking to a patient, the City’s\\ndesignated witness replied, “[c]all it congregating, patrolling,\\npicketing, or demonstrating, or any name you wish to give it.”\\nJA 337a.\\n\\n\\n\\n\\n 26\\n\\n512 U.S. at 759, 763–64 (addressing the precise language at\\nissue here, “congregating, picketing, patrolling, [and]\\ndemonstrating,” and concluding that the injunction prohibiting\\nthose activities was content neutral); see also Snyder v. Phelps,\\n562 U.S. 443, 456 (2011); Hill, 530 U.S. at 721; Schenck, 519\\nU.S. at 383–85; United States v. Grace, 461 U.S. 171, 181–82\\n(1983). 17 Nor does Reed alter that conclusion. See Reed, 135\\nS. Ct. at 2228–29.\\n\\n In short, the doctrine of constitutional avoidance\\ncounsels that we impose a limiting construction where, as here,\\na statute has not been construed by a state court and is not only\\nsusceptible to a narrowing construction but also demands that\\nconstruction on its face. See Am. Booksellers, 484 U.S. at 397;\\nBrown, 586 F.3d at 274; Saxe, 240 F.3d at 215 n.10. Because\\n\\n 17\\n We have continued to rely on Hill since McCullen and\\nReed were handed down, see, e.g., Turco v. City of Englewood,\\n935 F.3d 155, 165 (3d Cir. 2019) (declining to strike down\\neight-foot buffer zone as a matter of law because “such a\\nconclusion would be directly at odds with the Supreme Court’s\\ndecision in Hill v. Colorado” (citation omitted)), as have some\\nof our sister circuits, e.g., March v. Mills, 867 F.3d 46, 64 (1st\\nCir. 2017); Act Now to Stop War & End Racism Coal. &\\nMuslim Am. Soc’y Freedom Found., 846 F.3d 391, 403–04\\n(D.C. Cir. 2017). We note, however, that other Courts of\\nAppeals have observed that, even if “neither McCullen nor\\nReed overruled Hill, so it remains binding on us,” the content\\nneutrality holding of Hill may be “hard to reconcile with both\\nMcCullen and Reed,” Price v. City of Chicago, 915 F.3d 1107,\\n1109 (7th Cir. 2019) (Sykes, J.), petition for cert. filed, No. 18-\\n1516 (U.S. June 6, 2019).\\n\\n\\n\\n\\n 27\\n\\nthe Ordinance, as properly interpreted, does not extend to\\nsidewalk counseling—or any other calm and peaceful one-on-\\none conversations—there is no need for law enforcement “to\\nexamine the content of the message . . . to determine whether\\na violation has occurred.” McCullen, 573 U.S. at 479 (citation\\nomitted). The Ordinance so read is thus content neutral and\\nsubject to intermediate scrutiny.\\n\\n C. Application of Intermediate Scrutiny\\n\\n Because we conclude the Ordinance does not implicate\\nPlaintiffs’ speech, we could end our analysis here if this were\\nan as-applied challenge. But because Plaintiffs have brought a\\nfacial challenge, we briefly consider whether the Ordinance as\\napplied to the remaining expressive activity of congregating,\\npatrolling, picketing, or demonstrating within fifteen feet of the\\nclinic entrance is “narrowly tailored to serve a significant\\ngovernmental interest.” 18 Id. at 477 (quoting Ward, 491 U.S.\\nat 791). We easily conclude that it is.\\n\\n\\n\\n 18\\n To satisfy intermediate scrutiny, the government\\nbears the burden of demonstrating that a restriction on speech\\nis “narrowly tailored to serve a significant governmental\\ninterest” and “leave[s] open ample alternative channels for\\ncommunication of the information.” McCullen, 573 U.S. at\\n477 (quoting Ward, 491 U.S. at 791). Plaintiffs do not dispute\\nthe “ample alternatives” prong and, with its narrowing\\nconstruction, “the limited nature of the prohibition makes it\\nvirtually self-evident that ample alternatives remain.” Frisby,\\n487 U.S. at 483. We therefore focus our inquiry, as do the\\nparties, on the issue of narrow tailoring.\\n\\n\\n\\n\\n 28\\n\\n As Plaintiffs acknowledge, the interests that the City\\nseeks to protect—unimpeded access to pregnancy-related\\nservices, ensuring public safety, and eliminating “neglect” of\\nlaw enforcement needs—are legitimate. 19 Bruni I, 824 F.3d at\\n368 (quoting Pitts. Code § 623.01); see McCullen, 573 U.S. at\\n487, 496–97 (describing these interests as “undeniably\\nsignificant” interests that are “clearly serve[d]” by buffer\\nzones); see also Turco v. City of Englewood, 935 F.3d 155, 166\\n(3d Cir. 2019) (recognizing the government’s significant\\ninterest in “protecting the health and safety of its citizens,\\nwhich ‘may justify a special focus on unimpeded access to\\nhealth care facilities and the avoidance of potential trauma to\\npatients associated with confrontational protests’”) (citation\\n\\n\\n\\n 19\\n To the extent Plaintiffs argue that the City’s stated\\ninterests were not substantiated on remand, the record—\\nincluding reports of violent incidents, obstruction of patients’\\ningress and egress, and aggressive confrontations—establishes\\notherwise. See supra Section I.A.1. Plaintiffs’ additional\\nargument that there has been no obstructive conduct preventing\\naccess to the clinic’s entrance in recent years and, therefore,\\nthat the Ordinance is no longer necessary is also belied by the\\nrecord. For starters, there is evidence in the record to the\\ncontrary. For example, a clinic escort declared in 2014 that she\\nwas “aware of incidents at [Planned Parenthood] in which\\nescorts were pushed by a protester and where protesters placed\\ntheir hands on patients and thrust their leaflets inside patients’\\ncoat pockets or handbags.” JA 709a–10a. More importantly,\\nthe fact that an otherwise constitutional restriction on speech is\\nsuccessful in serving the interests for which it was intended is\\nhardly a reason to strike it down.\\n\\n\\n\\n\\n 29\\n\\nomitted). Instead, Plaintiffs argue that the Ordinance is not\\nnarrowly tailored to those interests.\\n\\n To be narrowly tailored, a regulation must not “burden\\nsubstantially more speech than is necessary to further the\\ngovernment’s legitimate interests.” McCullen, 573 U.S. at 486\\n(quoting Ward, 491 U.S. at 799). At the same time, it “‘need\\nnot be the least restrictive or least intrusive means of’ serving\\nthe government’s interest,” id. (quoting Ward, 491 U.S. at\\n798), and we “afford[] some deference to a municipality’s\\njudgment in adopting a content-neutral restriction on speech,”\\nBruni I, 824 F.3d at 370.\\n\\n In arguing that the restriction on speech here is not\\nnarrowly tailored, Plaintiffs do not distinguish between the\\nOrdinance as read to include sidewalk counseling and the\\nOrdinance as read to exclude it. Rather, quoting Bruni I, they\\ncontend we “already made clear that ‘the City has the same\\nobligation to use less restrictive alternatives to its buffer zone\\nas . . . Massachusetts had with respect to the buffer zone at\\nissue in McCullen.’” Appellants’ Br. 25 (quoting Bruni I, 824\\nF.3d at 369). So, say Plaintiffs, just as in McCullen, the City\\nhad to demonstrate on remand that “substantially less-\\nrestrictive alternatives,” including arrests, prosecutions, and\\ninjunctions, “were tried and failed, or . . . were closely\\nexamined and ruled out for good reason.” Bruni I, 824 F.3d at\\n370. Because the City here concededly failed to make a\\nshowing of that magnitude, Plaintiffs contend the Ordinance\\nnecessarily fails intermediate scrutiny.\\n\\n Plaintiffs mistake the import of Bruni I in two respects.\\nFirst, in reviewing the District Court’s dismissal of Plaintiffs’\\ncomplaint, we did not conclusively determine that the City\\n\\n\\n\\n\\n 30\\n\\n“ha[d] the same obligation to use less restrictive alternatives”\\nas in McCullen. Bruni I, 824 F.3d at 369. As appropriate at\\nthe pleading stage, we “accept[ed] all [of Plaintiffs’] factual\\nallegations as true,” id. at 360 (citation omitted), and held that\\n“[b]ecause of the significant burden on speech that the\\nOrdinance allegedly imposes, the City ha[d] the same\\nobligation to use,” id. at 369 (emphasis added), or show that it\\n“seriously considered, substantially less restrictive\\nalternatives,” id. at 357, as in McCullen. On that basis, we\\nremanded for a determination of the proper scope of the\\nOrdinance, the actual burden on Plaintiffs’ speech, and a\\nmeans–ends analysis “by the standard that McCullen now\\nrequires.” Id. at 375.\\n\\n Second, to the extent Plaintiffs’ argument is that\\nMcCullen imposes on a municipality “the same obligation” as\\non Massachusetts—even in the absence of a “significant\\nburden on speech,” id. at 369—they are mistaken. As we\\nrecognized in Bruni I, where the burden on speech is de\\nminimis, a regulation may “be viewed as narrowly tailored,\\neven at the pleading stage,” id. at 372 n.20, and McCullen and\\nBruni I both observed that where there is only “a slight burden\\non speech, any challengers would struggle to show that\\n‘alternative measures [would] burden substantially less\\nspeech,’” id. (alteration in original) (quoting McCullen, 573\\nU.S. at 495). In short, while McCullen and Bruni I made clear\\nthat a “rigorous and fact-intensive” inquiry will be required\\nwhere a restriction imposes a significant burden on speech,\\nBruni I, 824 F.3d at 372, they also made clear (and logic\\ndictates) that a less demanding inquiry is called for where the\\nburden on speech is not significant—whether due to a\\n\\n\\n\\n\\n 31\\n\\nrestriction’s scope, the size of the speech-free zone, or some\\ncombination of the two. 20\\n\\n In this case, now that we have before us both a\\ndeveloped record and a narrow construction of the Ordinance,\\nit is apparent that the burden it imposes is different from\\nMcCullen both in scope and size and is instead akin to that\\nimposed by the thirty-six-foot and fifteen-foot buffer zones\\nthat the Supreme Court upheld in Madsen v. Women’s Health\\nCenter, Inc., 512 U.S. at 757, 776, and Schenck v. Pro-Choice\\nNetwork of Western New York, 519 U.S. at 364, 380,\\nrespectively.\\n\\n 20\\n In Bruni I, we explained that when dealing with core\\nspeech, such as sidewalk counseling, whether a restriction is\\nless burdensome in “degree”—meaning size in the context we\\nused it—is not necessarily dispositive of whether the burden\\non speech is significant. 824 F.3d at 368. A court must also\\nconsider the burden as “a matter of . . . kind,” referring to the\\ntype of speech a restriction prohibits. Id. Elsewhere in the\\nopinion, however, we also recognized that there may be cases\\nwhere the “degree” of burden is so minimal that it, alone, will\\ndetermine whether the burden on speech should be considered\\nsignificant, thus potentially negating any need for the\\ngovernment to show that substantially less-restrictive\\nalternatives were tried and failed or seriously considered and\\nreasonably rejected. See id. at 372 n.20 (quoting McCullen,\\n573 U.S. at 495). As “degree” could refer to the size of the\\nzone or significance of the burden, depending on the context,\\nand both subjects are mentioned in today’s opinion, we will use\\nthe terms “scope” and “size,” rather than “kind” and “degree,”\\nfor the sake of clarity.\\n\\n\\n\\n\\n 32\\n\\n As to scope, although the restrictions in those cases\\nwere more targeted in that they were created by way of\\ninjunction, not legislation, see Schenck, 519 U.S. at 361;\\nMadsen, 512 U.S. at 757, the Ordinance is narrower in scope\\nbecause it limits only congregating, patrolling, picketing, and\\ndemonstrating within a fifteen-foot buffer zone, and does not\\nsweep in the “one-on-one communication,” including “normal\\nconversation and leafletting,” that McCullen emphasized “have\\nhistorically been more closely associated with the transmission\\nof ideas,” 573 U.S. at 488. Thus, so long as she is not\\n“congregating” with others in the buffer zone, an individual\\nplaintiff is not barred by the Ordinance from engaging in\\nsidewalk counseling inside its borders. Cf. Schenck, 519 U.S.\\nat 367, 369–70, 383–84 (describing and upholding the district\\ncourt’s decision to allow only two sidewalk counselors inside\\nthe fifteen-foot buffer zone); Madsen, 512 U.S. at 759\\n(prohibiting not only “congregating, picketing, patrolling,\\n[and] demonstrating” within the zone but also “entering”).\\n\\n And as to size, the relatively small buffer zone imposed\\nby the Ordinance, like those in Madsen and Schenck, does not\\nprevent groups like Forty Days for Life from congregating\\nwithin sight and earshot of the clinic. Nor does it prevent\\nprotestors, demonstrators, or picketers from being seen and\\nheard, or any of these persons from speaking outside the zone\\nwith willing listeners who are entering or exiting. See Schenck,\\n519 U.S. at 384–85; Madsen, 512 U.S. at 770. And size, while\\nnot necessarily in and of itself dispositive, see Bruni I, 824 F.3d\\nat 368, is still a “substantial distinction” that must factor into a\\ncourt’s analysis of the relative burden on speech, Turco, 935\\nF.3d at 163.\\n\\n\\n\\n\\n 33\\n\\n Also as in Madsen and Schenck, the record shows that\\nthe City resorted to a fixed buffer zone not in the first instance\\nbut after attempting or considering some less burdensome\\nalternatives and concluding they were unsuccessful in meeting\\nthe legitimate interests at issue. See Schenck, 519 U.S. at 380–\\n82; Madsen, 512 U.S. at 769–70. These included an overtime\\npolice detail in front of Planned Parenthood until the cost\\nbecame prohibitive once the City was declared a financially\\ndistressed municipality; 21 incident-based responses by the\\npolice that proved unsuccessful in preventing or deterring\\naggressive incidents and congestion; and consideration of\\ncriminal laws that the police were finding inadequate to\\naddress the problem of protestors following patients and\\nobstructing their way to the clinic.\\n\\n True, as Plaintiffs point out, this record does not reflect\\nthat the City tried or seriously considered arrests, prosecutions,\\nor targeted injunctions, which Plaintiffs would have us treat as\\ndispositive. But where the burden imposed by a restriction on\\n\\n 21\\n In McCullen, Massachusetts did not assert such\\neconomic hardships. While the Court noted that “the prime\\nobjective of the First Amendment is not efficiency,” McCullen,\\n573 U.S. at 495, it did not have occasion to consider\\ncircumstances where “the limitations of ‘manpower’ and the\\nneed to be able to deploy officers in response to emergencies”\\nmade it “not feasible to permanently provide a significantly\\nincreased police presence at the clinic,” Turco, 935 F.3d at 167.\\nAs we recently recognized, however, the facts “that the police\\ndepartment ha[s] finite resources,” id. (citation omitted), and a\\ncity has “financial restraints,” id. at 167–68, are relevant to the\\nnarrow tailoring analysis.\\n\\n\\n\\n\\n 34\\n\\nspeech is not significant, the government need demonstrate\\nneither that “it has tried or considered every less burdensome\\nalternative,” Bruni I, 824 F.3d at 370, nor that it tried or\\nconsidered every less burdensome alternative discussed in\\nMcCullen. Instead, as we reiterated in Turco, this is an\\n“intensely factual . . . inquiry,” 935 F.3d at 170, that must\\naccount for “the ‘broad principle of deference to legislative\\njudgments’ and that a legislative body ‘need not meticulously\\nvet every less burdensome alternative,’” id. at 171 (quoting\\nBruni I, 824 F.3d at 370 n.18). And, as we recognized there in\\nremanding for further fact-finding, a municipality can\\ndemonstrate that it “attempted . . . [or] considered alternative\\nmeans of bringing order to the sidewalk” even if it “ha[s] not\\n‘prosecute[d] any protestors for activities taking place on the\\nsidewalk’ and ‘did not seek injunctive relief against individuals\\nwhose conduct was the impetus for the Ordinance.’” Id. at 167\\n(second alteration in original) (quoting Turco v. City of\\nEnglewood, No. 2:15-cv-03008, 2017 WL 5479509, at *5\\n(D.N.J. Nov. 14, 2017)). The ultimate question remains\\nwhether a restriction on speech “burden[s] substantially more\\nspeech than is necessary to further the government’s legitimate\\ninterests.” McCullen, 573 U.S. at 486 (emphasis added)\\n(quoting Ward, 491 U.S. at 799).\\n\\n Consistent with Madsen and Schenck, the Ordinance, as\\nwe have construed it, does not do so. 22 The Ordinance\\n\\n 22\\n We recognize that the City may have a legitimate\\nconcern about access to healthcare facilities if it transpires that\\nmultiple one-on-one conversations impair access to the\\nfacilities, see McCullen, 573 U.S. at 486–87, and that the City\\nmay then have occasion to revisit the terms of the Ordinance\\nhaving developed a record that would satisfy McCullen and\\n\\n\\n\\n\\n 35\\n\\ntherefore is “narrowly tailored to serve a significant\\ngovernmental interest,” McCullen, 573 U.S. at 477 (quoting\\nWard, 491 U.S. at 791), and it satisfies intermediate scrutiny.\\n\\n D. Overbreadth\\n\\n Finally, Plaintiffs argue that the Ordinance is\\nunconstitutionally overbroad because it authorizes the City to\\ncreate buffer zones at any health facility in the City, regardless\\nof whether the City has identified a problem at the location in\\nthe past. A law may be overbroad under the First Amendment\\nwhere “a substantial number of its applications are\\nunconstitutional, judged in relation to the [law’s] plainly\\nlegitimate sweep.” Bruni I, 824 F.3d at 374 (quoting Stevens,\\n559 U.S. at 473). The overbreadth doctrine is “strong\\nmedicine,” Kreimer v. Bureau of Police, 958 F.2d 1242, 1265\\n(3d Cir. 1992) (citation omitted), should therefore be “used\\nsparingly,” id., and will “not be[] invoked when a limiting\\nconstruction has been or could be placed on the challenged”\\nlaw, Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).\\n\\n Plaintiffs’ overbreadth challenge is not well-founded.\\nAs a general matter, “[t]he fact that the coverage of a statute is\\nbroader than the specific concern that led to its enactment is of\\nno constitutional significance,” Hill, 530 U.S. at 730–31, and\\nits applicability more generally is one of the reasons that we\\nconsider it to be a content-neutral restriction on speech, see id.\\nat 731. For that reason, “[w]hen a buffer zone broadly applies\\nto health care facilities” to include “buffer zones at non-\\n\\nBruni I, as well as the content-neutrality requirement of Reed.\\nSee Turco, 935 F.3d at 162–63. That, however, is not the\\nOrdinance before us today.\\n\\n\\n\\n\\n 36\\n\\nabortion related locations,” we may then “conclude ‘the\\ncomprehensiveness of the statute is a virtue, not a vice, because\\nit is evidence against there being a discriminatory\\ngovernmental motive.’” Turco, 935 F.3d at 171 (quoting Hill,\\n530 U.S. at 730–31).\\n\\n Nor is the Ordinance overbroad because it affords the\\nCity discretion to select particular health facilities at which it\\nwill demarcate a buffer zone. Since the demarcation\\nrequirement was put in place approximately ten years ago, the\\nCity has exercised that discretion as to only two facilities, both\\nof which suffered from violence and obstruction in the past.\\nYet we may not, as Plaintiffs suggest, simply assume that “the\\nstatute’s very existence may cause others not before the court\\nto refrain from constitutionally protected speech or\\nexpression.” Broadrick, 413 U.S. at 612. Instead, we revert\\nagain to the “principle . . . well-established in First\\nAmendment jurisprudence”—“our duty to ‘accord a measure\\nof deference to the judgment’ of [the] city council,’” Turco,\\n935 F.3d at 171 (quoting Hill, 530 U.S. at 727), considering\\n“[the] statute’s application to real-world conduct, not fanciful\\nhypotheticals,” id. at 172 (quoting Stevens, 559 U.S. at 485).\\nApplying that principle here, we conclude the Ordinance is not\\nsubstantially overbroad.\\n\\n In sum, Plaintiffs have not carried their “burden of\\ndemonstrating, ‘from the text of [the law] and from actual fact,’\\nthat substantial overbreadth exists.” Virginia v. Hicks, 539\\nU.S. 113, 122 (2003) (alteration in original) (citation omitted).\\nWe therefore affirm the District Court’s grant of summary\\njudgment to the City on this claim.\\n\\n\\n\\n\\n 37\\n\\nIV. Conclusion\\n\\n For the foregoing reasons, we will affirm the District\\nCourt’s order granting summary judgment.\\n\\n\\n\\n\\n 38\\n\\nNikki Bruni et al. v. City of Pittsburgh et al. (Bruni II), No. 18-\\n1084\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4562,"cells":{"id":{"kind":"number","value":4671556,"string":"4,671,556"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Healthcare Real Estate Partner v."},"decision_date":{"kind":"string","value":"2019-10-22"},"docket_number":{"kind":"string","value":"18-3267"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Third Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"BEFORE: CHAGARES, GREENAWAY, JR., and GREENBERG, Circuit Judges (\", \"parties\": \"\", \"opinions\": [{\"author\": \"GREENBERG, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"PRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n ______________\\n\\n No. 18-3267\\n ______________\\n\\nIN RE: HEALTHCARE REAL ESTATE PARTNERS, LLC,\\n Debtor\\n\\n\\n HEALTHCARE REAL ESTATE PARTNERS, LLC,\\n Appellant\\n\\n v.\\n\\n SUMMIT HEALTHCARE REIT, INC.; JOHN JACOB\\n SPECKMANN; ARNOLD GOLDENBAUM; MARK\\n SAULIC; BRYAN TAYLOR; RICHARD G. PETERS, AS\\nTRUSTEE OF RICHARD & DARLENE PETERS TRUSTS;\\nLEROY J. BLAKE, AS TRUSTEE OF LEROY J. BLAKE &\\n LINDA J. BLAKE FAMILY TRUST; ROXIE M. BYBEE,\\n AS TRUSTEE OF ROXIE M. BYBEE TRUST, DATED\\n JULY 5, 2012; JAMES D. FRANKLIN, AS TRUSTEE OF\\n JAMES D. FRANKLIN TRUST; JOHN BAIKIE, AS\\n TRUSTEE OF JOHN THOMAS BAIKIE REVOCABLE\\n TRUST\\n\\f ______________\\n\\n On Appeal from the United States District Court\\n for the District of Delaware\\n (D.C. Civ. No. 1-17-cv-01555)\\n Honorable Malachy E. Mannion, District Judge\\n ______________\\n\\n Argued June 27, 2019\\n\\n BEFORE: CHAGARES, GREENAWAY, JR., and\\n GREENBERG, Circuit Judges\\n\\n (Filed: October 22, 2019)\\n ______________\\n\\nRobert P. Goe\\nGoe & Forsythe\\n18101 Von Karman Avenue\\nSuite 1200\\nIrvine, CA 92612\\n\\nChristopher D. Loizides [Argued]\\nLoizides\\n1225 King Street\\nSuite 800\\nWilmington, DE 19801\\n Counsel for Appellant\\n\\n\\n\\n\\n 2\\n\\fStuart M. Brown\\nR. Craig Martin [Argued]\\nDLA Piper\\n1201 North Market Street\\nSuite 2100\\nWilmington, DE 19801\\n Counsel for Appellees\\n\\n ______________\\n\\n OPINION\\n ______________\\n\\nGREENBERG, Circuit Judge.\\n\\n I. INTRODUCTION\\n\\n This matter comes on before this Court on an appeal by\\nappellant Healthcare Real Estate Partners, LLC, (“Healthcare”)\\nchallenging the District Court’s order affirming a bankruptcy\\ncourt’s dismissal under Fed. R. Civ. P. 12(b) of Healthcare’s\\nadversary proceeding filed under 11 U.S.C. § 362(k) seeking\\ndamages for violation of the automatic stay that arose by reason\\nof the institution of the bankruptcy proceedings. See 11 U.S.C.\\n§ 362(a). Healthcare contends that neither the District Court nor\\nthe bankruptcy court had a valid reason to dismiss its § 362(k)\\naction without addressing its merits. For the reasons stated\\nbelow, we agree with Healthcare, and thus we will reverse the\\nDistrict Court’s order and remand the case to that Court to\\nreinstate Healthcare’s § 362(k) action.\\n\\n\\n\\n\\n 3\\n\\f II. FACTUAL BACKGROUND\\n\\n We rely on the District Court’s recitation of the facts in\\nits opinion affirming the order of the bankruptcy court\\ndismissing the § 362(k) action. See Healthcare Real Estate\\nPartners, LLC v. Summit Healthcare Reit, Inc., No. 17-1555,\\n2018 WL 4500880, at *1-2 (D. Del. Sept. 19, 2018) (“HREP”).\\nNevertheless, we summarize the relevant facts. Healthcare was\\nthe manager of certain investment funds. On September 16,\\n2015, the investors in the funds, petitioning creditors in the\\nbankruptcy court, filed an involuntary bankruptcy petition\\nagainst Healthcare with the intention of seeking its removal as\\nthe fund manager. Because Healthcare had not been served with\\nprocess in the bankruptcy case, it did not receive notice of the\\nfiling of the petition which consequently was uncontested and\\nthe bankruptcy court entered an order for relief on the petition.\\nSubsequently, Healthcare was removed as the fund manager,\\nand the investors installed Summit Healthcare Reit, Inc.\\n(“Summit”) as the new fund manager. Summit then dissolved\\nthe funds. The petitioning creditors and Summit are the\\nappellees on this appeal.1\\n\\n About a month later, obviously having learned what had\\ntranspired, Healthcare filed a motion with the bankruptcy court,\\nseeking to vacate the bankruptcy court’s order for relief on the\\npetition due to the faulty service of process on it. The\\nbankruptcy court held an evidentiary hearing on the motion\\nwhich it then granted, vacating its prior order for relief. Then,\\n\\n1\\n The clerk of this Court entered an order on November 6, 2018,\\nproviding that Summit’s attorney shall be the designated filer for\\nall appellees.\\n\\n\\n\\n\\n 4\\n\\fhaving achieved their objective, appellees moved to voluntarily\\ndismiss the petition. Healthcare opposed dismissal asserting that\\nit had claims for damages against appellees under 11 U.S.C. §\\n303(i) because it contended that the petitioning creditors had\\nfiled the petition in bad faith.2 The bankruptcy court granted the\\nmotion for voluntary dismissal, but retained jurisdiction in the\\norder of dismissal in which it included a provision stating that\\n“nothing herein shall limit [Healthcare’s] right to seek damages,\\nincluding without limitation, fees and costs, pursuant to 11\\nU.S.C. § 303(i) or otherwise.” HREP at *2. The court,\\nhowever, did not explain what it meant by “or otherwise.” The\\nparties treat the meaning of this term as the major issue on this\\nappeal though, as will be seen, we take a different approach.\\n\\n Thereafter, Healthcare filed a motion in the bankruptcy\\ncourt seeking § 303(i) damages. It also instituted an adversary\\nproceeding against appellees asserting § 362(k) claims for\\n2\\n Healthcare contends that it informed the bankruptcy court of its\\nintention to assert claims under 11 U.S.C. § 362(k) for violation\\nof the automatic stay provision of the bankruptcy code. After\\nthe investors removed Healthcare as the fund manager and\\ninstalled Summit as the new fund manager, the fund was\\ndissolved without the bankruptcy court’s knowledge. On the\\nappeal, the District Court rejected Healthcare’s assertion that it\\nhad made its intentions regarding § 362(k) known to the\\nbankruptcy court. HREP, 2018 WL 4500880, at *1\\n(“[Healthcare] did not state in its objection that it would also\\nseek damages under § 362(k).”). Because we need not resolve\\nthis factual dispute, we will assume, as the District Court found,\\nthat Healthcare did not reveal its intentions about § 362(k)\\nclaims during its opposition to the voluntary dismissal of the\\npetition.\\n\\n\\n\\n\\n 5\\n\\fviolation of the automatic stay that arose in the bankruptcy\\nproceedings when the petition was filed because of the removal\\nof Healthcare as the fund manager and the installation of\\nSummit in that role without an order of the court. The appellees\\nmoved to dismiss the § 362(k) action, arguing that it was outside\\nof the scope of the bankruptcy court’s order dismissing the\\npetition which they asserted allowed Healthcare to seek only §\\n303(i) damages. The bankruptcy court agreed, stating that “the\\nCourt [has] authority to limit you for what you can bring after\\ndismissal of the case, and that’s what I intended to do.” HREP,\\n2018 WL 4500880, at *5. That court made clear that when it\\ndismissed the petition its intent was to allow Healthcare to bring\\na claim for damages only under § 303(i). Therefore, the court\\ndismissed the § 362(k) action on October 19, 2017, and, on\\nHealthcare’s appeal, the District Court affirmed on September\\n19, 2018, largely by adopting the bankruptcy court’s reasoning.\\nThis appeal followed.\\n\\n\\n\\n III. DISCUSSION\\n\\n In dismissing Healthcare’s § 362(k) action, the\\nbankruptcy court, and thus the District Court in reliance on the\\nbankruptcy court’s reasoning held that (1) the bankruptcy court\\nlacked jurisdiction over the § 362(k) claims because when it\\ndismissed the petition, it retained jurisdiction only over the §\\n303(i) claims, and (2) even if it could have retained jurisdiction\\nover the § 362(k) claims, it had discretion to limit the claims\\nHealthcare could assert before it following the dismissal of the\\n\\n\\n\\n\\n 6\\n\\fpetition. We disagree in both respects.3\\n\\n We start our discussion by addressing an argument that\\nappellees advance that we lack jurisdiction over this appeal.\\nUnder their argument because the bankruptcy case will be\\nongoing until the § 303(i) claims are resolved, which so far as\\nwe are aware has not happened, the order dismissing the §\\n362(k) claims was not a final appealable order, as not all claims\\nasserted in the bankruptcy court have been resolved. See H.E. v.\\nWalter D. Palmer Leadership Learning Partners Charter Sch.,\\n873 F.3d 406, 411 (3d Cir. 2017). However, that argument\\npresumes that the § 362(k) claims must be part of the\\nbankruptcy case. But because, as we explain below, § 362(k)\\nactions are separate and apart from the related bankruptcy cases\\nin which they arise and thus stand on their own, we reject that\\nargument. After all, if Healthcare’s § 362(k) action is\\nindependent of the overall bankruptcy proceedings, the dismissal\\nof the § 362(k) action would constitute a final order in both the\\nbankruptcy court and the District Court and thus would be\\nappealable to us, even if the underlying bankruptcy proceedings\\nare still pending in either of those courts. See 28 U.S.C. §§\\n3\\n In the motion to dismiss filed with the bankruptcy court,\\nappellees did not specify what federal rule they were moving\\nunder, nor did the bankruptcy court articulate which rule formed\\nthe basis of its dismissal order. The District Court, on appeal,\\ncategorized the motion as a Rule 12(b) motion, without\\nexplicitly stating which subsection of Rule 12(b) applied. While\\nwe believe the motion could have been filed under Rule 12(b)(1)\\nor 12(b)(6), ultimately the distinction is not significant here, as\\nwe would exercise plenary review in either case. See In re\\nSchering Plough Corp. Intron/Temodar Consumer Class Action,\\n678 F.3d 235, 243 (3d Cir. 2012).\\n\\n\\n\\n\\n 7\\n\\f1291 & 158(d)(1).\\n\\n Section 362(k) states, in relevant part, that “an individual\\ninjured by any willful violation of a stay provided by this section\\nshall recover actual damages, including costs and attorneys’\\nfees, and, in appropriate circumstances, may recover punitive\\ndamages.” 11 U.S.C. § 362(k)(1). That statute, at least not in\\nterms, does not require an action brought pursuant to it to be\\nfiled in an existing bankruptcy proceeding. Though we have not\\nclearly addressed the question of whether § 362(k) actions must\\nbe filed in an existing bankruptcy proceeding, other courts of\\nappeals have held that § 362(k) actions are separate and apart\\nfrom any related bankruptcy cases, and thus stand on their own.\\nIn re Johnson, 575 F.3d 1079, 1083-84 (10th Cir. 2009); see\\nHouck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 481 (4th Cir.\\n2015); Price v. Rochford, 947 F.2d 829, 830-31 (7th Cir. 1991);\\nPettitt v. Baker, 876 F.2d 456, 457-58 (5th Cir. 1989).\\n\\n In reaching its conclusion that recognized the separate\\nstatus of § 362(k) actions, the Court of Appeals for the Tenth\\nCircuit in Johnson reasoned that:\\n\\n It is particularly appropriate for bankruptcy courts\\n to maintain jurisdiction over § 362(k)(1)\\n proceedings because their purpose is not negated\\n by dismissal of the underlying bankruptcy case.\\n They still serve (a) to compensate for losses that\\n are not extinguished by the termination of the\\n bankruptcy case and (b) to vindicate the authority\\n of the statutory stay . . . . Requiring the dismissal\\n of a § 362(k)(1) proceeding simply because the\\n underlying bankruptcy case has been dismissed\\n would not make sense. A court must have the\\n\\n\\n\\n\\n 8\\n\\f power to compensate victims of violations of the\\n automatic stay and punish the violators, even after\\n the conclusion of the underlying bankruptcy case.\\n\\n\\n\\nJohnson, 575 F.3d at 1083 (citations omitted). The court went\\non to explain that:\\n\\n Nothing in the Bankruptcy Code mandates\\n dismissal of the § 362(k)(1) proceeding when the\\n bankruptcy case is closed . . . . No part of §\\n 362(k)(1) suggests that a claim exists only while\\n the bankruptcy case remains pending. And when\\n Congress listed the effects of dismissing a\\n bankruptcy case, it included nothing about\\n automatically terminating the court’s jurisdiction\\n over all adversary proceedings or mooting\\n questions regarding § 362(k)(1) sanctions . . . .\\n [C]ontrary to [the creditor’s] assertions, we see no\\n basis for requiring a bankruptcy court to state\\n explicitly that it is retaining jurisdiction over a §\\n 362(k)(1) adversary proceeding when it dismisses\\n an underlying [bankruptcy] case, or for requiring\\n [the debtor] to move to reopen the [bankruptcy]\\n case to pursue the § 362(k)(1) adversary\\n proceeding.\\n\\n\\n\\nId. at 1084 (internal quotations and citations omitted). We agree\\nwith the Johnson court’s reasoning, and except in one respect\\nthat we set forth below adopt it here. We do not discern any\\n\\n\\n\\n\\n 9\\n\\freason why a determination of whether an automatic stay had\\nbeen violated must be litigated as part of the bankruptcy\\nproceedings.\\n\\n We, however, question Johnson to the extent it can be\\nconstrued as stating that § 362(k) actions only can be “core\\nproceedings” under the bankruptcy code. Id. at 1083. The\\njurisdictional statute for bankruptcy courts states that\\n“[b]ankruptcy judges may hear and determine all cases under\\ntitle 11 and all core proceedings arising under title 11, or arising\\nin a case under title 11, referred under subsection (a) of this\\nsection, and may enter appropriate orders and judgments, subject\\nto review under section 158 of this title.” 28 U.S.C. § 157(b)(1).\\n The statute clearly differentiates between “cases” under title 11\\nand “core proceedings” under title 11. This distinction is\\nunsurprising, as bankruptcy cases are unique in the federal\\nsystem. Courts in bankruptcy cases routinely adjudicate\\ncontract, probate, property, and other state-law claims without\\nregard for the diversity of the parties’ citizenship if the\\nresolution of matters in dispute is appropriate in the disposition\\nof a bankruptcy case. Thus, the “core proceeding” clause of §\\n157(b)(1) vests jurisdiction in a bankruptcy court to adjudicate\\nclaims over which it otherwise would not have jurisdiction. See\\n§ 157(b)(2) (listing examples of core proceedings); Halper v.\\nHalper, 164 F.3d 830, 836 (3d Cir. 1999). Indeed, appellees rely\\non this point to argue that the bankruptcy court could not have\\njurisdiction over the § 362(k) action because its jurisdiction over\\nany claim necessarily derives from the existence of a bankruptcy\\ncase and the bankruptcy court dismissed the bankruptcy case\\nprior to the institution of the § 362(k) proceeding.\\n\\n While the statutes certainly allow a bankruptcy court to\\nadjudicate § 362(k) claims as “core proceedings,” they do not\\n\\n\\n\\n\\n 10\\n\\frequire plaintiffs to bring such claims in that fashion. As we\\nstated above, nothing in § 362(k) requires that an action filed\\nunder that provision be part of an existing bankruptcy\\nproceeding. Instead, a § 362(k) action is an independent private\\ncause of action, meant to vindicate the right of a debtor to an\\nautomatic stay during a bankruptcy proceeding. Therefore, even\\nif a bankruptcy court’s jurisdiction over a § 362(k) action is not\\npredicated on the “core proceeding” clause of § 157(b)(1), its\\njurisdiction can be based on the express grant of jurisdiction to\\nthe bankruptcy courts in § 157(b)(1) that they “may hear and\\ndetermine all cases under title 11[.]” As the Court of Appeals\\nfor the Fifth Circuit explained,\\n\\n We are cognizant that there are scant primary or\\n secondary authorities applying or discussing [§\\n 362(k)]. Nor is there a plethora of enlightening\\n references in the relevant legislative history. We\\n do not consider such essential, however, to\\n today’s task. To hold that [§ 362(k)] does not\\n create a private right of action would require us to\\n ignore its plain and express language. As we read\\n that language, we cannot but conclude that\\n Congress established a remedy for an individual\\n injured by a willful violation of a section 362(a)\\n stay.\\n\\n\\n\\nPettitt, 876 F.2d at 457-58. See Justice Cometh, Ltd. v.\\nLambert, 426 F.3d 1342, 1343 (11th Cir. 2005) (finding that\\ndistrict courts have original jurisdiction over § 362(k) actions\\nbecause they are “cases” under title 11, which then could be\\nreferred to the bankruptcy court under § 157(a)).\\n\\n\\n\\n\\n 11\\n\\f Our result should not surprise anyone. After all, other\\ncourts of appeals have held that § 362(k) creates independent\\nprivate causes of action. See, e.g., Houck, 791 F.3d at 481\\n(“Congress created a private cause of action for the willful\\nviolation of a stay, authorizing an individual injured by any such\\nviolation to recover damages.”); Price, 947 F.2d at 830-31 (“We\\nhold that 11 U.S.C. § 362([k]) creates a cause of action that can\\nbe enforced after bankruptcy proceedings have terminated.”);\\nsee also Garfield v. Cowen Loan Servicing, LLC, 811 F.3d 86,\\n91-92 (2d Cir. 2016) (indicating that § 362(k) creates a cause of\\naction for violations of the automatic stay provision). Put\\nanother way, while the institution of a bankruptcy proceeding at\\nsome point is necessary for the institution of a § 362(k) action,\\nthe institution of a new or the continuation of an existing §\\n362(k) action does not depend on the continued existence of that\\nproceeding.\\n\\n It is also notable that even though the court indicated in\\nJohnson that § 362(k) actions are core proceedings, in a\\nsubsequent opinion the same court made clear that a § 362(k)\\naction brought while a bankruptcy proceeding was pending may\\nbe continued after the dismissal of the related bankruptcy case.\\nIn re Cowen, 849 F.3d 943, 947-48 (10th Cir. 2017). Curiously,\\nthe Johnson court also stated that “[c]ore proceedings are\\nproceedings which have no existence outside of bankruptcy.\\nActions which do not depend on the bankruptcy laws for their\\nexistence and which could proceed in another court are not core\\nproceedings.” 575 F.3d at 1082. Therefore, while it is unclear\\nhow the Court of Appeals for the Tenth Circuit would treat a §\\n362(k) action brought after the dismissal of the underlying\\nbankruptcy proceeding, it in no way held that a bankruptcy court\\nwould not have jurisdiction in that scenario. In any event, as we\\n\\n\\n\\n\\n 12\\n\\fhave indicated the bankruptcy court had jurisdiction over\\nHealthcare’s § 362(k) adversary action even if a § 362(k)\\nproceeding is not a core proceeding because a § 362(k) action no\\nmatter when instituted is a case under title 11. As such, the\\nDistrict Court erred in finding that the bankruptcy court did not\\nhave jurisdiction over Healthcare’s § 362(k) action.\\n\\n Of course, our conclusion that § 362(k) creates a private\\ncause of action leads us to conclude that the bankruptcy court\\nand the District Court erred in holding the bankruptcy court had\\nthe authority to limit what claims Healthcare could bring in the\\nbankruptcy court after the dismissal of the bankruptcy petition.\\nAs a rule, federal courts must hear matters within their\\njurisdiction. Sprint Commc’ns v. Jacobs, 571 U.S. 69, 77, 134\\nS.Ct. 584, 590-91 (2013). That rule applies to bankruptcy\\ncourts. Congress authorized bankruptcy courts to exercise\\njurisdiction based on referral from the district court. See 28\\nU.S.C. § 157(a). “When a case is referred under § 157(a),\\nCongress surely intends that all jurisdiction otherwise vested in\\nthe district courts be exercised by the bankruptcy judges,” unless\\n§ 157 expressly provides otherwise. William L. Norton III, 1\\nNorton Bankr. L. & Prac. § 4:36 (3d ed. 2019); cf. Stern v.\\nMarshall, 564 U.S. 462, 480, 131 S.Ct. 2594, 2607 (2011)\\n(“Section 157 allocates the authority to enter final judgment\\nbetween the bankruptcy court and the district court. That\\nallocation does not implicate questions of subject matter\\njurisdiction.” (citation omitted)). Hence, “[w]here a bankruptcy\\ncourt has jurisdiction but is not in a position to avail itself of\\nstatutory or nonstatutory abstention, it must exercise its\\njurisdiction,” In re Johnson, 346 B.R. 190, 194 (B.A.P. 9th Cir.\\n2006), assuming, of course, that the bankruptcy’s authority to\\nadjudicate the matter is constitutional under Stern.\\n\\n\\n\\n\\n 13\\n\\f Even if we view the bankruptcy court’s reasoning as\\nessentially being based on claim preclusion, on the theory that\\nbecause Healthcare did not assert its § 362(k) claims in the\\nbankruptcy case while those proceedings were pending it cannot\\nraise the claims in a later case, that observation would not lead\\nus to uphold the dismissal of the § 362(k) action. After all,\\nfederal claim preclusion requires “(1) a final judgment on the\\nmerits in a prior suit involving (2) the same parties or their\\nprivies and (3) a subsequent suit based on the same cause of\\naction.” In re Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008)\\n(citation omitted). Here, the substantive issue to be decided in\\nthe § 362(k) action was not litigated in the bankruptcy case.\\nThus, even if we found that the § 303(i) claims are based on the\\nsame cause of action as the § 362(k) action, which we certainly\\ndo not,4 those claims are still pending and no final judgment on\\ntheir merits has issued. Accordingly, we cannot affirm the\\nDistrict Court’s order finding that the bankruptcy court had\\nauthority to bar Healthcare from filing its § 362(k) action on\\nclaim preclusion grounds.\\n\\n We have not ignored the fact that as we noted above, the\\norder dismissing the petition provided that “nothing herein shall\\nlimit [Healthcare’s] right to seek damages, including without\\n4\\n Beyond the obvious fact that the § 303(i) and § 362(k) claims\\narose from separate statutes, a determination of whether the\\nbankruptcy petition was initiated in bad faith, the issue on the §\\n303(i) motion, is completely different than a determination of\\nwhether there was a violation of the automatic stay provision by\\nreason of Healthcare’s removal. While some of the same\\nunderlying facts may be significant in both determinations,\\nproof of one does not necessarily constitute proof in the other.\\n\\n\\n\\n\\n 14\\n\\flimitation, fees and costs, pursuant to 11 U.S.C. § 303(i) or\\notherwise.” The bankruptcy court interpreted the order to\\npreserve Healthcare’s right to bring a motion for damages under\\n§ 303(i) but not its right to bring an action under § 362(k) for\\nviolation of the automatic stay. On appeal the District Court\\nheld that the bankruptcy court did not abuse its discretion in\\ncoming to this conclusion. Consequently, that Court held that\\nthe bankruptcy court did not err when it dismissed the § 362(k)\\naction. But we are not going to decipher the meaning of\\n“otherwise”, as it is immaterial.\\n\\n In their brief, appellees recite that “[t]he sole issue on this\\nAppeal is whether the bankruptcy court has the power to\\ninterpret its own orders.” Appellee’s br. at 8. This statement of\\nthe issue is incorrect because we do not have to consider what\\nthe bankruptcy court meant when it preserved Healthcare’s right\\nto seek damages “pursuant to § 303(i) or otherwise” inasmuch\\nas the dismissal of the bankruptcy proceedings in the bankruptcy\\ncourt did not foreclose a subsequent § 362(k) action by\\nHealthcare no matter what the bankruptcy court intended when\\nit dismissed the bankruptcy petition.\\n\\n Our final observation is that the District Court in\\nreaching its result may have been relying in part on its view that\\nthe § 362(k) action and the § 303(i) claims seek recovery for the\\nsame injury. But that possibility does not affect our result for\\nthe Court on the remand that we are ordering will be able to bar\\na double recovery for the same injury even if Healthcare is able\\nto establish appellees’ liability on both bases. Furthermore, the\\nCourt has the discretion to consolidate the two proceedings\\nunder appropriate circumstances which seem to be present here.\\n An additional point is that even if a plaintiff can establish that a\\ndefendant is liable for a single injury on two different bases that\\n\\n\\n\\n\\n 15\\n\\fdoes not mean that it can recover on both bases. After all, it is\\naxiomatic that a plaintiff may assert multiple claims for the same\\ninjury; indeed, Healthcare may be able to establish liability on\\none theory, but not the other. See Int’l Refugee Assistance\\nProject v. Trump, 883 F.3d 233, 258 (4th Cir. 2018) (“[T]he\\nsame injury can provide Plaintiffs with standing for multiple\\nclaims.”), rev’d on other grounds, 138 S.Ct. 2710 (2018).\\n\\n\\n\\n IV. CONCLUSION\\n\\n In summary, we conclude that the District Court erred in\\naffirming the bankruptcy court’s dismissal of Healthcare’s §\\n362(k) action. Accordingly, we will reverse the District Court’s\\nSeptember 19, 2018 order, and will remand the matter to that\\nCourt to reinstate the § 362(k) action. We do not preclude the\\nDistrict Court from further remanding the case to the bankruptcy\\ncourt.\\n\\n\\n\\n\\n 16\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4448809/\", \"author_raw\": \"GREENBERG, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"CHAGARES"},"judge2":{"kind":"string","value":"GREENAWAY JR"},"judge3":{"kind":"string","value":"GREENBERG"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"CHAGARES\": \", Circuit\", \"GREENAWAY JR\": \", Circuit\", \"GREENBERG\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4671556/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Healthcare Real Estate Partner v.\nCourt: U.S. Court of Appeals for the Third Circuit\nDate decided: 2019-10-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ______________\n\n No. 18-3267\n ______________\n\nIN RE: HEALTHCARE REAL ESTATE PARTNERS, LLC,\n Debtor\n\n\n HEALTHCARE REAL ESTATE PARTNERS, LLC,\n Appellant\n\n v.\n\n SUMMIT HEALTHCARE REIT, INC.; JOHN JACOB\n SPECKMANN; ARNOLD GOLDENBAUM; MARK\n SAULIC; BRYAN TAYLOR; RICHARD G. PETERS, AS\nTRUSTEE OF RICHARD & DARLENE PETERS TRUSTS;\nLEROY J. BLAKE, AS TRUSTEE OF LEROY J. BLAKE &\n LINDA J. BLAKE FAMILY TRUST; ROXIE M. BYBEE,\n AS TRUSTEE OF ROXIE M. BYBEE TRUST, DATED\n JULY 5, 2012; JAMES D. FRANKLIN, AS TRUSTEE OF\n JAMES D. FRANKLIN TRUST; JOHN BAIKIE, AS\n TRUSTEE OF JOHN THOMAS BAIKIE REVOCABLE\n TRUST\n\f ______________\n\n On Appeal from the United States District Court\n for the District of Delaware\n (D.C. Civ. No. 1-17-cv-01555)\n Honorable Malachy E. Mannion, District Judge\n ______________\n\n Argued June 27, 2019\n\n BEFORE: CHAGARES, GREENAWAY, JR., and\n GREENBERG, Circuit Judges\n\n (Filed: October 22, 2019)\n ______________\n\nRobert P. Goe\nGoe & Forsythe\n18101 Von Karman Avenue\nSuite 1200\nIrvine, CA 92612\n\nChristopher D. Loizides [Argued]\nLoizides\n1225 King Street\nSuite 800\nWilmington, DE 19801\n Counsel for Appellant\n\n\n\n\n 2\n\fStuart M. Brown\nR. Craig Martin [Argued]\nDLA Piper\n1201 North Market Street\nSuite 2100\nWilmington, DE 19801\n Counsel for Appellees\n\n ______________\n\n OPINION\n ______________\n\nGREENBERG, Circuit Judge.\n\n I. INTRODUCTION\n\n This matter comes on before this Court on an appeal by\nappellant Healthcare Real Estate Partners, LLC, (“Healthcare”)\nchallenging the District Court’s order affirming a bankruptcy\ncourt’s dismissal under Fed. R. Civ. P. 12(b) of Healthcare’s\nadversary proceeding filed under 11 U.S.C. § 362(k) seeking\ndamages for violation of the automatic stay that arose by reason\nof the institution of the bankruptcy proceedings. See 11 U.S.C.\n§ 362(a). Healthcare contends that neither the District Court nor\nthe bankruptcy court had a valid reason to dismiss its § 362(k)\naction without addressing its merits. For the reasons stated\nbelow, we agree with Healthcare, and thus we will reverse the\nDistrict Court’s order and remand the case to that Court to\nreinstate Healthcare’s § 362(k) action.\n\n\n\n\n 3\n\f II. FACTUAL BACKGROUND\n\n We rely on the District Court’s recitation of the facts in\nits opinion affirming the order of the bankruptcy court\ndismissing the § 362(k) action. See Healthcare Real Estate\nPartners, LLC v. Summit Healthcare Reit, Inc., No. 17-1555,\n2018 WL 4500880, at *1-2 (D. Del. Sept. 19, 2018) (“HREP”).\nNevertheless, we summarize the relevant facts. Healthcare was\nthe manager of certain investment funds. On September 16,\n2015, the investors in the funds, petitioning creditors in the\nbankruptcy court, filed an involuntary bankruptcy petition\nagainst Healthcare with the intention of seeking its removal as\nthe fund manager. Because Healthcare had not been served with\nprocess in the bankruptcy case, it did not receive notice of the\nfiling of the petition which consequently was uncontested and\nthe bankruptcy court entered an order for relief on the petition.\nSubsequently, Healthcare was removed as the fund manager,\nand the investors installed Summit Healthcare Reit, Inc.\n(“Summit”) as the new fund manager. Summit then dissolved\nthe funds. The petitioning creditors and Summit are the\nappellees on this appeal.1\n\n About a month later, obviously having learned what had\ntranspired, Healthcare filed a motion with the bankruptcy court,\nseeking to vacate the bankruptcy court’s order for relief on the\npetition due to the faulty service of process on it. The\nbankruptcy court held an evidentiary hearing on the motion\nwhich it then granted, vacating its prior order for relief. Then,\n\n1\n The clerk of this Court entered an order on November 6, 2018,\nproviding that Summit’s attorney shall be the designated filer for\nall appellees.\n\n\n\n\n 4\n\fhaving achieved their objective, appellees moved to voluntarily\ndismiss the petition. Healthcare opposed dismissal asserting that\nit had claims for damages against appellees under 11 U.S.C. §\n303(i) because it contended that the petitioning creditors had\nfiled the petition in bad faith.2 The bankruptcy court granted the\nmotion for voluntary dismissal, but retained jurisdiction in the\norder of dismissal in which it included a provision stating that\n“nothing herein shall limit [Healthcare’s] right to seek damages,\nincluding without limitation, fees and costs, pursuant to 11\nU.S.C. § 303(i) or otherwise.” HREP at *2. The court,\nhowever, did not explain what it meant by “or otherwise.” The\nparties treat the meaning of this term as the major issue on this\nappeal though, as will be seen, we take a different approach.\n\n Thereafter, Healthcare filed a motion in the bankruptcy\ncourt seeking § 303(i) damages. It also instituted an adversary\nproceeding against appellees asserting § 362(k) claims for\n2\n Healthcare contends that it informed the bankruptcy court of its\nintention to assert claims under 11 U.S.C. § 362(k) for violation\nof the automatic stay provision of the bankruptcy code. After\nthe investors removed Healthcare as the fund manager and\ninstalled Summit as the new fund manager, the fund was\ndissolved without the bankruptcy court’s knowledge. On the\nappeal, the District Court rejected Healthcare’s assertion that it\nhad made its intentions regarding § 362(k) known to the\nbankruptcy court. HREP, 2018 WL 4500880, at *1\n(“[Healthcare] did not state in its objection that it would also\nseek damages under § 362(k).”). Because we need not resolve\nthis factual dispute, we will assume, as the District Court found,\nthat Healthcare did not reveal its intentions about § 362(k)\nclaims during its opposition to the voluntary dismissal of the\npetition.\n\n\n\n\n 5\n\fviolation of the automatic stay that arose in the bankruptcy\nproceedings when the petition was filed because of the removal\nof Healthcare as the fund manager and the installation of\nSummit in that role without an order of the court. The appellees\nmoved to dismiss the § 362(k) action, arguing that it was outside\nof the scope of the bankruptcy court’s order dismissing the\npetition which they asserted allowed Healthcare to seek only §\n303(i) damages. The bankruptcy court agreed, stating that “the\nCourt [has] authority to limit you for what you can bring after\ndismissal of the case, and that’s what I intended to do.” HREP,\n2018 WL 4500880, at *5. That court made clear that when it\ndismissed the petition its intent was to allow Healthcare to bring\na claim for damages only under § 303(i). Therefore, the court\ndismissed the § 362(k) action on October 19, 2017, and, on\nHealthcare’s appeal, the District Court affirmed on September\n19, 2018, largely by adopting the bankruptcy court’s reasoning.\nThis appeal followed.\n\n\n\n III. DISCUSSION\n\n In dismissing Healthcare’s § 362(k) action, the\nbankruptcy court, and thus the District Court in reliance on the\nbankruptcy court’s reasoning held that (1) the bankruptcy court\nlacked jurisdiction over the § 362(k) claims because when it\ndismissed the petition, it retained jurisdiction only over the §\n303(i) claims, and (2) even if it could have retained jurisdiction\nover the § 362(k) claims, it had discretion to limit the claims\nHealthcare could assert before it following the dismissal of the\n\n\n\n\n 6\n\fpetition. We disagree in both respects.3\n\n We start our discussion by addressing an argument that\nappellees advance that we lack jurisdiction over this appeal.\nUnder their argument because the bankruptcy case will be\nongoing until the § 303(i) claims are resolved, which so far as\nwe are aware has not happened, the order dismissing the §\n362(k) claims was not a final appealable order, as not all claims\nasserted in the bankruptcy court have been resolved. See H.E. v.\nWalter D. Palmer Leadership Learning Partners Charter Sch.,\n873 F.3d 406, 411 (3d Cir. 2017). However, that argument\npresumes that the § 362(k) claims must be part of the\nbankruptcy case. But because, as we explain below, § 362(k)\nactions are separate and apart from the related bankruptcy cases\nin which they arise and thus stand on their own, we reject that\nargument. After all, if Healthcare’s § 362(k) action is\nindependent of the overall bankruptcy proceedings, the dismissal\nof the § 362(k) action would constitute a final order in both the\nbankruptcy court and the District Court and thus would be\nappealable to us, even if the underlying bankruptcy proceedings\nare still pending in either of those courts. See 28 U.S.C. §§\n3\n In the motion to dismiss filed with the bankruptcy court,\nappellees did not specify what federal rule they were moving\nunder, nor did the bankruptcy court articulate which rule formed\nthe basis of its dismissal order. The District Court, on appeal,\ncategorized the motion as a Rule 12(b) motion, without\nexplicitly stating which subsection of Rule 12(b) applied. While\nwe believe the motion could have been filed under Rule 12(b)(1)\nor 12(b)(6), ultimately the distinction is not significant here, as\nwe would exercise plenary review in either case. See In re\nSchering Plough Corp. Intron/Temodar Consumer Class Action,\n678 F.3d 235, 243 (3d Cir. 2012).\n\n\n\n\n 7\n\f1291 & 158(d)(1).\n\n Section 362(k) states, in relevant part, that “an individual\ninjured by any willful violation of a stay provided by this section\nshall recover actual damages, including costs and attorneys’\nfees, and, in appropriate circumstances, may recover punitive\ndamages.” 11 U.S.C. § 362(k)(1). That statute, at least not in\nterms, does not require an action brought pursuant to it to be\nfiled in an existing bankruptcy proceeding. Though we have not\nclearly addressed the question of whether § 362(k) actions must\nbe filed in an existing bankruptcy proceeding, other courts of\nappeals have held that § 362(k) actions are separate and apart\nfrom any related bankruptcy cases, and thus stand on their own.\nIn re Johnson, 575 F.3d 1079, 1083-84 (10th Cir. 2009); see\nHouck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 481 (4th Cir.\n2015); Price v. Rochford, 947 F.2d 829, 830-31 (7th Cir. 1991);\nPettitt v. Baker, 876 F.2d 456, 457-58 (5th Cir. 1989).\n\n In reaching its conclusion that recognized the separate\nstatus of § 362(k) actions, the Court of Appeals for the Tenth\nCircuit in Johnson reasoned that:\n\n It is particularly appropriate for bankruptcy courts\n to maintain jurisdiction over § 362(k)(1)\n proceedings because their purpose is not negated\n by dismissal of the underlying bankruptcy case.\n They still serve (a) to compensate for losses that\n are not extinguished by the termination of the\n bankruptcy case and (b) to vindicate the authority\n of the statutory stay . . . . Requiring the dismissal\n of a § 362(k)(1) proceeding simply because the\n underlying bankruptcy case has been dismissed\n would not make sense. A court must have the\n\n\n\n\n 8\n\f power to compensate victims of violations of the\n automatic stay and punish the violators, even after\n the conclusion of the underlying bankruptcy case.\n\n\n\nJohnson, 575 F.3d at 1083 (citations omitted). The court went\non to explain that:\n\n Nothing in the Bankruptcy Code mandates\n dismissal of the § 362(k)(1) proceeding when the\n bankruptcy case is closed . . . . No part of §\n 362(k)(1) suggests that a claim exists only while\n the bankruptcy case remains pending. And when\n Congress listed the effects of dismissing a\n bankruptcy case, it included nothing about\n automatically terminating the court’s jurisdiction\n over all adversary proceedings or mooting\n questions regarding § 362(k)(1) sanctions . . . .\n [C]ontrary to [the creditor’s] assertions, we see no\n basis for requiring a bankruptcy court to state\n explicitly that it is retaining jurisdiction over a §\n 362(k)(1) adversary proceeding when it dismisses\n an underlying [bankruptcy] case, or for requiring\n [the debtor] to move to reopen the [bankruptcy]\n case to pursue the § 362(k)(1) adversary\n proceeding.\n\n\n\nId. at 1084 (internal quotations and citations omitted). We agree\nwith the Johnson court’s reasoning, and except in one respect\nthat we set forth below adopt it here. We do not discern any\n\n\n\n\n 9\n\freason why a determination of whether an automatic stay had\nbeen violated must be litigated as part of the bankruptcy\nproceedings.\n\n We, however, question Johnson to the extent it can be\nconstrued as stating that § 362(k) actions only can be “core\nproceedings” under the bankruptcy code. Id. at 1083. The\njurisdictional statute for bankruptcy courts states that\n“[b]ankruptcy judges may hear and determine all cases under\ntitle 11 and all core proceedings arising under title 11, or arising\nin a case under title 11, referred under subsection (a) of this\nsection, and may enter appropriate orders and judgments, subject\nto review under section 158 of this title.” 28 U.S.C. § 157(b)(1).\n The statute clearly differentiates between “cases” under title 11\nand “core proceedings” under title 11. This distinction is\nunsurprising, as bankruptcy cases are unique in the federal\nsystem. Courts in bankruptcy cases routinely adjudicate\ncontract, probate, property, and other state-law claims without\nregard for the diversity of the parties’ citizenship if the\nresolution of matters in dispute is appropriate in the disposition\nof a bankruptcy case. Thus, the “core proceeding” clause of §\n157(b)(1) vests jurisdiction in a bankruptcy court to adjudicate\nclaims over which it otherwise would not have jurisdiction. See\n§ 157(b)(2) (listing examples of core proceedings); Halper v.\nHalper, 164 F.3d 830, 836 (3d Cir. 1999). Indeed, appellees rely\non this point to argue that the bankruptcy court could not have\njurisdiction over the § 362(k) action because its jurisdiction over\nany claim necessarily derives from the existence of a bankruptcy\ncase and the bankruptcy court dismissed the bankruptcy case\nprior to the institution of the § 362(k) proceeding.\n\n While the statutes certainly allow a bankruptcy court to\nadjudicate § 362(k) claims as “core proceedings,” they do not\n\n\n\n\n 10\n\frequire plaintiffs to bring such claims in that fashion. As we\nstated above, nothing in § 362(k) requires that an action filed\nunder that provision be part of an existing bankruptcy\nproceeding. Instead, a § 362(k) action is an independent private\ncause of action, meant to vindicate the right of a debtor to an\nautomatic stay during a bankruptcy proceeding. Therefore, even\nif a bankruptcy court’s jurisdiction over a § 362(k) action is not\npredicated on the “core proceeding” clause of § 157(b)(1), its\njurisdiction can be based on the express grant of jurisdiction to\nthe bankruptcy courts in § 157(b)(1) that they “may hear and\ndetermine all cases under title 11[.]” As the Court of Appeals\nfor the Fifth Circuit explained,\n\n We are cognizant that there are scant primary or\n secondary authorities applying or discussing [§\n 362(k)]. Nor is there a plethora of enlightening\n references in the relevant legislative history. We\n do not consider such essential, however, to\n today’s task. To hold that [§ 362(k)] does not\n create a private right of action would require us to\n ignore its plain and express language. As we read\n that language, we cannot but conclude that\n Congress established a remedy for an individual\n injured by a willful violation of a section 362(a)\n stay.\n\n\n\nPettitt, 876 F.2d at 457-58. See Justice Cometh, Ltd. v.\nLambert, 426 F.3d 1342, 1343 (11th Cir. 2005) (finding that\ndistrict courts have original jurisdiction over § 362(k) actions\nbecause they are “cases” under title 11, which then could be\nreferred to the bankruptcy court under § 157(a)).\n\n\n\n\n 11\n\f Our result should not surprise anyone. After all, other\ncourts of appeals have held that § 362(k) creates independent\nprivate causes of action. See, e.g., Houck, 791 F.3d at 481\n(“Congress created a private cause of action for the willful\nviolation of a stay, authorizing an individual injured by any such\nviolation to recover damages.”); Price, 947 F.2d at 830-31 (“We\nhold that 11 U.S.C. § 362([k]) creates a cause of action that can\nbe enforced after bankruptcy proceedings have terminated.”);\nsee also Garfield v. Cowen Loan Servicing, LLC, 811 F.3d 86,\n91-92 (2d Cir. 2016) (indicating that § 362(k) creates a cause of\naction for violations of the automatic stay provision). Put\nanother way, while the institution of a bankruptcy proceeding at\nsome point is necessary for the institution of a § 362(k) action,\nthe institution of a new or the continuation of an existing §\n362(k) action does not depend on the continued existence of that\nproceeding.\n\n It is also notable that even though the court indicated in\nJohnson that § 362(k) actions are core proceedings, in a\nsubsequent opinion the same court made clear that a § 362(k)\naction brought while a bankruptcy proceeding was pending may\nbe continued after the dismissal of the related bankruptcy case.\nIn re Cowen, 849 F.3d 943, 947-48 (10th Cir. 2017). Curiously,\nthe Johnson court also stated that “[c]ore proceedings are\nproceedings which have no existence outside of bankruptcy.\nActions which do not depend on the bankruptcy laws for their\nexistence and which could proceed in another court are not core\nproceedings.” 575 F.3d at 1082. Therefore, while it is unclear\nhow the Court of Appeals for the Tenth Circuit would treat a §\n362(k) action brought after the dismissal of the underlying\nbankruptcy proceeding, it in no way held that a bankruptcy court\nwould not have jurisdiction in that scenario. In any event, as we\n\n\n\n\n 12\n\fhave indicated the bankruptcy court had jurisdiction over\nHealthcare’s § 362(k) adversary action even if a § 362(k)\nproceeding is not a core proceeding because a § 362(k) action no\nmatter when instituted is a case under title 11. As such, the\nDistrict Court erred in finding that the bankruptcy court did not\nhave jurisdiction over Healthcare’s § 362(k) action.\n\n Of course, our conclusion that § 362(k) creates a private\ncause of action leads us to conclude that the bankruptcy court\nand the District Court erred in holding the bankruptcy court had\nthe authority to limit what claims Healthcare could bring in the\nbankruptcy court after the dismissal of the bankruptcy petition.\nAs a rule, federal courts must hear matters within their\njurisdiction. Sprint Commc’ns v. Jacobs, 571 U.S. 69, 77, 134\nS.Ct. 584, 590-91 (2013). That rule applies to bankruptcy\ncourts. Congress authorized bankruptcy courts to exercise\njurisdiction based on referral from the district court. See 28\nU.S.C. § 157(a). “When a case is referred under § 157(a),\nCongress surely intends that all jurisdiction otherwise vested in\nthe district courts be exercised by the bankruptcy judges,” unless\n§ 157 expressly provides otherwise. William L. Norton III, 1\nNorton Bankr. L. & Prac. § 4:36 (3d ed. 2019); cf. Stern v.\nMarshall, 564 U.S. 462, 480, 131 S.Ct. 2594, 2607 (2011)\n(“Section 157 allocates the authority to enter final judgment\nbetween the bankruptcy court and the district court. That\nallocation does not implicate questions of subject matter\njurisdiction.” (citation omitted)). Hence, “[w]here a bankruptcy\ncourt has jurisdiction but is not in a position to avail itself of\nstatutory or nonstatutory abstention, it must exercise its\njurisdiction,” In re Johnson, 346 B.R. 190, 194 (B.A.P. 9th Cir.\n2006), assuming, of course, that the bankruptcy’s authority to\nadjudicate the matter is constitutional under Stern.\n\n\n\n\n 13\n\f Even if we view the bankruptcy court’s reasoning as\nessentially being based on claim preclusion, on the theory that\nbecause Healthcare did not assert its § 362(k) claims in the\nbankruptcy case while those proceedings were pending it cannot\nraise the claims in a later case, that observation would not lead\nus to uphold the dismissal of the § 362(k) action. After all,\nfederal claim preclusion requires “(1) a final judgment on the\nmerits in a prior suit involving (2) the same parties or their\nprivies and (3) a subsequent suit based on the same cause of\naction.” In re Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008)\n(citation omitted). Here, the substantive issue to be decided in\nthe § 362(k) action was not litigated in the bankruptcy case.\nThus, even if we found that the § 303(i) claims are based on the\nsame cause of action as the § 362(k) action, which we certainly\ndo not,4 those claims are still pending and no final judgment on\ntheir merits has issued. Accordingly, we cannot affirm the\nDistrict Court’s order finding that the bankruptcy court had\nauthority to bar Healthcare from filing its § 362(k) action on\nclaim preclusion grounds.\n\n We have not ignored the fact that as we noted above, the\norder dismissing the petition provided that “nothing herein shall\nlimit [Healthcare’s] right to seek damages, including without\n4\n Beyond the obvious fact that the § 303(i) and § 362(k) claims\narose from separate statutes, a determination of whether the\nbankruptcy petition was initiated in bad faith, the issue on the §\n303(i) motion, is completely different than a determination of\nwhether there was a violation of the automatic stay provision by\nreason of Healthcare’s removal. While some of the same\nunderlying facts may be significant in both determinations,\nproof of one does not necessarily constitute proof in the other.\n\n\n\n\n 14\n\flimitation, fees and costs, pursuant to 11 U.S.C. § 303(i) or\notherwise.” The bankruptcy court interpreted the order to\npreserve Healthcare’s right to bring a motion for damages under\n§ 303(i) but not its right to bring an action under § 362(k) for\nviolation of the automatic stay. On appeal the District Court\nheld that the bankruptcy court did not abuse its discretion in\ncoming to this conclusion. Consequently, that Court held that\nthe bankruptcy court did not err when it dismissed the § 362(k)\naction. But we are not going to decipher the meaning of\n“otherwise”, as it is immaterial.\n\n In their brief, appellees recite that “[t]he sole issue on this\nAppeal is whether the bankruptcy court has the power to\ninterpret its own orders.” Appellee’s br. at 8. This statement of\nthe issue is incorrect because we do not have to consider what\nthe bankruptcy court meant when it preserved Healthcare’s right\nto seek damages “pursuant to § 303(i) or otherwise” inasmuch\nas the dismissal of the bankruptcy proceedings in the bankruptcy\ncourt did not foreclose a subsequent § 362(k) action by\nHealthcare no matter what the bankruptcy court intended when\nit dismissed the bankruptcy petition.\n\n Our final observation is that the District Court in\nreaching its result may have been relying in part on its view that\nthe § 362(k) action and the § 303(i) claims seek recovery for the\nsame injury. But that possibility does not affect our result for\nthe Court on the remand that we are ordering will be able to bar\na double recovery for the same injury even if Healthcare is able\nto establish appellees’ liability on both bases. Furthermore, the\nCourt has the discretion to consolidate the two proceedings\nunder appropriate circumstances which seem to be present here.\n An additional point is that even if a plaintiff can establish that a\ndefendant is liable for a single injury on two different bases that\n\n\n\n\n 15\n\fdoes not mean that it can recover on both bases. After all, it is\naxiomatic that a plaintiff may assert multiple claims for the same\ninjury; indeed, Healthcare may be able to establish liability on\none theory, but not the other. See Int’l Refugee Assistance\nProject v. Trump, 883 F.3d 233, 258 (4th Cir. 2018) (“[T]he\nsame injury can provide Plaintiffs with standing for multiple\nclaims.”), rev’d on other grounds, 138 S.Ct. 2710 (2018).\n\n\n\n IV. CONCLUSION\n\n In summary, we conclude that the District Court erred in\naffirming the bankruptcy court’s dismissal of Healthcare’s §\n362(k) action. Accordingly, we will reverse the District Court’s\nSeptember 19, 2018 order, and will remand the matter to that\nCourt to reinstate the § 362(k) action. We do not preclude the\nDistrict Court from further remanding the case to the bankruptcy\ncourt.\n\n\n\n\n 16\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Healthcare Real Estate Partner v.\\nCourt: U.S. Court of Appeals for the Third Circuit\\nDate decided: 2019-10-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n ______________\\n\\n No. 18-3267\\n ______________\\n\\nIN RE: HEALTHCARE REAL ESTATE PARTNERS, LLC,\\n Debtor\\n\\n\\n HEALTHCARE REAL ESTATE PARTNERS, LLC,\\n Appellant\\n\\n v.\\n\\n SUMMIT HEALTHCARE REIT, INC.; JOHN JACOB\\n SPECKMANN; ARNOLD GOLDENBAUM; MARK\\n SAULIC; BRYAN TAYLOR; RICHARD G. PETERS, AS\\nTRUSTEE OF RICHARD & DARLENE PETERS TRUSTS;\\nLEROY J. BLAKE, AS TRUSTEE OF LEROY J. BLAKE &\\n LINDA J. BLAKE FAMILY TRUST; ROXIE M. BYBEE,\\n AS TRUSTEE OF ROXIE M. BYBEE TRUST, DATED\\n JULY 5, 2012; JAMES D. FRANKLIN, AS TRUSTEE OF\\n JAMES D. FRANKLIN TRUST; JOHN BAIKIE, AS\\n TRUSTEE OF JOHN THOMAS BAIKIE REVOCABLE\\n TRUST\\n\\f ______________\\n\\n On Appeal from the United States District Court\\n for the District of Delaware\\n (D.C. Civ. No. 1-17-cv-01555)\\n Honorable Malachy E. Mannion, District Judge\\n ______________\\n\\n Argued June 27, 2019\\n\\n BEFORE: CHAGARES, GREENAWAY, JR., and\\n GREENBERG, Circuit Judges\\n\\n (Filed: October 22, 2019)\\n ______________\\n\\nRobert P. Goe\\nGoe & Forsythe\\n18101 Von Karman Avenue\\nSuite 1200\\nIrvine, CA 92612\\n\\nChristopher D. Loizides [Argued]\\nLoizides\\n1225 King Street\\nSuite 800\\nWilmington, DE 19801\\n Counsel for Appellant\\n\\n\\n\\n\\n 2\\n\\fStuart M. Brown\\nR. Craig Martin [Argued]\\nDLA Piper\\n1201 North Market Street\\nSuite 2100\\nWilmington, DE 19801\\n Counsel for Appellees\\n\\n ______________\\n\\n OPINION\\n ______________\\n\\nGREENBERG, Circuit Judge.\\n\\n I. INTRODUCTION\\n\\n This matter comes on before this Court on an appeal by\\nappellant Healthcare Real Estate Partners, LLC, (“Healthcare”)\\nchallenging the District Court’s order affirming a bankruptcy\\ncourt’s dismissal under Fed. R. Civ. P. 12(b) of Healthcare’s\\nadversary proceeding filed under 11 U.S.C. § 362(k) seeking\\ndamages for violation of the automatic stay that arose by reason\\nof the institution of the bankruptcy proceedings. See 11 U.S.C.\\n§ 362(a). Healthcare contends that neither the District Court nor\\nthe bankruptcy court had a valid reason to dismiss its § 362(k)\\naction without addressing its merits. For the reasons stated\\nbelow, we agree with Healthcare, and thus we will reverse the\\nDistrict Court’s order and remand the case to that Court to\\nreinstate Healthcare’s § 362(k) action.\\n\\n\\n\\n\\n 3\\n\\f II. FACTUAL BACKGROUND\\n\\n We rely on the District Court’s recitation of the facts in\\nits opinion affirming the order of the bankruptcy court\\ndismissing the § 362(k) action. See Healthcare Real Estate\\nPartners, LLC v. Summit Healthcare Reit, Inc., No. 17-1555,\\n2018 WL 4500880, at *1-2 (D. Del. Sept. 19, 2018) (“HREP”).\\nNevertheless, we summarize the relevant facts. Healthcare was\\nthe manager of certain investment funds. On September 16,\\n2015, the investors in the funds, petitioning creditors in the\\nbankruptcy court, filed an involuntary bankruptcy petition\\nagainst Healthcare with the intention of seeking its removal as\\nthe fund manager. Because Healthcare had not been served with\\nprocess in the bankruptcy case, it did not receive notice of the\\nfiling of the petition which consequently was uncontested and\\nthe bankruptcy court entered an order for relief on the petition.\\nSubsequently, Healthcare was removed as the fund manager,\\nand the investors installed Summit Healthcare Reit, Inc.\\n(“Summit”) as the new fund manager. Summit then dissolved\\nthe funds. The petitioning creditors and Summit are the\\nappellees on this appeal.1\\n\\n About a month later, obviously having learned what had\\ntranspired, Healthcare filed a motion with the bankruptcy court,\\nseeking to vacate the bankruptcy court’s order for relief on the\\npetition due to the faulty service of process on it. The\\nbankruptcy court held an evidentiary hearing on the motion\\nwhich it then granted, vacating its prior order for relief. Then,\\n\\n1\\n The clerk of this Court entered an order on November 6, 2018,\\nproviding that Summit’s attorney shall be the designated filer for\\nall appellees.\\n\\n\\n\\n\\n 4\\n\\fhaving achieved their objective, appellees moved to voluntarily\\ndismiss the petition. Healthcare opposed dismissal asserting that\\nit had claims for damages against appellees under 11 U.S.C. §\\n303(i) because it contended that the petitioning creditors had\\nfiled the petition in bad faith.2 The bankruptcy court granted the\\nmotion for voluntary dismissal, but retained jurisdiction in the\\norder of dismissal in which it included a provision stating that\\n“nothing herein shall limit [Healthcare’s] right to seek damages,\\nincluding without limitation, fees and costs, pursuant to 11\\nU.S.C. § 303(i) or otherwise.” HREP at *2. The court,\\nhowever, did not explain what it meant by “or otherwise.” The\\nparties treat the meaning of this term as the major issue on this\\nappeal though, as will be seen, we take a different approach.\\n\\n Thereafter, Healthcare filed a motion in the bankruptcy\\ncourt seeking § 303(i) damages. It also instituted an adversary\\nproceeding against appellees asserting § 362(k) claims for\\n2\\n Healthcare contends that it informed the bankruptcy court of its\\nintention to assert claims under 11 U.S.C. § 362(k) for violation\\nof the automatic stay provision of the bankruptcy code. After\\nthe investors removed Healthcare as the fund manager and\\ninstalled Summit as the new fund manager, the fund was\\ndissolved without the bankruptcy court’s knowledge. On the\\nappeal, the District Court rejected Healthcare’s assertion that it\\nhad made its intentions regarding § 362(k) known to the\\nbankruptcy court. HREP, 2018 WL 4500880, at *1\\n(“[Healthcare] did not state in its objection that it would also\\nseek damages under § 362(k).”). Because we need not resolve\\nthis factual dispute, we will assume, as the District Court found,\\nthat Healthcare did not reveal its intentions about § 362(k)\\nclaims during its opposition to the voluntary dismissal of the\\npetition.\\n\\n\\n\\n\\n 5\\n\\fviolation of the automatic stay that arose in the bankruptcy\\nproceedings when the petition was filed because of the removal\\nof Healthcare as the fund manager and the installation of\\nSummit in that role without an order of the court. The appellees\\nmoved to dismiss the § 362(k) action, arguing that it was outside\\nof the scope of the bankruptcy court’s order dismissing the\\npetition which they asserted allowed Healthcare to seek only §\\n303(i) damages. The bankruptcy court agreed, stating that “the\\nCourt [has] authority to limit you for what you can bring after\\ndismissal of the case, and that’s what I intended to do.” HREP,\\n2018 WL 4500880, at *5. That court made clear that when it\\ndismissed the petition its intent was to allow Healthcare to bring\\na claim for damages only under § 303(i). Therefore, the court\\ndismissed the § 362(k) action on October 19, 2017, and, on\\nHealthcare’s appeal, the District Court affirmed on September\\n19, 2018, largely by adopting the bankruptcy court’s reasoning.\\nThis appeal followed.\\n\\n\\n\\n III. DISCUSSION\\n\\n In dismissing Healthcare’s § 362(k) action, the\\nbankruptcy court, and thus the District Court in reliance on the\\nbankruptcy court’s reasoning held that (1) the bankruptcy court\\nlacked jurisdiction over the § 362(k) claims because when it\\ndismissed the petition, it retained jurisdiction only over the §\\n303(i) claims, and (2) even if it could have retained jurisdiction\\nover the § 362(k) claims, it had discretion to limit the claims\\nHealthcare could assert before it following the dismissal of the\\n\\n\\n\\n\\n 6\\n\\fpetition. We disagree in both respects.3\\n\\n We start our discussion by addressing an argument that\\nappellees advance that we lack jurisdiction over this appeal.\\nUnder their argument because the bankruptcy case will be\\nongoing until the § 303(i) claims are resolved, which so far as\\nwe are aware has not happened, the order dismissing the §\\n362(k) claims was not a final appealable order, as not all claims\\nasserted in the bankruptcy court have been resolved. See H.E. v.\\nWalter D. Palmer Leadership Learning Partners Charter Sch.,\\n873 F.3d 406, 411 (3d Cir. 2017). However, that argument\\npresumes that the § 362(k) claims must be part of the\\nbankruptcy case. But because, as we explain below, § 362(k)\\nactions are separate and apart from the related bankruptcy cases\\nin which they arise and thus stand on their own, we reject that\\nargument. After all, if Healthcare’s § 362(k) action is\\nindependent of the overall bankruptcy proceedings, the dismissal\\nof the § 362(k) action would constitute a final order in both the\\nbankruptcy court and the District Court and thus would be\\nappealable to us, even if the underlying bankruptcy proceedings\\nare still pending in either of those courts. See 28 U.S.C. §§\\n3\\n In the motion to dismiss filed with the bankruptcy court,\\nappellees did not specify what federal rule they were moving\\nunder, nor did the bankruptcy court articulate which rule formed\\nthe basis of its dismissal order. The District Court, on appeal,\\ncategorized the motion as a Rule 12(b) motion, without\\nexplicitly stating which subsection of Rule 12(b) applied. While\\nwe believe the motion could have been filed under Rule 12(b)(1)\\nor 12(b)(6), ultimately the distinction is not significant here, as\\nwe would exercise plenary review in either case. See In re\\nSchering Plough Corp. Intron/Temodar Consumer Class Action,\\n678 F.3d 235, 243 (3d Cir. 2012).\\n\\n\\n\\n\\n 7\\n\\f1291 & 158(d)(1).\\n\\n Section 362(k) states, in relevant part, that “an individual\\ninjured by any willful violation of a stay provided by this section\\nshall recover actual damages, including costs and attorneys’\\nfees, and, in appropriate circumstances, may recover punitive\\ndamages.” 11 U.S.C. § 362(k)(1). That statute, at least not in\\nterms, does not require an action brought pursuant to it to be\\nfiled in an existing bankruptcy proceeding. Though we have not\\nclearly addressed the question of whether § 362(k) actions must\\nbe filed in an existing bankruptcy proceeding, other courts of\\nappeals have held that § 362(k) actions are separate and apart\\nfrom any related bankruptcy cases, and thus stand on their own.\\nIn re Johnson, 575 F.3d 1079, 1083-84 (10th Cir. 2009); see\\nHouck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 481 (4th Cir.\\n2015); Price v. Rochford, 947 F.2d 829, 830-31 (7th Cir. 1991);\\nPettitt v. Baker, 876 F.2d 456, 457-58 (5th Cir. 1989).\\n\\n In reaching its conclusion that recognized the separate\\nstatus of § 362(k) actions, the Court of Appeals for the Tenth\\nCircuit in Johnson reasoned that:\\n\\n It is particularly appropriate for bankruptcy courts\\n to maintain jurisdiction over § 362(k)(1)\\n proceedings because their purpose is not negated\\n by dismissal of the underlying bankruptcy case.\\n They still serve (a) to compensate for losses that\\n are not extinguished by the termination of the\\n bankruptcy case and (b) to vindicate the authority\\n of the statutory stay . . . . Requiring the dismissal\\n of a § 362(k)(1) proceeding simply because the\\n underlying bankruptcy case has been dismissed\\n would not make sense. A court must have the\\n\\n\\n\\n\\n 8\\n\\f power to compensate victims of violations of the\\n automatic stay and punish the violators, even after\\n the conclusion of the underlying bankruptcy case.\\n\\n\\n\\nJohnson, 575 F.3d at 1083 (citations omitted). The court went\\non to explain that:\\n\\n Nothing in the Bankruptcy Code mandates\\n dismissal of the § 362(k)(1) proceeding when the\\n bankruptcy case is closed . . . . No part of §\\n 362(k)(1) suggests that a claim exists only while\\n the bankruptcy case remains pending. And when\\n Congress listed the effects of dismissing a\\n bankruptcy case, it included nothing about\\n automatically terminating the court’s jurisdiction\\n over all adversary proceedings or mooting\\n questions regarding § 362(k)(1) sanctions . . . .\\n [C]ontrary to [the creditor’s] assertions, we see no\\n basis for requiring a bankruptcy court to state\\n explicitly that it is retaining jurisdiction over a §\\n 362(k)(1) adversary proceeding when it dismisses\\n an underlying [bankruptcy] case, or for requiring\\n [the debtor] to move to reopen the [bankruptcy]\\n case to pursue the § 362(k)(1) adversary\\n proceeding.\\n\\n\\n\\nId. at 1084 (internal quotations and citations omitted). We agree\\nwith the Johnson court’s reasoning, and except in one respect\\nthat we set forth below adopt it here. We do not discern any\\n\\n\\n\\n\\n 9\\n\\freason why a determination of whether an automatic stay had\\nbeen violated must be litigated as part of the bankruptcy\\nproceedings.\\n\\n We, however, question Johnson to the extent it can be\\nconstrued as stating that § 362(k) actions only can be “core\\nproceedings” under the bankruptcy code. Id. at 1083. The\\njurisdictional statute for bankruptcy courts states that\\n“[b]ankruptcy judges may hear and determine all cases under\\ntitle 11 and all core proceedings arising under title 11, or arising\\nin a case under title 11, referred under subsection (a) of this\\nsection, and may enter appropriate orders and judgments, subject\\nto review under section 158 of this title.” 28 U.S.C. § 157(b)(1).\\n The statute clearly differentiates between “cases” under title 11\\nand “core proceedings” under title 11. This distinction is\\nunsurprising, as bankruptcy cases are unique in the federal\\nsystem. Courts in bankruptcy cases routinely adjudicate\\ncontract, probate, property, and other state-law claims without\\nregard for the diversity of the parties’ citizenship if the\\nresolution of matters in dispute is appropriate in the disposition\\nof a bankruptcy case. Thus, the “core proceeding” clause of §\\n157(b)(1) vests jurisdiction in a bankruptcy court to adjudicate\\nclaims over which it otherwise would not have jurisdiction. See\\n§ 157(b)(2) (listing examples of core proceedings); Halper v.\\nHalper, 164 F.3d 830, 836 (3d Cir. 1999). Indeed, appellees rely\\non this point to argue that the bankruptcy court could not have\\njurisdiction over the § 362(k) action because its jurisdiction over\\nany claim necessarily derives from the existence of a bankruptcy\\ncase and the bankruptcy court dismissed the bankruptcy case\\nprior to the institution of the § 362(k) proceeding.\\n\\n While the statutes certainly allow a bankruptcy court to\\nadjudicate § 362(k) claims as “core proceedings,” they do not\\n\\n\\n\\n\\n 10\\n\\frequire plaintiffs to bring such claims in that fashion. As we\\nstated above, nothing in § 362(k) requires that an action filed\\nunder that provision be part of an existing bankruptcy\\nproceeding. Instead, a § 362(k) action is an independent private\\ncause of action, meant to vindicate the right of a debtor to an\\nautomatic stay during a bankruptcy proceeding. Therefore, even\\nif a bankruptcy court’s jurisdiction over a § 362(k) action is not\\npredicated on the “core proceeding” clause of § 157(b)(1), its\\njurisdiction can be based on the express grant of jurisdiction to\\nthe bankruptcy courts in § 157(b)(1) that they “may hear and\\ndetermine all cases under title 11[.]” As the Court of Appeals\\nfor the Fifth Circuit explained,\\n\\n We are cognizant that there are scant primary or\\n secondary authorities applying or discussing [§\\n 362(k)]. Nor is there a plethora of enlightening\\n references in the relevant legislative history. We\\n do not consider such essential, however, to\\n today’s task. To hold that [§ 362(k)] does not\\n create a private right of action would require us to\\n ignore its plain and express language. As we read\\n that language, we cannot but conclude that\\n Congress established a remedy for an individual\\n injured by a willful violation of a section 362(a)\\n stay.\\n\\n\\n\\nPettitt, 876 F.2d at 457-58. See Justice Cometh, Ltd. v.\\nLambert, 426 F.3d 1342, 1343 (11th Cir. 2005) (finding that\\ndistrict courts have original jurisdiction over § 362(k) actions\\nbecause they are “cases” under title 11, which then could be\\nreferred to the bankruptcy court under § 157(a)).\\n\\n\\n\\n\\n 11\\n\\f Our result should not surprise anyone. After all, other\\ncourts of appeals have held that § 362(k) creates independent\\nprivate causes of action. See, e.g., Houck, 791 F.3d at 481\\n(“Congress created a private cause of action for the willful\\nviolation of a stay, authorizing an individual injured by any such\\nviolation to recover damages.”); Price, 947 F.2d at 830-31 (“We\\nhold that 11 U.S.C. § 362([k]) creates a cause of action that can\\nbe enforced after bankruptcy proceedings have terminated.”);\\nsee also Garfield v. Cowen Loan Servicing, LLC, 811 F.3d 86,\\n91-92 (2d Cir. 2016) (indicating that § 362(k) creates a cause of\\naction for violations of the automatic stay provision). Put\\nanother way, while the institution of a bankruptcy proceeding at\\nsome point is necessary for the institution of a § 362(k) action,\\nthe institution of a new or the continuation of an existing §\\n362(k) action does not depend on the continued existence of that\\nproceeding.\\n\\n It is also notable that even though the court indicated in\\nJohnson that § 362(k) actions are core proceedings, in a\\nsubsequent opinion the same court made clear that a § 362(k)\\naction brought while a bankruptcy proceeding was pending may\\nbe continued after the dismissal of the related bankruptcy case.\\nIn re Cowen, 849 F.3d 943, 947-48 (10th Cir. 2017). Curiously,\\nthe Johnson court also stated that “[c]ore proceedings are\\nproceedings which have no existence outside of bankruptcy.\\nActions which do not depend on the bankruptcy laws for their\\nexistence and which could proceed in another court are not core\\nproceedings.” 575 F.3d at 1082. Therefore, while it is unclear\\nhow the Court of Appeals for the Tenth Circuit would treat a §\\n362(k) action brought after the dismissal of the underlying\\nbankruptcy proceeding, it in no way held that a bankruptcy court\\nwould not have jurisdiction in that scenario. In any event, as we\\n\\n\\n\\n\\n 12\\n\\fhave indicated the bankruptcy court had jurisdiction over\\nHealthcare’s § 362(k) adversary action even if a § 362(k)\\nproceeding is not a core proceeding because a § 362(k) action no\\nmatter when instituted is a case under title 11. As such, the\\nDistrict Court erred in finding that the bankruptcy court did not\\nhave jurisdiction over Healthcare’s § 362(k) action.\\n\\n Of course, our conclusion that § 362(k) creates a private\\ncause of action leads us to conclude that the bankruptcy court\\nand the District Court erred in holding the bankruptcy court had\\nthe authority to limit what claims Healthcare could bring in the\\nbankruptcy court after the dismissal of the bankruptcy petition.\\nAs a rule, federal courts must hear matters within their\\njurisdiction. Sprint Commc’ns v. Jacobs, 571 U.S. 69, 77, 134\\nS.Ct. 584, 590-91 (2013). That rule applies to bankruptcy\\ncourts. Congress authorized bankruptcy courts to exercise\\njurisdiction based on referral from the district court. See 28\\nU.S.C. § 157(a). “When a case is referred under § 157(a),\\nCongress surely intends that all jurisdiction otherwise vested in\\nthe district courts be exercised by the bankruptcy judges,” unless\\n§ 157 expressly provides otherwise. William L. Norton III, 1\\nNorton Bankr. L. & Prac. § 4:36 (3d ed. 2019); cf. Stern v.\\nMarshall, 564 U.S. 462, 480, 131 S.Ct. 2594, 2607 (2011)\\n(“Section 157 allocates the authority to enter final judgment\\nbetween the bankruptcy court and the district court. That\\nallocation does not implicate questions of subject matter\\njurisdiction.” (citation omitted)). Hence, “[w]here a bankruptcy\\ncourt has jurisdiction but is not in a position to avail itself of\\nstatutory or nonstatutory abstention, it must exercise its\\njurisdiction,” In re Johnson, 346 B.R. 190, 194 (B.A.P. 9th Cir.\\n2006), assuming, of course, that the bankruptcy’s authority to\\nadjudicate the matter is constitutional under Stern.\\n\\n\\n\\n\\n 13\\n\\f Even if we view the bankruptcy court’s reasoning as\\nessentially being based on claim preclusion, on the theory that\\nbecause Healthcare did not assert its § 362(k) claims in the\\nbankruptcy case while those proceedings were pending it cannot\\nraise the claims in a later case, that observation would not lead\\nus to uphold the dismissal of the § 362(k) action. After all,\\nfederal claim preclusion requires “(1) a final judgment on the\\nmerits in a prior suit involving (2) the same parties or their\\nprivies and (3) a subsequent suit based on the same cause of\\naction.” In re Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008)\\n(citation omitted). Here, the substantive issue to be decided in\\nthe § 362(k) action was not litigated in the bankruptcy case.\\nThus, even if we found that the § 303(i) claims are based on the\\nsame cause of action as the § 362(k) action, which we certainly\\ndo not,4 those claims are still pending and no final judgment on\\ntheir merits has issued. Accordingly, we cannot affirm the\\nDistrict Court’s order finding that the bankruptcy court had\\nauthority to bar Healthcare from filing its § 362(k) action on\\nclaim preclusion grounds.\\n\\n We have not ignored the fact that as we noted above, the\\norder dismissing the petition provided that “nothing herein shall\\nlimit [Healthcare’s] right to seek damages, including without\\n4\\n Beyond the obvious fact that the § 303(i) and § 362(k) claims\\narose from separate statutes, a determination of whether the\\nbankruptcy petition was initiated in bad faith, the issue on the §\\n303(i) motion, is completely different than a determination of\\nwhether there was a violation of the automatic stay provision by\\nreason of Healthcare’s removal. While some of the same\\nunderlying facts may be significant in both determinations,\\nproof of one does not necessarily constitute proof in the other.\\n\\n\\n\\n\\n 14\\n\\flimitation, fees and costs, pursuant to 11 U.S.C. § 303(i) or\\notherwise.” The bankruptcy court interpreted the order to\\npreserve Healthcare’s right to bring a motion for damages under\\n§ 303(i) but not its right to bring an action under § 362(k) for\\nviolation of the automatic stay. On appeal the District Court\\nheld that the bankruptcy court did not abuse its discretion in\\ncoming to this conclusion. Consequently, that Court held that\\nthe bankruptcy court did not err when it dismissed the § 362(k)\\naction. But we are not going to decipher the meaning of\\n“otherwise”, as it is immaterial.\\n\\n In their brief, appellees recite that “[t]he sole issue on this\\nAppeal is whether the bankruptcy court has the power to\\ninterpret its own orders.” Appellee’s br. at 8. This statement of\\nthe issue is incorrect because we do not have to consider what\\nthe bankruptcy court meant when it preserved Healthcare’s right\\nto seek damages “pursuant to § 303(i) or otherwise” inasmuch\\nas the dismissal of the bankruptcy proceedings in the bankruptcy\\ncourt did not foreclose a subsequent § 362(k) action by\\nHealthcare no matter what the bankruptcy court intended when\\nit dismissed the bankruptcy petition.\\n\\n Our final observation is that the District Court in\\nreaching its result may have been relying in part on its view that\\nthe § 362(k) action and the § 303(i) claims seek recovery for the\\nsame injury. But that possibility does not affect our result for\\nthe Court on the remand that we are ordering will be able to bar\\na double recovery for the same injury even if Healthcare is able\\nto establish appellees’ liability on both bases. Furthermore, the\\nCourt has the discretion to consolidate the two proceedings\\nunder appropriate circumstances which seem to be present here.\\n An additional point is that even if a plaintiff can establish that a\\ndefendant is liable for a single injury on two different bases that\\n\\n\\n\\n\\n 15\\n\\fdoes not mean that it can recover on both bases. After all, it is\\naxiomatic that a plaintiff may assert multiple claims for the same\\ninjury; indeed, Healthcare may be able to establish liability on\\none theory, but not the other. See Int’l Refugee Assistance\\nProject v. Trump, 883 F.3d 233, 258 (4th Cir. 2018) (“[T]he\\nsame injury can provide Plaintiffs with standing for multiple\\nclaims.”), rev’d on other grounds, 138 S.Ct. 2710 (2018).\\n\\n\\n\\n IV. CONCLUSION\\n\\n In summary, we conclude that the District Court erred in\\naffirming the bankruptcy court’s dismissal of Healthcare’s §\\n362(k) action. Accordingly, we will reverse the District Court’s\\nSeptember 19, 2018 order, and will remand the matter to that\\nCourt to reinstate the § 362(k) action. We do not preclude the\\nDistrict Court from further remanding the case to the bankruptcy\\ncourt.\\n\\n\\n\\n\\n 16\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4563,"cells":{"id":{"kind":"number","value":4671557,"string":"4,671,557"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Consol Pennsylvania Coal Co v. MSHR"},"decision_date":{"kind":"string","value":"2019-10-22"},"docket_number":{"kind":"string","value":"18-3078"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Third Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: JORDAN, BIBAS, and NYGAARD, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JORDAN, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"PRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n _____________\\n\\n No. 18-3078\\n _____________\\n\\nCONSOL PENNSYLVANIA COAL COMPANY, LLC,\\n Petitioner\\n\\n v.\\n\\nFEDERAL MINE SAFETY AND HEALTH REVIEW\\n COMMISSION; SECRETARY UNITED STATES\\n DEPARTMENT OF LABOR,\\n Respondents\\n ______________\\n\\n On Petition for Review of a Decision of the\\n Federal Mine Safety and Health Review Commission\\n (FCMS-1: PENN 2014-816)\\n _______________\\n\\n Argued\\n June 25, 2019\\n\\nBefore: JORDAN, BIBAS, and NYGAARD, Circuit\\n Judges.\\n\\n (Opinion Filed: October 22, 2019)\\n\\f _______________\\n\\nJames P. McHugh [ARGUED]\\nChristopher D. Pence\\nHardy Pence\\n500 Lee Street – Ste. 701\\nCharleston, WV 25329\\n Counsel for Petitioner\\n\\n\\nAli A. Beydoun\\nCheryl C. Blair-Kijewski [ARGUED]\\nApril E. Nelson\\nKate S. O’Scannlain\\nUnited States Department of Labor\\nOffice of the Solicitor\\n201 12th Street South – Ste. 401\\nArlington, VA 22202\\n\\nJohn T. Sullivan\\nFederal Mine Safety and Health\\n Review Commission\\n1331 Pennsylvania Avenue, N.W. – Ste. 520N\\nWashington, DC 20004\\n Counsel for Respondents\\n _______________\\n\\n OPINION OF THE COURT\\n _______________\\n\\nJORDAN, Circuit Judge.\\n\\n As with many other things, when it comes to mining, it\\nis far better to be safe than sorry. To monitor and encourage\\n\\n\\n\\n\\n 2\\n\\fsafety, Congress and the Mine Safety and Health\\nAdministration (“MSHA”) require that mine operators notify\\nMSHA within 15 minutes after the occurrence of an injury\\nhaving “a reasonable potential to cause death.”\\n\\n This case involves that requirement, as embodied in\\nboth a statute and a regulation: 30 U.S.C. § 813(j) and 30\\nC.F.R. § 50.10(b). Robert Stern, a miner for Consol\\nPennsylvania Coal Company, LLC (“Consol”), suffered a\\ncrushing injury between two multi-ton pieces of mining\\nequipment and quickly exhibited, among other worrying\\nsymptoms, signs of internal bleeding. Without delay, Consol\\ngot Stern out of the mine and coordinated getting him to a\\nhospital, but it failed to notify MSHA for about two hours.\\nConsequently, MSHA issued a citation to Consol for violating\\n30 C.F.R. § 50.10(b). The Federal Mine Safety and Health\\nReview Commission (the “Commission”) upheld the citation\\nover Consol’s protestations.\\n\\n Consol now petitions for review, challenging several\\naspects of the Commission’s decision. We conclude that the\\nCommission did not err, and we will therefore deny the\\npetition.\\n\\nI. BACKGROUND\\n\\n A. Statutory and Regulatory Background\\n\\n The Federal Mine Safety and Health Act of 1977 (the\\n“Mine Act” or the “Act”), 30 U.S.C. § 801 et seq., was enacted\\n“for the purpose of improving the working conditions of\\nminers.” Cumberland Coal Res., LP v. Fed. Mine Safety &\\nHealth Review Comm’n, 717 F.3d 1020, 1021 (D.C. Cir. 2013).\\n\\n\\n\\n\\n 3\\n\\fIt created the agency that is now called MSHA and “gave [it]\\nbroad authority to ensure the safety of mines[.]” Big Ridge,\\nInc. v. Fed. Mine Safety & Health Review Comm’n, 715 F.3d\\n631, 635 (7th Cir. 2013). MSHA inspectors act on behalf of\\nthe Secretary of Labor and are empowered to issue citations for\\nviolations of the Mine Act or regulations promulgated under it.\\nCumberland Coal, 717 F.3d at 1021. “A mine operator can\\ncontest a citation before the … Commission …, [which is] an\\nadjudicative agency independent of the Department of Labor.”\\nSec’y of Labor v. Spartan Mining Co., 415 F.3d 82, 83 (D.C.\\nCir. 2005).\\n\\n The provision of the Mine Act primarily at issue here is\\n30 U.S.C. § 813(j). It says that, “[i]n the event of any accident\\noccurring in any coal or other mine, the operator shall notify\\n[MSHA1] … and shall take appropriate measures to prevent the\\ndestruction of any evidence which would assist in investigating\\nthe cause or causes thereof.” Id. When “the operator realizes\\nthat the death of an individual at the mine, or an injury or\\nentrapment of an individual at the mine which has a reasonable\\npotential to cause death, has occurred[,]” the notification must\\n“be provided by the operator within 15 minutes[.]” Id. The\\n15-minute requirement was added by the Mine Improvement\\nand New Emergency Response Act of 2006 (the “MINER\\nAct”), Pub. L. No. 109-236, § 5(a), 120 Stat. 493, 498 (2006).\\nIt codified a similar provision that had previously appeared in\\n\\n\\n 1\\n The statute uses the term “Secretary,” 30 U.S.C.\\n§ 813(j), referring to “the Secretary of Labor or his delegate[,]”\\nid. § 802(a). In this context, MSHA is the Secretary’s delegate.\\n29 U.S.C. § 557a.\\n\\n\\n\\n\\n 4\\n\\fan MSHA emergency regulation. S. Rep. No. 109-365, at 13\\n(2006).\\n\\n Shortly after the MINER Act became law, MSHA\\npromulgated a final regulatory version of the same notification\\nrequirement, codified at 30 C.F.R. § 50.10.2 Emergency Mine\\nEvacuation, 71 Fed. Reg. 71,430, 71,430-31, 71,434-36 (Dec.\\n8, 2006). That regulation says that an “operator shall\\nimmediately contact MSHA at once without delay and within\\n15 minutes at the toll-free number, 1-800-746-1553, once the\\noperator knows or should know that an accident has occurred\\ninvolving: … [a]n injury of an individual at the mine which has\\na reasonable potential to cause death[.]” 30 C.F.R. § 50.10(b).\\n\\n B. Factual Background\\n\\n On August 12, 2013, at about 3:15 a.m., Stern was\\ncrushed between two multi-ton pieces of mining equipment.\\nThe mine section supervisor, John McDonald, was notified of\\nthe accident within minutes, and he got to the scene three or\\nfour minutes later. When he arrived, Stern told him that “he\\ngot pinched,” that “he was in a lot of pain[,]” that he could not\\nmove his legs, and that he could feel “the pinch” on one of his\\nlegs. (App. at 242, 249.) Stern also screamed in pain when his\\nlegs were moved.\\n\\n McDonald asked the mine “bunker to call 9-1-1 to get\\nan ambulance running.” (App. at 242.) He also radioed for\\n\\n\\n\\n 2\\n We refer to the rulemaking that established that\\nregulation as the “post-MINER Act rulemaking.”\\n\\n\\n\\n\\n 5\\n\\fShannon Smith, a “fire boss mine examiner” and EMT,3 to\\ncome to the scene, saying there was “a man crushed[.]” (App.\\nat 209, 211.) Additionally, McDonald and Smith yelled for the\\n“haulage” to be cleared out of the way – as is common in an\\nemergency – to allow Consol to quickly get Stern out of the\\nmine.4 (App. at 237, 250.)\\n\\n Smith reached the scene eight to ten minutes after\\nreceiving the call. He noticed that Stern’s knee had an\\nunnatural bend to it, indicating it was broken, and that Stern\\ncould not feel or move that leg. Stern said he was in pain.\\nSmith placed Stern in a neck brace, in case Stern had a spinal\\ninjury.\\n\\n Not all of Stern’s symptoms gave cause for concern.\\nFor example, Smith told the shift foreman that Stern “was\\ncalm, collected, good, no high pulse beat or anything like that.”\\n(App. at 267.) And Stern never lost consciousness or the\\nability to respond to questions coherently, nor did he have any\\nproblem with his pulse or breathing.\\n\\n\\n\\n\\n 3\\n A fire boss mine examiner “examine[s] the whole\\nmine with the provisions of the law” for issues such as safety\\nviolations. (App. at 209.) EMTs are emergency medical\\ntechnicians, sometimes called paramedics. Smith was a\\nlicensed EMT, and McDonald had EMT training but was not\\nlicensed.\\n 4\\n “Clearing the haulage” means to “clear[] the\\nequipment out of the way” within the mine to quicken\\nextraction from the mine. (App. at 134.)\\n\\n\\n\\n\\n 6\\n\\f Nevertheless, Smith viewed Stern’s injury as “[p]retty\\nbad” and “traumatic,” and he later described it as “[t]he worst\\nof the accidents” he had treated – which otherwise mainly\\nconsisted of “[b]umps and bruises[.]” (App. at 220-21.) And,\\nin fact, some of Stern’s symptoms were alarming. Perhaps\\nmost significantly, McDonald and Smith noticed that Stern’s\\nstomach was becoming hard and distended. They both\\nrecognized that as a sign of internal bleeding.5 Stern’s own\\nfears were plain when he told Smith “[s]omething [along] the\\nlines that if something did happen to [him], please tell [his]\\nwife and family that [he] love[s] them[.]” (App. at 220.)\\n\\n McDonald and Smith called the bunker to request “Life\\nFlight,” a helicopter medevac service. Smith “wanted to err on\\nthe side of caution” because he thought internal bleeding was\\npossible, which he acknowledged can lead to death, and he\\nfeared “the possibility of – the uncontrollable.” (App. at 226,\\n236.) McDonald likewise explained that when they felt Stern’s\\nstomach, which was swelling, they got nervous and called Life\\nFlight as a precaution; he said that stomach swelling can mean\\ninternal bleeding, which he testified has a reasonable potential\\nto cause death. Smith had never called Life Flight or heard of\\nanyone doing so since he started working at the mine in\\n2009 – years before Stern’s 2013 injury – and McDonald had\\nnever called Life Flight, although he knew of times it had been\\ncalled. Despite all that, McDonald testified that he did not\\nbelieve there was a reasonable potential that Stern could die.\\n\\n\\n 5\\n Smith and McDonald were aware, however, that there\\nare different degrees of internal bleeding and that hardening\\nand swelling of the abdomen can be caused by things other than\\ninternal bleeding.\\n\\n\\n\\n\\n 7\\n\\f An attendant in the bunker called the mine safety\\nsupervisor, Michael Tennant, at home at about 3:30 or 3:45\\na.m. The attendant told Tennant that there was an injured\\nworker who had been “pinched between two [pieces of\\nequipment] and EMTs were on their way.” (App. at 279.)\\nTennant decided to go to the mine, even though he did not do\\nso for every accident. He went this time “[b]ecause an\\nemployee was pinched between two large pieces of\\nequipment.” (App. at 289.) On his way, the attendant called\\nagain. The attendant gave more information about the medical\\npersonnel and Stern’s extraction from the mine, and he said\\nthat Life Flight had been called6 and that Stern “had a broken\\nleg, [a] dislocated indicated hip or some lower-type pelvis-type\\nincident,” and “tightening of the stomach[,]” but “was\\nconscious and alert, [and] had been talking.” (App. at 280,\\n330.)\\n\\n After Tennant arrived, at around 4:30 or 4:45 a.m., he\\nspoke to Smith and others. He called MSHA at approximately\\n5:09 a.m. Tennant testified, however, that he did not think\\nthere was a reasonable potential for death. Rather, he reported\\nthe incident “because [inspectors] were going to be rolling in\\nat any point in time, and [he] didn’t want them to come in and\\nnot know anything about the event[,]” given that “Life Flight\\nwas called” and there had been “a serious accident[.]” (App.\\n\\n\\n\\n\\n 6\\n There is some ambiguity as to whether Tennant\\nlearned about the call to Life Flight during the first or second\\nconversation with the bunker attendant.\\n\\n\\n\\n\\n 8\\n\\fat 318.) He also said that Life Flight is often called even if\\ninjuries are not severe enough to notify MSHA.7\\n\\n Stern was ultimately taken to a hospital by ground\\nbecause it was too foggy for a Life Flight airlift. He did have\\ninternal bleeding, but doctors predicted it would stop within an\\nhour and a half, and it did. Surgery was performed because\\nStern had a broken pelvis.\\n\\n MSHA inspector Thomas Bochna investigated the\\nincident. He ultimately decided to issue Consol a citation\\nunder 30 C.F.R. § 50.10(b) for failing to alert MSHA about the\\naccident within the first 15 minutes after it occurred. He\\ntestified that he issued the citation based on the following\\nreasoning:\\n\\n [A]fter interviews, investigating the accident, the\\n conditions that the people onsite were observing,\\n I thought in the first 15 minutes there was enough\\n evidence with the things they were reporting that\\n the person was complaining about, what he was\\n feeling, what they were seeing, that it was\\n reasonably – you know, an injury was\\n – reasonable potential to cause death[.]\\n\\n (App. At 157.) He proposed a fine of $5,000, which was then\\nthe minimum under the statute and MSH regulations.\\n\\n\\n\\n\\n 7\\n In testimony, however, both Tennant and McDonald\\nacknowledged that “red zone” incidents – where a miner enters\\na pinch point between pieces of equipment – are quite serious.\\n\\n\\n\\n\\n 9\\n\\f C. Procedural History\\n\\n The citation was litigated before an administrative law\\njudge (“ALJ”) who upheld MSHA’s citation and the proposed\\npenalty. Consol promptly appealed to the Commission itself.\\n\\n The Commission affirmed. It first determined the\\nappropriate legal standard. It observed that, “when assessing\\nthe merits of a violation under section 50.10(b), the\\nCommission employs a reasonable person standard, resolving\\nreasonable doubt in favor of notification[,]” and it concluded\\nthat “[t]he outcome determinative inquiry in this case is\\nwhether responsible Consol employees had information that\\nwould lead a reasonable person to conclude there was a\\nreasonable potential for death based upon the nature of the\\ninjury and the totality of the circumstances.” (App. At 8, 10).\\nIt further said that, under the “totality of the circumstances”\\ntest, “the scope of the relevant evidence available to assist for\\npurposes of section 50.10(b) generally will consist of the\\nevidence available at the scene of the accident, at the time of\\nthe accident, and immediately following the accident[,]” and,\\n“[w]hile the record will often contain subsequent relevant\\ninformation from medical professionals, this information” is\\nless probative because it “will likely not materialize until the\\ntime to make a decision to notify MSHA has already passed.”\\n(App. At 8.) The Commission made clear that “[t]he\\nnotification requirement does not, and cannot, rest upon a post-\\nmedical treatment analysis of the likelihood of death from the\\ninjuries.” (App. At 9.)\\n\\n Turning to a review of the facts, the Commission agreed\\nwith the ALJ that Consol was aware of information that would\\n\\n\\n\\n\\n 10\\n\\flead a reasonable person to conclude that Stern’s injuries\\ninvolved a reasonable potential for death. It said:\\n\\n In light of the knowledge and training possessed\\n by Tennant, McDonald, and Smith, we conclude\\n that someone with sufficient authority at Consol\\n was aware of Stern’s injury-causing event.\\n These employees surely realized from their\\n training that, when a miner is pinched between\\n major pieces of equipment and then suffers from\\n a distended and hardened abdomen, there is a\\n high potential if not a likelihood of internal\\n bleeding. In turn, nearly every knowledgeable\\n witness testified to the obvious – namely,\\n internal bleeding is a potential cause of death.\\n Under these circumstances, the evidence\\n overwhelmingly demonstrates that a reasonable\\n person possessing the available information\\n would have concluded there was a reasonable\\n potential for death.\\n\\n(App. at 11; see also App. at 10 (“Perhaps most importantly\\nand certainly outcome determinative here, … [Smith and\\nMcDonald] became aware of possible internal bleeding, knew\\nsuch bleeding could cause death, and asked for a Life Flight\\ndue to concern over the nature and severity of Stern’s injuries,\\nincluding the circumstances which caused them.”).) The\\nCommission concluded that substantial evidence supported the\\nALJ’s “finding that Consol had a duty to contact MSHA\\nimmediately after the accident.” (App. at 3.)\\n\\n Next, the Commission considered the appropriate\\npenalty. It rejected Consol’s argument that the ALJ “erred in\\n\\n\\n\\n\\n 11\\n\\ffailing to consider a penalty lower than the statutory minimum\\nof $5,000 because the Commission assesses penalties de novo\\nand is not bound by” the penalty provisions in 30 U.S.C.\\n§ 820(a)(2). (App. at 13.) The Commission explained that it\\n“ha[d] determined that an assessment of penalty for a non-\\nflagrant violation of section 50.10(b) is governed by” the\\nlimitations in § 820(a)(2). (App. at 13.) And, it reasoned that\\n§ 820(a)(4) requires courts to “apply at least the minimum\\npenalties required under” § 820(a), so “[a] statutory scheme [of\\nthe sort Consol suggested] that permits the Commission to\\nassess any penalty, however minimal, but requires a reviewing\\ncourt to impose a penalty of at least $5,000, makes no sense.”\\n(App. at 14 (citation omitted).)\\n\\n Consol timely petitioned for review.\\n\\nII. DISCUSSION8\\n\\n Consol raises three primary challenges to the\\nCommission’s decision. First, it says the legal standard applied\\nby the Commission is inappropriate. Second, it asserts that the\\ncitation is not supported by substantial evidence. And third, it\\ncontends that the Commission was not bound by the mandatory\\nminimum penalty of $5,000. Each of those positions is\\nunpersuasive.\\n\\n\\n 8\\n The Commission had jurisdiction pursuant to 30\\nU.S.C. §§ 815(d), 823(d). We have jurisdiction under 30\\nU.S.C. § 816(a)(1). We review legal conclusions de novo and\\nfindings of fact for substantial evidence. Cumberland Coal\\nRes., LP v. Fed. Mine Safety & Health Review Comm’n, 515\\nF.3d 247, 252 (3d Cir. 2008).\\n\\n\\n\\n\\n 12\\n\\f A. The Commission’s Legal Standard\\n\\n Consol attacks various aspects of the legal standard\\narticulated by the Commission. But that standard is correct\\nand, indeed, compelled by the pertinent statute and regulation,\\n30 U.S.C. § 813(j) and 30 C.F.R. § 50.10(b).\\n\\n i. The Commission’s Legal Standard Is\\n Required by 30 U.S.C. § 813(j) and 30\\n C.F.R. § 50.10(b)\\n\\n The Commission’s legal standard, in summary, is as\\nfollows. First, reasonable doubts must be resolved in favor of\\nnotifying MSHA; second, liability must be assessed based on\\nwhether a reasonable person in the circumstances would view\\nthe injuries as having a reasonable potential to cause death;\\nthird, the totality of the circumstances must be considered; and\\nfourth, the focus must be on the information available around\\nthe time of the injury, so post-hoc medical evidence is less\\nprobative.\\n\\n We have never had occasion to interpret 30 U.S.C.\\n§ 813(j) or 30 C.F.R. § 50.10(b), so we start from first\\nprinciples of statutory and regulatory construction.9 Cf. Pa.\\n\\n 9\\n Consol does not argue that the regulation conflicts\\nwith the statute. Accordingly, we need not consider whether\\nthe regulation is an appropriate construction of the statute and\\nwe treat both provisions in tandem. We note, however, that\\nthere seems to be a gap between the statute and the regulation.\\nSection 813(j) says that an operator must notify MSHA “within\\n15 minutes of the time at which the operator realizes that … an\\ninjury … of an individual at the mine which has a reasonable\\npotential to cause death, has occurred[,]” 30 U.S.C. § 813(j)\\n\\n\\n\\n\\n 13\\n\\fFed’n of Sportsmen’s Clubs, Inc. v. Kempthorne, 497 F.3d 337,\\n351 (3d Cir. 2007) (“The basic tenets of statutory construction\\napply to construction of regulations[.]”). Our Pole Star is the\\nprinciple that, if a statute or rule is unambiguous, we must give\\neffect to its plain meaning. See Kisor v. Wilkie, 139 S. Ct.\\n2400, 2415 (2019) (stating the principle in the context of\\nregulatory interpretation). We are further guided by the\\nSupreme Court’s recent admonition that “hard interpretive\\nconundrums, even relating to complex rules, can often be\\nsolved” without “wav[ing] the ambiguity flag[.]” Id. Indeed,\\nwe may not consider a statute or rule to be “genuinely\\nambiguous” unless it remains unclear after we have\\n“exhaust[ed] all the ‘traditional tools’ of construction.” Id.\\n(quoting Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.,\\n467 U.S. 837, 843 n.9 (1984)). Consequently, our analysis\\nproceeds by “‘carefully consider[ing]’ the text, structure,\\nhistory, and purpose” of the statute and regulation. Id. (citation\\nomitted).\\n\\n We start with the language of the notification\\nrequirement itself. See Food Mktg. Inst. V. Argus Leader\\nMedia, 139 S. Ct. 2356, 2364 (2019) (“In statutory\\n\\n\\n(emphasis added), whereas the regulation contains a similar\\ndirective but uses the term “knows or should know” instead of\\n“realizes,” 30 C.F.R. § 50.10. But, even if we were to consider\\nthat gap, it would not affect our analysis here. The\\nCommission’s decision was premised on its conclusion that\\nConsol “knew the requisite information” and that “a reasonable\\nperson evaluating the known facts would have found a\\nreasonable potential for death.” (App. at 11 n.10 (emphasis\\nadded).) Those factual premises are sound, and we take the\\nsame approach.\\n\\n\\n\\n\\n 14\\n\\finterpretation disputes, a court’s proper starting point lies in a\\ncareful examination of the ordinary meaning and structure of\\nthe law itself.”). As referenced earlier, § 813(j) provides, in\\nrelevant part:\\n\\n In the event of any accident occurring in any coal\\n or other mine, the operator shall notify\\n [MSHA]10 thereof and shall take appropriate\\n measures to prevent the destruction of any\\n evidence which would assist in investigating the\\n cause or causes thereof. For purposes of the\\n preceding sentence, the notification required\\n shall be provided by the operator within 15\\n minutes of the time at which the operator realizes\\n that the death of an individual at the mine, or an\\n injury or entrapment of an individual at the mine\\n which has a reasonable potential to cause death,\\n has occurred.\\n\\n30 U.S.C. § 813(j). Similarly, the regulation says, in part:\\n\\n The operator shall immediately contact MSHA\\n at once without delay and within 15 minutes at\\n the toll-free number, 1–800–746–1553, once the\\n operator knows or should know that an accident\\n has occurred involving: … (b) An injury of an\\n individual at the mine which has a reasonable\\n potential to cause death[.]\\n\\n\\n\\n\\n 10\\n Again, MSHA is the delegate of the Secretary of\\nLabor.\\n\\n\\n\\n\\n 15\\n\\f30 C.F.R. § 50.10. On its face, that language does not specify\\nthe standard by which one is to determine whether an injury\\nfrom a mine accident is one “which has a reasonable potential\\nto cause death.” Thus, we look to other sources of guidance.\\n\\n The first source we consider is the stated purpose of the\\nMine Act. The “Congressional findings and declaration of\\npurpose[,]” set forth in 30 U.S.C. § 801, specify that the goal\\nof the Mine Act is to protect miners. Section 801 says, for\\nexample, that “the first priority and concern of all in the coal\\nor other mining industry must be the health and safety of its\\nmost precious resource – the miner”; that “deaths and serious\\ninjuries from unsafe and unhealthful conditions and practices\\nin the coal or other mines cause grief and suffering to the\\nminers and to their families”; and that “there is an urgent need\\nto provide more effective means and measures for improving\\nthe working conditions and practices in the Nation’s coal or\\nother mines in order to prevent death and serious physical\\nharm[.]” 30 U.S.C. § 801(a)-(c); see also Thunder Basin Coal\\nCo. v. Reich, 510 U.S. 200, 202 (1994) (“Congress adopted the\\nMine Act ‘to protect the health and safety of the Nation’s coal\\nor other miners.’” (quoting 30 U.S.C. § 801(g)). Moreover,\\n§ 801 makes clear that miner protection is central to the mining\\nindustry’s interests, so the Mine Act does not seek to balance\\nminers’ safety against any inconvenience associated with\\ncompliance that mine operators might face. See 30 U.S.C.\\n§ 801(d) (“[T]he existence of unsafe and unhealthful\\nconditions and practices in the Nation’s coal or other mines is\\na serious impediment to the future growth of the coal or other\\nmining industry and cannot be tolerated[.]”); see also id.\\n§ 801(f) (“[T]he disruption of production and the loss of\\nincome to operators and miners as a result of coal or other mine\\naccidents … unduly impedes and burdens commerce[.]”).\\n\\n\\n\\n\\n 16\\n\\f The second source of guidance we look to is the\\nobjectives of the notification requirement itself. That\\nrequirement is plainly designed to encourage rapid notification\\nso that MSHA can respond effectively in an emergency and\\npreserve evidence to facilitate later investigation. Section\\n813(j) specifies that “any accident occurring in any coal or\\nother mine” is to be reported to MSHA. Id. § 813(j). So it is\\nnot just potentially deadly accidents that are reportable.11\\nFurthermore, § 813(j) says that mine operators must “take\\nappropriate measures to prevent the destruction of any\\nevidence which would assist in investigating the cause or\\ncauses” of an accident and, “where rescue and recovery work\\nis necessary, [MSHA] shall take whatever action [it] deems\\nappropriate to protect the life of any person, and [it] may, if [it]\\ndeems it appropriate, supervise and direct the rescue and\\nrecovery activities[.]” Id. Thus, concern for the preservation\\n“of any evidence which would assist in investigating the cause\\nor causes” of accidents, and, more importantly, the need for\\ngovernment action “to protect the life of any person” and\\nmanage “rescue and recovery activities[,]” id., justify reporting\\nof non-lethal accidents too. The 15-minute notification\\nwindow is in force for potentially deadly accidents, and reflects\\nthe naturally heightened level of concern. When death is a\\nreasonable possibility, “[i]mmediate notification activates\\nMSHA emergency response efforts, which can be critical in\\nsaving lives, stabilizing the situation, and preserving the\\n\\n 11\\n Under the Mine Act, “accident” is defined to include\\n“a mine explosion, mine ignition, mine fire, or mine\\ninundation, or injury to, or death of, any person[.]” 30 U.S.C.\\n§ 802(k).\\n\\n\\n\\n\\n 17\\n\\faccident scene[,]” and “[p]rompt notification enables MSHA\\nto secure an accident site, preserving vital evidence that can\\notherwise be easily lost.”12 Emergency Mine Evacuation, 71\\nFed. Reg. at 71,431, 71,435.\\n\\n The final source of guidance is the history of the\\nnotification requirement. Relevant here, the 15-minute rule\\nwas added to the statutory framework by the MINER Act,\\nwhich was enacted largely in response to three lethal mining\\naccidents. S. Rep. No. 109-365, at 1-2, 9; see also Cumberland\\nCoal, 717 F.3d at 1022 (“The violations at issue in this case\\narose under amendments to the [Mine] Act enacted in response\\nto three multiple-fatality mine disasters, in which miners who\\nwere unable to evacuate mines died.”). The MINER Act\\nSenate Report explained that “[t]hese tragedies serve as a\\nsomber reminder that even that which has been done well can\\nalways be done better.” S. Rep. No. 109-365, at 2. The\\nMINER Act codified an MSHA emergency regulation that first\\nimposed the 15-minute notification rule. See Emergency Mine\\nEvacuation, 71 Fed. Reg. 12,252 (Mar. 9, 2006).\\n\\n That earlier MSHA emergency regulation was\\npromulgated in response to two of the same incidents that\\n\\n 12\\n Under the regulation, the 15-minute notification\\nrequirement attaches to all “accident[s,]” 30 C.F.R. § 50.10,\\nand the regulatory definition of “[a]ccident” includes 12\\nspecific types of events, including “[a]n injury to an individual\\nat a mine which has a reasonable potential to cause death[,]”\\nid. § 50.2(h) (emphasis added). The statute and regulation thus\\nagree that potentially deadly accidents require notification\\nwithin 15 minutes. Cf. id. § 50.10(a)-(c) (requiring notification\\nwithin 15 minutes for deadly or potentially deadly accidents).\\n\\n\\n\\n\\n 18\\n\\fmotivated the MINER Act. Id. at 12,252, 12,253-54; see also\\nCumberland Coal, 717 F.3d at 1022 (“Also in the wake of the\\ndisasters, MSHA issued an Emergency Temporary Standard on\\nemergency mine evacuations in March 2006.”). The\\nemergency rulemaking explained that, “[i]n response to the\\nrecent accidents …, MSHA has determined that new accident\\nnotification, safety and training standards are necessary to\\nfurther protect miners when a mine accident takes place.”\\nEmergency Mine Evacuation, 71 Fed. Reg. at 12,253. The\\nvery first of the “new standards” described was the 15-minute\\nrule, and MSHA emphasized that the rule would serve to better\\nprotect miners by facilitating the objectives of the notification\\nrequirement, as set out above. See id. (“Such immediate\\nnotification will enable help to arrive sooner at the mine, and\\nprotect miners from the grave dangers of physical injury and\\ndeath.”); id. at 12,257 (“Notification alerts the Agency so that\\naccident investigations and assistance to trapped or injured\\nminers can be initiated.”). In sum, the history of the\\nnotification requirement shows that a 15-minute provision was\\nadopted in response to deadly mine accidents and was meant\\nto increase the speed of notification to allow MSHA to more\\neffectively protect miners.\\n\\n Considering those several guideposts together, it is\\nplain that the notification requirement was designed to serve\\nthe Mine Act’s unyielding purpose of protecting miners by\\nencouraging rapid notification, thereby allowing MSHA to\\neffectively initiate an emergency response and to ensure the\\npreservation of evidence for use in investigations. The\\nnotification requirement should be interpreted to effectuate that\\npurpose. In light of that, the Commission’s legal standard is\\nentirely sound, as a consideration of each of the four\\ncomponents of that legal standard demonstrates.\\n\\n\\n\\n\\n 19\\n\\f 1. Reasonable Doubts Must Be\\n Resolved in Favor of\\n Notification\\n\\n First, it makes sense that all reasonable doubts must be\\nresolved in favor of notifying MSHA. If the rule were\\notherwise, mine operators would be encouraged not to call\\nMSHA until an accident was sure to be life threatening,13\\ndespite the standard being an accident having “a reasonable\\npotential to cause death.” The severity and scope of an\\nemergency are rarely apparent in the moment, and by the time\\nclarity has been achieved, an MSHA response may be too little,\\ntoo late. Furthermore, no risk to miners would result from an\\nerroneous MSHA notification, whereas substantial risk could\\nresult from a failure to notify, with MSHA being prevented\\nfrom initiating an emergency response and beginning a\\nsuccessful investigation. Given that the notification\\n\\n\\n 13\\n The Commission said that it “has not found it\\nnecessary to” define “reasonable potential to cause death.”\\n(App. at 7 (citing Secretary of Labor v. Signal Peak Energy,\\nLLC, 37 FMSHRC 470, 474 (2015)).) In Signal Peak, the\\nCommission observed that it was enough to say the accident\\nwas “life-threatening[,]” because, in that case, the miner’s\\n“injuries clearly [fell] within the realm of a reasonable\\npotential to cause death[.]” 37 FMSHRC at 474 (citation and\\ninternal quotation marks omitted). Therefore, the Commission\\nboth here and in Signal Peak concluded that the injuries at issue\\nhad a reasonable potential to cause death under a “life\\nthreatening” standard. We follow the Commission’s lead in\\nthat regard and use “life threatening” as a working\\ninterpretation of “reasonable potential to cause death.”\\n\\n\\n\\n\\n 20\\n\\frequirement and the statutory and regulatory scheme at issue\\nare designed to provide robust protections for miners – and not\\nto balance those protections against compliance\\ndifficulties – the only rule that effectuates the purpose of the\\nstatute and regulation is one that requires notification in cases\\nwhere there is reasonable doubt whether the accident will\\nprove to have “a reasonable potential to cause death.”\\n\\n Consol argues that requiring reasonable doubts to be\\nresolved in favor of notification appears nowhere in the text of\\nthe statue or regulation and that adopting such a rule shifts the\\nburden of proof to the operator. But that argument misses the\\nmark, because a logical reading of the text does support the\\nrule, as we have just explained, and, in any event, text is the\\nstarting point in understanding a statute or regulation, not\\nnecessarily the ending point. Moreover, the conclusion that\\nreasonably doubtful cases require notification has nothing to\\ndo with who must prove whether a case falls into the\\n“reasonably doubtful” category.\\n\\n 2. The Notification Requirement\\n Must Be Interpreted from the\\n Perspective of a Reasonable\\n Person in the Circumstances\\n\\n Second, the notification requirement must be analyzed\\non an objective basis, asking whether a reasonable person in\\nthe circumstances would view a miner’s injury as having a\\nreasonable potential to cause death. Only an objective test\\nensures that mine operators cannot weaken miner protection by\\nasserting their subjective views as a defense against calling\\nMSHA. An objective standard – which focuses on the\\nreasonably perceived severity of an accident in the\\n\\n\\n\\n\\n 21\\n\\fmoment – likewise reinforces the incentive for mine operators\\nto notify MSHA quickly, when the agency can take effective\\naction.\\n\\n To its credit, Consol does not claim that a subjective\\nstandard would suffice. Rather, the alternative rule it argues\\nfor would require MSHA to prove that the injured miner\\nactually faced a reasonable potential for death as a matter of\\nmedical fact, even if the actual severity of his injuries was\\nunknowable at the time of the incident. That rule, however,\\nlike a subjective standard, would undermine what the\\nnotification requirement seeks to accomplish. In marginal\\ncases, it would encourage mine operators to forego calling\\nMSHA after an accident in the hopes that the true but presently\\nunknown medical facts would turn out to be better than those\\nperceived in the moment. Under Consol’s proposal, an injury\\nwould not become reportable until a mine operator has gained\\nsufficient expert advice to say with medical certainty that the\\ninjury had a reasonable potential to cause death. That, of\\ncourse, would mean almost certain delay, since physicians are\\nnot on standby in mines.14 Consol’s rule would thus frustrate\\nrather than facilitate reporting. See Sec’y of Labor v. Cougar\\n\\n 14\\n Consol asserts that delay would not be a problem,\\ncontending that “[t]he immediacy burden on Consol has\\nnothing to do with the elemental burden on the Secretary.”\\n(Opening Br. at 27.) But we fail to see how that could be so.\\nIf MSHA can only prove whether an injury having a reasonable\\npotential to cause death occurred by resorting to medical\\nevidence, it follows that a mine operator could not have\\nsufficient awareness of the occurrence of such an injury until\\nthe medical evidence is available, and it is highly unlikely to\\nbe available on site.\\n\\n\\n\\n\\n 22\\n\\fCoal Co., 25 FMSHRC 513, 521 (2003) (“If we were to accept\\nthe [ALJ’s] construction [requiring that MSHA furnish a\\nmedical opinion that a miner’s injuries had a reasonable\\npotential to cause death], a medical or clinical opinion of the\\npotential of death would be needed before an accident is even\\ndetermined to be reportable under section 50.10. Such a\\nconstruction would serve to frustrate the immediate reporting\\nof near fatal accidents.”).\\n\\n The conclusion that a “reasonable person in the\\ncircumstances” standard is the required one – and that a rule\\nfocused on the eventually proven medical severity of an injury\\nis not – is further supported by our determination that\\nreasonable doubts must be resolved in favor of notification.\\nWhen the perceived severity of an injury is high but the true\\nmedical severity is not yet known, a mine operator should\\nsurely have a reasonable doubt about concluding that no\\nreasonable potential for death exists.\\n\\n Finally, in Mainline Rock & Ballast, Inc. v. Secretary of\\nLabor, 693 F.3d 1181 (10th Cir. 2012), one of the few Court\\nof Appeals opinions on point, the Tenth Circuit upheld a\\ncitation under 30 C.F.R. § 50.10(b) by applying a “reasonable\\nperson in the circumstances” test, and it did so without ever\\naddressing whether MSHA had proven that the injury involved\\na reasonable potential for death as a matter of medical fact.\\nMainline Rock, 693 F.3d at 1189. Further, and importantly, the\\ncourt nowhere described that regulation as ambiguous, but\\n\\n\\n\\n\\n 23\\n\\frather treated the standard it applied as the one obviously and\\nlogically required.15\\n\\n Although the foregoing analysis adequately\\ndemonstrates that the statute and regulation are governed by a\\n“reasonable person in the circumstances” standard, that\\nconclusion is reinforced by the history of the regulation. The\\npost-MINER Act rulemaking expressly said that the\\nnotification inquiry “is based on what a reasonable person\\nwould discern under the circumstances, particularly when\\n‘[t]he decision to call MSHA must be made in a matter of\\nminutes after a serious accident.’” Emergency Mine\\nEvacuation, 71 Fed. Reg. at 71,434 (alteration in original)\\n(emphasis added) (citation omitted). And it rejected a focus on\\nthe medical facts, stating, “the operator’s decision as to what\\nconstitutes a ‘reasonable potential to cause death’ ‘cannot be\\nmade upon the basis of clinical or hypertechnical opinions as\\nto a miner’s chance of survival.’” Id. at 71,433-34 (citation\\nomitted).\\n\\n In short, the standard that best accomplishes the aims of\\nthe notification requirement is one that focuses on whether a\\nreasonable mine operator in the circumstances would perceive\\na reasonable potential for death. Consol challenges that\\nconclusion by asserting that, under a “reasonable person in the\\ncircumstances” standard, “the operator would face an ever-\\nmoving target and have no way to defend itself[.]” (Opening\\nBr. at 26.) Not so. The target is clear, even if it is not the one\\nConsol would prefer to have in its sights. Giving Consol what\\n\\n 15\\n Because the operative language of the statute and\\nregulation are the same, we view Mainline Rock as supporting\\nour interpretation of both.\\n\\n\\n\\n\\n 24\\n\\fit wants – a complete defense based on medical facts unknown\\nat the time – would, as set out above, substantially conflict with\\nthe statutory and regulatory framework before us.16\\n\\n 3. The Totality of the\\n Circumstances Must Be\\n Considered\\n\\n It is also clear that § 813(j) and its regulatory\\ncounterpart, § 50.10(b), must be applied in light of the “totality\\nof the circumstances.” Under a “reasonable person in the\\ncircumstances” standard, the circumstances to be considered\\nare necessarily all of them, not just some. How else could one\\nbe expected to assess whether an injury suggests a reasonable\\npotential for death, other than by using a “totality of the\\ncircumstances” test? Injuries, by the very nature of the\\naccidents that cause them and the complexity of the human\\nbody, come in too many varieties to easily catalogue. And the\\nfactors suggesting that an injury is serious are just as diverse.\\nA “totality” inquiry is thus proper because, as with other\\nmatters of judgment, whether an injury is reasonably perceived\\nas life threatening is “not readily, or even usefully, reduced to\\na neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232,\\n238 (1983) (concluding that a “totality of the circumstances”\\ntest was appropriate in a Fourth Amendment case); see also\\n\\n\\n 16\\n Consol also argues that, “[h]istorically, ALJs actually\\nrequired the Secretary to present medical proof to sustain a\\nviolation[.]” (Opening Br. at 23.) That argument, however,\\ngains no traction because, even if the historical assertion is\\naccurate, the statute and regulation are unambiguous, and ALJ\\ndecisions neither bind the Commission nor qualify as agency\\nprecedent. 29 C.F.R. § 2700.69(d); Big Ridge, 715 F.3d at 640.\\n\\n\\n\\n\\n 25\\n\\fMainline Rock, 693 F.3d at 1189 (upholding a citation under\\n30 C.F.R. § 50.10(b) after holistically analyzing a mining\\naccident and concluding that “the obvious circumstances of the\\naccident would have triggered some minimal degree of inquiry\\nin a reasonable person, thus prompting a call to the MSHA”).\\n\\n Again, the purpose of the notification requirement has\\nto be borne in mind. Myopically focusing on one factor or a\\nsubset of factors, rather than the totality of the\\ncircumstances, would permit mine operators to avoid calling\\nMSHA, even while possessing information reasonably\\nshowing that an injury is life threatening, simply because that\\ninformation did not fit into an artificially-constructed category.\\nAny test other than one based on a “totality of the\\ncircumstances” would thus put miners at unnecessary risk and\\nwould undermine the purposes and design of the notification\\nrequirement.\\n\\n The necessity of a “totality” approach is underscored by\\nthe above-noted conclusion that all reasonable doubts must be\\nresolved in favor of notification. A holistic approach captures\\nthe full range of information that could lead to reasonable\\ndoubts about concluding that no reasonable potential for death\\nexists.\\n\\n The history of the regulation remains instructive. The\\nnotification decision was expressly contemplated as being\\n“based on what a reasonable person would discern under the\\ncircumstances[.]” Emergency Mine Evacuation, 71 Fed. Reg.\\nat 71,434 (emphasis added). And, the drafters of the regulation\\nexplained that injuries involving a reasonable potential for\\ndeath “can result from various indicative events,” so they\\n\\n\\n\\n\\n 26\\n\\fencouraged that all factors, including the injury itself and the\\nnature of the accident, be considered.17 Id.\\n\\n Consol mainly challenges the “totality of the\\ncircumstances” rule on the ground that it permits factors not\\nlisted in the statute or regulation to overcome a lack of medical\\nevidence. In that regard, it contends that the focus must be on\\nthe injury alone and not the circumstances surrounding it\\n\\n 17\\n We note that “totality of the circumstances” can be\\nread in two different, albeit related, ways. First, it can refer to\\nwhat the mine operator must consider in deciding whether to\\ncall MSHA. Second, it can refer to the evidence courts and the\\nCommission should consider in evaluating a notification\\ncharge. In our view, both readings are appropriate and\\nrequired. That is so for the first reading for all the reasons set\\nout above. And it is so for the second reading because that\\nreading is simply the adjudicatory corollary of the first.\\n The second reading is broader than the first, as it allows\\nconsideration of evidence that was not actually before the mine\\noperator at the time the operator made the decision whether to\\nnotify MSHA. But considering all available evidence is\\nappropriate at the adjudication stage because it can provide\\nimportant circumstantial evidence of what a reasonable mine\\noperator would have perceived. For example, if there were\\nlittle direct evidence of what a mine operator actually saw\\naround the time of an accident, but the record demonstrated\\nthat numerous mine employees were nearby when the accident\\noccurred and that a post-hoc medical examination revealed that\\nthe injured miner had been bleeding profusely since the\\nmoment of injury, the post-hoc medical evidence could be\\nviewed as significant circumstantial evidence of what was\\nknown at the scene.\\n\\n\\n\\n\\n 27\\n\\f– such as the nature of the accident – because “injury” is what\\nappears in the text. It further asserts that “[r]ushing to get\\nsomeone to the hospital fast is not proof that someone may die”\\nand neither “is the nature of the accident (e.g., a car being\\ntotaled sounds terrible, but people walk away from such\\naccidents).” (Reply Br. at 16 n.9.) And, more generally, it\\nwarns that, “[i]f the Court allows uninterpreted generalized\\nobservations to act as a substitute for evidence, then all the\\nSecretary will have to do is call one witness to describe a\\nchaotic injury scene and the ALJ, who also has no medical\\ntraining, would then be free to speculate that virtually any\\ninjury has a reasonable potential to cause death.” (Reply Br. at\\n17.)\\n\\n Those arguments conveniently neglect that generalized\\nobservations are evidence, often crucial evidence, and nothing\\nin the statute or regulation requires or even encourages that\\nthey be ignored. Consol’s suggestion that a “totality” standard\\nis inappropriate because it allows consideration of factors that\\nare not listed in the statute or regulation rests on the blinkered\\nnotion that only that which is express and nothing that is\\nplainly implied is the meaning of a text. Ordinary experience\\nand general legal principles prove that wrong. Cf. Gates, 462\\nU.S. at 232, 238 (adopting a “totality of the circumstances” test\\nin the probable cause context even though the Fourth\\nAmendment does not mention “totality of the circumstances”\\nor describe what those circumstances might include).\\n\\n Furthermore, Consol’s argument that a “totality”\\ninquiry can wrongly be used to “overcome” a lack of medical\\nevidence could only be true if the notification requirement\\nfocused on whether the injured miner faced a reasonable\\npotential for death as a matter of medical fact. But that is not\\n\\n\\n\\n\\n 28\\n\\fthe case, for reasons already discussed. Later-developed\\nmedical evidence is not the focus. And, we cannot accept the\\ncontention that the notification requirement forbids\\nconsideration of the circumstances surrounding an injury, such\\nas the nature of the accident that caused it.\\n\\n Relatedly, Consol’s assertion that some factors\\nconsidered under a “totality” inquiry might not prove a\\nreasonable potential for death is beside the point. Yes, an\\nindividual fact taken in isolation may not prove something, but\\nthat does not make the fact irrelevant. The very reason to have\\na “totality” inquiry is so that all facts can be considered\\ntogether and analyzed holistically. In that regard, the fear that\\na mere description of a chaotic scene will lead to liability is\\nunfounded. Under a test that examines all available evidence,\\na description of a chaotic scene, without more, is unlikely to\\nestablish that an injury involving a reasonable potential for\\ndeath had occurred. It is the “more,” not the chaotic scene, that\\nConsol needs to be chiefly worried about.\\n\\n Lastly, Consol’s position is unconvincing in light of\\nwhat both the post-MINER Act rulemaking and Mainline Rock\\npersuasively instruct. The rulemaking explained that certain\\ninjuries involving a reasonable potential for death “can result\\nfrom various indicative events,” demonstrating that the nature\\nof the accident is a relevant consideration. Emergency Mine\\nEvacuation, 71 Fed. Reg. at 71,434. And, in Mainline Rock,\\nthe court made clear that the nature of the accident is relevant\\nand, indeed, could be dispositive. See 693 F.3d at 1189 (“Th[e]\\nknowledge [that a miner had been pulled through a roller] alone\\nwould have alerted [a mining official] to the severity of the\\naccident and the potential for death.”).\\n\\n\\n\\n\\n 29\\n\\f 4. The Focus of the Notification\\n Requirement Must Be on the\\n Information Available at the\\n Time of Injury, So Post-Hoc\\n Medical Evidence Is Less\\n Probative\\n\\n Finally, because the focus of the notification\\nrequirement must be on the information available to the mine\\noperator around the time of the injury, post-hoc medical\\nevidence is less probative of whether MSHA should be\\nnotified. If reasonable doubts are to be resolved in favor of\\nnotification, evidence that was not available at the time of the\\ninjury, such as post-hoc medical evidence, will not resolve\\nreasonable doubts created in the moment by an injury that is\\napparently life threatening. The focus must be on the facts\\navailable at the time of injury, and post-hoc medical evidence\\ncan, at best, serve in the attenuated role of raising an inference\\nabout what the mine operator perceived, including the injury’s\\napparent severity. If the totality of the circumstances around\\nthe time of the accident is considered – as it must be – the\\nimportance of post-hoc evidence will necessarily be diluted.18\\n\\n\\n\\n 18\\n Consol counters that, “[u]ntil now, hospital-based\\ninformation has been routinely relied upon by the Commission\\nin other cases.” (Reply Br. at 12.) But neither of the decisions\\nConsol cites actually relied on such evidence. See Signal Peak,\\n37 FMSHRC at 473, 476-77; Cougar Coal, 25 FMSHRC at\\n521. More to the point, however, nothing in the Commission’s\\nruling or in ours today prevents reliance on hospital-based\\ninformation, when that information is kept in proper\\nperspective.\\n\\n\\n\\n\\n 30\\n\\f ii. Consol’s Additional Challenges to the\\n Commission’s Legal Standard Are\\n Unavailing\\n\\n Consol raises two additional arguments challenging the\\nCommission’s legal standard and its application here. Neither\\nconvinces us that the Commission erred.\\n\\n 1. Reasonable Person Comparator\\n Evidence\\n\\n Consol first argues that, if we adopt a “reasonable\\nperson in the circumstances” standard, MSHA should have to\\npresent comparator evidence to prove what a reasonable person\\nwould have done. It says that, in Secretary of Labor v. Leeco,\\nInc., No. KENT 2012-166, 2016 WL 4158378 (F.M.S.H.R.C.\\nJuly 18, 2016), the Commission required such proof.\\n\\n That argument overreads Leeco. In that case, the\\nCommission simply said that, when MSHA seeks to prove that\\na mining company acted negligently, it cannot satisfy its\\nburden by saying the company “should have done more” and,\\ninstead, must “show[] what additional steps” the company\\nshould have taken to meet its standard of care. Id. at *4-5. That\\nobservation is inapposite to notification cases, in which there\\nis no need to determine what “additional steps” might have\\nbeen required. The core question in cases like this is whether\\na reasonable mine operator would have called MSHA, and that\\nquestion is answerable through evidence of the facts available\\naround the time of the accident. Indeed, that has been the\\nCommission’s approach, Secretary of Labor v. Signal Peak\\nEnergy, LLC, 37 FMSHRC 470, 475-77 (2015), and the Tenth\\nCircuit followed it as well in Mainline Rock, 693 F.3d at 1189.\\n\\n\\n\\n\\n 31\\n\\f Furthermore, whether someone acted reasonably is\\ntypically a question for the finder of fact, at least as long as\\n“reasonableness” is within the factfinder’s common\\nknowledge and experience. See, e.g., Natale v. Camden Cty.\\nCorr. Facility, 318 F.3d 575, 580 (3d Cir. 2003) (“A\\nreasonable jury could conclude that [Prison Health Service]\\npersonnel were negligent absent expert testimony. … While\\nlaypersons are unlikely to know how often insulin-dependent\\ndiabetics need insulin, common sense – the judgment imparted\\nby human experience – would tell a layperson that medical\\npersonnel charged with caring for an insulin-dependent\\ndiabetic should determine how often the diabetic needs\\ninsulin.”); Wilburn v. Maritrans GP Inc., 139 F.3d 350, 360\\n(3d Cir. 1998) (“The jury could have found [based on its\\ncommon understanding] that Maritrans was liable for\\nnegligence because the Samson line was not released in a\\nmanner that was reasonably prudent under the exigent\\ncircumstances confronting the persons aboard the\\nEnterprise.”); cf. Vázquez-Filippetti v. Banco Popular de P.R.,\\n504 F.3d 43, 50 (1st Cir. 2007) (“[A] typical tort claim involves\\nthe generic ‘reasonably prudent person’ standard of care (or\\nduty) and requires the plaintiff to present no evidence about the\\ndefendant’s duty[.]”). It is within the province of the\\nCommission’s ALJs to determine whether a reasonable mine\\noperator would have perceived a reasonable potential for death.\\nCf. Thunder Basin, 510 U.S. at 214 (explaining that claims\\narising under the Mine Act “fall squarely within the\\nCommission’s expertise”).\\n\\n Nothing in the statute or regulation suggests an intent to\\ncreate a novel evidentiary rule requiring “reasonable person”\\ncomparator evidence. We presume that rulemaking authorities\\nare aware of existing law when they promulgate statutes or\\n\\n\\n\\n\\n 32\\n\\fregulations. Cf. Mississippi ex rel. Hood v. AU Optronics\\nCorp., 571 U.S. 161, 169 (2014) (“[W]e presume that Congress\\nis aware of existing law when it passes legislation.” (citation\\nand internal quotation marks omitted)). If Consol’s proposed\\nevidentiary rule had been envisioned, it would surely have\\nbeen made explicit in the statute and regulation.\\n\\n 2. Fair Notice\\n\\n Second, Consol argues that it did not have fair notice of\\neither the Commission’s “totality of the circumstances” test or\\nits “reasonable person in the circumstances” standard. Consol\\nraises a number of arguments in that regard, but, based on a\\nsingle line of reasoning, we conclude that all are without merit.\\n\\n The Fifth Amendment’s Due Process Clause is violated\\nfor lack of fair notice if a statute or regulation “fails to provide\\na person of ordinary intelligence fair notice of what is\\nprohibited, or is so standardless that it authorizes or encourages\\nseriously discriminatory enforcement.” FTC v. Wyndham\\nWorldwide Corp., 799 F.3d 236, 249 (3d Cir. 2015) (citation\\nomitted). That “fair notice doctrine extends to civil cases,\\nparticularly where a penalty is imposed.” Id. at 250. But, a\\nparty necessarily has fair notice of how a statute or regulation\\nwill be interpreted if only one interpretation is unambiguously\\ncompelled by the provision at issue.19 See Sec’y of Labor v.\\n\\n\\n 19\\n That is not to say that a party can never raise a fair\\nnotice challenge to unambiguous laws. For example, a\\nprovision may plainly require a certain legal standard that itself\\ndoes not provide fair notice of how it will be applied. A fair\\nnotice challenge would be appropriate in that circumstance to\\ncontest the required standard.\\n\\n\\n\\n\\n 33\\n\\fBeverly Healthcare-Hillview, 541 F.3d 193, 197-98 (3d Cir.\\n2008) (“Before we assess … whether Beverly had fair notice\\nof that interpretation, we must determine whether the meaning\\nof regulatory language is ‘free from doubt.’ … If Beverly is\\ncorrect [that the language is unambiguous], our inquiry would\\nbe at an end.” (citation omitted)). Here, we have concluded\\nthat the Commission’s legal standard is plainly compelled by\\nthe statute and regulation. Consol thus had fair notice of it.\\n\\n To the extent Consol’s argument is that the\\nCommission’s legal standard fails to provide fair notice of how\\nit will be applied and so Consol lacked fair notice that the\\nspecific factual scenario at issue here would constitute a\\nnotification violation, again its position is unpersuasive.\\nWhere, as here, an economic regulation is in question, fair\\nnotice is deemed given unless “the relevant standard is ‘so\\nvague as to be no rule or standard at all[,]’” which is an\\n“especially lax” requirement.20 Wyndham, 799 F.3d at 250\\n(citation omitted). The Commission’s legal standard is not so\\nvague as to fall into that category,21 and, as suggested already\\n\\n 20\\n Recall that whether 30 C.F.R. § 50.10 is a proper\\ninterpretation of 30 U.S.C. § 813(j) is not at issue here.\\n 21\\n Courts commonly conclude that MSHA complies\\nwith the fair notice requirement when it “take[s] action to\\ncorrect violations that would be apparent to a reasonably\\nprudent miner.” Consol Buchanan Mining Co. v. Sec’y of\\nLabor, 841 F.3d 642, 649-50 (4th Cir. 2016). Here, the\\nCommission’s legal standard allows mine operators to be\\npenalized only if a reasonable mine operator would have\\nviewed a miner’s injuries as involving a reasonable potential\\nfor death.\\n\\n\\n\\n\\n 34\\n\\fand detailed further herein, we think it extraordinarily clear\\nthat the injuries in this case reflected a reasonable potential for\\ndeath.\\n\\n B. Substantial Evidence Supports the\\n Commission’s Decision\\n\\n Consol also argues that substantial evidence does not\\nsupport the citation against it. That is a surprising argument,\\nto say the least. The factual finding at issue here is the ALJ’s\\ndetermination – agreed to and affirmed by the\\nCommission – that “responsible Consol employees had\\ninformation that would lead a reasonable person to conclude\\nthere was a reasonable potential for death[.]”22 (App. at 10.)\\nThat finding is conclusive if it is supported by substantial\\n\\n\\n 22\\n That conclusion is essentially a finding of fact. See\\nRestatement (Second) of Torts § 328B cmt. g (Am. Law Inst.\\n1965) (noting that “[n]ormally the determination of the\\nquestion whether the defendant has conformed to the standard\\nof conduct required of him by the law is for the jury” and that\\n“it is customarily regarded as a question of fact”); U.S. Gypsum\\nCo. v. Schiavo Bros., 668 F.2d 172, 176 n.2 (3d Cir. 1981)\\n(explaining that the issue of “how a reasonable person would\\nhave acted in a like situation” is “a determination that is\\npeculiarly one for the factfinder”); cf. Cumberland Coal, 515\\nF.3d at 259 (“The Commission correctly concluded that there\\nwas substantial evidence to support the January 16 citation,\\nsince ‘a reasonably prudent person would have recognized that\\nthe bleeder system failed to continuously dilute and move the\\nmethane-air mixture from the worked-out area away from the\\nactive workings.’” (citation omitted)).\\n\\n\\n\\n\\n 35\\n\\fevidence, “mean[ing] such relevant evidence as a reasonable\\nmind might accept as adequate to support [the] conclusion.”\\nCumberland Coal Res., LP v. Fed. Mine Safety & Health\\nReview Comm’n, 515 F.3d 247, 252 (3d Cir. 2008) (citation\\nomitted).\\n\\n Like the Commission, “we conclude that someone with\\nsufficient authority at Consol was aware of Stern’s injury-\\ncausing event[,]” given “the knowledge and training possessed\\nby Tennant, McDonald, and Smith,” and that “the evidence\\noverwhelmingly demonstrates that a reasonable person\\npossessing the available information would have concluded\\nthere was a reasonable potential for death.”23 (App. at 11.)\\n\\n To recapitulate some relevant facts, McDonald learned\\nimmediately after the accident that Stern had been crushed\\nbetween multi-ton pieces of equipment, was in severe pain,\\ncould not move his legs, and could feel “the pinch” on one leg.\\nMcDonald called for Smith (an EMT), for an ambulance, and\\n(along with Smith) for the mine haulage to be cleared so Stern\\ncould be evacuated. McDonald knew the serious consequences\\nof such an accident. Smith viewed Stern’s injury as “[p]retty\\nbad” and “traumatic[.]” (App. at 220.) Demonstrating concern\\nthat Stern might have a spinal injury, Smith placed him in a\\nneck brace.\\n\\n On the way out of the mine, Smith and McDonald\\nnoticed that Stern’s stomach was becoming hard and distended,\\na sign, they knew, of internal bleeding. Both recognized that\\n\\n 23\\n Consol does not challenge that the knowledge of\\nTennant, McDonald, and Smith can be imputed to it for\\npurposes of the notification analysis.\\n\\n\\n\\n\\n 36\\n\\finternal bleeding can lead to death. And Smith and McDonald\\nwere sufficiently concerned about Stern’s stomach symptoms\\nto request a Life Flight evacuation. Neither Smith nor\\nMcDonald had ever called Life Flight before, and Smith had\\nnot heard of anyone doing so since he started working at\\nConsol years before. Additionally, Stern himself evidently\\nthought the accident could be fatal, and he said as much by\\nasking Smith to pass on his love to his wife and family.\\n\\n Furthermore, Tennant was called about the accident and\\ndecided to go to the mine, even though he did not always do so\\nafter an accident. He did so in this instance because Stern had\\nbeen caught between two large pieces of equipment.\\n\\n In short, McDonald, Smith, Tennant, and Stern all had\\nreactions to the injury indicating an expectation that the injury\\nwas life threatening. On this record, there is certainly “such\\nrelevant evidence as a reasonable mind might accept as\\nadequate to support” the finding that Consol possessed\\ninformation that would lead a reasonable mine operator to\\nconclude that a reasonable potential for death existed.\\nCumberland Coal, 515 F.3d at 252 (citation omitted). Consol\\nshould have called MSHA within the prescribed 15-minute\\nwindow.\\n\\n None of this is to fault McDonald, Smith, or Tennant\\nfor how they responded to Stern’s injury. They reacted quickly\\nand commendably to provide effective care to Stern in his\\nextremity. We simply conclude that a reasonable mine\\noperator, possessing the information they had, would have\\n\\n\\n\\n\\n 37\\n\\fbelieved the incident had a reasonable potential to turn fatal,\\nand there was thus an obligation to call MSHA.24\\n\\n C. The Commission Was Bound by the\\n Mandatory Minimum Penalty\\n\\n Consol’s final argument is that the Commission was not\\nbound by the $5,000 statutory minimum penalty under 30\\nU.S.C. § 820(a)(2) for notification violations. Again, the\\ncompany is wrong.\\n\\n Section 820 is the Mine Act’s penalties section. Under\\nsubsection (a)(2), “[t]he operator of a coal or other mine who\\nfails to provide timely notification to the Secretary as required\\nunder section 813(j) … (relating to the 15 minute requirement)\\nshall be assessed a civil penalty by the Secretary of not less\\nthan $5,000 and not more than $60,000.” 30 U.S.C.\\n§ 820(a)(2). And, under subsection (i), “[t]he Commission\\nshall have authority to assess all civil penalties provided in this\\nchapter.” Id. § 820(i). The penalties set out in\\n§ 820(a), including the mandatory minimums, are “penalties\\nprovided in this chapter,” meaning that the Commission is\\nbound by those minimums.\\n\\n 24\\n Additionally, and relatedly, our opinion should not be\\nread to discourage mine operators from taking precautions\\nsuch as calling for an airlift in the event of a mine injury. A\\nmine operator’s reaction to an injury is, of course, relevant in\\nassessing that injury’s reasonably perceived severity. But,\\nunder a “totality of the circumstances” approach, a mine\\noperator’s reaction to a particular injury is considered\\nalongside, inter alia, how the operator has reacted to other, less\\nsevere injuries.\\n\\n\\n\\n\\n 38\\n\\f In addition, subsection (a)(4) provides, “If a\\ncourt … sustains [an order imposing a penalty described in this\\nsubsection], the court shall apply at least the minimum\\npenalties required under this subsection.” Id. § 820(a)(4). We\\nagree with the Commission that, given that language in\\n§ 820(a)(4), “[a] statutory scheme that permit[ted] the\\nCommission to assess any penalty, however minimal, but\\nrequire[d] a reviewing court to impose a penalty of at least\\n$5,000, [would] make[] no sense.” (App. at 14.)\\n\\n In sum, the Commission was bound by the mandatory\\nminimum set forth in 30 U.S.C. § 820(a)(2), and its conclusion\\nin that regard was not erroneous.\\n\\nIII. CONCLUSION\\n\\n For the foregoing reasons, we will deny the petition for\\nreview.\\n\\n\\n\\n\\n 39\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4448810/\", \"author_raw\": \"JORDAN, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"JORDAN"},"judge2":{"kind":"string","value":"BIBAS"},"judge3":{"kind":"string","value":"NYGAARD"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JORDAN\": \", Circuit\", \"BIBAS\": \", Circuit\", \"NYGAARD\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4671557/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Consol Pennsylvania Coal Co v. MSHR\nCourt: U.S. Court of Appeals for the Third Circuit\nDate decided: 2019-10-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n No. 18-3078\n _____________\n\nCONSOL PENNSYLVANIA COAL COMPANY, LLC,\n Petitioner\n\n v.\n\nFEDERAL MINE SAFETY AND HEALTH REVIEW\n COMMISSION; SECRETARY UNITED STATES\n DEPARTMENT OF LABOR,\n Respondents\n ______________\n\n On Petition for Review of a Decision of the\n Federal Mine Safety and Health Review Commission\n (FCMS-1: PENN 2014-816)\n _______________\n\n Argued\n June 25, 2019\n\nBefore: JORDAN, BIBAS, and NYGAARD, Circuit\n Judges.\n\n (Opinion Filed: October 22, 2019)\n\f _______________\n\nJames P. McHugh [ARGUED]\nChristopher D. Pence\nHardy Pence\n500 Lee Street – Ste. 701\nCharleston, WV 25329\n Counsel for Petitioner\n\n\nAli A. Beydoun\nCheryl C. Blair-Kijewski [ARGUED]\nApril E. Nelson\nKate S. O’Scannlain\nUnited States Department of Labor\nOffice of the Solicitor\n201 12th Street South – Ste. 401\nArlington, VA 22202\n\nJohn T. Sullivan\nFederal Mine Safety and Health\n Review Commission\n1331 Pennsylvania Avenue, N.W. – Ste. 520N\nWashington, DC 20004\n Counsel for Respondents\n _______________\n\n OPINION OF THE COURT\n _______________\n\nJORDAN, Circuit Judge.\n\n As with many other things, when it comes to mining, it\nis far better to be safe than sorry. To monitor and encourage\n\n\n\n\n 2\n\fsafety, Congress and the Mine Safety and Health\nAdministration (“MSHA”) require that mine operators notify\nMSHA within 15 minutes after the occurrence of an injury\nhaving “a reasonable potential to cause death.”\n\n This case involves that requirement, as embodied in\nboth a statute and a regulation: 30 U.S.C. § 813(j) and 30\nC.F.R. § 50.10(b). Robert Stern, a miner for Consol\nPennsylvania Coal Company, LLC (“Consol”), suffered a\ncrushing injury between two multi-ton pieces of mining\nequipment and quickly exhibited, among other worrying\nsymptoms, signs of internal bleeding. Without delay, Consol\ngot Stern out of the mine and coordinated getting him to a\nhospital, but it failed to notify MSHA for about two hours.\nConsequently, MSHA issued a citation to Consol for violating\n30 C.F.R. § 50.10(b). The Federal Mine Safety and Health\nReview Commission (the “Commission”) upheld the citation\nover Consol’s protestations.\n\n Consol now petitions for review, challenging several\naspects of the Commission’s decision. We conclude that the\nCommission did not err, and we will therefore deny the\npetition.\n\nI. BACKGROUND\n\n A. Statutory and Regulatory Background\n\n The Federal Mine Safety and Health Act of 1977 (the\n“Mine Act” or the “Act”), 30 U.S.C. § 801 et seq., was enacted\n“for the purpose of improving the working conditions of\nminers.” Cumberland Coal Res., LP v. Fed. Mine Safety &\nHealth Review Comm’n, 717 F.3d 1020, 1021 (D.C. Cir. 2013).\n\n\n\n\n 3\n\fIt created the agency that is now called MSHA and “gave [it]\nbroad authority to ensure the safety of mines[.]” Big Ridge,\nInc. v. Fed. Mine Safety & Health Review Comm’n, 715 F.3d\n631, 635 (7th Cir. 2013). MSHA inspectors act on behalf of\nthe Secretary of Labor and are empowered to issue citations for\nviolations of the Mine Act or regulations promulgated under it.\nCumberland Coal, 717 F.3d at 1021. “A mine operator can\ncontest a citation before the … Commission …, [which is] an\nadjudicative agency independent of the Department of Labor.”\nSec’y of Labor v. Spartan Mining Co., 415 F.3d 82, 83 (D.C.\nCir. 2005).\n\n The provision of the Mine Act primarily at issue here is\n30 U.S.C. § 813(j). It says that, “[i]n the event of any accident\noccurring in any coal or other mine, the operator shall notify\n[MSHA1] … and shall take appropriate measures to prevent the\ndestruction of any evidence which would assist in investigating\nthe cause or causes thereof.” Id. When “the operator realizes\nthat the death of an individual at the mine, or an injury or\nentrapment of an individual at the mine which has a reasonable\npotential to cause death, has occurred[,]” the notification must\n“be provided by the operator within 15 minutes[.]” Id. The\n15-minute requirement was added by the Mine Improvement\nand New Emergency Response Act of 2006 (the “MINER\nAct”), Pub. L. No. 109-236, § 5(a), 120 Stat. 493, 498 (2006).\nIt codified a similar provision that had previously appeared in\n\n\n 1\n The statute uses the term “Secretary,” 30 U.S.C.\n§ 813(j), referring to “the Secretary of Labor or his delegate[,]”\nid. § 802(a). In this context, MSHA is the Secretary’s delegate.\n29 U.S.C. § 557a.\n\n\n\n\n 4\n\fan MSHA emergency regulation. S. Rep. No. 109-365, at 13\n(2006).\n\n Shortly after the MINER Act became law, MSHA\npromulgated a final regulatory version of the same notification\nrequirement, codified at 30 C.F.R. § 50.10.2 Emergency Mine\nEvacuation, 71 Fed. Reg. 71,430, 71,430-31, 71,434-36 (Dec.\n8, 2006). That regulation says that an “operator shall\nimmediately contact MSHA at once without delay and within\n15 minutes at the toll-free number, 1-800-746-1553, once the\noperator knows or should know that an accident has occurred\ninvolving: … [a]n injury of an individual at the mine which has\na reasonable potential to cause death[.]” 30 C.F.R. § 50.10(b).\n\n B. Factual Background\n\n On August 12, 2013, at about 3:15 a.m., Stern was\ncrushed between two multi-ton pieces of mining equipment.\nThe mine section supervisor, John McDonald, was notified of\nthe accident within minutes, and he got to the scene three or\nfour minutes later. When he arrived, Stern told him that “he\ngot pinched,” that “he was in a lot of pain[,]” that he could not\nmove his legs, and that he could feel “the pinch” on one of his\nlegs. (App. at 242, 249.) Stern also screamed in pain when his\nlegs were moved.\n\n McDonald asked the mine “bunker to call 9-1-1 to get\nan ambulance running.” (App. at 242.) He also radioed for\n\n\n\n 2\n We refer to the rulemaking that established that\nregulation as the “post-MINER Act rulemaking.”\n\n\n\n\n 5\n\fShannon Smith, a “fire boss mine examiner” and EMT,3 to\ncome to the scene, saying there was “a man crushed[.]” (App.\nat 209, 211.) Additionally, McDonald and Smith yelled for the\n“haulage” to be cleared out of the way – as is common in an\nemergency – to allow Consol to quickly get Stern out of the\nmine.4 (App. at 237, 250.)\n\n Smith reached the scene eight to ten minutes after\nreceiving the call. He noticed that Stern’s knee had an\nunnatural bend to it, indicating it was broken, and that Stern\ncould not feel or move that leg. Stern said he was in pain.\nSmith placed Stern in a neck brace, in case Stern had a spinal\ninjury.\n\n Not all of Stern’s symptoms gave cause for concern.\nFor example, Smith told the shift foreman that Stern “was\ncalm, collected, good, no high pulse beat or anything like that.”\n(App. at 267.) And Stern never lost consciousness or the\nability to respond to questions coherently, nor did he have any\nproblem with his pulse or breathing.\n\n\n\n\n 3\n A fire boss mine examiner “examine[s] the whole\nmine with the provisions of the law” for issues such as safety\nviolations. (App. at 209.) EMTs are emergency medical\ntechnicians, sometimes called paramedics. Smith was a\nlicensed EMT, and McDonald had EMT training but was not\nlicensed.\n 4\n “Clearing the haulage” means to “clear[] the\nequipment out of the way” within the mine to quicken\nextraction from the mine. (App. at 134.)\n\n\n\n\n 6\n\f Nevertheless, Smith viewed Stern’s injury as “[p]retty\nbad” and “traumatic,” and he later described it as “[t]he worst\nof the accidents” he had treated – which otherwise mainly\nconsisted of “[b]umps and bruises[.]” (App. at 220-21.) And,\nin fact, some of Stern’s symptoms were alarming. Perhaps\nmost significantly, McDonald and Smith noticed that Stern’s\nstomach was becoming hard and distended. They both\nrecognized that as a sign of internal bleeding.5 Stern’s own\nfears were plain when he told Smith “[s]omething [along] the\nlines that if something did happen to [him], please tell [his]\nwife and family that [he] love[s] them[.]” (App. at 220.)\n\n McDonald and Smith called the bunker to request “Life\nFlight,” a helicopter medevac service. Smith “wanted to err on\nthe side of caution” because he thought internal bleeding was\npossible, which he acknowledged can lead to death, and he\nfeared “the possibility of – the uncontrollable.” (App. at 226,\n236.) McDonald likewise explained that when they felt Stern’s\nstomach, which was swelling, they got nervous and called Life\nFlight as a precaution; he said that stomach swelling can mean\ninternal bleeding, which he testified has a reasonable potential\nto cause death. Smith had never called Life Flight or heard of\nanyone doing so since he started working at the mine in\n2009 – years before Stern’s 2013 injury – and McDonald had\nnever called Life Flight, although he knew of times it had been\ncalled. Despite all that, McDonald testified that he did not\nbelieve there was a reasonable potential that Stern could die.\n\n\n 5\n Smith and McDonald were aware, however, that there\nare different degrees of internal bleeding and that hardening\nand swelling of the abdomen can be caused by things other than\ninternal bleeding.\n\n\n\n\n 7\n\f An attendant in the bunker called the mine safety\nsupervisor, Michael Tennant, at home at about 3:30 or 3:45\na.m. The attendant told Tennant that there was an injured\nworker who had been “pinched between two [pieces of\nequipment] and EMTs were on their way.” (App. at 279.)\nTennant decided to go to the mine, even though he did not do\nso for every accident. He went this time “[b]ecause an\nemployee was pinched between two large pieces of\nequipment.” (App. at 289.) On his way, the attendant called\nagain. The attendant gave more information about the medical\npersonnel and Stern’s extraction from the mine, and he said\nthat Life Flight had been called6 and that Stern “had a broken\nleg, [a] dislocated indicated hip or some lower-type pelvis-type\nincident,” and “tightening of the stomach[,]” but “was\nconscious and alert, [and] had been talking.” (App. at 280,\n330.)\n\n After Tennant arrived, at around 4:30 or 4:45 a.m., he\nspoke to Smith and others. He called MSHA at approximately\n5:09 a.m. Tennant testified, however, that he did not think\nthere was a reasonable potential for death. Rather, he reported\nthe incident “because [inspectors] were going to be rolling in\nat any point in time, and [he] didn’t want them to come in and\nnot know anything about the event[,]” given that “Life Flight\nwas called” and there had been “a serious accident[.]” (App.\n\n\n\n\n 6\n There is some ambiguity as to whether Tennant\nlearned about the call to Life Flight during the first or second\nconversation with the bunker attendant.\n\n\n\n\n 8\n\fat 318.) He also said that Life Flight is often called even if\ninjuries are not severe enough to notify MSHA.7\n\n Stern was ultimately taken to a hospital by ground\nbecause it was too foggy for a Life Flight airlift. He did have\ninternal bleeding, but doctors predicted it would stop within an\nhour and a half, and it did. Surgery was performed because\nStern had a broken pelvis.\n\n MSHA inspector Thomas Bochna investigated the\nincident. He ultimately decided to issue Consol a citation\nunder 30 C.F.R. § 50.10(b) for failing to alert MSHA about the\naccident within the first 15 minutes after it occurred. He\ntestified that he issued the citation based on the following\nreasoning:\n\n [A]fter interviews, investigating the accident, the\n conditions that the people onsite were observing,\n I thought in the first 15 minutes there was enough\n evidence with the things they were reporting that\n the person was complaining about, what he was\n feeling, what they were seeing, that it was\n reasonably – you know, an injury was\n – reasonable potential to cause death[.]\n\n (App. At 157.) He proposed a fine of $5,000, which was then\nthe minimum under the statute and MSH regulations.\n\n\n\n\n 7\n In testimony, however, both Tennant and McDonald\nacknowledged that “red zone” incidents – where a miner enters\na pinch point between pieces of equipment – are quite serious.\n\n\n\n\n 9\n\f C. Procedural History\n\n The citation was litigated before an administrative law\njudge (“ALJ”) who upheld MSHA’s citation and the proposed\npenalty. Consol promptly appealed to the Commission itself.\n\n The Commission affirmed. It first determined the\nappropriate legal standard. It observed that, “when assessing\nthe merits of a violation under section 50.10(b), the\nCommission employs a reasonable person standard, resolving\nreasonable doubt in favor of notification[,]” and it concluded\nthat “[t]he outcome determinative inquiry in this case is\nwhether responsible Consol employees had information that\nwould lead a reasonable person to conclude there was a\nreasonable potential for death based upon the nature of the\ninjury and the totality of the circumstances.” (App. At 8, 10).\nIt further said that, under the “totality of the circumstances”\ntest, “the scope of the relevant evidence available to assist for\npurposes of section 50.10(b) generally will consist of the\nevidence available at the scene of the accident, at the time of\nthe accident, and immediately following the accident[,]” and,\n“[w]hile the record will often contain subsequent relevant\ninformation from medical professionals, this information” is\nless probative because it “will likely not materialize until the\ntime to make a decision to notify MSHA has already passed.”\n(App. At 8.) The Commission made clear that “[t]he\nnotification requirement does not, and cannot, rest upon a post-\nmedical treatment analysis of the likelihood of death from the\ninjuries.” (App. At 9.)\n\n Turning to a review of the facts, the Commission agreed\nwith the ALJ that Consol was aware of information that would\n\n\n\n\n 10\n\flead a reasonable person to conclude that Stern’s injuries\ninvolved a reasonable potential for death. It said:\n\n In light of the knowledge and training possessed\n by Tennant, McDonald, and Smith, we conclude\n that someone with sufficient authority at Consol\n was aware of Stern’s injury-causing event.\n These employees surely realized from their\n training that, when a miner is pinched between\n major pieces of equipment and then suffers from\n a distended and hardened abdomen, there is a\n high potential if not a likelihood of internal\n bleeding. In turn, nearly every knowledgeable\n witness testified to the obvious – namely,\n internal bleeding is a potential cause of death.\n Under these circumstances, the evidence\n overwhelmingly demonstrates that a reasonable\n person possessing the available information\n would have concluded there was a reasonable\n potential for death.\n\n(App. at 11; see also App. at 10 (“Perhaps most importantly\nand certainly outcome determinative here, … [Smith and\nMcDonald] became aware of possible internal bleeding, knew\nsuch bleeding could cause death, and asked for a Life Flight\ndue to concern over the nature and severity of Stern’s injuries,\nincluding the circumstances which caused them.”).) The\nCommission concluded that substantial evidence supported the\nALJ’s “finding that Consol had a duty to contact MSHA\nimmediately after the accident.” (App. at 3.)\n\n Next, the Commission considered the appropriate\npenalty. It rejected Consol’s argument that the ALJ “erred in\n\n\n\n\n 11\n\ffailing to consider a penalty lower than the statutory minimum\nof $5,000 because the Commission assesses penalties de novo\nand is not bound by” the penalty provisions in 30 U.S.C.\n§ 820(a)(2). (App. at 13.) The Commission explained that it\n“ha[d] determined that an assessment of penalty for a non-\nflagrant violation of section 50.10(b) is governed by” the\nlimitations in § 820(a)(2). (App. at 13.) And, it reasoned that\n§ 820(a)(4) requires courts to “apply at least the minimum\npenalties required under” § 820(a), so “[a] statutory scheme [of\nthe sort Consol suggested] that permits the Commission to\nassess any penalty, however minimal, but requires a reviewing\ncourt to impose a penalty of at least $5,000, makes no sense.”\n(App. at 14 (citation omitted).)\n\n Consol timely petitioned for review.\n\nII. DISCUSSION8\n\n Consol raises three primary challenges to the\nCommission’s decision. First, it says the legal standard applied\nby the Commission is inappropriate. Second, it asserts that the\ncitation is not supported by substantial evidence. And third, it\ncontends that the Commission was not bound by the mandatory\nminimum penalty of $5,000. Each of those positions is\nunpersuasive.\n\n\n 8\n The Commission had jurisdiction pursuant to 30\nU.S.C. §§ 815(d), 823(d). We have jurisdiction under 30\nU.S.C. § 816(a)(1). We review legal conclusions de novo and\nfindings of fact for substantial evidence. Cumberland Coal\nRes., LP v. Fed. Mine Safety & Health Review Comm’n, 515\nF.3d 247, 252 (3d Cir. 2008).\n\n\n\n\n 12\n\f A. The Commission’s Legal Standard\n\n Consol attacks various aspects of the legal standard\narticulated by the Commission. But that standard is correct\nand, indeed, compelled by the pertinent statute and regulation,\n30 U.S.C. § 813(j) and 30 C.F.R. § 50.10(b).\n\n i. The Commission’s Legal Standard Is\n Required by 30 U.S.C. § 813(j) and 30\n C.F.R. § 50.10(b)\n\n The Commission’s legal standard, in summary, is as\nfollows. First, reasonable doubts must be resolved in favor of\nnotifying MSHA; second, liability must be assessed based on\nwhether a reasonable person in the circumstances would view\nthe injuries as having a reasonable potential to cause death;\nthird, the totality of the circumstances must be considered; and\nfourth, the focus must be on the information available around\nthe time of the injury, so post-hoc medical evidence is less\nprobative.\n\n We have never had occasion to interpret 30 U.S.C.\n§ 813(j) or 30 C.F.R. § 50.10(b), so we start from first\nprinciples of statutory and regulatory construction.9 Cf. Pa.\n\n 9\n Consol does not argue that the regulation conflicts\nwith the statute. Accordingly, we need not consider whether\nthe regulation is an appropriate construction of the statute and\nwe treat both provisions in tandem. We note, however, that\nthere seems to be a gap between the statute and the regulation.\nSection 813(j) says that an operator must notify MSHA “within\n15 minutes of the time at which the operator realizes that … an\ninjury … of an individual at the mine which has a reasonable\npotential to cause death, has occurred[,]” 30 U.S.C. § 813(j)\n\n\n\n\n 13\n\fFed’n of Sportsmen’s Clubs, Inc. v. Kempthorne, 497 F.3d 337,\n351 (3d Cir. 2007) (“The basic tenets of statutory construction\napply to construction of regulations[.]”). Our Pole Star is the\nprinciple that, if a statute or rule is unambiguous, we must give\neffect to its plain meaning. See Kisor v. Wilkie, 139 S. Ct.\n2400, 2415 (2019) (stating the principle in the context of\nregulatory interpretation). We are further guided by the\nSupreme Court’s recent admonition that “hard interpretive\nconundrums, even relating to complex rules, can often be\nsolved” without “wav[ing] the ambiguity flag[.]” Id. Indeed,\nwe may not consider a statute or rule to be “genuinely\nambiguous” unless it remains unclear after we have\n“exhaust[ed] all the ‘traditional tools’ of construction.” Id.\n(quoting Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.,\n467 U.S. 837, 843 n.9 (1984)). Consequently, our analysis\nproceeds by “‘carefully consider[ing]’ the text, structure,\nhistory, and purpose” of the statute and regulation. Id. (citation\nomitted).\n\n We start with the language of the notification\nrequirement itself. See Food Mktg. Inst. V. Argus Leader\nMedia, 139 S. Ct. 2356, 2364 (2019) (“In statutory\n\n\n(emphasis added), whereas the regulation contains a similar\ndirective but uses the term “knows or should know” instead of\n“realizes,” 30 C.F.R. § 50.10. But, even if we were to consider\nthat gap, it would not affect our analysis here. The\nCommission’s decision was premised on its conclusion that\nConsol “knew the requisite information” and that “a reasonable\nperson evaluating the known facts would have found a\nreasonable potential for death.” (App. at 11 n.10 (emphasis\nadded).) Those factual premises are sound, and we take the\nsame approach.\n\n\n\n\n 14\n\finterpretation disputes, a court’s proper starting point lies in a\ncareful examination of the ordinary meaning and structure of\nthe law itself.”). As referenced earlier, § 813(j) provides, in\nrelevant part:\n\n In the event of any accident occurring in any coal\n or other mine, the operator shall notify\n [MSHA]10 thereof and shall take appropriate\n measures to prevent the destruction of any\n evidence which would assist in investigating the\n cause or causes thereof. For purposes of the\n preceding sentence, the notification required\n shall be provided by the operator within 15\n minutes of the time at which the operator realizes\n that the death of an individual at the mine, or an\n injury or entrapment of an individual at the mine\n which has a reasonable potential to cause death,\n has occurred.\n\n30 U.S.C. § 813(j). Similarly, the regulation says, in part:\n\n The operator shall immediately contact MSHA\n at once without delay and within 15 minutes at\n the toll-free number, 1–800–746–1553, once the\n operator knows or should know that an accident\n has occurred involving: … (b) An injury of an\n individual at the mine which has a reasonable\n potential to cause death[.]\n\n\n\n\n 10\n Again, MSHA is the delegate of the Secretary of\nLabor.\n\n\n\n\n 15\n\f30 C.F.R. § 50.10. On its face, that language does not specify\nthe standard by which one is to determine whether an injury\nfrom a mine accident is one “which has a reasonable potential\nto cause death.” Thus, we look to other sources of guidance.\n\n The first source we consider is the stated purpose of the\nMine Act. The “Congressional findings and declaration of\npurpose[,]” set forth in 30 U.S.C. § 801, specify that the goal\nof the Mine Act is to protect miners. Section 801 says, for\nexample, that “the first priority and concern of all in the coal\nor other mining industry must be the health and safety of its\nmost precious resource – the miner”; that “deaths and serious\ninjuries from unsafe and unhealthful conditions and practices\nin the coal or other mines cause grief and suffering to the\nminers and to their families”; and that “there is an urgent need\nto provide more effective means and measures for improving\nthe working conditions and practices in the Nation’s coal or\nother mines in order to prevent death and serious physical\nharm[.]” 30 U.S.C. § 801(a)-(c); see also Thunder Basin Coal\nCo. v. Reich, 510 U.S. 200, 202 (1994) (“Congress adopted the\nMine Act ‘to protect the health and safety of the Nation’s coal\nor other miners.’” (quoting 30 U.S.C. § 801(g)). Moreover,\n§ 801 makes clear that miner protection is central to the mining\nindustry’s interests, so the Mine Act does not seek to balance\nminers’ safety against any inconvenience associated with\ncompliance that mine operators might face. See 30 U.S.C.\n§ 801(d) (“[T]he existence of unsafe and unhealthful\nconditions and practices in the Nation’s coal or other mines is\na serious impediment to the future growth of the coal or other\nmining industry and cannot be tolerated[.]”); see also id.\n§ 801(f) (“[T]he disruption of production and the loss of\nincome to operators and miners as a result of coal or other mine\naccidents … unduly impedes and burdens commerce[.]”).\n\n\n\n\n 16\n\f The second source of guidance we look to is the\nobjectives of the notification requirement itself. That\nrequirement is plainly designed to encourage rapid notification\nso that MSHA can respond effectively in an emergency and\npreserve evidence to facilitate later investigation. Section\n813(j) specifies that “any accident occurring in any coal or\nother mine” is to be reported to MSHA. Id. § 813(j). So it is\nnot just potentially deadly accidents that are reportable.11\nFurthermore, § 813(j) says that mine operators must “take\nappropriate measures to prevent the destruction of any\nevidence which would assist in investigating the cause or\ncauses” of an accident and, “where rescue and recovery work\nis necessary, [MSHA] shall take whatever action [it] deems\nappropriate to protect the life of any person, and [it] may, if [it]\ndeems it appropriate, supervise and direct the rescue and\nrecovery activities[.]” Id. Thus, concern for the preservation\n“of any evidence which would assist in investigating the cause\nor causes” of accidents, and, more importantly, the need for\ngovernment action “to protect the life of any person” and\nmanage “rescue and recovery activities[,]” id., justify reporting\nof non-lethal accidents too. The 15-minute notification\nwindow is in force for potentially deadly accidents, and reflects\nthe naturally heightened level of concern. When death is a\nreasonable possibility, “[i]mmediate notification activates\nMSHA emergency response efforts, which can be critical in\nsaving lives, stabilizing the situation, and preserving the\n\n 11\n Under the Mine Act, “accident” is defined to include\n“a mine explosion, mine ignition, mine fire, or mine\ninundation, or injury to, or death of, any person[.]” 30 U.S.C.\n§ 802(k).\n\n\n\n\n 17\n\faccident scene[,]” and “[p]rompt notification enables MSHA\nto secure an accident site, preserving vital evidence that can\notherwise be easily lost.”12 Emergency Mine Evacuation, 71\nFed. Reg. at 71,431, 71,435.\n\n The final source of guidance is the history of the\nnotification requirement. Relevant here, the 15-minute rule\nwas added to the statutory framework by the MINER Act,\nwhich was enacted largely in response to three lethal mining\naccidents. S. Rep. No. 109-365, at 1-2, 9; see also Cumberland\nCoal, 717 F.3d at 1022 (“The violations at issue in this case\narose under amendments to the [Mine] Act enacted in response\nto three multiple-fatality mine disasters, in which miners who\nwere unable to evacuate mines died.”). The MINER Act\nSenate Report explained that “[t]hese tragedies serve as a\nsomber reminder that even that which has been done well can\nalways be done better.” S. Rep. No. 109-365, at 2. The\nMINER Act codified an MSHA emergency regulation that first\nimposed the 15-minute notification rule. See Emergency Mine\nEvacuation, 71 Fed. Reg. 12,252 (Mar. 9, 2006).\n\n That earlier MSHA emergency regulation was\npromulgated in response to two of the same incidents that\n\n 12\n Under the regulation, the 15-minute notification\nrequirement attaches to all “accident[s,]” 30 C.F.R. § 50.10,\nand the regulatory definition of “[a]ccident” includes 12\nspecific types of events, including “[a]n injury to an individual\nat a mine which has a reasonable potential to cause death[,]”\nid. § 50.2(h) (emphasis added). The statute and regulation thus\nagree that potentially deadly accidents require notification\nwithin 15 minutes. Cf. id. § 50.10(a)-(c) (requiring notification\nwithin 15 minutes for deadly or potentially deadly accidents).\n\n\n\n\n 18\n\fmotivated the MINER Act. Id. at 12,252, 12,253-54; see also\nCumberland Coal, 717 F.3d at 1022 (“Also in the wake of the\ndisasters, MSHA issued an Emergency Temporary Standard on\nemergency mine evacuations in March 2006.”). The\nemergency rulemaking explained that, “[i]n response to the\nrecent accidents …, MSHA has determined that new accident\nnotification, safety and training standards are necessary to\nfurther protect miners when a mine accident takes place.”\nEmergency Mine Evacuation, 71 Fed. Reg. at 12,253. The\nvery first of the “new standards” described was the 15-minute\nrule, and MSHA emphasized that the rule would serve to better\nprotect miners by facilitating the objectives of the notification\nrequirement, as set out above. See id. (“Such immediate\nnotification will enable help to arrive sooner at the mine, and\nprotect miners from the grave dangers of physical injury and\ndeath.”); id. at 12,257 (“Notification alerts the Agency so that\naccident investigations and assistance to trapped or injured\nminers can be initiated.”). In sum, the history of the\nnotification requirement shows that a 15-minute provision was\nadopted in response to deadly mine accidents and was meant\nto increase the speed of notification to allow MSHA to more\neffectively protect miners.\n\n Considering those several guideposts together, it is\nplain that the notification requirement was designed to serve\nthe Mine Act’s unyielding purpose of protecting miners by\nencouraging rapid notification, thereby allowing MSHA to\neffectively initiate an emergency response and to ensure the\npreservation of evidence for use in investigations. The\nnotification requirement should be interpreted to effectuate that\npurpose. In light of that, the Commission’s legal standard is\nentirely sound, as a consideration of each of the four\ncomponents of that legal standard demonstrates.\n\n\n\n\n 19\n\f 1. Reasonable Doubts Must Be\n Resolved in Favor of\n Notification\n\n First, it makes sense that all reasonable doubts must be\nresolved in favor of notifying MSHA. If the rule were\notherwise, mine operators would be encouraged not to call\nMSHA until an accident was sure to be life threatening,13\ndespite the standard being an accident having “a reasonable\npotential to cause death.” The severity and scope of an\nemergency are rarely apparent in the moment, and by the time\nclarity has been achieved, an MSHA response may be too little,\ntoo late. Furthermore, no risk to miners would result from an\nerroneous MSHA notification, whereas substantial risk could\nresult from a failure to notify, with MSHA being prevented\nfrom initiating an emergency response and beginning a\nsuccessful investigation. Given that the notification\n\n\n 13\n The Commission said that it “has not found it\nnecessary to” define “reasonable potential to cause death.”\n(App. at 7 (citing Secretary of Labor v. Signal Peak Energy,\nLLC, 37 FMSHRC 470, 474 (2015)).) In Signal Peak, the\nCommission observed that it was enough to say the accident\nwas “life-threatening[,]” because, in that case, the miner’s\n“injuries clearly [fell] within the realm of a reasonable\npotential to cause death[.]” 37 FMSHRC at 474 (citation and\ninternal quotation marks omitted). Therefore, the Commission\nboth here and in Signal Peak concluded that the injuries at issue\nhad a reasonable potential to cause death under a “life\nthreatening” standard. We follow the Commission’s lead in\nthat regard and use “life threatening” as a working\ninterpretation of “reasonable potential to cause death.”\n\n\n\n\n 20\n\frequirement and the statutory and regulatory scheme at issue\nare designed to provide robust protections for miners – and not\nto balance those protections against compliance\ndifficulties – the only rule that effectuates the purpose of the\nstatute and regulation is one that requires notification in cases\nwhere there is reasonable doubt whether the accident will\nprove to have “a reasonable potential to cause death.”\n\n Consol argues that requiring reasonable doubts to be\nresolved in favor of notification appears nowhere in the text of\nthe statue or regulation and that adopting such a rule shifts the\nburden of proof to the operator. But that argument misses the\nmark, because a logical reading of the text does support the\nrule, as we have just explained, and, in any event, text is the\nstarting point in understanding a statute or regulation, not\nnecessarily the ending point. Moreover, the conclusion that\nreasonably doubtful cases require notification has nothing to\ndo with who must prove whether a case falls into the\n“reasonably doubtful” category.\n\n 2. The Notification Requirement\n Must Be Interpreted from the\n Perspective of a Reasonable\n Person in the Circumstances\n\n Second, the notification requirement must be analyzed\non an objective basis, asking whether a reasonable person in\nthe circumstances would view a miner’s injury as having a\nreasonable potential to cause death. Only an objective test\nensures that mine operators cannot weaken miner protection by\nasserting their subjective views as a defense against calling\nMSHA. An objective standard – which focuses on the\nreasonably perceived severity of an accident in the\n\n\n\n\n 21\n\fmoment – likewise reinforces the incentive for mine operators\nto notify MSHA quickly, when the agency can take effective\naction.\n\n To its credit, Consol does not claim that a subjective\nstandard would suffice. Rather, the alternative rule it argues\nfor would require MSHA to prove that the injured miner\nactually faced a reasonable potential for death as a matter of\nmedical fact, even if the actual severity of his injuries was\nunknowable at the time of the incident. That rule, however,\nlike a subjective standard, would undermine what the\nnotification requirement seeks to accomplish. In marginal\ncases, it would encourage mine operators to forego calling\nMSHA after an accident in the hopes that the true but presently\nunknown medical facts would turn out to be better than those\nperceived in the moment. Under Consol’s proposal, an injury\nwould not become reportable until a mine operator has gained\nsufficient expert advice to say with medical certainty that the\ninjury had a reasonable potential to cause death. That, of\ncourse, would mean almost certain delay, since physicians are\nnot on standby in mines.14 Consol’s rule would thus frustrate\nrather than facilitate reporting. See Sec’y of Labor v. Cougar\n\n 14\n Consol asserts that delay would not be a problem,\ncontending that “[t]he immediacy burden on Consol has\nnothing to do with the elemental burden on the Secretary.”\n(Opening Br. at 27.) But we fail to see how that could be so.\nIf MSHA can only prove whether an injury having a reasonable\npotential to cause death occurred by resorting to medical\nevidence, it follows that a mine operator could not have\nsufficient awareness of the occurrence of such an injury until\nthe medical evidence is available, and it is highly unlikely to\nbe available on site.\n\n\n\n\n 22\n\fCoal Co., 25 FMSHRC 513, 521 (2003) (“If we were to accept\nthe [ALJ’s] construction [requiring that MSHA furnish a\nmedical opinion that a miner’s injuries had a reasonable\npotential to cause death], a medical or clinical opinion of the\npotential of death would be needed before an accident is even\ndetermined to be reportable under section 50.10. Such a\nconstruction would serve to frustrate the immediate reporting\nof near fatal accidents.”).\n\n The conclusion that a “reasonable person in the\ncircumstances” standard is the required one – and that a rule\nfocused on the eventually proven medical severity of an injury\nis not – is further supported by our determination that\nreasonable doubts must be resolved in favor of notification.\nWhen the perceived severity of an injury is high but the true\nmedical severity is not yet known, a mine operator should\nsurely have a reasonable doubt about concluding that no\nreasonable potential for death exists.\n\n Finally, in Mainline Rock & Ballast, Inc. v. Secretary of\nLabor, 693 F.3d 1181 (10th Cir. 2012), one of the few Court\nof Appeals opinions on point, the Tenth Circuit upheld a\ncitation under 30 C.F.R. § 50.10(b) by applying a “reasonable\nperson in the circumstances” test, and it did so without ever\naddressing whether MSHA had proven that the injury involved\na reasonable potential for death as a matter of medical fact.\nMainline Rock, 693 F.3d at 1189. Further, and importantly, the\ncourt nowhere described that regulation as ambiguous, but\n\n\n\n\n 23\n\frather treated the standard it applied as the one obviously and\nlogically required.15\n\n Although the foregoing analysis adequately\ndemonstrates that the statute and regulation are governed by a\n“reasonable person in the circumstances” standard, that\nconclusion is reinforced by the history of the regulation. The\npost-MINER Act rulemaking expressly said that the\nnotification inquiry “is based on what a reasonable person\nwould discern under the circumstances, particularly when\n‘[t]he decision to call MSHA must be made in a matter of\nminutes after a serious accident.’” Emergency Mine\nEvacuation, 71 Fed. Reg. at 71,434 (alteration in original)\n(emphasis added) (citation omitted). And it rejected a focus on\nthe medical facts, stating, “the operator’s decision as to what\nconstitutes a ‘reasonable potential to cause death’ ‘cannot be\nmade upon the basis of clinical or hypertechnical opinions as\nto a miner’s chance of survival.’” Id. at 71,433-34 (citation\nomitted).\n\n In short, the standard that best accomplishes the aims of\nthe notification requirement is one that focuses on whether a\nreasonable mine operator in the circumstances would perceive\na reasonable potential for death. Consol challenges that\nconclusion by asserting that, under a “reasonable person in the\ncircumstances” standard, “the operator would face an ever-\nmoving target and have no way to defend itself[.]” (Opening\nBr. at 26.) Not so. The target is clear, even if it is not the one\nConsol would prefer to have in its sights. Giving Consol what\n\n 15\n Because the operative language of the statute and\nregulation are the same, we view Mainline Rock as supporting\nour interpretation of both.\n\n\n\n\n 24\n\fit wants – a complete defense based on medical facts unknown\nat the time – would, as set out above, substantially conflict with\nthe statutory and regulatory framework before us.16\n\n 3. The Totality of the\n Circumstances Must Be\n Considered\n\n It is also clear that § 813(j) and its regulatory\ncounterpart, § 50.10(b), must be applied in light of the “totality\nof the circumstances.” Under a “reasonable person in the\ncircumstances” standard, the circumstances to be considered\nare necessarily all of them, not just some. How else could one\nbe expected to assess whether an injury suggests a reasonable\npotential for death, other than by using a “totality of the\ncircumstances” test? Injuries, by the very nature of the\naccidents that cause them and the complexity of the human\nbody, come in too many varieties to easily catalogue. And the\nfactors suggesting that an injury is serious are just as diverse.\nA “totality” inquiry is thus proper because, as with other\nmatters of judgment, whether an injury is reasonably perceived\nas life threatening is “not readily, or even usefully, reduced to\na neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232,\n238 (1983) (concluding that a “totality of the circumstances”\ntest was appropriate in a Fourth Amendment case); see also\n\n\n 16\n Consol also argues that, “[h]istorically, ALJs actually\nrequired the Secretary to present medical proof to sustain a\nviolation[.]” (Opening Br. at 23.) That argument, however,\ngains no traction because, even if the historical assertion is\naccurate, the statute and regulation are unambiguous, and ALJ\ndecisions neither bind the Commission nor qualify as agency\nprecedent. 29 C.F.R. § 2700.69(d); Big Ridge, 715 F.3d at 640.\n\n\n\n\n 25\n\fMainline Rock, 693 F.3d at 1189 (upholding a citation under\n30 C.F.R. § 50.10(b) after holistically analyzing a mining\naccident and concluding that “the obvious circumstances of the\naccident would have triggered some minimal degree of inquiry\nin a reasonable person, thus prompting a call to the MSHA”).\n\n Again, the purpose of the notification requirement has\nto be borne in mind. Myopically focusing on one factor or a\nsubset of factors, rather than the totality of the\ncircumstances, would permit mine operators to avoid calling\nMSHA, even while possessing information reasonably\nshowing that an injury is life threatening, simply because that\ninformation did not fit into an artificially-constructed category.\nAny test other than one based on a “totality of the\ncircumstances” would thus put miners at unnecessary risk and\nwould undermine the purposes and design of the notification\nrequirement.\n\n The necessity of a “totality” approach is underscored by\nthe above-noted conclusion that all reasonable doubts must be\nresolved in favor of notification. A holistic approach captures\nthe full range of information that could lead to reasonable\ndoubts about concluding that no reasonable potential for death\nexists.\n\n The history of the regulation remains instructive. The\nnotification decision was expressly contemplated as being\n“based on what a reasonable person would discern under the\ncircumstances[.]” Emergency Mine Evacuation, 71 Fed. Reg.\nat 71,434 (emphasis added). And, the drafters of the regulation\nexplained that injuries involving a reasonable potential for\ndeath “can result from various indicative events,” so they\n\n\n\n\n 26\n\fencouraged that all factors, including the injury itself and the\nnature of the accident, be considered.17 Id.\n\n Consol mainly challenges the “totality of the\ncircumstances” rule on the ground that it permits factors not\nlisted in the statute or regulation to overcome a lack of medical\nevidence. In that regard, it contends that the focus must be on\nthe injury alone and not the circumstances surrounding it\n\n 17\n We note that “totality of the circumstances” can be\nread in two different, albeit related, ways. First, it can refer to\nwhat the mine operator must consider in deciding whether to\ncall MSHA. Second, it can refer to the evidence courts and the\nCommission should consider in evaluating a notification\ncharge. In our view, both readings are appropriate and\nrequired. That is so for the first reading for all the reasons set\nout above. And it is so for the second reading because that\nreading is simply the adjudicatory corollary of the first.\n The second reading is broader than the first, as it allows\nconsideration of evidence that was not actually before the mine\noperator at the time the operator made the decision whether to\nnotify MSHA. But considering all available evidence is\nappropriate at the adjudication stage because it can provide\nimportant circumstantial evidence of what a reasonable mine\noperator would have perceived. For example, if there were\nlittle direct evidence of what a mine operator actually saw\naround the time of an accident, but the record demonstrated\nthat numerous mine employees were nearby when the accident\noccurred and that a post-hoc medical examination revealed that\nthe injured miner had been bleeding profusely since the\nmoment of injury, the post-hoc medical evidence could be\nviewed as significant circumstantial evidence of what was\nknown at the scene.\n\n\n\n\n 27\n\f– such as the nature of the accident – because “injury” is what\nappears in the text. It further asserts that “[r]ushing to get\nsomeone to the hospital fast is not proof that someone may die”\nand neither “is the nature of the accident (e.g., a car being\ntotaled sounds terrible, but people walk away from such\naccidents).” (Reply Br. at 16 n.9.) And, more generally, it\nwarns that, “[i]f the Court allows uninterpreted generalized\nobservations to act as a substitute for evidence, then all the\nSecretary will have to do is call one witness to describe a\nchaotic injury scene and the ALJ, who also has no medical\ntraining, would then be free to speculate that virtually any\ninjury has a reasonable potential to cause death.” (Reply Br. at\n17.)\n\n Those arguments conveniently neglect that generalized\nobservations are evidence, often crucial evidence, and nothing\nin the statute or regulation requires or even encourages that\nthey be ignored. Consol’s suggestion that a “totality” standard\nis inappropriate because it allows consideration of factors that\nare not listed in the statute or regulation rests on the blinkered\nnotion that only that which is express and nothing that is\nplainly implied is the meaning of a text. Ordinary experience\nand general legal principles prove that wrong. Cf. Gates, 462\nU.S. at 232, 238 (adopting a “totality of the circumstances” test\nin the probable cause context even though the Fourth\nAmendment does not mention “totality of the circumstances”\nor describe what those circumstances might include).\n\n Furthermore, Consol’s argument that a “totality”\ninquiry can wrongly be used to “overcome” a lack of medical\nevidence could only be true if the notification requirement\nfocused on whether the injured miner faced a reasonable\npotential for death as a matter of medical fact. But that is not\n\n\n\n\n 28\n\fthe case, for reasons already discussed. Later-developed\nmedical evidence is not the focus. And, we cannot accept the\ncontention that the notification requirement forbids\nconsideration of the circumstances surrounding an injury, such\nas the nature of the accident that caused it.\n\n Relatedly, Consol’s assertion that some factors\nconsidered under a “totality” inquiry might not prove a\nreasonable potential for death is beside the point. Yes, an\nindividual fact taken in isolation may not prove something, but\nthat does not make the fact irrelevant. The very reason to have\na “totality” inquiry is so that all facts can be considered\ntogether and analyzed holistically. In that regard, the fear that\na mere description of a chaotic scene will lead to liability is\nunfounded. Under a test that examines all available evidence,\na description of a chaotic scene, without more, is unlikely to\nestablish that an injury involving a reasonable potential for\ndeath had occurred. It is the “more,” not the chaotic scene, that\nConsol needs to be chiefly worried about.\n\n Lastly, Consol’s position is unconvincing in light of\nwhat both the post-MINER Act rulemaking and Mainline Rock\npersuasively instruct. The rulemaking explained that certain\ninjuries involving a reasonable potential for death “can result\nfrom various indicative events,” demonstrating that the nature\nof the accident is a relevant consideration. Emergency Mine\nEvacuation, 71 Fed. Reg. at 71,434. And, in Mainline Rock,\nthe court made clear that the nature of the accident is relevant\nand, indeed, could be dispositive. See 693 F.3d at 1189 (“Th[e]\nknowledge [that a miner had been pulled through a roller] alone\nwould have alerted [a mining official] to the severity of the\naccident and the potential for death.”).\n\n\n\n\n 29\n\f 4. The Focus of the Notification\n Requirement Must Be on the\n Information Available at the\n Time of Injury, So Post-Hoc\n Medical Evidence Is Less\n Probative\n\n Finally, because the focus of the notification\nrequirement must be on the information available to the mine\noperator around the time of the injury, post-hoc medical\nevidence is less probative of whether MSHA should be\nnotified. If reasonable doubts are to be resolved in favor of\nnotification, evidence that was not available at the time of the\ninjury, such as post-hoc medical evidence, will not resolve\nreasonable doubts created in the moment by an injury that is\napparently life threatening. The focus must be on the facts\navailable at the time of injury, and post-hoc medical evidence\ncan, at best, serve in the attenuated role of raising an inference\nabout what the mine operator perceived, including the injury’s\napparent severity. If the totality of the circumstances around\nthe time of the accident is considered – as it must be – the\nimportance of post-hoc evidence will necessarily be diluted.18\n\n\n\n 18\n Consol counters that, “[u]ntil now, hospital-based\ninformation has been routinely relied upon by the Commission\nin other cases.” (Reply Br. at 12.) But neither of the decisions\nConsol cites actually relied on such evidence. See Signal Peak,\n37 FMSHRC at 473, 476-77; Cougar Coal, 25 FMSHRC at\n521. More to the point, however, nothing in the Commission’s\nruling or in ours today prevents reliance on hospital-based\ninformation, when that information is kept in proper\nperspective.\n\n\n\n\n 30\n\f ii. Consol’s Additional Challenges to the\n Commission’s Legal Standard Are\n Unavailing\n\n Consol raises two additional arguments challenging the\nCommission’s legal standard and its application here. Neither\nconvinces us that the Commission erred.\n\n 1. Reasonable Person Comparator\n Evidence\n\n Consol first argues that, if we adopt a “reasonable\nperson in the circumstances” standard, MSHA should have to\npresent comparator evidence to prove what a reasonable person\nwould have done. It says that, in Secretary of Labor v. Leeco,\nInc., No. KENT 2012-166, 2016 WL 4158378 (F.M.S.H.R.C.\nJuly 18, 2016), the Commission required such proof.\n\n That argument overreads Leeco. In that case, the\nCommission simply said that, when MSHA seeks to prove that\na mining company acted negligently, it cannot satisfy its\nburden by saying the company “should have done more” and,\ninstead, must “show[] what additional steps” the company\nshould have taken to meet its standard of care. Id. at *4-5. That\nobservation is inapposite to notification cases, in which there\nis no need to determine what “additional steps” might have\nbeen required. The core question in cases like this is whether\na reasonable mine operator would have called MSHA, and that\nquestion is answerable through evidence of the facts available\naround the time of the accident. Indeed, that has been the\nCommission’s approach, Secretary of Labor v. Signal Peak\nEnergy, LLC, 37 FMSHRC 470, 475-77 (2015), and the Tenth\nCircuit followed it as well in Mainline Rock, 693 F.3d at 1189.\n\n\n\n\n 31\n\f Furthermore, whether someone acted reasonably is\ntypically a question for the finder of fact, at least as long as\n“reasonableness” is within the factfinder’s common\nknowledge and experience. See, e.g., Natale v. Camden Cty.\nCorr. Facility, 318 F.3d 575, 580 (3d Cir. 2003) (“A\nreasonable jury could conclude that [Prison Health Service]\npersonnel were negligent absent expert testimony. … While\nlaypersons are unlikely to know how often insulin-dependent\ndiabetics need insulin, common sense – the judgment imparted\nby human experience – would tell a layperson that medical\npersonnel charged with caring for an insulin-dependent\ndiabetic should determine how often the diabetic needs\ninsulin.”); Wilburn v. Maritrans GP Inc., 139 F.3d 350, 360\n(3d Cir. 1998) (“The jury could have found [based on its\ncommon understanding] that Maritrans was liable for\nnegligence because the Samson line was not released in a\nmanner that was reasonably prudent under the exigent\ncircumstances confronting the persons aboard the\nEnterprise.”); cf. Vázquez-Filippetti v. Banco Popular de P.R.,\n504 F.3d 43, 50 (1st Cir. 2007) (“[A] typical tort claim involves\nthe generic ‘reasonably prudent person’ standard of care (or\nduty) and requires the plaintiff to present no evidence about the\ndefendant’s duty[.]”). It is within the province of the\nCommission’s ALJs to determine whether a reasonable mine\noperator would have perceived a reasonable potential for death.\nCf. Thunder Basin, 510 U.S. at 214 (explaining that claims\narising under the Mine Act “fall squarely within the\nCommission’s expertise”).\n\n Nothing in the statute or regulation suggests an intent to\ncreate a novel evidentiary rule requiring “reasonable person”\ncomparator evidence. We presume that rulemaking authorities\nare aware of existing law when they promulgate statutes or\n\n\n\n\n 32\n\fregulations. Cf. Mississippi ex rel. Hood v. AU Optronics\nCorp., 571 U.S. 161, 169 (2014) (“[W]e presume that Congress\nis aware of existing law when it passes legislation.” (citation\nand internal quotation marks omitted)). If Consol’s proposed\nevidentiary rule had been envisioned, it would surely have\nbeen made explicit in the statute and regulation.\n\n 2. Fair Notice\n\n Second, Consol argues that it did not have fair notice of\neither the Commission’s “totality of the circumstances” test or\nits “reasonable person in the circumstances” standard. Consol\nraises a number of arguments in that regard, but, based on a\nsingle line of reasoning, we conclude that all are without merit.\n\n The Fifth Amendment’s Due Process Clause is violated\nfor lack of fair notice if a statute or regulation “fails to provide\na person of ordinary intelligence fair notice of what is\nprohibited, or is so standardless that it authorizes or encourages\nseriously discriminatory enforcement.” FTC v. Wyndham\nWorldwide Corp., 799 F.3d 236, 249 (3d Cir. 2015) (citation\nomitted). That “fair notice doctrine extends to civil cases,\nparticularly where a penalty is imposed.” Id. at 250. But, a\nparty necessarily has fair notice of how a statute or regulation\nwill be interpreted if only one interpretation is unambiguously\ncompelled by the provision at issue.19 See Sec’y of Labor v.\n\n\n 19\n That is not to say that a party can never raise a fair\nnotice challenge to unambiguous laws. For example, a\nprovision may plainly require a certain legal standard that itself\ndoes not provide fair notice of how it will be applied. A fair\nnotice challenge would be appropriate in that circumstance to\ncontest the required standard.\n\n\n\n\n 33\n\fBeverly Healthcare-Hillview, 541 F.3d 193, 197-98 (3d Cir.\n2008) (“Before we assess … whether Beverly had fair notice\nof that interpretation, we must determine whether the meaning\nof regulatory language is ‘free from doubt.’ … If Beverly is\ncorrect [that the language is unambiguous], our inquiry would\nbe at an end.” (citation omitted)). Here, we have concluded\nthat the Commission’s legal standard is plainly compelled by\nthe statute and regulation. Consol thus had fair notice of it.\n\n To the extent Consol’s argument is that the\nCommission’s legal standard fails to provide fair notice of how\nit will be applied and so Consol lacked fair notice that the\nspecific factual scenario at issue here would constitute a\nnotification violation, again its position is unpersuasive.\nWhere, as here, an economic regulation is in question, fair\nnotice is deemed given unless “the relevant standard is ‘so\nvague as to be no rule or standard at all[,]’” which is an\n“especially lax” requirement.20 Wyndham, 799 F.3d at 250\n(citation omitted). The Commission’s legal standard is not so\nvague as to fall into that category,21 and, as suggested already\n\n 20\n Recall that whether 30 C.F.R. § 50.10 is a proper\ninterpretation of 30 U.S.C. § 813(j) is not at issue here.\n 21\n Courts commonly conclude that MSHA complies\nwith the fair notice requirement when it “take[s] action to\ncorrect violations that would be apparent to a reasonably\nprudent miner.” Consol Buchanan Mining Co. v. Sec’y of\nLabor, 841 F.3d 642, 649-50 (4th Cir. 2016). Here, the\nCommission’s legal standard allows mine operators to be\npenalized only if a reasonable mine operator would have\nviewed a miner’s injuries as involving a reasonable potential\nfor death.\n\n\n\n\n 34\n\fand detailed further herein, we think it extraordinarily clear\nthat the injuries in this case reflected a reasonable potential for\ndeath.\n\n B. Substantial Evidence Supports the\n Commission’s Decision\n\n Consol also argues that substantial evidence does not\nsupport the citation against it. That is a surprising argument,\nto say the least. The factual finding at issue here is the ALJ’s\ndetermination – agreed to and affirmed by the\nCommission – that “responsible Consol employees had\ninformation that would lead a reasonable person to conclude\nthere was a reasonable potential for death[.]”22 (App. at 10.)\nThat finding is conclusive if it is supported by substantial\n\n\n 22\n That conclusion is essentially a finding of fact. See\nRestatement (Second) of Torts § 328B cmt. g (Am. Law Inst.\n1965) (noting that “[n]ormally the determination of the\nquestion whether the defendant has conformed to the standard\nof conduct required of him by the law is for the jury” and that\n“it is customarily regarded as a question of fact”); U.S. Gypsum\nCo. v. Schiavo Bros., 668 F.2d 172, 176 n.2 (3d Cir. 1981)\n(explaining that the issue of “how a reasonable person would\nhave acted in a like situation” is “a determination that is\npeculiarly one for the factfinder”); cf. Cumberland Coal, 515\nF.3d at 259 (“The Commission correctly concluded that there\nwas substantial evidence to support the January 16 citation,\nsince ‘a reasonably prudent person would have recognized that\nthe bleeder system failed to continuously dilute and move the\nmethane-air mixture from the worked-out area away from the\nactive workings.’” (citation omitted)).\n\n\n\n\n 35\n\fevidence, “mean[ing] such relevant evidence as a reasonable\nmind might accept as adequate to support [the] conclusion.”\nCumberland Coal Res., LP v. Fed. Mine Safety & Health\nReview Comm’n, 515 F.3d 247, 252 (3d Cir. 2008) (citation\nomitted).\n\n Like the Commission, “we conclude that someone with\nsufficient authority at Consol was aware of Stern’s injury-\ncausing event[,]” given “the knowledge and training possessed\nby Tennant, McDonald, and Smith,” and that “the evidence\noverwhelmingly demonstrates that a reasonable person\npossessing the available information would have concluded\nthere was a reasonable potential for death.”23 (App. at 11.)\n\n To recapitulate some relevant facts, McDonald learned\nimmediately after the accident that Stern had been crushed\nbetween multi-ton pieces of equipment, was in severe pain,\ncould not move his legs, and could feel “the pinch” on one leg.\nMcDonald called for Smith (an EMT), for an ambulance, and\n(along with Smith) for the mine haulage to be cleared so Stern\ncould be evacuated. McDonald knew the serious consequences\nof such an accident. Smith viewed Stern’s injury as “[p]retty\nbad” and “traumatic[.]” (App. at 220.) Demonstrating concern\nthat Stern might have a spinal injury, Smith placed him in a\nneck brace.\n\n On the way out of the mine, Smith and McDonald\nnoticed that Stern’s stomach was becoming hard and distended,\na sign, they knew, of internal bleeding. Both recognized that\n\n 23\n Consol does not challenge that the knowledge of\nTennant, McDonald, and Smith can be imputed to it for\npurposes of the notification analysis.\n\n\n\n\n 36\n\finternal bleeding can lead to death. And Smith and McDonald\nwere sufficiently concerned about Stern’s stomach symptoms\nto request a Life Flight evacuation. Neither Smith nor\nMcDonald had ever called Life Flight before, and Smith had\nnot heard of anyone doing so since he started working at\nConsol years before. Additionally, Stern himself evidently\nthought the accident could be fatal, and he said as much by\nasking Smith to pass on his love to his wife and family.\n\n Furthermore, Tennant was called about the accident and\ndecided to go to the mine, even though he did not always do so\nafter an accident. He did so in this instance because Stern had\nbeen caught between two large pieces of equipment.\n\n In short, McDonald, Smith, Tennant, and Stern all had\nreactions to the injury indicating an expectation that the injury\nwas life threatening. On this record, there is certainly “such\nrelevant evidence as a reasonable mind might accept as\nadequate to support” the finding that Consol possessed\ninformation that would lead a reasonable mine operator to\nconclude that a reasonable potential for death existed.\nCumberland Coal, 515 F.3d at 252 (citation omitted). Consol\nshould have called MSHA within the prescribed 15-minute\nwindow.\n\n None of this is to fault McDonald, Smith, or Tennant\nfor how they responded to Stern’s injury. They reacted quickly\nand commendably to provide effective care to Stern in his\nextremity. We simply conclude that a reasonable mine\noperator, possessing the information they had, would have\n\n\n\n\n 37\n\fbelieved the incident had a reasonable potential to turn fatal,\nand there was thus an obligation to call MSHA.24\n\n C. The Commission Was Bound by the\n Mandatory Minimum Penalty\n\n Consol’s final argument is that the Commission was not\nbound by the $5,000 statutory minimum penalty under 30\nU.S.C. § 820(a)(2) for notification violations. Again, the\ncompany is wrong.\n\n Section 820 is the Mine Act’s penalties section. Under\nsubsection (a)(2), “[t]he operator of a coal or other mine who\nfails to provide timely notification to the Secretary as required\nunder section 813(j) … (relating to the 15 minute requirement)\nshall be assessed a civil penalty by the Secretary of not less\nthan $5,000 and not more than $60,000.” 30 U.S.C.\n§ 820(a)(2). And, under subsection (i), “[t]he Commission\nshall have authority to assess all civil penalties provided in this\nchapter.” Id. § 820(i). The penalties set out in\n§ 820(a), including the mandatory minimums, are “penalties\nprovided in this chapter,” meaning that the Commission is\nbound by those minimums.\n\n 24\n Additionally, and relatedly, our opinion should not be\nread to discourage mine operators from taking precautions\nsuch as calling for an airlift in the event of a mine injury. A\nmine operator’s reaction to an injury is, of course, relevant in\nassessing that injury’s reasonably perceived severity. But,\nunder a “totality of the circumstances” approach, a mine\noperator’s reaction to a particular injury is considered\nalongside, inter alia, how the operator has reacted to other, less\nsevere injuries.\n\n\n\n\n 38\n\f In addition, subsection (a)(4) provides, “If a\ncourt … sustains [an order imposing a penalty described in this\nsubsection], the court shall apply at least the minimum\npenalties required under this subsection.” Id. § 820(a)(4). We\nagree with the Commission that, given that language in\n§ 820(a)(4), “[a] statutory scheme that permit[ted] the\nCommission to assess any penalty, however minimal, but\nrequire[d] a reviewing court to impose a penalty of at least\n$5,000, [would] make[] no sense.” (App. at 14.)\n\n In sum, the Commission was bound by the mandatory\nminimum set forth in 30 U.S.C. § 820(a)(2), and its conclusion\nin that regard was not erroneous.\n\nIII. CONCLUSION\n\n For the foregoing reasons, we will deny the petition for\nreview.\n\n\n\n\n 39\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Consol Pennsylvania Coal Co v. MSHR\\nCourt: U.S. Court of Appeals for the Third Circuit\\nDate decided: 2019-10-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n _____________\\n\\n No. 18-3078\\n _____________\\n\\nCONSOL PENNSYLVANIA COAL COMPANY, LLC,\\n Petitioner\\n\\n v.\\n\\nFEDERAL MINE SAFETY AND HEALTH REVIEW\\n COMMISSION; SECRETARY UNITED STATES\\n DEPARTMENT OF LABOR,\\n Respondents\\n ______________\\n\\n On Petition for Review of a Decision of the\\n Federal Mine Safety and Health Review Commission\\n (FCMS-1: PENN 2014-816)\\n _______________\\n\\n Argued\\n June 25, 2019\\n\\nBefore: JORDAN, BIBAS, and NYGAARD, Circuit\\n Judges.\\n\\n (Opinion Filed: October 22, 2019)\\n\\f _______________\\n\\nJames P. McHugh [ARGUED]\\nChristopher D. Pence\\nHardy Pence\\n500 Lee Street – Ste. 701\\nCharleston, WV 25329\\n Counsel for Petitioner\\n\\n\\nAli A. Beydoun\\nCheryl C. Blair-Kijewski [ARGUED]\\nApril E. Nelson\\nKate S. O’Scannlain\\nUnited States Department of Labor\\nOffice of the Solicitor\\n201 12th Street South – Ste. 401\\nArlington, VA 22202\\n\\nJohn T. Sullivan\\nFederal Mine Safety and Health\\n Review Commission\\n1331 Pennsylvania Avenue, N.W. – Ste. 520N\\nWashington, DC 20004\\n Counsel for Respondents\\n _______________\\n\\n OPINION OF THE COURT\\n _______________\\n\\nJORDAN, Circuit Judge.\\n\\n As with many other things, when it comes to mining, it\\nis far better to be safe than sorry. To monitor and encourage\\n\\n\\n\\n\\n 2\\n\\fsafety, Congress and the Mine Safety and Health\\nAdministration (“MSHA”) require that mine operators notify\\nMSHA within 15 minutes after the occurrence of an injury\\nhaving “a reasonable potential to cause death.”\\n\\n This case involves that requirement, as embodied in\\nboth a statute and a regulation: 30 U.S.C. § 813(j) and 30\\nC.F.R. § 50.10(b). Robert Stern, a miner for Consol\\nPennsylvania Coal Company, LLC (“Consol”), suffered a\\ncrushing injury between two multi-ton pieces of mining\\nequipment and quickly exhibited, among other worrying\\nsymptoms, signs of internal bleeding. Without delay, Consol\\ngot Stern out of the mine and coordinated getting him to a\\nhospital, but it failed to notify MSHA for about two hours.\\nConsequently, MSHA issued a citation to Consol for violating\\n30 C.F.R. § 50.10(b). The Federal Mine Safety and Health\\nReview Commission (the “Commission”) upheld the citation\\nover Consol’s protestations.\\n\\n Consol now petitions for review, challenging several\\naspects of the Commission’s decision. We conclude that the\\nCommission did not err, and we will therefore deny the\\npetition.\\n\\nI. BACKGROUND\\n\\n A. Statutory and Regulatory Background\\n\\n The Federal Mine Safety and Health Act of 1977 (the\\n“Mine Act” or the “Act”), 30 U.S.C. § 801 et seq., was enacted\\n“for the purpose of improving the working conditions of\\nminers.” Cumberland Coal Res., LP v. Fed. Mine Safety &\\nHealth Review Comm’n, 717 F.3d 1020, 1021 (D.C. Cir. 2013).\\n\\n\\n\\n\\n 3\\n\\fIt created the agency that is now called MSHA and “gave [it]\\nbroad authority to ensure the safety of mines[.]” Big Ridge,\\nInc. v. Fed. Mine Safety & Health Review Comm’n, 715 F.3d\\n631, 635 (7th Cir. 2013). MSHA inspectors act on behalf of\\nthe Secretary of Labor and are empowered to issue citations for\\nviolations of the Mine Act or regulations promulgated under it.\\nCumberland Coal, 717 F.3d at 1021. “A mine operator can\\ncontest a citation before the … Commission …, [which is] an\\nadjudicative agency independent of the Department of Labor.”\\nSec’y of Labor v. Spartan Mining Co., 415 F.3d 82, 83 (D.C.\\nCir. 2005).\\n\\n The provision of the Mine Act primarily at issue here is\\n30 U.S.C. § 813(j). It says that, “[i]n the event of any accident\\noccurring in any coal or other mine, the operator shall notify\\n[MSHA1] … and shall take appropriate measures to prevent the\\ndestruction of any evidence which would assist in investigating\\nthe cause or causes thereof.” Id. When “the operator realizes\\nthat the death of an individual at the mine, or an injury or\\nentrapment of an individual at the mine which has a reasonable\\npotential to cause death, has occurred[,]” the notification must\\n“be provided by the operator within 15 minutes[.]” Id. The\\n15-minute requirement was added by the Mine Improvement\\nand New Emergency Response Act of 2006 (the “MINER\\nAct”), Pub. L. No. 109-236, § 5(a), 120 Stat. 493, 498 (2006).\\nIt codified a similar provision that had previously appeared in\\n\\n\\n 1\\n The statute uses the term “Secretary,” 30 U.S.C.\\n§ 813(j), referring to “the Secretary of Labor or his delegate[,]”\\nid. § 802(a). In this context, MSHA is the Secretary’s delegate.\\n29 U.S.C. § 557a.\\n\\n\\n\\n\\n 4\\n\\fan MSHA emergency regulation. S. Rep. No. 109-365, at 13\\n(2006).\\n\\n Shortly after the MINER Act became law, MSHA\\npromulgated a final regulatory version of the same notification\\nrequirement, codified at 30 C.F.R. § 50.10.2 Emergency Mine\\nEvacuation, 71 Fed. Reg. 71,430, 71,430-31, 71,434-36 (Dec.\\n8, 2006). That regulation says that an “operator shall\\nimmediately contact MSHA at once without delay and within\\n15 minutes at the toll-free number, 1-800-746-1553, once the\\noperator knows or should know that an accident has occurred\\ninvolving: … [a]n injury of an individual at the mine which has\\na reasonable potential to cause death[.]” 30 C.F.R. § 50.10(b).\\n\\n B. Factual Background\\n\\n On August 12, 2013, at about 3:15 a.m., Stern was\\ncrushed between two multi-ton pieces of mining equipment.\\nThe mine section supervisor, John McDonald, was notified of\\nthe accident within minutes, and he got to the scene three or\\nfour minutes later. When he arrived, Stern told him that “he\\ngot pinched,” that “he was in a lot of pain[,]” that he could not\\nmove his legs, and that he could feel “the pinch” on one of his\\nlegs. (App. at 242, 249.) Stern also screamed in pain when his\\nlegs were moved.\\n\\n McDonald asked the mine “bunker to call 9-1-1 to get\\nan ambulance running.” (App. at 242.) He also radioed for\\n\\n\\n\\n 2\\n We refer to the rulemaking that established that\\nregulation as the “post-MINER Act rulemaking.”\\n\\n\\n\\n\\n 5\\n\\fShannon Smith, a “fire boss mine examiner” and EMT,3 to\\ncome to the scene, saying there was “a man crushed[.]” (App.\\nat 209, 211.) Additionally, McDonald and Smith yelled for the\\n“haulage” to be cleared out of the way – as is common in an\\nemergency – to allow Consol to quickly get Stern out of the\\nmine.4 (App. at 237, 250.)\\n\\n Smith reached the scene eight to ten minutes after\\nreceiving the call. He noticed that Stern’s knee had an\\nunnatural bend to it, indicating it was broken, and that Stern\\ncould not feel or move that leg. Stern said he was in pain.\\nSmith placed Stern in a neck brace, in case Stern had a spinal\\ninjury.\\n\\n Not all of Stern’s symptoms gave cause for concern.\\nFor example, Smith told the shift foreman that Stern “was\\ncalm, collected, good, no high pulse beat or anything like that.”\\n(App. at 267.) And Stern never lost consciousness or the\\nability to respond to questions coherently, nor did he have any\\nproblem with his pulse or breathing.\\n\\n\\n\\n\\n 3\\n A fire boss mine examiner “examine[s] the whole\\nmine with the provisions of the law” for issues such as safety\\nviolations. (App. at 209.) EMTs are emergency medical\\ntechnicians, sometimes called paramedics. Smith was a\\nlicensed EMT, and McDonald had EMT training but was not\\nlicensed.\\n 4\\n “Clearing the haulage” means to “clear[] the\\nequipment out of the way” within the mine to quicken\\nextraction from the mine. (App. at 134.)\\n\\n\\n\\n\\n 6\\n\\f Nevertheless, Smith viewed Stern’s injury as “[p]retty\\nbad” and “traumatic,” and he later described it as “[t]he worst\\nof the accidents” he had treated – which otherwise mainly\\nconsisted of “[b]umps and bruises[.]” (App. at 220-21.) And,\\nin fact, some of Stern’s symptoms were alarming. Perhaps\\nmost significantly, McDonald and Smith noticed that Stern’s\\nstomach was becoming hard and distended. They both\\nrecognized that as a sign of internal bleeding.5 Stern’s own\\nfears were plain when he told Smith “[s]omething [along] the\\nlines that if something did happen to [him], please tell [his]\\nwife and family that [he] love[s] them[.]” (App. at 220.)\\n\\n McDonald and Smith called the bunker to request “Life\\nFlight,” a helicopter medevac service. Smith “wanted to err on\\nthe side of caution” because he thought internal bleeding was\\npossible, which he acknowledged can lead to death, and he\\nfeared “the possibility of – the uncontrollable.” (App. at 226,\\n236.) McDonald likewise explained that when they felt Stern’s\\nstomach, which was swelling, they got nervous and called Life\\nFlight as a precaution; he said that stomach swelling can mean\\ninternal bleeding, which he testified has a reasonable potential\\nto cause death. Smith had never called Life Flight or heard of\\nanyone doing so since he started working at the mine in\\n2009 – years before Stern’s 2013 injury – and McDonald had\\nnever called Life Flight, although he knew of times it had been\\ncalled. Despite all that, McDonald testified that he did not\\nbelieve there was a reasonable potential that Stern could die.\\n\\n\\n 5\\n Smith and McDonald were aware, however, that there\\nare different degrees of internal bleeding and that hardening\\nand swelling of the abdomen can be caused by things other than\\ninternal bleeding.\\n\\n\\n\\n\\n 7\\n\\f An attendant in the bunker called the mine safety\\nsupervisor, Michael Tennant, at home at about 3:30 or 3:45\\na.m. The attendant told Tennant that there was an injured\\nworker who had been “pinched between two [pieces of\\nequipment] and EMTs were on their way.” (App. at 279.)\\nTennant decided to go to the mine, even though he did not do\\nso for every accident. He went this time “[b]ecause an\\nemployee was pinched between two large pieces of\\nequipment.” (App. at 289.) On his way, the attendant called\\nagain. The attendant gave more information about the medical\\npersonnel and Stern’s extraction from the mine, and he said\\nthat Life Flight had been called6 and that Stern “had a broken\\nleg, [a] dislocated indicated hip or some lower-type pelvis-type\\nincident,” and “tightening of the stomach[,]” but “was\\nconscious and alert, [and] had been talking.” (App. at 280,\\n330.)\\n\\n After Tennant arrived, at around 4:30 or 4:45 a.m., he\\nspoke to Smith and others. He called MSHA at approximately\\n5:09 a.m. Tennant testified, however, that he did not think\\nthere was a reasonable potential for death. Rather, he reported\\nthe incident “because [inspectors] were going to be rolling in\\nat any point in time, and [he] didn’t want them to come in and\\nnot know anything about the event[,]” given that “Life Flight\\nwas called” and there had been “a serious accident[.]” (App.\\n\\n\\n\\n\\n 6\\n There is some ambiguity as to whether Tennant\\nlearned about the call to Life Flight during the first or second\\nconversation with the bunker attendant.\\n\\n\\n\\n\\n 8\\n\\fat 318.) He also said that Life Flight is often called even if\\ninjuries are not severe enough to notify MSHA.7\\n\\n Stern was ultimately taken to a hospital by ground\\nbecause it was too foggy for a Life Flight airlift. He did have\\ninternal bleeding, but doctors predicted it would stop within an\\nhour and a half, and it did. Surgery was performed because\\nStern had a broken pelvis.\\n\\n MSHA inspector Thomas Bochna investigated the\\nincident. He ultimately decided to issue Consol a citation\\nunder 30 C.F.R. § 50.10(b) for failing to alert MSHA about the\\naccident within the first 15 minutes after it occurred. He\\ntestified that he issued the citation based on the following\\nreasoning:\\n\\n [A]fter interviews, investigating the accident, the\\n conditions that the people onsite were observing,\\n I thought in the first 15 minutes there was enough\\n evidence with the things they were reporting that\\n the person was complaining about, what he was\\n feeling, what they were seeing, that it was\\n reasonably – you know, an injury was\\n – reasonable potential to cause death[.]\\n\\n (App. At 157.) He proposed a fine of $5,000, which was then\\nthe minimum under the statute and MSH regulations.\\n\\n\\n\\n\\n 7\\n In testimony, however, both Tennant and McDonald\\nacknowledged that “red zone” incidents – where a miner enters\\na pinch point between pieces of equipment – are quite serious.\\n\\n\\n\\n\\n 9\\n\\f C. Procedural History\\n\\n The citation was litigated before an administrative law\\njudge (“ALJ”) who upheld MSHA’s citation and the proposed\\npenalty. Consol promptly appealed to the Commission itself.\\n\\n The Commission affirmed. It first determined the\\nappropriate legal standard. It observed that, “when assessing\\nthe merits of a violation under section 50.10(b), the\\nCommission employs a reasonable person standard, resolving\\nreasonable doubt in favor of notification[,]” and it concluded\\nthat “[t]he outcome determinative inquiry in this case is\\nwhether responsible Consol employees had information that\\nwould lead a reasonable person to conclude there was a\\nreasonable potential for death based upon the nature of the\\ninjury and the totality of the circumstances.” (App. At 8, 10).\\nIt further said that, under the “totality of the circumstances”\\ntest, “the scope of the relevant evidence available to assist for\\npurposes of section 50.10(b) generally will consist of the\\nevidence available at the scene of the accident, at the time of\\nthe accident, and immediately following the accident[,]” and,\\n“[w]hile the record will often contain subsequent relevant\\ninformation from medical professionals, this information” is\\nless probative because it “will likely not materialize until the\\ntime to make a decision to notify MSHA has already passed.”\\n(App. At 8.) The Commission made clear that “[t]he\\nnotification requirement does not, and cannot, rest upon a post-\\nmedical treatment analysis of the likelihood of death from the\\ninjuries.” (App. At 9.)\\n\\n Turning to a review of the facts, the Commission agreed\\nwith the ALJ that Consol was aware of information that would\\n\\n\\n\\n\\n 10\\n\\flead a reasonable person to conclude that Stern’s injuries\\ninvolved a reasonable potential for death. It said:\\n\\n In light of the knowledge and training possessed\\n by Tennant, McDonald, and Smith, we conclude\\n that someone with sufficient authority at Consol\\n was aware of Stern’s injury-causing event.\\n These employees surely realized from their\\n training that, when a miner is pinched between\\n major pieces of equipment and then suffers from\\n a distended and hardened abdomen, there is a\\n high potential if not a likelihood of internal\\n bleeding. In turn, nearly every knowledgeable\\n witness testified to the obvious – namely,\\n internal bleeding is a potential cause of death.\\n Under these circumstances, the evidence\\n overwhelmingly demonstrates that a reasonable\\n person possessing the available information\\n would have concluded there was a reasonable\\n potential for death.\\n\\n(App. at 11; see also App. at 10 (“Perhaps most importantly\\nand certainly outcome determinative here, … [Smith and\\nMcDonald] became aware of possible internal bleeding, knew\\nsuch bleeding could cause death, and asked for a Life Flight\\ndue to concern over the nature and severity of Stern’s injuries,\\nincluding the circumstances which caused them.”).) The\\nCommission concluded that substantial evidence supported the\\nALJ’s “finding that Consol had a duty to contact MSHA\\nimmediately after the accident.” (App. at 3.)\\n\\n Next, the Commission considered the appropriate\\npenalty. It rejected Consol’s argument that the ALJ “erred in\\n\\n\\n\\n\\n 11\\n\\ffailing to consider a penalty lower than the statutory minimum\\nof $5,000 because the Commission assesses penalties de novo\\nand is not bound by” the penalty provisions in 30 U.S.C.\\n§ 820(a)(2). (App. at 13.) The Commission explained that it\\n“ha[d] determined that an assessment of penalty for a non-\\nflagrant violation of section 50.10(b) is governed by” the\\nlimitations in § 820(a)(2). (App. at 13.) And, it reasoned that\\n§ 820(a)(4) requires courts to “apply at least the minimum\\npenalties required under” § 820(a), so “[a] statutory scheme [of\\nthe sort Consol suggested] that permits the Commission to\\nassess any penalty, however minimal, but requires a reviewing\\ncourt to impose a penalty of at least $5,000, makes no sense.”\\n(App. at 14 (citation omitted).)\\n\\n Consol timely petitioned for review.\\n\\nII. DISCUSSION8\\n\\n Consol raises three primary challenges to the\\nCommission’s decision. First, it says the legal standard applied\\nby the Commission is inappropriate. Second, it asserts that the\\ncitation is not supported by substantial evidence. And third, it\\ncontends that the Commission was not bound by the mandatory\\nminimum penalty of $5,000. Each of those positions is\\nunpersuasive.\\n\\n\\n 8\\n The Commission had jurisdiction pursuant to 30\\nU.S.C. §§ 815(d), 823(d). We have jurisdiction under 30\\nU.S.C. § 816(a)(1). We review legal conclusions de novo and\\nfindings of fact for substantial evidence. Cumberland Coal\\nRes., LP v. Fed. Mine Safety & Health Review Comm’n, 515\\nF.3d 247, 252 (3d Cir. 2008).\\n\\n\\n\\n\\n 12\\n\\f A. The Commission’s Legal Standard\\n\\n Consol attacks various aspects of the legal standard\\narticulated by the Commission. But that standard is correct\\nand, indeed, compelled by the pertinent statute and regulation,\\n30 U.S.C. § 813(j) and 30 C.F.R. § 50.10(b).\\n\\n i. The Commission’s Legal Standard Is\\n Required by 30 U.S.C. § 813(j) and 30\\n C.F.R. § 50.10(b)\\n\\n The Commission’s legal standard, in summary, is as\\nfollows. First, reasonable doubts must be resolved in favor of\\nnotifying MSHA; second, liability must be assessed based on\\nwhether a reasonable person in the circumstances would view\\nthe injuries as having a reasonable potential to cause death;\\nthird, the totality of the circumstances must be considered; and\\nfourth, the focus must be on the information available around\\nthe time of the injury, so post-hoc medical evidence is less\\nprobative.\\n\\n We have never had occasion to interpret 30 U.S.C.\\n§ 813(j) or 30 C.F.R. § 50.10(b), so we start from first\\nprinciples of statutory and regulatory construction.9 Cf. Pa.\\n\\n 9\\n Consol does not argue that the regulation conflicts\\nwith the statute. Accordingly, we need not consider whether\\nthe regulation is an appropriate construction of the statute and\\nwe treat both provisions in tandem. We note, however, that\\nthere seems to be a gap between the statute and the regulation.\\nSection 813(j) says that an operator must notify MSHA “within\\n15 minutes of the time at which the operator realizes that … an\\ninjury … of an individual at the mine which has a reasonable\\npotential to cause death, has occurred[,]” 30 U.S.C. § 813(j)\\n\\n\\n\\n\\n 13\\n\\fFed’n of Sportsmen’s Clubs, Inc. v. Kempthorne, 497 F.3d 337,\\n351 (3d Cir. 2007) (“The basic tenets of statutory construction\\napply to construction of regulations[.]”). Our Pole Star is the\\nprinciple that, if a statute or rule is unambiguous, we must give\\neffect to its plain meaning. See Kisor v. Wilkie, 139 S. Ct.\\n2400, 2415 (2019) (stating the principle in the context of\\nregulatory interpretation). We are further guided by the\\nSupreme Court’s recent admonition that “hard interpretive\\nconundrums, even relating to complex rules, can often be\\nsolved” without “wav[ing] the ambiguity flag[.]” Id. Indeed,\\nwe may not consider a statute or rule to be “genuinely\\nambiguous” unless it remains unclear after we have\\n“exhaust[ed] all the ‘traditional tools’ of construction.” Id.\\n(quoting Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.,\\n467 U.S. 837, 843 n.9 (1984)). Consequently, our analysis\\nproceeds by “‘carefully consider[ing]’ the text, structure,\\nhistory, and purpose” of the statute and regulation. Id. (citation\\nomitted).\\n\\n We start with the language of the notification\\nrequirement itself. See Food Mktg. Inst. V. Argus Leader\\nMedia, 139 S. Ct. 2356, 2364 (2019) (“In statutory\\n\\n\\n(emphasis added), whereas the regulation contains a similar\\ndirective but uses the term “knows or should know” instead of\\n“realizes,” 30 C.F.R. § 50.10. But, even if we were to consider\\nthat gap, it would not affect our analysis here. The\\nCommission’s decision was premised on its conclusion that\\nConsol “knew the requisite information” and that “a reasonable\\nperson evaluating the known facts would have found a\\nreasonable potential for death.” (App. at 11 n.10 (emphasis\\nadded).) Those factual premises are sound, and we take the\\nsame approach.\\n\\n\\n\\n\\n 14\\n\\finterpretation disputes, a court’s proper starting point lies in a\\ncareful examination of the ordinary meaning and structure of\\nthe law itself.”). As referenced earlier, § 813(j) provides, in\\nrelevant part:\\n\\n In the event of any accident occurring in any coal\\n or other mine, the operator shall notify\\n [MSHA]10 thereof and shall take appropriate\\n measures to prevent the destruction of any\\n evidence which would assist in investigating the\\n cause or causes thereof. For purposes of the\\n preceding sentence, the notification required\\n shall be provided by the operator within 15\\n minutes of the time at which the operator realizes\\n that the death of an individual at the mine, or an\\n injury or entrapment of an individual at the mine\\n which has a reasonable potential to cause death,\\n has occurred.\\n\\n30 U.S.C. § 813(j). Similarly, the regulation says, in part:\\n\\n The operator shall immediately contact MSHA\\n at once without delay and within 15 minutes at\\n the toll-free number, 1–800–746–1553, once the\\n operator knows or should know that an accident\\n has occurred involving: … (b) An injury of an\\n individual at the mine which has a reasonable\\n potential to cause death[.]\\n\\n\\n\\n\\n 10\\n Again, MSHA is the delegate of the Secretary of\\nLabor.\\n\\n\\n\\n\\n 15\\n\\f30 C.F.R. § 50.10. On its face, that language does not specify\\nthe standard by which one is to determine whether an injury\\nfrom a mine accident is one “which has a reasonable potential\\nto cause death.” Thus, we look to other sources of guidance.\\n\\n The first source we consider is the stated purpose of the\\nMine Act. The “Congressional findings and declaration of\\npurpose[,]” set forth in 30 U.S.C. § 801, specify that the goal\\nof the Mine Act is to protect miners. Section 801 says, for\\nexample, that “the first priority and concern of all in the coal\\nor other mining industry must be the health and safety of its\\nmost precious resource – the miner”; that “deaths and serious\\ninjuries from unsafe and unhealthful conditions and practices\\nin the coal or other mines cause grief and suffering to the\\nminers and to their families”; and that “there is an urgent need\\nto provide more effective means and measures for improving\\nthe working conditions and practices in the Nation’s coal or\\nother mines in order to prevent death and serious physical\\nharm[.]” 30 U.S.C. § 801(a)-(c); see also Thunder Basin Coal\\nCo. v. Reich, 510 U.S. 200, 202 (1994) (“Congress adopted the\\nMine Act ‘to protect the health and safety of the Nation’s coal\\nor other miners.’” (quoting 30 U.S.C. § 801(g)). Moreover,\\n§ 801 makes clear that miner protection is central to the mining\\nindustry’s interests, so the Mine Act does not seek to balance\\nminers’ safety against any inconvenience associated with\\ncompliance that mine operators might face. See 30 U.S.C.\\n§ 801(d) (“[T]he existence of unsafe and unhealthful\\nconditions and practices in the Nation’s coal or other mines is\\na serious impediment to the future growth of the coal or other\\nmining industry and cannot be tolerated[.]”); see also id.\\n§ 801(f) (“[T]he disruption of production and the loss of\\nincome to operators and miners as a result of coal or other mine\\naccidents … unduly impedes and burdens commerce[.]”).\\n\\n\\n\\n\\n 16\\n\\f The second source of guidance we look to is the\\nobjectives of the notification requirement itself. That\\nrequirement is plainly designed to encourage rapid notification\\nso that MSHA can respond effectively in an emergency and\\npreserve evidence to facilitate later investigation. Section\\n813(j) specifies that “any accident occurring in any coal or\\nother mine” is to be reported to MSHA. Id. § 813(j). So it is\\nnot just potentially deadly accidents that are reportable.11\\nFurthermore, § 813(j) says that mine operators must “take\\nappropriate measures to prevent the destruction of any\\nevidence which would assist in investigating the cause or\\ncauses” of an accident and, “where rescue and recovery work\\nis necessary, [MSHA] shall take whatever action [it] deems\\nappropriate to protect the life of any person, and [it] may, if [it]\\ndeems it appropriate, supervise and direct the rescue and\\nrecovery activities[.]” Id. Thus, concern for the preservation\\n“of any evidence which would assist in investigating the cause\\nor causes” of accidents, and, more importantly, the need for\\ngovernment action “to protect the life of any person” and\\nmanage “rescue and recovery activities[,]” id., justify reporting\\nof non-lethal accidents too. The 15-minute notification\\nwindow is in force for potentially deadly accidents, and reflects\\nthe naturally heightened level of concern. When death is a\\nreasonable possibility, “[i]mmediate notification activates\\nMSHA emergency response efforts, which can be critical in\\nsaving lives, stabilizing the situation, and preserving the\\n\\n 11\\n Under the Mine Act, “accident” is defined to include\\n“a mine explosion, mine ignition, mine fire, or mine\\ninundation, or injury to, or death of, any person[.]” 30 U.S.C.\\n§ 802(k).\\n\\n\\n\\n\\n 17\\n\\faccident scene[,]” and “[p]rompt notification enables MSHA\\nto secure an accident site, preserving vital evidence that can\\notherwise be easily lost.”12 Emergency Mine Evacuation, 71\\nFed. Reg. at 71,431, 71,435.\\n\\n The final source of guidance is the history of the\\nnotification requirement. Relevant here, the 15-minute rule\\nwas added to the statutory framework by the MINER Act,\\nwhich was enacted largely in response to three lethal mining\\naccidents. S. Rep. No. 109-365, at 1-2, 9; see also Cumberland\\nCoal, 717 F.3d at 1022 (“The violations at issue in this case\\narose under amendments to the [Mine] Act enacted in response\\nto three multiple-fatality mine disasters, in which miners who\\nwere unable to evacuate mines died.”). The MINER Act\\nSenate Report explained that “[t]hese tragedies serve as a\\nsomber reminder that even that which has been done well can\\nalways be done better.” S. Rep. No. 109-365, at 2. The\\nMINER Act codified an MSHA emergency regulation that first\\nimposed the 15-minute notification rule. See Emergency Mine\\nEvacuation, 71 Fed. Reg. 12,252 (Mar. 9, 2006).\\n\\n That earlier MSHA emergency regulation was\\npromulgated in response to two of the same incidents that\\n\\n 12\\n Under the regulation, the 15-minute notification\\nrequirement attaches to all “accident[s,]” 30 C.F.R. § 50.10,\\nand the regulatory definition of “[a]ccident” includes 12\\nspecific types of events, including “[a]n injury to an individual\\nat a mine which has a reasonable potential to cause death[,]”\\nid. § 50.2(h) (emphasis added). The statute and regulation thus\\nagree that potentially deadly accidents require notification\\nwithin 15 minutes. Cf. id. § 50.10(a)-(c) (requiring notification\\nwithin 15 minutes for deadly or potentially deadly accidents).\\n\\n\\n\\n\\n 18\\n\\fmotivated the MINER Act. Id. at 12,252, 12,253-54; see also\\nCumberland Coal, 717 F.3d at 1022 (“Also in the wake of the\\ndisasters, MSHA issued an Emergency Temporary Standard on\\nemergency mine evacuations in March 2006.”). The\\nemergency rulemaking explained that, “[i]n response to the\\nrecent accidents …, MSHA has determined that new accident\\nnotification, safety and training standards are necessary to\\nfurther protect miners when a mine accident takes place.”\\nEmergency Mine Evacuation, 71 Fed. Reg. at 12,253. The\\nvery first of the “new standards” described was the 15-minute\\nrule, and MSHA emphasized that the rule would serve to better\\nprotect miners by facilitating the objectives of the notification\\nrequirement, as set out above. See id. (“Such immediate\\nnotification will enable help to arrive sooner at the mine, and\\nprotect miners from the grave dangers of physical injury and\\ndeath.”); id. at 12,257 (“Notification alerts the Agency so that\\naccident investigations and assistance to trapped or injured\\nminers can be initiated.”). In sum, the history of the\\nnotification requirement shows that a 15-minute provision was\\nadopted in response to deadly mine accidents and was meant\\nto increase the speed of notification to allow MSHA to more\\neffectively protect miners.\\n\\n Considering those several guideposts together, it is\\nplain that the notification requirement was designed to serve\\nthe Mine Act’s unyielding purpose of protecting miners by\\nencouraging rapid notification, thereby allowing MSHA to\\neffectively initiate an emergency response and to ensure the\\npreservation of evidence for use in investigations. The\\nnotification requirement should be interpreted to effectuate that\\npurpose. In light of that, the Commission’s legal standard is\\nentirely sound, as a consideration of each of the four\\ncomponents of that legal standard demonstrates.\\n\\n\\n\\n\\n 19\\n\\f 1. Reasonable Doubts Must Be\\n Resolved in Favor of\\n Notification\\n\\n First, it makes sense that all reasonable doubts must be\\nresolved in favor of notifying MSHA. If the rule were\\notherwise, mine operators would be encouraged not to call\\nMSHA until an accident was sure to be life threatening,13\\ndespite the standard being an accident having “a reasonable\\npotential to cause death.” The severity and scope of an\\nemergency are rarely apparent in the moment, and by the time\\nclarity has been achieved, an MSHA response may be too little,\\ntoo late. Furthermore, no risk to miners would result from an\\nerroneous MSHA notification, whereas substantial risk could\\nresult from a failure to notify, with MSHA being prevented\\nfrom initiating an emergency response and beginning a\\nsuccessful investigation. Given that the notification\\n\\n\\n 13\\n The Commission said that it “has not found it\\nnecessary to” define “reasonable potential to cause death.”\\n(App. at 7 (citing Secretary of Labor v. Signal Peak Energy,\\nLLC, 37 FMSHRC 470, 474 (2015)).) In Signal Peak, the\\nCommission observed that it was enough to say the accident\\nwas “life-threatening[,]” because, in that case, the miner’s\\n“injuries clearly [fell] within the realm of a reasonable\\npotential to cause death[.]” 37 FMSHRC at 474 (citation and\\ninternal quotation marks omitted). Therefore, the Commission\\nboth here and in Signal Peak concluded that the injuries at issue\\nhad a reasonable potential to cause death under a “life\\nthreatening” standard. We follow the Commission’s lead in\\nthat regard and use “life threatening” as a working\\ninterpretation of “reasonable potential to cause death.”\\n\\n\\n\\n\\n 20\\n\\frequirement and the statutory and regulatory scheme at issue\\nare designed to provide robust protections for miners – and not\\nto balance those protections against compliance\\ndifficulties – the only rule that effectuates the purpose of the\\nstatute and regulation is one that requires notification in cases\\nwhere there is reasonable doubt whether the accident will\\nprove to have “a reasonable potential to cause death.”\\n\\n Consol argues that requiring reasonable doubts to be\\nresolved in favor of notification appears nowhere in the text of\\nthe statue or regulation and that adopting such a rule shifts the\\nburden of proof to the operator. But that argument misses the\\nmark, because a logical reading of the text does support the\\nrule, as we have just explained, and, in any event, text is the\\nstarting point in understanding a statute or regulation, not\\nnecessarily the ending point. Moreover, the conclusion that\\nreasonably doubtful cases require notification has nothing to\\ndo with who must prove whether a case falls into the\\n“reasonably doubtful” category.\\n\\n 2. The Notification Requirement\\n Must Be Interpreted from the\\n Perspective of a Reasonable\\n Person in the Circumstances\\n\\n Second, the notification requirement must be analyzed\\non an objective basis, asking whether a reasonable person in\\nthe circumstances would view a miner’s injury as having a\\nreasonable potential to cause death. Only an objective test\\nensures that mine operators cannot weaken miner protection by\\nasserting their subjective views as a defense against calling\\nMSHA. An objective standard – which focuses on the\\nreasonably perceived severity of an accident in the\\n\\n\\n\\n\\n 21\\n\\fmoment – likewise reinforces the incentive for mine operators\\nto notify MSHA quickly, when the agency can take effective\\naction.\\n\\n To its credit, Consol does not claim that a subjective\\nstandard would suffice. Rather, the alternative rule it argues\\nfor would require MSHA to prove that the injured miner\\nactually faced a reasonable potential for death as a matter of\\nmedical fact, even if the actual severity of his injuries was\\nunknowable at the time of the incident. That rule, however,\\nlike a subjective standard, would undermine what the\\nnotification requirement seeks to accomplish. In marginal\\ncases, it would encourage mine operators to forego calling\\nMSHA after an accident in the hopes that the true but presently\\nunknown medical facts would turn out to be better than those\\nperceived in the moment. Under Consol’s proposal, an injury\\nwould not become reportable until a mine operator has gained\\nsufficient expert advice to say with medical certainty that the\\ninjury had a reasonable potential to cause death. That, of\\ncourse, would mean almost certain delay, since physicians are\\nnot on standby in mines.14 Consol’s rule would thus frustrate\\nrather than facilitate reporting. See Sec’y of Labor v. Cougar\\n\\n 14\\n Consol asserts that delay would not be a problem,\\ncontending that “[t]he immediacy burden on Consol has\\nnothing to do with the elemental burden on the Secretary.”\\n(Opening Br. at 27.) But we fail to see how that could be so.\\nIf MSHA can only prove whether an injury having a reasonable\\npotential to cause death occurred by resorting to medical\\nevidence, it follows that a mine operator could not have\\nsufficient awareness of the occurrence of such an injury until\\nthe medical evidence is available, and it is highly unlikely to\\nbe available on site.\\n\\n\\n\\n\\n 22\\n\\fCoal Co., 25 FMSHRC 513, 521 (2003) (“If we were to accept\\nthe [ALJ’s] construction [requiring that MSHA furnish a\\nmedical opinion that a miner’s injuries had a reasonable\\npotential to cause death], a medical or clinical opinion of the\\npotential of death would be needed before an accident is even\\ndetermined to be reportable under section 50.10. Such a\\nconstruction would serve to frustrate the immediate reporting\\nof near fatal accidents.”).\\n\\n The conclusion that a “reasonable person in the\\ncircumstances” standard is the required one – and that a rule\\nfocused on the eventually proven medical severity of an injury\\nis not – is further supported by our determination that\\nreasonable doubts must be resolved in favor of notification.\\nWhen the perceived severity of an injury is high but the true\\nmedical severity is not yet known, a mine operator should\\nsurely have a reasonable doubt about concluding that no\\nreasonable potential for death exists.\\n\\n Finally, in Mainline Rock & Ballast, Inc. v. Secretary of\\nLabor, 693 F.3d 1181 (10th Cir. 2012), one of the few Court\\nof Appeals opinions on point, the Tenth Circuit upheld a\\ncitation under 30 C.F.R. § 50.10(b) by applying a “reasonable\\nperson in the circumstances” test, and it did so without ever\\naddressing whether MSHA had proven that the injury involved\\na reasonable potential for death as a matter of medical fact.\\nMainline Rock, 693 F.3d at 1189. Further, and importantly, the\\ncourt nowhere described that regulation as ambiguous, but\\n\\n\\n\\n\\n 23\\n\\frather treated the standard it applied as the one obviously and\\nlogically required.15\\n\\n Although the foregoing analysis adequately\\ndemonstrates that the statute and regulation are governed by a\\n“reasonable person in the circumstances” standard, that\\nconclusion is reinforced by the history of the regulation. The\\npost-MINER Act rulemaking expressly said that the\\nnotification inquiry “is based on what a reasonable person\\nwould discern under the circumstances, particularly when\\n‘[t]he decision to call MSHA must be made in a matter of\\nminutes after a serious accident.’” Emergency Mine\\nEvacuation, 71 Fed. Reg. at 71,434 (alteration in original)\\n(emphasis added) (citation omitted). And it rejected a focus on\\nthe medical facts, stating, “the operator’s decision as to what\\nconstitutes a ‘reasonable potential to cause death’ ‘cannot be\\nmade upon the basis of clinical or hypertechnical opinions as\\nto a miner’s chance of survival.’” Id. at 71,433-34 (citation\\nomitted).\\n\\n In short, the standard that best accomplishes the aims of\\nthe notification requirement is one that focuses on whether a\\nreasonable mine operator in the circumstances would perceive\\na reasonable potential for death. Consol challenges that\\nconclusion by asserting that, under a “reasonable person in the\\ncircumstances” standard, “the operator would face an ever-\\nmoving target and have no way to defend itself[.]” (Opening\\nBr. at 26.) Not so. The target is clear, even if it is not the one\\nConsol would prefer to have in its sights. Giving Consol what\\n\\n 15\\n Because the operative language of the statute and\\nregulation are the same, we view Mainline Rock as supporting\\nour interpretation of both.\\n\\n\\n\\n\\n 24\\n\\fit wants – a complete defense based on medical facts unknown\\nat the time – would, as set out above, substantially conflict with\\nthe statutory and regulatory framework before us.16\\n\\n 3. The Totality of the\\n Circumstances Must Be\\n Considered\\n\\n It is also clear that § 813(j) and its regulatory\\ncounterpart, § 50.10(b), must be applied in light of the “totality\\nof the circumstances.” Under a “reasonable person in the\\ncircumstances” standard, the circumstances to be considered\\nare necessarily all of them, not just some. How else could one\\nbe expected to assess whether an injury suggests a reasonable\\npotential for death, other than by using a “totality of the\\ncircumstances” test? Injuries, by the very nature of the\\naccidents that cause them and the complexity of the human\\nbody, come in too many varieties to easily catalogue. And the\\nfactors suggesting that an injury is serious are just as diverse.\\nA “totality” inquiry is thus proper because, as with other\\nmatters of judgment, whether an injury is reasonably perceived\\nas life threatening is “not readily, or even usefully, reduced to\\na neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232,\\n238 (1983) (concluding that a “totality of the circumstances”\\ntest was appropriate in a Fourth Amendment case); see also\\n\\n\\n 16\\n Consol also argues that, “[h]istorically, ALJs actually\\nrequired the Secretary to present medical proof to sustain a\\nviolation[.]” (Opening Br. at 23.) That argument, however,\\ngains no traction because, even if the historical assertion is\\naccurate, the statute and regulation are unambiguous, and ALJ\\ndecisions neither bind the Commission nor qualify as agency\\nprecedent. 29 C.F.R. § 2700.69(d); Big Ridge, 715 F.3d at 640.\\n\\n\\n\\n\\n 25\\n\\fMainline Rock, 693 F.3d at 1189 (upholding a citation under\\n30 C.F.R. § 50.10(b) after holistically analyzing a mining\\naccident and concluding that “the obvious circumstances of the\\naccident would have triggered some minimal degree of inquiry\\nin a reasonable person, thus prompting a call to the MSHA”).\\n\\n Again, the purpose of the notification requirement has\\nto be borne in mind. Myopically focusing on one factor or a\\nsubset of factors, rather than the totality of the\\ncircumstances, would permit mine operators to avoid calling\\nMSHA, even while possessing information reasonably\\nshowing that an injury is life threatening, simply because that\\ninformation did not fit into an artificially-constructed category.\\nAny test other than one based on a “totality of the\\ncircumstances” would thus put miners at unnecessary risk and\\nwould undermine the purposes and design of the notification\\nrequirement.\\n\\n The necessity of a “totality” approach is underscored by\\nthe above-noted conclusion that all reasonable doubts must be\\nresolved in favor of notification. A holistic approach captures\\nthe full range of information that could lead to reasonable\\ndoubts about concluding that no reasonable potential for death\\nexists.\\n\\n The history of the regulation remains instructive. The\\nnotification decision was expressly contemplated as being\\n“based on what a reasonable person would discern under the\\ncircumstances[.]” Emergency Mine Evacuation, 71 Fed. Reg.\\nat 71,434 (emphasis added). And, the drafters of the regulation\\nexplained that injuries involving a reasonable potential for\\ndeath “can result from various indicative events,” so they\\n\\n\\n\\n\\n 26\\n\\fencouraged that all factors, including the injury itself and the\\nnature of the accident, be considered.17 Id.\\n\\n Consol mainly challenges the “totality of the\\ncircumstances” rule on the ground that it permits factors not\\nlisted in the statute or regulation to overcome a lack of medical\\nevidence. In that regard, it contends that the focus must be on\\nthe injury alone and not the circumstances surrounding it\\n\\n 17\\n We note that “totality of the circumstances” can be\\nread in two different, albeit related, ways. First, it can refer to\\nwhat the mine operator must consider in deciding whether to\\ncall MSHA. Second, it can refer to the evidence courts and the\\nCommission should consider in evaluating a notification\\ncharge. In our view, both readings are appropriate and\\nrequired. That is so for the first reading for all the reasons set\\nout above. And it is so for the second reading because that\\nreading is simply the adjudicatory corollary of the first.\\n The second reading is broader than the first, as it allows\\nconsideration of evidence that was not actually before the mine\\noperator at the time the operator made the decision whether to\\nnotify MSHA. But considering all available evidence is\\nappropriate at the adjudication stage because it can provide\\nimportant circumstantial evidence of what a reasonable mine\\noperator would have perceived. For example, if there were\\nlittle direct evidence of what a mine operator actually saw\\naround the time of an accident, but the record demonstrated\\nthat numerous mine employees were nearby when the accident\\noccurred and that a post-hoc medical examination revealed that\\nthe injured miner had been bleeding profusely since the\\nmoment of injury, the post-hoc medical evidence could be\\nviewed as significant circumstantial evidence of what was\\nknown at the scene.\\n\\n\\n\\n\\n 27\\n\\f– such as the nature of the accident – because “injury” is what\\nappears in the text. It further asserts that “[r]ushing to get\\nsomeone to the hospital fast is not proof that someone may die”\\nand neither “is the nature of the accident (e.g., a car being\\ntotaled sounds terrible, but people walk away from such\\naccidents).” (Reply Br. at 16 n.9.) And, more generally, it\\nwarns that, “[i]f the Court allows uninterpreted generalized\\nobservations to act as a substitute for evidence, then all the\\nSecretary will have to do is call one witness to describe a\\nchaotic injury scene and the ALJ, who also has no medical\\ntraining, would then be free to speculate that virtually any\\ninjury has a reasonable potential to cause death.” (Reply Br. at\\n17.)\\n\\n Those arguments conveniently neglect that generalized\\nobservations are evidence, often crucial evidence, and nothing\\nin the statute or regulation requires or even encourages that\\nthey be ignored. Consol’s suggestion that a “totality” standard\\nis inappropriate because it allows consideration of factors that\\nare not listed in the statute or regulation rests on the blinkered\\nnotion that only that which is express and nothing that is\\nplainly implied is the meaning of a text. Ordinary experience\\nand general legal principles prove that wrong. Cf. Gates, 462\\nU.S. at 232, 238 (adopting a “totality of the circumstances” test\\nin the probable cause context even though the Fourth\\nAmendment does not mention “totality of the circumstances”\\nor describe what those circumstances might include).\\n\\n Furthermore, Consol’s argument that a “totality”\\ninquiry can wrongly be used to “overcome” a lack of medical\\nevidence could only be true if the notification requirement\\nfocused on whether the injured miner faced a reasonable\\npotential for death as a matter of medical fact. But that is not\\n\\n\\n\\n\\n 28\\n\\fthe case, for reasons already discussed. Later-developed\\nmedical evidence is not the focus. And, we cannot accept the\\ncontention that the notification requirement forbids\\nconsideration of the circumstances surrounding an injury, such\\nas the nature of the accident that caused it.\\n\\n Relatedly, Consol’s assertion that some factors\\nconsidered under a “totality” inquiry might not prove a\\nreasonable potential for death is beside the point. Yes, an\\nindividual fact taken in isolation may not prove something, but\\nthat does not make the fact irrelevant. The very reason to have\\na “totality” inquiry is so that all facts can be considered\\ntogether and analyzed holistically. In that regard, the fear that\\na mere description of a chaotic scene will lead to liability is\\nunfounded. Under a test that examines all available evidence,\\na description of a chaotic scene, without more, is unlikely to\\nestablish that an injury involving a reasonable potential for\\ndeath had occurred. It is the “more,” not the chaotic scene, that\\nConsol needs to be chiefly worried about.\\n\\n Lastly, Consol’s position is unconvincing in light of\\nwhat both the post-MINER Act rulemaking and Mainline Rock\\npersuasively instruct. The rulemaking explained that certain\\ninjuries involving a reasonable potential for death “can result\\nfrom various indicative events,” demonstrating that the nature\\nof the accident is a relevant consideration. Emergency Mine\\nEvacuation, 71 Fed. Reg. at 71,434. And, in Mainline Rock,\\nthe court made clear that the nature of the accident is relevant\\nand, indeed, could be dispositive. See 693 F.3d at 1189 (“Th[e]\\nknowledge [that a miner had been pulled through a roller] alone\\nwould have alerted [a mining official] to the severity of the\\naccident and the potential for death.”).\\n\\n\\n\\n\\n 29\\n\\f 4. The Focus of the Notification\\n Requirement Must Be on the\\n Information Available at the\\n Time of Injury, So Post-Hoc\\n Medical Evidence Is Less\\n Probative\\n\\n Finally, because the focus of the notification\\nrequirement must be on the information available to the mine\\noperator around the time of the injury, post-hoc medical\\nevidence is less probative of whether MSHA should be\\nnotified. If reasonable doubts are to be resolved in favor of\\nnotification, evidence that was not available at the time of the\\ninjury, such as post-hoc medical evidence, will not resolve\\nreasonable doubts created in the moment by an injury that is\\napparently life threatening. The focus must be on the facts\\navailable at the time of injury, and post-hoc medical evidence\\ncan, at best, serve in the attenuated role of raising an inference\\nabout what the mine operator perceived, including the injury’s\\napparent severity. If the totality of the circumstances around\\nthe time of the accident is considered – as it must be – the\\nimportance of post-hoc evidence will necessarily be diluted.18\\n\\n\\n\\n 18\\n Consol counters that, “[u]ntil now, hospital-based\\ninformation has been routinely relied upon by the Commission\\nin other cases.” (Reply Br. at 12.) But neither of the decisions\\nConsol cites actually relied on such evidence. See Signal Peak,\\n37 FMSHRC at 473, 476-77; Cougar Coal, 25 FMSHRC at\\n521. More to the point, however, nothing in the Commission’s\\nruling or in ours today prevents reliance on hospital-based\\ninformation, when that information is kept in proper\\nperspective.\\n\\n\\n\\n\\n 30\\n\\f ii. Consol’s Additional Challenges to the\\n Commission’s Legal Standard Are\\n Unavailing\\n\\n Consol raises two additional arguments challenging the\\nCommission’s legal standard and its application here. Neither\\nconvinces us that the Commission erred.\\n\\n 1. Reasonable Person Comparator\\n Evidence\\n\\n Consol first argues that, if we adopt a “reasonable\\nperson in the circumstances” standard, MSHA should have to\\npresent comparator evidence to prove what a reasonable person\\nwould have done. It says that, in Secretary of Labor v. Leeco,\\nInc., No. KENT 2012-166, 2016 WL 4158378 (F.M.S.H.R.C.\\nJuly 18, 2016), the Commission required such proof.\\n\\n That argument overreads Leeco. In that case, the\\nCommission simply said that, when MSHA seeks to prove that\\na mining company acted negligently, it cannot satisfy its\\nburden by saying the company “should have done more” and,\\ninstead, must “show[] what additional steps” the company\\nshould have taken to meet its standard of care. Id. at *4-5. That\\nobservation is inapposite to notification cases, in which there\\nis no need to determine what “additional steps” might have\\nbeen required. The core question in cases like this is whether\\na reasonable mine operator would have called MSHA, and that\\nquestion is answerable through evidence of the facts available\\naround the time of the accident. Indeed, that has been the\\nCommission’s approach, Secretary of Labor v. Signal Peak\\nEnergy, LLC, 37 FMSHRC 470, 475-77 (2015), and the Tenth\\nCircuit followed it as well in Mainline Rock, 693 F.3d at 1189.\\n\\n\\n\\n\\n 31\\n\\f Furthermore, whether someone acted reasonably is\\ntypically a question for the finder of fact, at least as long as\\n“reasonableness” is within the factfinder’s common\\nknowledge and experience. See, e.g., Natale v. Camden Cty.\\nCorr. Facility, 318 F.3d 575, 580 (3d Cir. 2003) (“A\\nreasonable jury could conclude that [Prison Health Service]\\npersonnel were negligent absent expert testimony. … While\\nlaypersons are unlikely to know how often insulin-dependent\\ndiabetics need insulin, common sense – the judgment imparted\\nby human experience – would tell a layperson that medical\\npersonnel charged with caring for an insulin-dependent\\ndiabetic should determine how often the diabetic needs\\ninsulin.”); Wilburn v. Maritrans GP Inc., 139 F.3d 350, 360\\n(3d Cir. 1998) (“The jury could have found [based on its\\ncommon understanding] that Maritrans was liable for\\nnegligence because the Samson line was not released in a\\nmanner that was reasonably prudent under the exigent\\ncircumstances confronting the persons aboard the\\nEnterprise.”); cf. Vázquez-Filippetti v. Banco Popular de P.R.,\\n504 F.3d 43, 50 (1st Cir. 2007) (“[A] typical tort claim involves\\nthe generic ‘reasonably prudent person’ standard of care (or\\nduty) and requires the plaintiff to present no evidence about the\\ndefendant’s duty[.]”). It is within the province of the\\nCommission’s ALJs to determine whether a reasonable mine\\noperator would have perceived a reasonable potential for death.\\nCf. Thunder Basin, 510 U.S. at 214 (explaining that claims\\narising under the Mine Act “fall squarely within the\\nCommission’s expertise”).\\n\\n Nothing in the statute or regulation suggests an intent to\\ncreate a novel evidentiary rule requiring “reasonable person”\\ncomparator evidence. We presume that rulemaking authorities\\nare aware of existing law when they promulgate statutes or\\n\\n\\n\\n\\n 32\\n\\fregulations. Cf. Mississippi ex rel. Hood v. AU Optronics\\nCorp., 571 U.S. 161, 169 (2014) (“[W]e presume that Congress\\nis aware of existing law when it passes legislation.” (citation\\nand internal quotation marks omitted)). If Consol’s proposed\\nevidentiary rule had been envisioned, it would surely have\\nbeen made explicit in the statute and regulation.\\n\\n 2. Fair Notice\\n\\n Second, Consol argues that it did not have fair notice of\\neither the Commission’s “totality of the circumstances” test or\\nits “reasonable person in the circumstances” standard. Consol\\nraises a number of arguments in that regard, but, based on a\\nsingle line of reasoning, we conclude that all are without merit.\\n\\n The Fifth Amendment’s Due Process Clause is violated\\nfor lack of fair notice if a statute or regulation “fails to provide\\na person of ordinary intelligence fair notice of what is\\nprohibited, or is so standardless that it authorizes or encourages\\nseriously discriminatory enforcement.” FTC v. Wyndham\\nWorldwide Corp., 799 F.3d 236, 249 (3d Cir. 2015) (citation\\nomitted). That “fair notice doctrine extends to civil cases,\\nparticularly where a penalty is imposed.” Id. at 250. But, a\\nparty necessarily has fair notice of how a statute or regulation\\nwill be interpreted if only one interpretation is unambiguously\\ncompelled by the provision at issue.19 See Sec’y of Labor v.\\n\\n\\n 19\\n That is not to say that a party can never raise a fair\\nnotice challenge to unambiguous laws. For example, a\\nprovision may plainly require a certain legal standard that itself\\ndoes not provide fair notice of how it will be applied. A fair\\nnotice challenge would be appropriate in that circumstance to\\ncontest the required standard.\\n\\n\\n\\n\\n 33\\n\\fBeverly Healthcare-Hillview, 541 F.3d 193, 197-98 (3d Cir.\\n2008) (“Before we assess … whether Beverly had fair notice\\nof that interpretation, we must determine whether the meaning\\nof regulatory language is ‘free from doubt.’ … If Beverly is\\ncorrect [that the language is unambiguous], our inquiry would\\nbe at an end.” (citation omitted)). Here, we have concluded\\nthat the Commission’s legal standard is plainly compelled by\\nthe statute and regulation. Consol thus had fair notice of it.\\n\\n To the extent Consol’s argument is that the\\nCommission’s legal standard fails to provide fair notice of how\\nit will be applied and so Consol lacked fair notice that the\\nspecific factual scenario at issue here would constitute a\\nnotification violation, again its position is unpersuasive.\\nWhere, as here, an economic regulation is in question, fair\\nnotice is deemed given unless “the relevant standard is ‘so\\nvague as to be no rule or standard at all[,]’” which is an\\n“especially lax” requirement.20 Wyndham, 799 F.3d at 250\\n(citation omitted). The Commission’s legal standard is not so\\nvague as to fall into that category,21 and, as suggested already\\n\\n 20\\n Recall that whether 30 C.F.R. § 50.10 is a proper\\ninterpretation of 30 U.S.C. § 813(j) is not at issue here.\\n 21\\n Courts commonly conclude that MSHA complies\\nwith the fair notice requirement when it “take[s] action to\\ncorrect violations that would be apparent to a reasonably\\nprudent miner.” Consol Buchanan Mining Co. v. Sec’y of\\nLabor, 841 F.3d 642, 649-50 (4th Cir. 2016). Here, the\\nCommission’s legal standard allows mine operators to be\\npenalized only if a reasonable mine operator would have\\nviewed a miner’s injuries as involving a reasonable potential\\nfor death.\\n\\n\\n\\n\\n 34\\n\\fand detailed further herein, we think it extraordinarily clear\\nthat the injuries in this case reflected a reasonable potential for\\ndeath.\\n\\n B. Substantial Evidence Supports the\\n Commission’s Decision\\n\\n Consol also argues that substantial evidence does not\\nsupport the citation against it. That is a surprising argument,\\nto say the least. The factual finding at issue here is the ALJ’s\\ndetermination – agreed to and affirmed by the\\nCommission – that “responsible Consol employees had\\ninformation that would lead a reasonable person to conclude\\nthere was a reasonable potential for death[.]”22 (App. at 10.)\\nThat finding is conclusive if it is supported by substantial\\n\\n\\n 22\\n That conclusion is essentially a finding of fact. See\\nRestatement (Second) of Torts § 328B cmt. g (Am. Law Inst.\\n1965) (noting that “[n]ormally the determination of the\\nquestion whether the defendant has conformed to the standard\\nof conduct required of him by the law is for the jury” and that\\n“it is customarily regarded as a question of fact”); U.S. Gypsum\\nCo. v. Schiavo Bros., 668 F.2d 172, 176 n.2 (3d Cir. 1981)\\n(explaining that the issue of “how a reasonable person would\\nhave acted in a like situation” is “a determination that is\\npeculiarly one for the factfinder”); cf. Cumberland Coal, 515\\nF.3d at 259 (“The Commission correctly concluded that there\\nwas substantial evidence to support the January 16 citation,\\nsince ‘a reasonably prudent person would have recognized that\\nthe bleeder system failed to continuously dilute and move the\\nmethane-air mixture from the worked-out area away from the\\nactive workings.’” (citation omitted)).\\n\\n\\n\\n\\n 35\\n\\fevidence, “mean[ing] such relevant evidence as a reasonable\\nmind might accept as adequate to support [the] conclusion.”\\nCumberland Coal Res., LP v. Fed. Mine Safety & Health\\nReview Comm’n, 515 F.3d 247, 252 (3d Cir. 2008) (citation\\nomitted).\\n\\n Like the Commission, “we conclude that someone with\\nsufficient authority at Consol was aware of Stern’s injury-\\ncausing event[,]” given “the knowledge and training possessed\\nby Tennant, McDonald, and Smith,” and that “the evidence\\noverwhelmingly demonstrates that a reasonable person\\npossessing the available information would have concluded\\nthere was a reasonable potential for death.”23 (App. at 11.)\\n\\n To recapitulate some relevant facts, McDonald learned\\nimmediately after the accident that Stern had been crushed\\nbetween multi-ton pieces of equipment, was in severe pain,\\ncould not move his legs, and could feel “the pinch” on one leg.\\nMcDonald called for Smith (an EMT), for an ambulance, and\\n(along with Smith) for the mine haulage to be cleared so Stern\\ncould be evacuated. McDonald knew the serious consequences\\nof such an accident. Smith viewed Stern’s injury as “[p]retty\\nbad” and “traumatic[.]” (App. at 220.) Demonstrating concern\\nthat Stern might have a spinal injury, Smith placed him in a\\nneck brace.\\n\\n On the way out of the mine, Smith and McDonald\\nnoticed that Stern’s stomach was becoming hard and distended,\\na sign, they knew, of internal bleeding. Both recognized that\\n\\n 23\\n Consol does not challenge that the knowledge of\\nTennant, McDonald, and Smith can be imputed to it for\\npurposes of the notification analysis.\\n\\n\\n\\n\\n 36\\n\\finternal bleeding can lead to death. And Smith and McDonald\\nwere sufficiently concerned about Stern’s stomach symptoms\\nto request a Life Flight evacuation. Neither Smith nor\\nMcDonald had ever called Life Flight before, and Smith had\\nnot heard of anyone doing so since he started working at\\nConsol years before. Additionally, Stern himself evidently\\nthought the accident could be fatal, and he said as much by\\nasking Smith to pass on his love to his wife and family.\\n\\n Furthermore, Tennant was called about the accident and\\ndecided to go to the mine, even though he did not always do so\\nafter an accident. He did so in this instance because Stern had\\nbeen caught between two large pieces of equipment.\\n\\n In short, McDonald, Smith, Tennant, and Stern all had\\nreactions to the injury indicating an expectation that the injury\\nwas life threatening. On this record, there is certainly “such\\nrelevant evidence as a reasonable mind might accept as\\nadequate to support” the finding that Consol possessed\\ninformation that would lead a reasonable mine operator to\\nconclude that a reasonable potential for death existed.\\nCumberland Coal, 515 F.3d at 252 (citation omitted). Consol\\nshould have called MSHA within the prescribed 15-minute\\nwindow.\\n\\n None of this is to fault McDonald, Smith, or Tennant\\nfor how they responded to Stern’s injury. They reacted quickly\\nand commendably to provide effective care to Stern in his\\nextremity. We simply conclude that a reasonable mine\\noperator, possessing the information they had, would have\\n\\n\\n\\n\\n 37\\n\\fbelieved the incident had a reasonable potential to turn fatal,\\nand there was thus an obligation to call MSHA.24\\n\\n C. The Commission Was Bound by the\\n Mandatory Minimum Penalty\\n\\n Consol’s final argument is that the Commission was not\\nbound by the $5,000 statutory minimum penalty under 30\\nU.S.C. § 820(a)(2) for notification violations. Again, the\\ncompany is wrong.\\n\\n Section 820 is the Mine Act’s penalties section. Under\\nsubsection (a)(2), “[t]he operator of a coal or other mine who\\nfails to provide timely notification to the Secretary as required\\nunder section 813(j) … (relating to the 15 minute requirement)\\nshall be assessed a civil penalty by the Secretary of not less\\nthan $5,000 and not more than $60,000.” 30 U.S.C.\\n§ 820(a)(2). And, under subsection (i), “[t]he Commission\\nshall have authority to assess all civil penalties provided in this\\nchapter.” Id. § 820(i). The penalties set out in\\n§ 820(a), including the mandatory minimums, are “penalties\\nprovided in this chapter,” meaning that the Commission is\\nbound by those minimums.\\n\\n 24\\n Additionally, and relatedly, our opinion should not be\\nread to discourage mine operators from taking precautions\\nsuch as calling for an airlift in the event of a mine injury. A\\nmine operator’s reaction to an injury is, of course, relevant in\\nassessing that injury’s reasonably perceived severity. But,\\nunder a “totality of the circumstances” approach, a mine\\noperator’s reaction to a particular injury is considered\\nalongside, inter alia, how the operator has reacted to other, less\\nsevere injuries.\\n\\n\\n\\n\\n 38\\n\\f In addition, subsection (a)(4) provides, “If a\\ncourt … sustains [an order imposing a penalty described in this\\nsubsection], the court shall apply at least the minimum\\npenalties required under this subsection.” Id. § 820(a)(4). We\\nagree with the Commission that, given that language in\\n§ 820(a)(4), “[a] statutory scheme that permit[ted] the\\nCommission to assess any penalty, however minimal, but\\nrequire[d] a reviewing court to impose a penalty of at least\\n$5,000, [would] make[] no sense.” (App. at 14.)\\n\\n In sum, the Commission was bound by the mandatory\\nminimum set forth in 30 U.S.C. § 820(a)(2), and its conclusion\\nin that regard was not erroneous.\\n\\nIII. CONCLUSION\\n\\n For the foregoing reasons, we will deny the petition for\\nreview.\\n\\n\\n\\n\\n 39\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4564,"cells":{"id":{"kind":"number","value":4673031,"string":"4,673,031"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Natalie Munroe v. Central Bucks School District"},"decision_date":{"kind":"string","value":"2019-10-25"},"docket_number":{"kind":"string","value":"14-3509"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Third Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: AMBRO, COWEN, and RESTANI, Circuit Judges ORDER AMENDING PRECEDENTIAL OPINION IT IS NOW ORDERED that the Precedential Dissenting Opinion in the above case\", \"parties\": \"\", \"opinions\": [{\"author\": \"Honorable Judge Jane A. Restani, Judge for the United States Court of International\", \"type\": \"010combined\", \"text\": \"UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n ________________\\n\\n No. 14-3509\\n ________________\\n\\n\\n NATALIE MUNROE,\\n\\n Appellant\\n v.\\n\\n CENTRAL BUCKS SCHOOL DISTRICT;\\n N. ROBERT LAWS, Superintendent of Schools Central Bucks School District;\\n ABRAM LUCABAUGH, Principal Central Bucks High School East\\n\\n ________________\\n\\n Appeal from the United States District Court\\n for the Eastern District of Pennsylvania\\n (D.C. Civil Action No. 2-12-cv-03546)\\n District Judge: Honorable Cynthia M. Rufe\\n ________________\\n\\n Argued June 8, 2015\\n\\n Before: AMBRO, COWEN, and RESTANI, Circuit Judges\\n\\n\\n ORDER AMENDING PRECEDENTIAL OPINION\\n\\n\\n IT IS NOW ORDERED that the Precedential Dissenting Opinion in the above\\ncase filed September 4, 2015, be amended as follows:\\n\\n On page 1, first paragraph, third line down, delete “is an” and “that” so the\\nsentence reads: “This issue is closer than they suggest.”\\n\\n On page 1, first paragraph, line 11, delete “that wouldn’t have changed” and add at\\nthe end of the sentence after “summary judgment” “against Munroe wouldn’t have\\nchanged.” The sentence should read: “Unexplainably, the District Court declined to\\n\\n\\n Honorable Judge Jane A. Restani, Judge for the United States Court of International\\nTrade, sat by designation.\\n\\faddress this argument, saying only in a footnote that, even if it had considered the\\ninterview, its decision to enter summary judgment against Munroe wouldn’t have\\nchanged.”\\n\\n On page 8, last paragraph, line 12, replace “was” with “were” so the phrase reads\\n“Among the concerns noted were Munroe’s sudden . . .”\\n\\n\\n By the Court,\\n s/ Thomas L. Ambro, Circuit Judge\\n\\nDated: October 25, 2019\\n\\n\\n\\n\\n 2\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4450284/\", \"author_raw\": \"Honorable Judge Jane A. Restani, Judge for the United States Court of International\"}]}"},"judge1":{"kind":"string","value":"AMBRO"},"judge2":{"kind":"string","value":"COWEN"},"judge3":{"kind":"string","value":"RESTANI"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"AMBRO\": \", Circuit\", \"COWEN\": \", Circuit\", \"RESTANI\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4673031/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Natalie Munroe v. Central Bucks School District\nCourt: U.S. Court of Appeals for the Third Circuit\nDate decided: 2019-10-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ________________\n\n No. 14-3509\n ________________\n\n\n NATALIE MUNROE,\n\n Appellant\n v.\n\n CENTRAL BUCKS SCHOOL DISTRICT;\n N. ROBERT LAWS, Superintendent of Schools Central Bucks School District;\n ABRAM LUCABAUGH, Principal Central Bucks High School East\n\n ________________\n\n Appeal from the United States District Court\n for the Eastern District of Pennsylvania\n (D.C. Civil Action No. 2-12-cv-03546)\n District Judge: Honorable Cynthia M. Rufe\n ________________\n\n Argued June 8, 2015\n\n Before: AMBRO, COWEN, and RESTANI, Circuit Judges\n\n\n ORDER AMENDING PRECEDENTIAL OPINION\n\n\n IT IS NOW ORDERED that the Precedential Dissenting Opinion in the above\ncase filed September 4, 2015, be amended as follows:\n\n On page 1, first paragraph, third line down, delete “is an” and “that” so the\nsentence reads: “This issue is closer than they suggest.”\n\n On page 1, first paragraph, line 11, delete “that wouldn’t have changed” and add at\nthe end of the sentence after “summary judgment” “against Munroe wouldn’t have\nchanged.” The sentence should read: “Unexplainably, the District Court declined to\n\n\n Honorable Judge Jane A. Restani, Judge for the United States Court of International\nTrade, sat by designation.\n\faddress this argument, saying only in a footnote that, even if it had considered the\ninterview, its decision to enter summary judgment against Munroe wouldn’t have\nchanged.”\n\n On page 8, last paragraph, line 12, replace “was” with “were” so the phrase reads\n“Among the concerns noted were Munroe’s sudden . . .”\n\n\n By the Court,\n s/ Thomas L. Ambro, Circuit Judge\n\nDated: October 25, 2019\n\n\n\n\n 2\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Natalie Munroe v. Central Bucks School District\\nCourt: U.S. Court of Appeals for the Third Circuit\\nDate decided: 2019-10-25\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n ________________\\n\\n No. 14-3509\\n ________________\\n\\n\\n NATALIE MUNROE,\\n\\n Appellant\\n v.\\n\\n CENTRAL BUCKS SCHOOL DISTRICT;\\n N. ROBERT LAWS, Superintendent of Schools Central Bucks School District;\\n ABRAM LUCABAUGH, Principal Central Bucks High School East\\n\\n ________________\\n\\n Appeal from the United States District Court\\n for the Eastern District of Pennsylvania\\n (D.C. Civil Action No. 2-12-cv-03546)\\n District Judge: Honorable Cynthia M. Rufe\\n ________________\\n\\n Argued June 8, 2015\\n\\n Before: AMBRO, COWEN, and RESTANI, Circuit Judges\\n\\n\\n ORDER AMENDING PRECEDENTIAL OPINION\\n\\n\\n IT IS NOW ORDERED that the Precedential Dissenting Opinion in the above\\ncase filed September 4, 2015, be amended as follows:\\n\\n On page 1, first paragraph, third line down, delete “is an” and “that” so the\\nsentence reads: “This issue is closer than they suggest.”\\n\\n On page 1, first paragraph, line 11, delete “that wouldn’t have changed” and add at\\nthe end of the sentence after “summary judgment” “against Munroe wouldn’t have\\nchanged.” The sentence should read: “Unexplainably, the District Court declined to\\n\\n\\n Honorable Judge Jane A. Restani, Judge for the United States Court of International\\nTrade, sat by designation.\\n\\faddress this argument, saying only in a footnote that, even if it had considered the\\ninterview, its decision to enter summary judgment against Munroe wouldn’t have\\nchanged.”\\n\\n On page 8, last paragraph, line 12, replace “was” with “were” so the phrase reads\\n“Among the concerns noted were Munroe’s sudden . . .”\\n\\n\\n By the Court,\\n s/ Thomas L. Ambro, Circuit Judge\\n\\nDated: October 25, 2019\\n\\n\\n\\n\\n 2\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4565,"cells":{"id":{"kind":"number","value":4673496,"string":"4,673,496"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. James Wegeler"},"decision_date":{"kind":"string","value":"2019-10-28"},"docket_number":{"kind":"string","value":"17-1717"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Third Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: GREENAWAY, JR., RENDELL and FUENTES, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"GREENAWAY, JR., Circuit Judge\", \"type\": \"010combined\", \"text\": \"PRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n _____________\\n\\n No. 17-1717\\n _____________\\n\\n UNITED STATES OF AMERICA\\n\\n v.\\n\\n JAMES WEGELER\\n\\n\\n *Jean Charte,\\n\\n Appellant\\n\\n*(Amended Per the Clerk’s Order dated 12/27/17)\\n ______________\\n\\n On Appeal from the United States\\n District Court for the District of New Jersey\\n (D.C. Crim. Action No. 3-16-cr-00273-001)\\n District Judge: Honorable Anne E. Thompson\\n _____________\\n\\n No. 17-1718\\n _____________\\n\\f UNITED STATES OF AMERICA, ex rel. ***\\n JEAN CHARTE\\n\\n v.\\n\\nAMERICAN TUTOR, INC., JAMES WEGELER, JR.;\\n JAMES WEGELER, SR.; SEAN WEGELER**\\n\\n *Jean Charte,\\n\\n Appellant\\n\\n *(Amended per the Clerk’s Order dated 12/27/17)\\n **(Amended per the Clerk’s Order dated 1/25/18)\\n ***(Amended per the Clerk's Order dated 5/7/18)\\n _____________\\n\\n On Appeal from the United States\\n District Court for the District of New Jersey\\n (D.C. Civ. Action No. 3-10-cv-03318)\\n District Judge: Mary L. Cooper\\n _____________\\n\\n No. 17-8009\\n _____________\\n\\n UNITED STATES OF AMERICA\\n\\n v.\\n\\n JAMES WEGELER\\n\\n *Jean Charte,\\n\\n\\n\\n\\n 2\\n\\f Petitioner\\n\\n *(Amended per the Clerk’s Order dated 12/27/17)\\n ______________\\n\\n On Petition to File an Appeal pursuant to 31 U.S.C. §\\n 3739(b)(2)\\nfrom the United States District Court for the District of New\\n Jersey\\n (D.C. Crim. Action No. 3-16-cr-00273-001)\\n District Judge: Honorable Anne E. Thompson\\n ______________\\n\\n Argued on April 19, 2018\\n ______________\\n\\n Before: GREENAWAY, JR., RENDELL and FUENTES,\\n Circuit Judges.\\n\\n (Opinion Filed: October 28, 2019)\\n\\nSean F. Byrnes [Argued]\\nByrnes O’Hern & Heugle\\n28 Leroy Place\\nRed Bank, NJ 07701\\n Counsel for Appellant/Petitioner\\n\\nMark E. Coyne\\nAnthony J. LaBruna, Jr.\\nJohn F. Romano\\nOffice of United States Attorney\\n970 Broad Street\\n\\n\\n\\n\\n 3\\n\\fRoom 700\\nNewark, NJ 07102\\n\\nCharles W. Scarborough\\nWilliam E. Havemann [Argued]*\\nUnited States Department of Justice\\n950 Pennsylvania Avenue, N.W.\\nWashington, DC 20530\\n Counsel for Appellee/Respondent\\n ______________\\n\\n OPINION\\n ______________\\n\\nGREENAWAY, JR., Circuit Judge.\\n\\n Our criminal justice apparatus is not the Eye of\\nProvidence. Though ever vigilant, it cannot see all, and it is\\nmightily aware of that. So it relies on the eyes and ears of\\nprivate citizens from many walks of life. These citizens are\\nrewarded for their heroics at times, but their rewards rarely, if\\never, amount to an expectation, let alone an interest, that they\\ncan pursue in the criminal case of another. This is because, as\\nthe Supreme Court has observed, “in American jurisprudence\\nat least, a private citizen lacks a judicially cognizable interest\\nin the prosecution or non[-]prosecution of another.” Linda R.S.\\n(“Linda”) v. Richard D., 410 U.S. 614, 619 (1973).\\n\\n Jean Charte insists that she is the anomaly. Her case\\nrests on the False Claims Act (“FCA”), 31 U.S.C. §§ 3729–\\n\\n*\\n William E. Havemann withdrew as counsel on July 19, 2018,\\nprior to the issuance of this opinion.\\n\\n\\n\\n\\n 4\\n\\f3733 (2012), which is a statute that Congress enacted during\\nthe Civil War to stem fraud against the federal government.\\nUnited States v. Bornstein, 423 U.S. 303, 309 (1976). The\\nFCA includes a qui tam1 provision to encourage actions by\\nprivate individuals—called relators—who are entitled to a\\nportion of the amount recovered, subject to certain limitations.\\nSee § 3730(b), (d). In turn, a relator is required to provide the\\ngovernment with the information she intends to rely on so that\\nthe government can make an informed decision as to whether\\nit should intervene. § 3730(b)(2). In the event that the\\ngovernment elects to pursue what is ultimately its claim\\nthrough an “alternate remedy,” the statute provides that the\\nrelator retains the same rights she would have had in the FCA\\naction. § 3730(c)(5).\\n\\n Charte instituted an FCA action alleging that the\\ndefendants, including James Wegeler, Sr., submitted false\\nreimbursement claims to the United States Department of\\nEducation. She provided the requisite information to the\\ngovernment and cooperated with the government while it\\ndetermined whether it would intervene. During this period, the\\ninformation she provided led directly to an investigation that\\nresulted in the criminal prosecution of Wegeler, Sr., for tax\\n\\n 1\\n “Qui tam is short for the Latin phrase qui tam pro\\ndomino rege quam pro se ipso in hac parte sequitur, which\\nmeans who pursues this action on our Lord the King’s behalf\\nas well as his own.” United States ex rel. Charte v. Am. Tutor,\\nInc., 934 F.3d 346, 347 n.1 (3d Cir. 2019) (internal quotation\\nmarks omitted) (quoting Vt. Agency of Nat. Res. v. U.S. ex rel.\\nStevens, 529 U.S. 765, 768 n.1 (2000)).\\n\\n\\n\\n\\n 5\\n\\ffraud and tax evasion. Wegeler, Sr. ultimately entered into a\\nplea agreement that required him to pay $1.5 million in\\nrestitution. He paid the restitution by the time he was\\nsentenced. Subsequently, the government declined to\\nintervene in the FCA action.\\n\\n Charte learned of the plea agreement and tried to\\nintervene in the criminal proceeding to secure her alleged\\ninterest in a share of the restitution. Her motion to do so was\\ndenied, however. Her appeal to us thus presents a question of\\nfirst impression for our Court: whether a criminal proceeding\\nconstitutes an “alternate remedy” to a civil qui tam action under\\nthe FCA, entitling a relator to intervene in the criminal action\\nand recover a share of the proceeds pursuant to § 3730(c)(5).\\n\\n We determine that the rights to participate in a\\nproceeding that the alternate-remedy provision provides a\\nrelator does not extend to a criminal proceeding. Such a\\nholding would be tantamount to an interest in participating as\\na co-prosecutor in the criminal case of another. Charte’s\\nimportant aid to the government notwithstanding, she lacks\\nstanding to assert such an interest under “the long line of\\nprecedent holding that a [private individual] lacks a judicially\\ncognizable interest in [another]’s prosecution” and likewise,\\n“in [another’s] sentence.” United States v. Stoerr, 695 F.3d\\n271, 277–78 (3d Cir. 2012). Even if we focused on only her\\nalleged interest in a share of the restitution, nothing in the FCA\\nsuggests that a relator has a right to intervene in the\\ngovernment’s alternative-remedy provision proceeding for the\\npurpose of asserting this interest. The text and sparse\\nlegislative history regarding the alternate-remedy provision\\ncounsel otherwise, as they together make clear that the court\\noverseeing the FCA suit determines whether and to what extent\\na relator is entitled to an award. Our holding is\\n\\n\\n\\n\\n 6\\n\\fstraightforward—a qui tam relator lacks standing to intervene\\nas to her rights to prosecute a case alongside the government,\\nand lacks a basis to do so as to her right to an award. We will\\ntherefore affirm the District Court. As was evident before this\\naction, Charte may pursue her right to an award by conducting\\nthe FCA action.\\n\\n I. Background\\n\\n A. Legal\\n\\n An action under the FCA can be brought either by the\\ngovernment or a private person “in the name of the\\nGovernment.” 31 U.S.C. § 3730(a), (b). If such a person—\\nknown as a relator—files the action, the complaint is filed in\\ncamera, sealed for at least sixty days, and served on the\\ngovernment but not the defendant until so ordered by the court.\\n§ 3730(b)(2). The government can move for “extensions of the\\ntime during which the complaint remains under seal” for good\\ncause. § 3730(b)(3). Before the end of the expiration of time,\\nthe government must either “proceed with the action, in which\\ncase the action shall be conducted by the Government,” or\\n“notify the court that it declines to take over the action, in\\nwhich case the person bringing the action shall have the right\\nto conduct the action.” § 3730(b)(4).\\n\\n If the government intervenes and proceeds with the\\nFCA action, “it shall have the primary responsibility for\\nprosecuting the action, and shall not be bound by an act of the\\nperson bringing the action . . . .” § 3730(c)(1). However, the\\nrelator retains “the right to continue as a party to the action,”\\nsubject to certain limitations. Id. In addition, the relator\\n“receive[s] at least 15 percent but not more than 25 percent of\\nthe proceeds of the action or settlement of the claim, depending\\n\\n\\n\\n\\n 7\\n\\fupon the extent to which the person substantially contributed\\nto the prosecution of the action.” § 3730(d)(1). That amount\\nis reduced to “no more than 10 percent” if\\n\\n the action is one which the court finds to be based\\n primarily on disclosures of specific information\\n (other than information provided by\\n the person bringing the action) relating to\\n allegations or transactions in a criminal, civil, or\\n administrative hearing, in a congressional,\\n administrative, or Government Accounting\\n Office report, hearing, audit, or investigation, or\\n from the news media . . . .”\\n\\nId.\\n\\n Where the Government declines to intervene, “the\\nperson who initiated the action shall have the right to conduct\\nthe action,” although “the court, without limiting the status and\\nrights of the person initiating the action, may nevertheless\\npermit the government to intervene at a later date upon a\\nshowing of good cause.” § 3730(c)(3). When the relator\\nconducts the action, she shall receive an amount “not less than\\n25 percent and not more than 30 percent of the proceeds of the\\naction or settlement.” § 3730(d)(2).\\n\\n This assortment of rights is rounded out by the FCA’s\\nalternate-remedy provision, under which the government may\\n“elect[] to pursue its claim through any alternate remedy\\navailable to the Government, including any administrative\\nproceeding to determine a civil money penalty.” § 3730(c)(5)\\n(emphasis added). And “[i]f any such alternate remedy is\\npursued in another proceeding, the person initiating the action\\nshall have the same rights in such proceeding as such person\\n\\n\\n\\n\\n 8\\n\\fwould have had if the action had continued under” the FCA.\\nId. (emphasis added). Moreover, “[a]ny finding of fact or\\nconclusion of law made in such other proceeding that has\\nbecome final shall be conclusive on all parties to” the FCA\\naction. Id.\\n\\n This framework sets the stage for the case at hand.\\n\\n B. Factual and Procedural\\n\\n Charte worked at American Tutor, Inc., a business that\\nreceived Title I funds to provide supplemental educational\\nservices to New Jersey school districts. She alleged that,\\nduring her employment, she noticed questionable billing\\npractices, including billing for absent students and services not\\nprovided. She filed a qui tam complaint in 2010, after her\\ntermination in 2007. The complaint, under the FCA and New\\nJersey False Claims Act, N.J. Stat. Ann. §§ 2A:32C-1 to -18\\n(West 2010), alleged that the defendants submitted false claims\\nfor reimbursement to the United States Department of\\nEducation. The district court stayed the proceeding and kept it\\nunder seal until 2017, when the Government ultimately\\ndeclined to intervene. In the interim, Charte and her counsel\\n“provided information, documents and even deposition\\ntestimony from a separate matter” to the government.\\nAppellant Br. 15; see JA 83.\\n\\n While the FCA suit was still unresolved, the\\ngovernment brought criminal charges against Wegeler, Sr. for\\ntax fraud and tax evasion. Wegeler, Sr. pleaded guilty. The\\nplea agreement requested restitution in the amount of $1.5\\nmillion representing the tax loss. It states:\\n\\n\\n\\n\\n 9\\n\\f This agreement was reached without regard to\\n any civil or administrative matters that may be\\n pending or commenced in the future against\\n JAMES WEGELER. This agreement does not\\n prohibit the United States . . . or any third party\\n from initiating or prosecuting any civil or\\n administrative proceeding against JAMES\\n WEGELER.\\n\\nPlea Agreement 5, ECF No. 4, United States v. Wegeler, No.\\n16-0273 (D.N.J. June 13, 2016). Wegeler, Sr. paid the\\nrestitution amount by the time of sentencing.\\n\\n In October 2016, before Wegeler, Sr. was sentenced,\\nCharte filed a motion to intervene in the criminal proceeding,\\nalleging a right to a relator’s award from the restitution amount.\\nShe also filed the same motion in the FCA proceeding. At the\\nhearing on Charte’s motion to intervene in the criminal case,\\nthe government admitted that it likely would not have focused\\non Wegeler, Sr., as a potential subject of a criminal proceeding,\\nif Charte had not named him in the qui tam action.\\n\\n The District Court denied the motion, noting that\\nnothing here warranted an exception to the general rule that\\nprivate citizens “lack[] a judicially cognizable interest in the\\nprosecution or non-prosecution of another” and no Federal\\nRule of Criminal Procedure permits intervention. JA 10\\n(quoting United States v. Kurlander, 24 F. Supp. 3d 417, 424\\n(D.N.J. 2014)). It rejected Charte’s argument that the criminal\\nproceeding was an “alternate remedy” under the FCA,\\nparticularly in this case where the FCA’s bar on Internal\\nRevenue Code qui tam claims meant that Charte could not have\\nincluded tax fraud allegations in her complaint.\\n\\n\\n\\n\\n 10\\n\\f The district court in the FCA action later granted\\nsummary judgment in favor of the defendants. The court\\napplied New Jersey preclusion law and held that Charte’s\\nsettlement and dismissal of a state case that alleged defamation\\nand other claims arose out of the same transaction and\\noccurrence and among substantially the same parties, therefore\\nbarring her FCA suit. Charte appealed the summary judgment\\ndecision. Since this case could be affected by that appeal, we\\nheld it C.A.V. pending resolution of the appeal. The district\\ncourt’s summary judgment decision was reversed on August\\n12, 2019. Am. Tutor, Inc., 934 F.3d at 354 (holding that New\\nJersey’s entire controversy doctrine did not apply to bar\\nCharte’s federal qui tam action). We now turn to this case.\\n\\n II. Jurisdiction and Standard of Review\\n\\n A. Jurisdiction\\n\\n Charte’s contention comes by way of three appeals,\\nonly one of which—the appeal from the denial of intervention\\nin the criminal proceeding, docketed as No. 17-1717—is\\n\\n\\n\\n\\n 11\\n\\fproperly before us.2 The District Court had jurisdiction over\\nthat proceeding under 18 U.S.C. § 3231.3\\n\\n We lack jurisdiction over the appeals in the FCA action,\\nNo. 17-1718. Charte filed her notice of appeal in the FCA case\\nconcerning the motion to intervene after her thirty days to\\nappeal had expired, see Fed. R. App. P. 4(a). The district court\\nnever extended the time to appeal.4 Thus, even if she were able\\n\\n 2\\n We need not determine whether a motion to intervene\\nas of right in criminal cases is immediately appealable as it is\\nin civil cases, see McClune v. Shamah, 593 F.2d 482, 485 (3d\\nCir. 1979), because the notice became ripe once a judgment\\nwas entered, see Khan v. Att’y Gen. of U.S., 691 F.3d 488, 494\\nn.3 (3d Cir. 2012) (stating that a premature notice is sufficient\\n“so long as the notice of appeal adequately advised the\\ngovernment of what was being appealed, the premature filing\\ndid not cause prejudice, and the notice of appeal was not filed\\nextraordinarily prematurely”).\\n 3\\n The District Court denied Charte’s motion to\\nintervene on January 31, 2017, and Charte filed her notice of\\nappeal on March 28, 2017. The District Court subsequently\\ngranted her request for an extension of time to file the notice\\nbecause of technical issues.\\n 4\\n Charte argues that she was entitled to sixty days to\\nfile an appeal in the FCA case because the government, having\\nnot decided whether to intervene at the time the notice was\\nfiled, was a party to the case. Her argument is unpersuasive,\\nand her attempt to distinguish United States ex rel. Eisenstein\\nv. City of New York, 556 U.S. 928 (2009), is belied by the clear\\nlanguage in that case. Id. at 931 (“Although the United States\\nis aware of and minimally involved in every FCA action, we\\n\\n\\n\\n\\n 12\\n\\fto appeal the interlocutory order, her notice of appeal was\\nuntimely, and we lack appellate jurisdiction in No. 17-1718.\\n\\n Charte’s “Petition for Permission to Appeal,” (No. 17-\\n8009) meanwhile, was filed fifty-eight days after the District\\nCourt’s January 31, 2017 order denying her motion to\\nintervene and did not identify any statute or rule authorizing\\nthe appeal. We discern no basis to exercise appellate\\njurisdiction over it, see Fed. R. App. P. 5(b)(1)(D), and the\\nearlier referral of the appeal to a merits panel does not\\neliminate this Court’s responsibility to ensure that we have\\njurisdiction. Anthony v. Council, 316 F.3d 412, 416 (3d Cir.\\n2003); see also FW/PBS Inc. v. City of Dallas, 493 U.S. 215,\\n230-31 (1990) (We review our subject matter jurisdiction over\\nthe matter Aeven if the courts below have not passed on it, and\\neven if the parties fail to raise the issue before us.@).\\n\\n B. Standard of Review\\n\\n As to the standard of review for No. 17-1717,\\n“[a]lthough we generally review dispositions of motions to\\nintervene for abuse of discretion, the district court here did not\\nexercise discretion in denying the motion to intervene but\\nbarred the claims because of its legal conclusion” that Charte\\ndoes not have a basis to intervene in a criminal proceeding.\\nNelson v. Cty. Of Allegheny, 60 F.3d 1010, 1012 (3d Cir. 1995).\\nOur review is plenary where that is the case. Id.\\n\\n\\n\\n\\nhold that it is not a ‘party’ to an FCA action for purposes of the\\nappellate filing deadline unless it has exercised its right to\\nintervene in the case.”).\\n\\n\\n\\n\\n 13\\n\\f III. Discussion\\n\\n Charte casts a wide net in framing the question on\\nappeal,5 but it is simply “whether a criminal . . . proceeding\\nconstitutes an ‘alternate remedy’ to a civil qui tam action under\\nthe False Claims Act, entitling a relator to intervene in the\\ncriminal action and recover a share of the proceeds pursuant to\\n31 U.S.C. § 3730(c)(5).” United States v. Van Dyck, 866 F.3d\\n1130, 1131 (9th Cir. 2017). The answer is no. First, a relator\\nlacks standing to intervene in the criminal prosecution of\\nanother. Moreover, the FCA does not provide a right to\\nintervene to recover a share of the proceeds derived from a\\nproceeding that the government pursues under the alternate-\\nremedy provision.\\n\\n\\n\\n\\n5\\n Charte frames the question in four different ways: as (1)\\n“[w]hether the Court erred when it found that the criminal\\nproceeding against the Defendant James Wegeler, Sr., did not\\nconstitute an ‘alternate remedy’ . . . [,]” (2) “[w]hether the\\nCourt erred when it determined that the Relator in this qui tam\\nproceeding could not intervene in a criminal proceeding that\\nconstituted an ‘alternate remedy’ . . . [,]” (3) “[w]hether the\\nRelator may recover a relator’s share award from the restitution\\npaid by the criminal Defendant within a proceeding that\\nconstitutes an ‘alternate remedy’ . . . [,]” and (4) “[w]hether the\\nGovernment can rely upon 31 U.S.C. § 3729(d) where as here\\nthe Relator has not alleged any violations of the IRC in her\\nComplaint.” Appellant’s Op. Br. 7.\\n\\n\\n\\n\\n 14\\n\\f A.\\n\\n The rights the FCA provides to a relator when the\\ngovernment “proceeds with the action” and that would also be\\nafforded to a relator if the government pursues an alternate\\nremedy under § 3730(c)(5) are twofold.\\n\\n First, a relator “shall have the right to continue as a\\nparty to the action . . . .” § 3730 (c)(1) (emphasis added). This\\nencompasses a suite of rights to participate in a proceeding\\npursuant to the alternate-remedy provision, consisting of the\\nrights to: (i) notice and an opportunity to be heard if the\\ngovernment moves to dismiss the action, (ii) object to a\\nsettlement so that the court can ensure it is “fair, adequate, and\\nreasonable under all the circumstances,” and (iii) an otherwise\\nunrestricted ability to participate “during the course of\\nlitigation” unless the government shows that such “unrestricted\\nparticipation . . . would interfere with or unduly delay the\\nGovernment’s prosecution of the case, or would be repetitious,\\nirrelevant,” or if, “for purposes of harassment,” the court\\ndecides “in its discretion” to “impose limitations on the\\nperson’s participation . . . .” § 3730(c)(2)(A)–(D). The\\nlimitations consist of “(i) limiting the number of witnesses the\\nperson may call; (ii) limiting the length of the testimony of\\nsuch witnesses; (iii) limiting the person’s cross-examination of\\nwitnesses; or (iv) otherwise limiting the participation by the\\nperson in the litigation.” § 3730(c)(2)(C). Second, a relator has\\na right to “at least 15 percent but not more than 25 percent” of\\nthe proceeds that result from such an action, or, under certain\\ncircumstances, “no . . . more than 10 percent.” § 3730(d)(1).\\n\\n The Senate Report regarding this provision sums up\\nmany of these rights as: “the qui tam relator retains all the\\nsame rights to copies of filings and depositions, to objections\\n\\n\\n\\n\\n 15\\n\\fof settlements or dismissals, to taking over the action if the\\nGovernment fails to proceed with ‘reasonable diligence’, as\\nwell as to receiving a portion of any recovery.” S. Rep. 99-\\n345, at 27 (1986), as reprinted in 1986 U.S.C.C.A.N. 5266,\\n5292.6\\n\\n\\n6\\n The Sixth Circuit has noted that “the quoted passage of the\\nSenate Report refers to § 3730(c)(3), not § 3730(c)(5),\\nsuggesting that it might refer to an earlier draft of the 1986\\nFCA amendments.” United States ex rel. Bledsoe v. Cmty.\\nHealth Sys., Inc., 342 F.3d 634, 648 (6th Cir. 2003). However,\\nthe proposed legislative language in the report concerning the\\nalternate-remedy provision is substantially similar to that\\nwhich appears in the current text. Compare S. Rep. 99-345, at\\n42 (“Notwithstanding subsection (b), the Government may\\nelect to pursue its claim through any alternate remedy available\\nto it, including, but not limited to, any administrative civil\\nmoney penalty proceeding.” (italics removed)), with 31 U.S.C.\\n§ 3730(c)(5) (“Notwithstanding subsection (b), the\\nGovernment may elect to pursue its claim through any alternate\\nremedy available to the Government, including any\\nadministrative proceeding to determine a civil money\\npenalty.”).\\n\\n The Sixth Circuit also stated that the report may be\\ninternally inconsistent in that it suggests both that the\\nGovernment must first intervene before pursuing an alternate\\nremedy, see S. Rep. 99-345, at 42 (“Subsection (c)(3)\\nof section 3730 clarifies that the Government, once it\\nintervenes and takes over a false claim suit brought by a private\\nindividual, may elect to pursue any alternate remedy . . . .”\\n(emphasis added)), and that pursuit of an alternate remedy is\\nan either/or, see id. (“[T]he Government must elect to pursue\\n\\n\\n\\n\\n 16\\n\\f 1.\\n\\n The assertion of the first set of rights in the criminal case\\nof another whereby the relator would be a party to the action\\nwould amount to an interest in that person’s prosecution.\\nIndeed, relators would essentially have a voice in whether and\\nhow the government would go about securing a guilty verdict\\n(or plea), as well as in determining the sentence(s) it will ask\\nthe court to impose. That is squarely at odds with the long held\\ntradition of American jurisprudence that “a private citizen\\nlacks a judicially cognizable interest in the prosecution or\\nnon[-]prosecution of another.” Linda, 410 U.S. at 619.\\n\\n\\nthe false claims action either judicially or administratively . .\\n. .”). Bledsoe, 342 F.3d at 648. Courts have adopted that the\\nlatter interpretation. See id. at 647 (“We hold that ‘alternate\\nremedy’ refers to the government’s pursuit of any alternative\\nto intervening in a relator’s qui tam action.”); United States ex\\nrel. Barajas v. U.S., 258 F.3d 1004, 1010 (9th Cir. 2001) (“An\\nalternate remedy under § 3730(c)(5) is a remedy achieved\\nthrough the government’s pursuit of a claim after it has chosen\\nnot to intervene in a qui tam relator’s FCA action.”); United\\nStates ex rel. LaCorte v. Wagner, 185 F.3d 188, 192 (4th Cir.\\n1999) (“Section 3730(c)(5) assumes that the original qui tam\\naction did not continue.”); United States ex rel. Dunleavy v.\\nCty. of Delaware, 123 F.3d 734, 739 (3d Cir. 1997) (noting the\\n“Government’s right to proceed administratively as an\\nalternate remedy to an FCA action”), abrogated on other\\ngrounds by Graham Cty. Soil & Water Conservation Dist. v.\\nUnited States ex rel. Wilson, 559 U.S. 280 (2010).\\n\\n\\n\\n\\n 17\\n\\f The tradition derives from the Case or Controversy\\nClause of Article III of the Constitution, which “establish[es\\nan] irreducible constitutional minimum of” an injury in fact7\\nthat is caused by the conduct complained of and which is likely\\nto be redressed by a favorable decision. Lujan v. Defenders of\\nWildlife, 504 U.S. 555, 560–61 (1992). While “Congress may\\nenact statutes creating legal rights, the invasion of which\\ncreates standing,” Linda, 410 U.S. at 617 n.3, the injury-in-fact\\nrequirement does not dissipate “whenever a statute grants a\\nperson a statutory right and purports to authorize that person to\\nsue to vindicate that right.” Spokeo, Inc. v. Robins, 136 S.Ct.\\n1540, 1549 (2016). Congress is merely capable of invoking\\nthe absolute limit of this Constitutional floor by “creating legal\\nrights, the invasion of which creates [injury],” where none\\nwould have previously existed. Linda, 410 U.S. at 617 n.3.\\n\\n In that vein, as to the interest created by the first set of\\nrights the FCA provides relators, the District Court properly\\nassessed that an interest in the prosecution or non-prosecution\\nof an individual has been considered too generalized and\\nspeculative to meet the floor set by Article III. See, e.g., Lujan,\\n504 U.S. at 576 (“Vindicating the public interest . . . is the\\nfunction of Congress and the Chief Executive.” (emphasis in\\noriginal)). Even where Congress has authorized a private\\nindividual “to enforce public rights in their own names,” the\\nSupreme Court has required her to “demonstrate that the\\nviolation of that public right has caused [her] a concrete,\\n\\n 7\\n “Injury in fact” is defined as “an invasion of a legally\\nprotected interest which is (a) concrete and particularized . . .\\nand (b) actual or imminent, not ‘conjectural or\\n‘hypothetical[.]’” Lujan v. Defenders of Wildlife, 504 U.S.\\n555, 560 (1992) (citations omitted).\\n\\n\\n\\n\\n 18\\n\\findividual harm distinct from the general population.” Spokeo,\\n136 S. Ct. at 1553. Here, Charte is no different than any other\\nmember of the public in terms of the concrete harm she\\nsuffered when the government chose to prosecute or not\\nprosecute Wegeler, Sr. Thus, regardless of whether these\\nrights stem from the FCA, she lacks standing to assert them.8\\n\\n 2.\\n\\n Perhaps anticipating the foregoing, Charte says:\\n\\n [she] does not seek to intervene in the criminal\\n proceeding proper. James Wegeler, Sr. has\\n already been sentenced and has paid his\\n restitution. [Her] proposed intervention will\\n\\n\\n 8\\n In that regard, the other instances of third parties being\\npermitted to intervene in criminal proceedings to which Charte\\npoints us are inapposite. Those instances concern the\\nadjudication of limited, collateral questions such as the third\\nparty’s constitutional right to access the proceeding or their\\nright to assert a privilege in the proceeding. See, e.g., In re\\nAssociated Press, 162 F.3d 503, 506–09 (7th Cir. 1998)\\n(concerning the first amendment right of access to court\\nproceedings); United States v. Criden, 675 F.2d 550, 554–57\\n(3d Cir. 1982) (same); Fed. R. Crim. P. 60 (allowing victims to\\nassert a right to notice of a proceeding, to attend, and “to be\\nreasonably heard at any public proceeding in the district court\\nconcerning release, plea, or sentencing involving a crime”\\n(emphases added)). That is a far cry from being allowed to\\ncriminally prosecute another in the name of, and along with,\\nthe United States.\\n\\n\\n\\n\\n 19\\n\\f simply be to protect the [her] interest, and that of\\n the United States, in [her] share.\\n\\nAppellant Op. Br. 5. She made a similar statement to the\\nDistrict Court. JA 40 (stating in the preliminary statement of\\nthe brief supporting her motion that, “Jean Charte files this\\nMotion to ensure that monies received by the United States\\nfrom Mr. James Wegeler, Sr. are subject to her claim under the\\nFalse Claims Act.” (emphasis added)).\\n\\n We routinely adjudicate the assertion of statutory-\\nprocedural rights regarding similar property interests in\\ncriminal proceedings. For example, in criminal forfeiture\\nproceedings, 21 U.S.C. § 853 permits intervention only in\\nlimited circumstances “(1) third parties who had a vested\\ninterest in the property at the time of the commission of the acts\\nthat gave rise to forfeiture, and (2) bona fide purchasers for\\nvalue without cause to believe the property was subject to\\nforfeiture.” Van Dyck, 866 F.3d at 1133 (citing § 853(n)(6)).\\n\\n Charte’s assertions are similar: that she has a vested\\ninterest in a share of the restitution and that the FCA grants her\\na procedural right to intervene to protect that interest. The\\nformer assertion is aided by the fact that, as to this set of rights,\\nthe FCA is “regarded as effecting a partial assignment of the\\nGovernment’s damages claim,” such that “the United States’\\ninjury in fact suffices to confer standing on” relators in FCA\\nsuits. Vermont Agency of Nat. Res. v. U.S. ex rel. Stevens, 529\\nU.S. 765, 773–74 (2000) (“[The] adequate basis for the\\nrelator’s [FCA] suit for his bounty is to be found in the doctrine\\nthat the assignee of a claim has standing to assert the injury in\\nfact suffered by the assignor.” (emphasis added)).\\n\\n\\n\\n\\n 20\\n\\f In that light, a ruling against Charte on this point would\\nrequire accepting that a relator has standing to “obtain[]\\ncompensation for, or prevent[] the violation of” her right to a\\nrelator’s award, id. at 772, but nonetheless saying that she lacks\\nstanding to do exactly that, all against the backdrop that we\\nroutinely adjudicate similar interests by third-parties in\\ncriminal proceedings. To be clear, when it comes to a criminal\\nforfeiture proceeding, we agree that a relator has standing to\\nassert the relator’s “statutory procedural right . . . under the\\nalternate-remedy provision to have her relator’s share\\nadjudicated in the criminal forfeiture proceeding.”. See United\\nStates v. Couch, 906 F.3d 1223, 1226–27 (11th Cir. 2018)\\n(explaining that the relator’s “motion to intervene in a\\n[criminal] proceeding to enforce an alleged property interest is\\nmaterially different from an attempt to compel a criminal\\nprosecution or alter a sentence”). That agreement\\nnotwithstanding, however, we are not persuaded that a relator\\nin fact possesses such a statutory procedural right.\\n\\n As the government forcefully argues, the text of the\\nFCA “compels the understanding” that “the district court in the\\n[FCA] suit remains responsible for adjudicating the relator’s\\nshare of the proceeds of an alternate proceeding” brought by\\nthe government under the alternate-remedy provision.\\nAppellee Br. 22. The alternate-remedy provision assumes that\\nthe FCA suit will continue after the alternate-remedy\\nproceeding has concluded when it states “[a]ny finding of fact\\nor conclusion of law made in such proceeding that has become\\nfinal shall be conclusive on all parties to an action under this\\nsection.” 31 U.S.C. § 3730(c)(5). The FCA then provides\\ndetailed guidelines for determining a relator’s share in the\\n“proceeds of the action or settlement of the claim,” where “the\\ngovernment proceeds with [the] action.” § 3730(d)(1). That\\n\\n\\n\\n\\n 21\\n\\fis, that the relator is entitled to “at least 15 percent but not more\\nthan 25 percent . . ., depending upon the extent to which the\\nperson substantially contributed to the prosecution of the\\naction[,]” and “no . . . more than 10 percent” where “the action\\nis one which the court finds to be based primarily on\\ndisclosures of specific information (other than information\\nprovided by the person bringing the action) . . . taking into\\naccount the significance of the information and the role of the\\nperson bringing the action in advancing the case to litigation.”\\nId. (emphases added).\\n\\n While other courts may use the procedural devices\\navailable to them to assess the requisite “finding[s] of fact or\\nconclusion of law made in another proceeding,” that the FCA\\noutright provides this to the FCA court, as well as that the FCA\\ncourt is readily apprised of the information a relator provides\\nto the government, is a strong indication that Congress\\nintended the FCA court to be the one to make these\\ncomparative determinations. That indication is even stronger\\nwhen one considers that the provisions setting forth the right to\\na relator’s award are set forth in § 3730(d)(1), labeled “Award\\nto qui tam plaintiff,” whereas the rights that accompany “the\\nright to continue as a party to the action” are all set forth in\\n§ 3730(c)(1) and (2), labeled “Rights of the parties to qui tam\\nactions.”\\n\\n Those textual and structural indicia are reinforced by\\nthe Senate Report’s statement that “[i]f the Government\\nproceeds administratively, the district court shall stay the civil\\naction pending the administrative proceeding and any petitions\\nby the relator, in order to exercise his rights [in such\\nproceeding,] will be to the district court” rather than the court\\nin the proceeding pursued by the government under the\\nalternate-remedy provision. S. Rep. No. 99-345, at 27.\\n\\n\\n\\n\\n 22\\n\\fTogether, these points compel the conclusion that, to the extent\\nthat the FCA provides relators a right to intervene in another\\nproceeding, their interest in a share in the proceeds recovered\\nin that proceeding is not among those for which this right is\\nprovided.\\n\\n In other words, Charte is less like third parties in the 21\\nU.S.C. § 853 context, who are provided an express right to\\nintervene to assert their property interest, than she is like\\nvictims, who also have an interest in any restitution that is\\nawarded but are not granted a statutory right to intervene and\\nassert it. See 18 U.S.C.A. § 3663A(a)(1) (requiring a court to\\norder restitution “to the victim of the offense or, if the victim\\nis deceased, to the victim’s estate”); Federal Sentencing\\nGuidelines Manual § 3E1.1(a) (U.S. Sentencing Comm’n\\n2016) (requiring that, “[i]n the case of an identifiable victim,\\nthe court shall . . . enter a restitution order for the full amount\\nof the victim’s loss . . .”); but see Stoerr, 695 F.3d at 278\\n(noting that restitution orders can only be appealed and\\nmodified “by the defendant and by the Government,” and that\\n“[crime] victims are non-parties to criminal proceedings”);\\nKelly v. Robinson, 479 U.S. 36, 52 (1986) (“Although\\nrestitution does resemble a judgment ‘for the benefit of’ the\\nvictim, . . . [t]he victim has no control over the amount of\\nrestitution awarded or over the decision to award restitution.”).\\n\\n We are therefore aligned with our two sister circuits that\\nhave addressed this question and hold that (1) a relator “lacks\\nstanding to intervene in [the] criminal prosecution[] of\\nanother” as it pertains to her participation rights, Van Dyck, 866\\nF.3d at 1133, and (2) even if a relator had standing to intervene\\nonly as to her alleged interest in her share of the proceeds\\ncollected by the government, the “sole remedy” that the FCA\\nprovides her is to “commence” or continue the FCA action, id.\\n\\n\\n\\n\\n 23\\n\\fat 1135 (“The ‘alternate remedy’ provisions of the False\\nClaims Act do not permit a relator to intervene in a criminal\\naction for the purpose of asserting a right to the proceeds of\\nthat action.”); see also Couch, 906 F.3d at 1228 (“[T]he\\nalternate-remedy provision does not expressly provide a right\\nof intervention in an ‘alternate proceeding.’” (emphasis\\nadded)).\\n\\n In so holding, we do not opine on whether a criminal\\nproceeding is an alternate remedy such that a relator retains her\\nFCA rights, including the right to a share in the proceeds.9 Nor\\ndo we need to decide whether, even if a criminal proceeding\\nconstituted an alternate remedy, the proceedings here would\\nqualify in light of the fact that 31 U.S.C. § 3729(d) precludes a\\nrelator from obtaining a relator’s share in a claim under the\\nInternal Revenue Code. See § 3729(d) (“This section does not\\napply to claims, records, or statements made under the Internal\\nRevenue Code of 1986.”). District Courts adjudicating FCA\\nsuits routinely make these determinations and are best\\nequipped to do so.\\n\\n *****\\n\\n In the end, then, we maintain “the long line of precedent\\nholding that a [private individual] lacks a judicially cognizable\\ninterest in [another]’s prosecution” and likewise, “in\\n[another’s] sentence.” Stoerr, 695 F.3d at 277–78. And Charte\\n\\n 9\\n Charte’s argument that “[d]enying the existence of an\\nalternate remedy works an anomalous outcome that treats [her]\\nless favorabl[y] than tax whistleblowers under Title 26,”\\nAppellant Op. Br. 51, speaks to whether she is entitled to a\\nshare in the restitution, so it too does not warrant opining.\\n\\n\\n\\n\\n 24\\n\\fis not the exception she claimed to be: she may not pursue her\\nalleged interest in a relator’s award in Wegeler, Sr.’s criminal\\ncase. Charte may nonetheless take solace in the government’s\\nrepresentation—to this Court and to our two sister circuits that\\nhave confronted this question—that it “allow[s] a qualified\\nrelator to a share of the full amount of [a] damages award,\\nincluding the restitution previously paid.” Appellee Br. 29\\n(citing United States v. Wellcare Health Plans, Inc., 2011 WL\\n4431157, *2 (M.D. Fla. 2011), where “the Government . . .\\nescrowed 25% of [a] $40 million restitution, pending a\\nresolution of the [related] qui tam cases for [the] purpose” of\\nallowing the “Movant and the other relators” to “participat[e]\\nin the distribution of restitution paid incident to the criminal\\nprosecution”); see also Couch, 906 F.3d at 1228–29; Van\\nDyck, 866 F.3d at 1135 n.3. For our part, we will affirm the\\nDistrict Court’s order denying her motion to intervene.\\n\\n\\n\\n\\n 25\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4450749/\", \"author_raw\": \"GREENAWAY, JR., Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"GREENAWAY JR"},"judge2":{"kind":"string","value":"RENDELL"},"judge3":{"kind":"string","value":"FUENTES"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"GREENAWAY JR\": \", Circuit\", \"RENDELL\": \", Circuit\", \"FUENTES\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4673496/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. James Wegeler\nCourt: U.S. Court of Appeals for the Third Circuit\nDate decided: 2019-10-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n No. 17-1717\n _____________\n\n UNITED STATES OF AMERICA\n\n v.\n\n JAMES WEGELER\n\n\n *Jean Charte,\n\n Appellant\n\n*(Amended Per the Clerk’s Order dated 12/27/17)\n ______________\n\n On Appeal from the United States\n District Court for the District of New Jersey\n (D.C. Crim. Action No. 3-16-cr-00273-001)\n District Judge: Honorable Anne E. Thompson\n _____________\n\n No. 17-1718\n _____________\n\f UNITED STATES OF AMERICA, ex rel. ***\n JEAN CHARTE\n\n v.\n\nAMERICAN TUTOR, INC., JAMES WEGELER, JR.;\n JAMES WEGELER, SR.; SEAN WEGELER**\n\n *Jean Charte,\n\n Appellant\n\n *(Amended per the Clerk’s Order dated 12/27/17)\n **(Amended per the Clerk’s Order dated 1/25/18)\n ***(Amended per the Clerk's Order dated 5/7/18)\n _____________\n\n On Appeal from the United States\n District Court for the District of New Jersey\n (D.C. Civ. Action No. 3-10-cv-03318)\n District Judge: Mary L. Cooper\n _____________\n\n No. 17-8009\n _____________\n\n UNITED STATES OF AMERICA\n\n v.\n\n JAMES WEGELER\n\n *Jean Charte,\n\n\n\n\n 2\n\f Petitioner\n\n *(Amended per the Clerk’s Order dated 12/27/17)\n ______________\n\n On Petition to File an Appeal pursuant to 31 U.S.C. §\n 3739(b)(2)\nfrom the United States District Court for the District of New\n Jersey\n (D.C. Crim. Action No. 3-16-cr-00273-001)\n District Judge: Honorable Anne E. Thompson\n ______________\n\n Argued on April 19, 2018\n ______________\n\n Before: GREENAWAY, JR., RENDELL and FUENTES,\n Circuit Judges.\n\n (Opinion Filed: October 28, 2019)\n\nSean F. Byrnes [Argued]\nByrnes O’Hern & Heugle\n28 Leroy Place\nRed Bank, NJ 07701\n Counsel for Appellant/Petitioner\n\nMark E. Coyne\nAnthony J. LaBruna, Jr.\nJohn F. Romano\nOffice of United States Attorney\n970 Broad Street\n\n\n\n\n 3\n\fRoom 700\nNewark, NJ 07102\n\nCharles W. Scarborough\nWilliam E. Havemann [Argued]*\nUnited States Department of Justice\n950 Pennsylvania Avenue, N.W.\nWashington, DC 20530\n Counsel for Appellee/Respondent\n ______________\n\n OPINION\n ______________\n\nGREENAWAY, JR., Circuit Judge.\n\n Our criminal justice apparatus is not the Eye of\nProvidence. Though ever vigilant, it cannot see all, and it is\nmightily aware of that. So it relies on the eyes and ears of\nprivate citizens from many walks of life. These citizens are\nrewarded for their heroics at times, but their rewards rarely, if\never, amount to an expectation, let alone an interest, that they\ncan pursue in the criminal case of another. This is because, as\nthe Supreme Court has observed, “in American jurisprudence\nat least, a private citizen lacks a judicially cognizable interest\nin the prosecution or non[-]prosecution of another.” Linda R.S.\n(“Linda”) v. Richard D., 410 U.S. 614, 619 (1973).\n\n Jean Charte insists that she is the anomaly. Her case\nrests on the False Claims Act (“FCA”), 31 U.S.C. §§ 3729–\n\n*\n William E. Havemann withdrew as counsel on July 19, 2018,\nprior to the issuance of this opinion.\n\n\n\n\n 4\n\f3733 (2012), which is a statute that Congress enacted during\nthe Civil War to stem fraud against the federal government.\nUnited States v. Bornstein, 423 U.S. 303, 309 (1976). The\nFCA includes a qui tam1 provision to encourage actions by\nprivate individuals—called relators—who are entitled to a\nportion of the amount recovered, subject to certain limitations.\nSee § 3730(b), (d). In turn, a relator is required to provide the\ngovernment with the information she intends to rely on so that\nthe government can make an informed decision as to whether\nit should intervene. § 3730(b)(2). In the event that the\ngovernment elects to pursue what is ultimately its claim\nthrough an “alternate remedy,” the statute provides that the\nrelator retains the same rights she would have had in the FCA\naction. § 3730(c)(5).\n\n Charte instituted an FCA action alleging that the\ndefendants, including James Wegeler, Sr., submitted false\nreimbursement claims to the United States Department of\nEducation. She provided the requisite information to the\ngovernment and cooperated with the government while it\ndetermined whether it would intervene. During this period, the\ninformation she provided led directly to an investigation that\nresulted in the criminal prosecution of Wegeler, Sr., for tax\n\n 1\n “Qui tam is short for the Latin phrase qui tam pro\ndomino rege quam pro se ipso in hac parte sequitur, which\nmeans who pursues this action on our Lord the King’s behalf\nas well as his own.” United States ex rel. Charte v. Am. Tutor,\nInc., 934 F.3d 346, 347 n.1 (3d Cir. 2019) (internal quotation\nmarks omitted) (quoting Vt. Agency of Nat. Res. v. U.S. ex rel.\nStevens, 529 U.S. 765, 768 n.1 (2000)).\n\n\n\n\n 5\n\ffraud and tax evasion. Wegeler, Sr. ultimately entered into a\nplea agreement that required him to pay $1.5 million in\nrestitution. He paid the restitution by the time he was\nsentenced. Subsequently, the government declined to\nintervene in the FCA action.\n\n Charte learned of the plea agreement and tried to\nintervene in the criminal proceeding to secure her alleged\ninterest in a share of the restitution. Her motion to do so was\ndenied, however. Her appeal to us thus presents a question of\nfirst impression for our Court: whether a criminal proceeding\nconstitutes an “alternate remedy” to a civil qui tam action under\nthe FCA, entitling a relator to intervene in the criminal action\nand recover a share of the proceeds pursuant to § 3730(c)(5).\n\n We determine that the rights to participate in a\nproceeding that the alternate-remedy provision provides a\nrelator does not extend to a criminal proceeding. Such a\nholding would be tantamount to an interest in participating as\na co-prosecutor in the criminal case of another. Charte’s\nimportant aid to the government notwithstanding, she lacks\nstanding to assert such an interest under “the long line of\nprecedent holding that a [private individual] lacks a judicially\ncognizable interest in [another]’s prosecution” and likewise,\n“in [another’s] sentence.” United States v. Stoerr, 695 F.3d\n271, 277–78 (3d Cir. 2012). Even if we focused on only her\nalleged interest in a share of the restitution, nothing in the FCA\nsuggests that a relator has a right to intervene in the\ngovernment’s alternative-remedy provision proceeding for the\npurpose of asserting this interest. The text and sparse\nlegislative history regarding the alternate-remedy provision\ncounsel otherwise, as they together make clear that the court\noverseeing the FCA suit determines whether and to what extent\na relator is entitled to an award. Our holding is\n\n\n\n\n 6\n\fstraightforward—a qui tam relator lacks standing to intervene\nas to her rights to prosecute a case alongside the government,\nand lacks a basis to do so as to her right to an award. We will\ntherefore affirm the District Court. As was evident before this\naction, Charte may pursue her right to an award by conducting\nthe FCA action.\n\n I. Background\n\n A. Legal\n\n An action under the FCA can be brought either by the\ngovernment or a private person “in the name of the\nGovernment.” 31 U.S.C. § 3730(a), (b). If such a person—\nknown as a relator—files the action, the complaint is filed in\ncamera, sealed for at least sixty days, and served on the\ngovernment but not the defendant until so ordered by the court.\n§ 3730(b)(2). The government can move for “extensions of the\ntime during which the complaint remains under seal” for good\ncause. § 3730(b)(3). Before the end of the expiration of time,\nthe government must either “proceed with the action, in which\ncase the action shall be conducted by the Government,” or\n“notify the court that it declines to take over the action, in\nwhich case the person bringing the action shall have the right\nto conduct the action.” § 3730(b)(4).\n\n If the government intervenes and proceeds with the\nFCA action, “it shall have the primary responsibility for\nprosecuting the action, and shall not be bound by an act of the\nperson bringing the action . . . .” § 3730(c)(1). However, the\nrelator retains “the right to continue as a party to the action,”\nsubject to certain limitations. Id. In addition, the relator\n“receive[s] at least 15 percent but not more than 25 percent of\nthe proceeds of the action or settlement of the claim, depending\n\n\n\n\n 7\n\fupon the extent to which the person substantially contributed\nto the prosecution of the action.” § 3730(d)(1). That amount\nis reduced to “no more than 10 percent” if\n\n the action is one which the court finds to be based\n primarily on disclosures of specific information\n (other than information provided by\n the person bringing the action) relating to\n allegations or transactions in a criminal, civil, or\n administrative hearing, in a congressional,\n administrative, or Government Accounting\n Office report, hearing, audit, or investigation, or\n from the news media . . . .”\n\nId.\n\n Where the Government declines to intervene, “the\nperson who initiated the action shall have the right to conduct\nthe action,” although “the court, without limiting the status and\nrights of the person initiating the action, may nevertheless\npermit the government to intervene at a later date upon a\nshowing of good cause.” § 3730(c)(3). When the relator\nconducts the action, she shall receive an amount “not less than\n25 percent and not more than 30 percent of the proceeds of the\naction or settlement.” § 3730(d)(2).\n\n This assortment of rights is rounded out by the FCA’s\nalternate-remedy provision, under which the government may\n“elect[] to pursue its claim through any alternate remedy\navailable to the Government, including any administrative\nproceeding to determine a civil money penalty.” § 3730(c)(5)\n(emphasis added). And “[i]f any such alternate remedy is\npursued in another proceeding, the person initiating the action\nshall have the same rights in such proceeding as such person\n\n\n\n\n 8\n\fwould have had if the action had continued under” the FCA.\nId. (emphasis added). Moreover, “[a]ny finding of fact or\nconclusion of law made in such other proceeding that has\nbecome final shall be conclusive on all parties to” the FCA\naction. Id.\n\n This framework sets the stage for the case at hand.\n\n B. Factual and Procedural\n\n Charte worked at American Tutor, Inc., a business that\nreceived Title I funds to provide supplemental educational\nservices to New Jersey school districts. She alleged that,\nduring her employment, she noticed questionable billing\npractices, including billing for absent students and services not\nprovided. She filed a qui tam complaint in 2010, after her\ntermination in 2007. The complaint, under the FCA and New\nJersey False Claims Act, N.J. Stat. Ann. §§ 2A:32C-1 to -18\n(West 2010), alleged that the defendants submitted false claims\nfor reimbursement to the United States Department of\nEducation. The district court stayed the proceeding and kept it\nunder seal until 2017, when the Government ultimately\ndeclined to intervene. In the interim, Charte and her counsel\n“provided information, documents and even deposition\ntestimony from a separate matter” to the government.\nAppellant Br. 15; see JA 83.\n\n While the FCA suit was still unresolved, the\ngovernment brought criminal charges against Wegeler, Sr. for\ntax fraud and tax evasion. Wegeler, Sr. pleaded guilty. The\nplea agreement requested restitution in the amount of $1.5\nmillion representing the tax loss. It states:\n\n\n\n\n 9\n\f This agreement was reached without regard to\n any civil or administrative matters that may be\n pending or commenced in the future against\n JAMES WEGELER. This agreement does not\n prohibit the United States . . . or any third party\n from initiating or prosecuting any civil or\n administrative proceeding against JAMES\n WEGELER.\n\nPlea Agreement 5, ECF No. 4, United States v. Wegeler, No.\n16-0273 (D.N.J. June 13, 2016). Wegeler, Sr. paid the\nrestitution amount by the time of sentencing.\n\n In October 2016, before Wegeler, Sr. was sentenced,\nCharte filed a motion to intervene in the criminal proceeding,\nalleging a right to a relator’s award from the restitution amount.\nShe also filed the same motion in the FCA proceeding. At the\nhearing on Charte’s motion to intervene in the criminal case,\nthe government admitted that it likely would not have focused\non Wegeler, Sr., as a potential subject of a criminal proceeding,\nif Charte had not named him in the qui tam action.\n\n The District Court denied the motion, noting that\nnothing here warranted an exception to the general rule that\nprivate citizens “lack[] a judicially cognizable interest in the\nprosecution or non-prosecution of another” and no Federal\nRule of Criminal Procedure permits intervention. JA 10\n(quoting United States v. Kurlander, 24 F. Supp. 3d 417, 424\n(D.N.J. 2014)). It rejected Charte’s argument that the criminal\nproceeding was an “alternate remedy” under the FCA,\nparticularly in this case where the FCA’s bar on Internal\nRevenue Code qui tam claims meant that Charte could not have\nincluded tax fraud allegations in her complaint.\n\n\n\n\n 10\n\f The district court in the FCA action later granted\nsummary judgment in favor of the defendants. The court\napplied New Jersey preclusion law and held that Charte’s\nsettlement and dismissal of a state case that alleged defamation\nand other claims arose out of the same transaction and\noccurrence and among substantially the same parties, therefore\nbarring her FCA suit. Charte appealed the summary judgment\ndecision. Since this case could be affected by that appeal, we\nheld it C.A.V. pending resolution of the appeal. The district\ncourt’s summary judgment decision was reversed on August\n12, 2019. Am. Tutor, Inc., 934 F.3d at 354 (holding that New\nJersey’s entire controversy doctrine did not apply to bar\nCharte’s federal qui tam action). We now turn to this case.\n\n II. Jurisdiction and Standard of Review\n\n A. Jurisdiction\n\n Charte’s contention comes by way of three appeals,\nonly one of which—the appeal from the denial of intervention\nin the criminal proceeding, docketed as No. 17-1717—is\n\n\n\n\n 11\n\fproperly before us.2 The District Court had jurisdiction over\nthat proceeding under 18 U.S.C. § 3231.3\n\n We lack jurisdiction over the appeals in the FCA action,\nNo. 17-1718. Charte filed her notice of appeal in the FCA case\nconcerning the motion to intervene after her thirty days to\nappeal had expired, see Fed. R. App. P. 4(a). The district court\nnever extended the time to appeal.4 Thus, even if she were able\n\n 2\n We need not determine whether a motion to intervene\nas of right in criminal cases is immediately appealable as it is\nin civil cases, see McClune v. Shamah, 593 F.2d 482, 485 (3d\nCir. 1979), because the notice became ripe once a judgment\nwas entered, see Khan v. Att’y Gen. of U.S., 691 F.3d 488, 494\nn.3 (3d Cir. 2012) (stating that a premature notice is sufficient\n“so long as the notice of appeal adequately advised the\ngovernment of what was being appealed, the premature filing\ndid not cause prejudice, and the notice of appeal was not filed\nextraordinarily prematurely”).\n 3\n The District Court denied Charte’s motion to\nintervene on January 31, 2017, and Charte filed her notice of\nappeal on March 28, 2017. The District Court subsequently\ngranted her request for an extension of time to file the notice\nbecause of technical issues.\n 4\n Charte argues that she was entitled to sixty days to\nfile an appeal in the FCA case because the government, having\nnot decided whether to intervene at the time the notice was\nfiled, was a party to the case. Her argument is unpersuasive,\nand her attempt to distinguish United States ex rel. Eisenstein\nv. City of New York, 556 U.S. 928 (2009), is belied by the clear\nlanguage in that case. Id. at 931 (“Although the United States\nis aware of and minimally involved in every FCA action, we\n\n\n\n\n 12\n\fto appeal the interlocutory order, her notice of appeal was\nuntimely, and we lack appellate jurisdiction in No. 17-1718.\n\n Charte’s “Petition for Permission to Appeal,” (No. 17-\n8009) meanwhile, was filed fifty-eight days after the District\nCourt’s January 31, 2017 order denying her motion to\nintervene and did not identify any statute or rule authorizing\nthe appeal. We discern no basis to exercise appellate\njurisdiction over it, see Fed. R. App. P. 5(b)(1)(D), and the\nearlier referral of the appeal to a merits panel does not\neliminate this Court’s responsibility to ensure that we have\njurisdiction. Anthony v. Council, 316 F.3d 412, 416 (3d Cir.\n2003); see also FW/PBS Inc. v. City of Dallas, 493 U.S. 215,\n230-31 (1990) (We review our subject matter jurisdiction over\nthe matter Aeven if the courts below have not passed on it, and\neven if the parties fail to raise the issue before us.@).\n\n B. Standard of Review\n\n As to the standard of review for No. 17-1717,\n“[a]lthough we generally review dispositions of motions to\nintervene for abuse of discretion, the district court here did not\nexercise discretion in denying the motion to intervene but\nbarred the claims because of its legal conclusion” that Charte\ndoes not have a basis to intervene in a criminal proceeding.\nNelson v. Cty. Of Allegheny, 60 F.3d 1010, 1012 (3d Cir. 1995).\nOur review is plenary where that is the case. Id.\n\n\n\n\nhold that it is not a ‘party’ to an FCA action for purposes of the\nappellate filing deadline unless it has exercised its right to\nintervene in the case.”).\n\n\n\n\n 13\n\f III. Discussion\n\n Charte casts a wide net in framing the question on\nappeal,5 but it is simply “whether a criminal . . . proceeding\nconstitutes an ‘alternate remedy’ to a civil qui tam action under\nthe False Claims Act, entitling a relator to intervene in the\ncriminal action and recover a share of the proceeds pursuant to\n31 U.S.C. § 3730(c)(5).” United States v. Van Dyck, 866 F.3d\n1130, 1131 (9th Cir. 2017). The answer is no. First, a relator\nlacks standing to intervene in the criminal prosecution of\nanother. Moreover, the FCA does not provide a right to\nintervene to recover a share of the proceeds derived from a\nproceeding that the government pursues under the alternate-\nremedy provision.\n\n\n\n\n5\n Charte frames the question in four different ways: as (1)\n“[w]hether the Court erred when it found that the criminal\nproceeding against the Defendant James Wegeler, Sr., did not\nconstitute an ‘alternate remedy’ . . . [,]” (2) “[w]hether the\nCourt erred when it determined that the Relator in this qui tam\nproceeding could not intervene in a criminal proceeding that\nconstituted an ‘alternate remedy’ . . . [,]” (3) “[w]hether the\nRelator may recover a relator’s share award from the restitution\npaid by the criminal Defendant within a proceeding that\nconstitutes an ‘alternate remedy’ . . . [,]” and (4) “[w]hether the\nGovernment can rely upon 31 U.S.C. § 3729(d) where as here\nthe Relator has not alleged any violations of the IRC in her\nComplaint.” Appellant’s Op. Br. 7.\n\n\n\n\n 14\n\f A.\n\n The rights the FCA provides to a relator when the\ngovernment “proceeds with the action” and that would also be\nafforded to a relator if the government pursues an alternate\nremedy under § 3730(c)(5) are twofold.\n\n First, a relator “shall have the right to continue as a\nparty to the action . . . .” § 3730 (c)(1) (emphasis added). This\nencompasses a suite of rights to participate in a proceeding\npursuant to the alternate-remedy provision, consisting of the\nrights to: (i) notice and an opportunity to be heard if the\ngovernment moves to dismiss the action, (ii) object to a\nsettlement so that the court can ensure it is “fair, adequate, and\nreasonable under all the circumstances,” and (iii) an otherwise\nunrestricted ability to participate “during the course of\nlitigation” unless the government shows that such “unrestricted\nparticipation . . . would interfere with or unduly delay the\nGovernment’s prosecution of the case, or would be repetitious,\nirrelevant,” or if, “for purposes of harassment,” the court\ndecides “in its discretion” to “impose limitations on the\nperson’s participation . . . .” § 3730(c)(2)(A)–(D). The\nlimitations consist of “(i) limiting the number of witnesses the\nperson may call; (ii) limiting the length of the testimony of\nsuch witnesses; (iii) limiting the person’s cross-examination of\nwitnesses; or (iv) otherwise limiting the participation by the\nperson in the litigation.” § 3730(c)(2)(C). Second, a relator has\na right to “at least 15 percent but not more than 25 percent” of\nthe proceeds that result from such an action, or, under certain\ncircumstances, “no . . . more than 10 percent.” § 3730(d)(1).\n\n The Senate Report regarding this provision sums up\nmany of these rights as: “the qui tam relator retains all the\nsame rights to copies of filings and depositions, to objections\n\n\n\n\n 15\n\fof settlements or dismissals, to taking over the action if the\nGovernment fails to proceed with ‘reasonable diligence’, as\nwell as to receiving a portion of any recovery.” S. Rep. 99-\n345, at 27 (1986), as reprinted in 1986 U.S.C.C.A.N. 5266,\n5292.6\n\n\n6\n The Sixth Circuit has noted that “the quoted passage of the\nSenate Report refers to § 3730(c)(3), not § 3730(c)(5),\nsuggesting that it might refer to an earlier draft of the 1986\nFCA amendments.” United States ex rel. Bledsoe v. Cmty.\nHealth Sys., Inc., 342 F.3d 634, 648 (6th Cir. 2003). However,\nthe proposed legislative language in the report concerning the\nalternate-remedy provision is substantially similar to that\nwhich appears in the current text. Compare S. Rep. 99-345, at\n42 (“Notwithstanding subsection (b), the Government may\nelect to pursue its claim through any alternate remedy available\nto it, including, but not limited to, any administrative civil\nmoney penalty proceeding.” (italics removed)), with 31 U.S.C.\n§ 3730(c)(5) (“Notwithstanding subsection (b), the\nGovernment may elect to pursue its claim through any alternate\nremedy available to the Government, including any\nadministrative proceeding to determine a civil money\npenalty.”).\n\n The Sixth Circuit also stated that the report may be\ninternally inconsistent in that it suggests both that the\nGovernment must first intervene before pursuing an alternate\nremedy, see S. Rep. 99-345, at 42 (“Subsection (c)(3)\nof section 3730 clarifies that the Government, once it\nintervenes and takes over a false claim suit brought by a private\nindividual, may elect to pursue any alternate remedy . . . .”\n(emphasis added)), and that pursuit of an alternate remedy is\nan either/or, see id. (“[T]he Government must elect to pursue\n\n\n\n\n 16\n\f 1.\n\n The assertion of the first set of rights in the criminal case\nof another whereby the relator would be a party to the action\nwould amount to an interest in that person’s prosecution.\nIndeed, relators would essentially have a voice in whether and\nhow the government would go about securing a guilty verdict\n(or plea), as well as in determining the sentence(s) it will ask\nthe court to impose. That is squarely at odds with the long held\ntradition of American jurisprudence that “a private citizen\nlacks a judicially cognizable interest in the prosecution or\nnon[-]prosecution of another.” Linda, 410 U.S. at 619.\n\n\nthe false claims action either judicially or administratively . .\n. .”). Bledsoe, 342 F.3d at 648. Courts have adopted that the\nlatter interpretation. See id. at 647 (“We hold that ‘alternate\nremedy’ refers to the government’s pursuit of any alternative\nto intervening in a relator’s qui tam action.”); United States ex\nrel. Barajas v. U.S., 258 F.3d 1004, 1010 (9th Cir. 2001) (“An\nalternate remedy under § 3730(c)(5) is a remedy achieved\nthrough the government’s pursuit of a claim after it has chosen\nnot to intervene in a qui tam relator’s FCA action.”); United\nStates ex rel. LaCorte v. Wagner, 185 F.3d 188, 192 (4th Cir.\n1999) (“Section 3730(c)(5) assumes that the original qui tam\naction did not continue.”); United States ex rel. Dunleavy v.\nCty. of Delaware, 123 F.3d 734, 739 (3d Cir. 1997) (noting the\n“Government’s right to proceed administratively as an\nalternate remedy to an FCA action”), abrogated on other\ngrounds by Graham Cty. Soil & Water Conservation Dist. v.\nUnited States ex rel. Wilson, 559 U.S. 280 (2010).\n\n\n\n\n 17\n\f The tradition derives from the Case or Controversy\nClause of Article III of the Constitution, which “establish[es\nan] irreducible constitutional minimum of” an injury in fact7\nthat is caused by the conduct complained of and which is likely\nto be redressed by a favorable decision. Lujan v. Defenders of\nWildlife, 504 U.S. 555, 560–61 (1992). While “Congress may\nenact statutes creating legal rights, the invasion of which\ncreates standing,” Linda, 410 U.S. at 617 n.3, the injury-in-fact\nrequirement does not dissipate “whenever a statute grants a\nperson a statutory right and purports to authorize that person to\nsue to vindicate that right.” Spokeo, Inc. v. Robins, 136 S.Ct.\n1540, 1549 (2016). Congress is merely capable of invoking\nthe absolute limit of this Constitutional floor by “creating legal\nrights, the invasion of which creates [injury],” where none\nwould have previously existed. Linda, 410 U.S. at 617 n.3.\n\n In that vein, as to the interest created by the first set of\nrights the FCA provides relators, the District Court properly\nassessed that an interest in the prosecution or non-prosecution\nof an individual has been considered too generalized and\nspeculative to meet the floor set by Article III. See, e.g., Lujan,\n504 U.S. at 576 (“Vindicating the public interest . . . is the\nfunction of Congress and the Chief Executive.” (emphasis in\noriginal)). Even where Congress has authorized a private\nindividual “to enforce public rights in their own names,” the\nSupreme Court has required her to “demonstrate that the\nviolation of that public right has caused [her] a concrete,\n\n 7\n “Injury in fact” is defined as “an invasion of a legally\nprotected interest which is (a) concrete and particularized . . .\nand (b) actual or imminent, not ‘conjectural or\n‘hypothetical[.]’” Lujan v. Defenders of Wildlife, 504 U.S.\n555, 560 (1992) (citations omitted).\n\n\n\n\n 18\n\findividual harm distinct from the general population.” Spokeo,\n136 S. Ct. at 1553. Here, Charte is no different than any other\nmember of the public in terms of the concrete harm she\nsuffered when the government chose to prosecute or not\nprosecute Wegeler, Sr. Thus, regardless of whether these\nrights stem from the FCA, she lacks standing to assert them.8\n\n 2.\n\n Perhaps anticipating the foregoing, Charte says:\n\n [she] does not seek to intervene in the criminal\n proceeding proper. James Wegeler, Sr. has\n already been sentenced and has paid his\n restitution. [Her] proposed intervention will\n\n\n 8\n In that regard, the other instances of third parties being\npermitted to intervene in criminal proceedings to which Charte\npoints us are inapposite. Those instances concern the\nadjudication of limited, collateral questions such as the third\nparty’s constitutional right to access the proceeding or their\nright to assert a privilege in the proceeding. See, e.g., In re\nAssociated Press, 162 F.3d 503, 506–09 (7th Cir. 1998)\n(concerning the first amendment right of access to court\nproceedings); United States v. Criden, 675 F.2d 550, 554–57\n(3d Cir. 1982) (same); Fed. R. Crim. P. 60 (allowing victims to\nassert a right to notice of a proceeding, to attend, and “to be\nreasonably heard at any public proceeding in the district court\nconcerning release, plea, or sentencing involving a crime”\n(emphases added)). That is a far cry from being allowed to\ncriminally prosecute another in the name of, and along with,\nthe United States.\n\n\n\n\n 19\n\f simply be to protect the [her] interest, and that of\n the United States, in [her] share.\n\nAppellant Op. Br. 5. She made a similar statement to the\nDistrict Court. JA 40 (stating in the preliminary statement of\nthe brief supporting her motion that, “Jean Charte files this\nMotion to ensure that monies received by the United States\nfrom Mr. James Wegeler, Sr. are subject to her claim under the\nFalse Claims Act.” (emphasis added)).\n\n We routinely adjudicate the assertion of statutory-\nprocedural rights regarding similar property interests in\ncriminal proceedings. For example, in criminal forfeiture\nproceedings, 21 U.S.C. § 853 permits intervention only in\nlimited circumstances “(1) third parties who had a vested\ninterest in the property at the time of the commission of the acts\nthat gave rise to forfeiture, and (2) bona fide purchasers for\nvalue without cause to believe the property was subject to\nforfeiture.” Van Dyck, 866 F.3d at 1133 (citing § 853(n)(6)).\n\n Charte’s assertions are similar: that she has a vested\ninterest in a share of the restitution and that the FCA grants her\na procedural right to intervene to protect that interest. The\nformer assertion is aided by the fact that, as to this set of rights,\nthe FCA is “regarded as effecting a partial assignment of the\nGovernment’s damages claim,” such that “the United States’\ninjury in fact suffices to confer standing on” relators in FCA\nsuits. Vermont Agency of Nat. Res. v. U.S. ex rel. Stevens, 529\nU.S. 765, 773–74 (2000) (“[The] adequate basis for the\nrelator’s [FCA] suit for his bounty is to be found in the doctrine\nthat the assignee of a claim has standing to assert the injury in\nfact suffered by the assignor.” (emphasis added)).\n\n\n\n\n 20\n\f In that light, a ruling against Charte on this point would\nrequire accepting that a relator has standing to “obtain[]\ncompensation for, or prevent[] the violation of” her right to a\nrelator’s award, id. at 772, but nonetheless saying that she lacks\nstanding to do exactly that, all against the backdrop that we\nroutinely adjudicate similar interests by third-parties in\ncriminal proceedings. To be clear, when it comes to a criminal\nforfeiture proceeding, we agree that a relator has standing to\nassert the relator’s “statutory procedural right . . . under the\nalternate-remedy provision to have her relator’s share\nadjudicated in the criminal forfeiture proceeding.”. See United\nStates v. Couch, 906 F.3d 1223, 1226–27 (11th Cir. 2018)\n(explaining that the relator’s “motion to intervene in a\n[criminal] proceeding to enforce an alleged property interest is\nmaterially different from an attempt to compel a criminal\nprosecution or alter a sentence”). That agreement\nnotwithstanding, however, we are not persuaded that a relator\nin fact possesses such a statutory procedural right.\n\n As the government forcefully argues, the text of the\nFCA “compels the understanding” that “the district court in the\n[FCA] suit remains responsible for adjudicating the relator’s\nshare of the proceeds of an alternate proceeding” brought by\nthe government under the alternate-remedy provision.\nAppellee Br. 22. The alternate-remedy provision assumes that\nthe FCA suit will continue after the alternate-remedy\nproceeding has concluded when it states “[a]ny finding of fact\nor conclusion of law made in such proceeding that has become\nfinal shall be conclusive on all parties to an action under this\nsection.” 31 U.S.C. § 3730(c)(5). The FCA then provides\ndetailed guidelines for determining a relator’s share in the\n“proceeds of the action or settlement of the claim,” where “the\ngovernment proceeds with [the] action.” § 3730(d)(1). That\n\n\n\n\n 21\n\fis, that the relator is entitled to “at least 15 percent but not more\nthan 25 percent . . ., depending upon the extent to which the\nperson substantially contributed to the prosecution of the\naction[,]” and “no . . . more than 10 percent” where “the action\nis one which the court finds to be based primarily on\ndisclosures of specific information (other than information\nprovided by the person bringing the action) . . . taking into\naccount the significance of the information and the role of the\nperson bringing the action in advancing the case to litigation.”\nId. (emphases added).\n\n While other courts may use the procedural devices\navailable to them to assess the requisite “finding[s] of fact or\nconclusion of law made in another proceeding,” that the FCA\noutright provides this to the FCA court, as well as that the FCA\ncourt is readily apprised of the information a relator provides\nto the government, is a strong indication that Congress\nintended the FCA court to be the one to make these\ncomparative determinations. That indication is even stronger\nwhen one considers that the provisions setting forth the right to\na relator’s award are set forth in § 3730(d)(1), labeled “Award\nto qui tam plaintiff,” whereas the rights that accompany “the\nright to continue as a party to the action” are all set forth in\n§ 3730(c)(1) and (2), labeled “Rights of the parties to qui tam\nactions.”\n\n Those textual and structural indicia are reinforced by\nthe Senate Report’s statement that “[i]f the Government\nproceeds administratively, the district court shall stay the civil\naction pending the administrative proceeding and any petitions\nby the relator, in order to exercise his rights [in such\nproceeding,] will be to the district court” rather than the court\nin the proceeding pursued by the government under the\nalternate-remedy provision. S. Rep. No. 99-345, at 27.\n\n\n\n\n 22\n\fTogether, these points compel the conclusion that, to the extent\nthat the FCA provides relators a right to intervene in another\nproceeding, their interest in a share in the proceeds recovered\nin that proceeding is not among those for which this right is\nprovided.\n\n In other words, Charte is less like third parties in the 21\nU.S.C. § 853 context, who are provided an express right to\nintervene to assert their property interest, than she is like\nvictims, who also have an interest in any restitution that is\nawarded but are not granted a statutory right to intervene and\nassert it. See 18 U.S.C.A. § 3663A(a)(1) (requiring a court to\norder restitution “to the victim of the offense or, if the victim\nis deceased, to the victim’s estate”); Federal Sentencing\nGuidelines Manual § 3E1.1(a) (U.S. Sentencing Comm’n\n2016) (requiring that, “[i]n the case of an identifiable victim,\nthe court shall . . . enter a restitution order for the full amount\nof the victim’s loss . . .”); but see Stoerr, 695 F.3d at 278\n(noting that restitution orders can only be appealed and\nmodified “by the defendant and by the Government,” and that\n“[crime] victims are non-parties to criminal proceedings”);\nKelly v. Robinson, 479 U.S. 36, 52 (1986) (“Although\nrestitution does resemble a judgment ‘for the benefit of’ the\nvictim, . . . [t]he victim has no control over the amount of\nrestitution awarded or over the decision to award restitution.”).\n\n We are therefore aligned with our two sister circuits that\nhave addressed this question and hold that (1) a relator “lacks\nstanding to intervene in [the] criminal prosecution[] of\nanother” as it pertains to her participation rights, Van Dyck, 866\nF.3d at 1133, and (2) even if a relator had standing to intervene\nonly as to her alleged interest in her share of the proceeds\ncollected by the government, the “sole remedy” that the FCA\nprovides her is to “commence” or continue the FCA action, id.\n\n\n\n\n 23\n\fat 1135 (“The ‘alternate remedy’ provisions of the False\nClaims Act do not permit a relator to intervene in a criminal\naction for the purpose of asserting a right to the proceeds of\nthat action.”); see also Couch, 906 F.3d at 1228 (“[T]he\nalternate-remedy provision does not expressly provide a right\nof intervention in an ‘alternate proceeding.’” (emphasis\nadded)).\n\n In so holding, we do not opine on whether a criminal\nproceeding is an alternate remedy such that a relator retains her\nFCA rights, including the right to a share in the proceeds.9 Nor\ndo we need to decide whether, even if a criminal proceeding\nconstituted an alternate remedy, the proceedings here would\nqualify in light of the fact that 31 U.S.C. § 3729(d) precludes a\nrelator from obtaining a relator’s share in a claim under the\nInternal Revenue Code. See § 3729(d) (“This section does not\napply to claims, records, or statements made under the Internal\nRevenue Code of 1986.”). District Courts adjudicating FCA\nsuits routinely make these determinations and are best\nequipped to do so.\n\n *****\n\n In the end, then, we maintain “the long line of precedent\nholding that a [private individual] lacks a judicially cognizable\ninterest in [another]’s prosecution” and likewise, “in\n[another’s] sentence.” Stoerr, 695 F.3d at 277–78. And Charte\n\n 9\n Charte’s argument that “[d]enying the existence of an\nalternate remedy works an anomalous outcome that treats [her]\nless favorabl[y] than tax whistleblowers under Title 26,”\nAppellant Op. Br. 51, speaks to whether she is entitled to a\nshare in the restitution, so it too does not warrant opining.\n\n\n\n\n 24\n\fis not the exception she claimed to be: she may not pursue her\nalleged interest in a relator’s award in Wegeler, Sr.’s criminal\ncase. Charte may nonetheless take solace in the government’s\nrepresentation—to this Court and to our two sister circuits that\nhave confronted this question—that it “allow[s] a qualified\nrelator to a share of the full amount of [a] damages award,\nincluding the restitution previously paid.” Appellee Br. 29\n(citing United States v. Wellcare Health Plans, Inc., 2011 WL\n4431157, *2 (M.D. Fla. 2011), where “the Government . . .\nescrowed 25% of [a] $40 million restitution, pending a\nresolution of the [related] qui tam cases for [the] purpose” of\nallowing the “Movant and the other relators” to “participat[e]\nin the distribution of restitution paid incident to the criminal\nprosecution”); see also Couch, 906 F.3d at 1228–29; Van\nDyck, 866 F.3d at 1135 n.3. For our part, we will affirm the\nDistrict Court’s order denying her motion to intervene.\n\n\n\n\n 25\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. James Wegeler\\nCourt: U.S. Court of Appeals for the Third Circuit\\nDate decided: 2019-10-28\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n _____________\\n\\n No. 17-1717\\n _____________\\n\\n UNITED STATES OF AMERICA\\n\\n v.\\n\\n JAMES WEGELER\\n\\n\\n *Jean Charte,\\n\\n Appellant\\n\\n*(Amended Per the Clerk’s Order dated 12/27/17)\\n ______________\\n\\n On Appeal from the United States\\n District Court for the District of New Jersey\\n (D.C. Crim. Action No. 3-16-cr-00273-001)\\n District Judge: Honorable Anne E. Thompson\\n _____________\\n\\n No. 17-1718\\n _____________\\n\\f UNITED STATES OF AMERICA, ex rel. ***\\n JEAN CHARTE\\n\\n v.\\n\\nAMERICAN TUTOR, INC., JAMES WEGELER, JR.;\\n JAMES WEGELER, SR.; SEAN WEGELER**\\n\\n *Jean Charte,\\n\\n Appellant\\n\\n *(Amended per the Clerk’s Order dated 12/27/17)\\n **(Amended per the Clerk’s Order dated 1/25/18)\\n ***(Amended per the Clerk's Order dated 5/7/18)\\n _____________\\n\\n On Appeal from the United States\\n District Court for the District of New Jersey\\n (D.C. Civ. Action No. 3-10-cv-03318)\\n District Judge: Mary L. Cooper\\n _____________\\n\\n No. 17-8009\\n _____________\\n\\n UNITED STATES OF AMERICA\\n\\n v.\\n\\n JAMES WEGELER\\n\\n *Jean Charte,\\n\\n\\n\\n\\n 2\\n\\f Petitioner\\n\\n *(Amended per the Clerk’s Order dated 12/27/17)\\n ______________\\n\\n On Petition to File an Appeal pursuant to 31 U.S.C. §\\n 3739(b)(2)\\nfrom the United States District Court for the District of New\\n Jersey\\n (D.C. Crim. Action No. 3-16-cr-00273-001)\\n District Judge: Honorable Anne E. Thompson\\n ______________\\n\\n Argued on April 19, 2018\\n ______________\\n\\n Before: GREENAWAY, JR., RENDELL and FUENTES,\\n Circuit Judges.\\n\\n (Opinion Filed: October 28, 2019)\\n\\nSean F. Byrnes [Argued]\\nByrnes O’Hern & Heugle\\n28 Leroy Place\\nRed Bank, NJ 07701\\n Counsel for Appellant/Petitioner\\n\\nMark E. Coyne\\nAnthony J. LaBruna, Jr.\\nJohn F. Romano\\nOffice of United States Attorney\\n970 Broad Street\\n\\n\\n\\n\\n 3\\n\\fRoom 700\\nNewark, NJ 07102\\n\\nCharles W. Scarborough\\nWilliam E. Havemann [Argued]*\\nUnited States Department of Justice\\n950 Pennsylvania Avenue, N.W.\\nWashington, DC 20530\\n Counsel for Appellee/Respondent\\n ______________\\n\\n OPINION\\n ______________\\n\\nGREENAWAY, JR., Circuit Judge.\\n\\n Our criminal justice apparatus is not the Eye of\\nProvidence. Though ever vigilant, it cannot see all, and it is\\nmightily aware of that. So it relies on the eyes and ears of\\nprivate citizens from many walks of life. These citizens are\\nrewarded for their heroics at times, but their rewards rarely, if\\never, amount to an expectation, let alone an interest, that they\\ncan pursue in the criminal case of another. This is because, as\\nthe Supreme Court has observed, “in American jurisprudence\\nat least, a private citizen lacks a judicially cognizable interest\\nin the prosecution or non[-]prosecution of another.” Linda R.S.\\n(“Linda”) v. Richard D., 410 U.S. 614, 619 (1973).\\n\\n Jean Charte insists that she is the anomaly. Her case\\nrests on the False Claims Act (“FCA”), 31 U.S.C. §§ 3729–\\n\\n*\\n William E. Havemann withdrew as counsel on July 19, 2018,\\nprior to the issuance of this opinion.\\n\\n\\n\\n\\n 4\\n\\f3733 (2012), which is a statute that Congress enacted during\\nthe Civil War to stem fraud against the federal government.\\nUnited States v. Bornstein, 423 U.S. 303, 309 (1976). The\\nFCA includes a qui tam1 provision to encourage actions by\\nprivate individuals—called relators—who are entitled to a\\nportion of the amount recovered, subject to certain limitations.\\nSee § 3730(b), (d). In turn, a relator is required to provide the\\ngovernment with the information she intends to rely on so that\\nthe government can make an informed decision as to whether\\nit should intervene. § 3730(b)(2). In the event that the\\ngovernment elects to pursue what is ultimately its claim\\nthrough an “alternate remedy,” the statute provides that the\\nrelator retains the same rights she would have had in the FCA\\naction. § 3730(c)(5).\\n\\n Charte instituted an FCA action alleging that the\\ndefendants, including James Wegeler, Sr., submitted false\\nreimbursement claims to the United States Department of\\nEducation. She provided the requisite information to the\\ngovernment and cooperated with the government while it\\ndetermined whether it would intervene. During this period, the\\ninformation she provided led directly to an investigation that\\nresulted in the criminal prosecution of Wegeler, Sr., for tax\\n\\n 1\\n “Qui tam is short for the Latin phrase qui tam pro\\ndomino rege quam pro se ipso in hac parte sequitur, which\\nmeans who pursues this action on our Lord the King’s behalf\\nas well as his own.” United States ex rel. Charte v. Am. Tutor,\\nInc., 934 F.3d 346, 347 n.1 (3d Cir. 2019) (internal quotation\\nmarks omitted) (quoting Vt. Agency of Nat. Res. v. U.S. ex rel.\\nStevens, 529 U.S. 765, 768 n.1 (2000)).\\n\\n\\n\\n\\n 5\\n\\ffraud and tax evasion. Wegeler, Sr. ultimately entered into a\\nplea agreement that required him to pay $1.5 million in\\nrestitution. He paid the restitution by the time he was\\nsentenced. Subsequently, the government declined to\\nintervene in the FCA action.\\n\\n Charte learned of the plea agreement and tried to\\nintervene in the criminal proceeding to secure her alleged\\ninterest in a share of the restitution. Her motion to do so was\\ndenied, however. Her appeal to us thus presents a question of\\nfirst impression for our Court: whether a criminal proceeding\\nconstitutes an “alternate remedy” to a civil qui tam action under\\nthe FCA, entitling a relator to intervene in the criminal action\\nand recover a share of the proceeds pursuant to § 3730(c)(5).\\n\\n We determine that the rights to participate in a\\nproceeding that the alternate-remedy provision provides a\\nrelator does not extend to a criminal proceeding. Such a\\nholding would be tantamount to an interest in participating as\\na co-prosecutor in the criminal case of another. Charte’s\\nimportant aid to the government notwithstanding, she lacks\\nstanding to assert such an interest under “the long line of\\nprecedent holding that a [private individual] lacks a judicially\\ncognizable interest in [another]’s prosecution” and likewise,\\n“in [another’s] sentence.” United States v. Stoerr, 695 F.3d\\n271, 277–78 (3d Cir. 2012). Even if we focused on only her\\nalleged interest in a share of the restitution, nothing in the FCA\\nsuggests that a relator has a right to intervene in the\\ngovernment’s alternative-remedy provision proceeding for the\\npurpose of asserting this interest. The text and sparse\\nlegislative history regarding the alternate-remedy provision\\ncounsel otherwise, as they together make clear that the court\\noverseeing the FCA suit determines whether and to what extent\\na relator is entitled to an award. Our holding is\\n\\n\\n\\n\\n 6\\n\\fstraightforward—a qui tam relator lacks standing to intervene\\nas to her rights to prosecute a case alongside the government,\\nand lacks a basis to do so as to her right to an award. We will\\ntherefore affirm the District Court. As was evident before this\\naction, Charte may pursue her right to an award by conducting\\nthe FCA action.\\n\\n I. Background\\n\\n A. Legal\\n\\n An action under the FCA can be brought either by the\\ngovernment or a private person “in the name of the\\nGovernment.” 31 U.S.C. § 3730(a), (b). If such a person—\\nknown as a relator—files the action, the complaint is filed in\\ncamera, sealed for at least sixty days, and served on the\\ngovernment but not the defendant until so ordered by the court.\\n§ 3730(b)(2). The government can move for “extensions of the\\ntime during which the complaint remains under seal” for good\\ncause. § 3730(b)(3). Before the end of the expiration of time,\\nthe government must either “proceed with the action, in which\\ncase the action shall be conducted by the Government,” or\\n“notify the court that it declines to take over the action, in\\nwhich case the person bringing the action shall have the right\\nto conduct the action.” § 3730(b)(4).\\n\\n If the government intervenes and proceeds with the\\nFCA action, “it shall have the primary responsibility for\\nprosecuting the action, and shall not be bound by an act of the\\nperson bringing the action . . . .” § 3730(c)(1). However, the\\nrelator retains “the right to continue as a party to the action,”\\nsubject to certain limitations. Id. In addition, the relator\\n“receive[s] at least 15 percent but not more than 25 percent of\\nthe proceeds of the action or settlement of the claim, depending\\n\\n\\n\\n\\n 7\\n\\fupon the extent to which the person substantially contributed\\nto the prosecution of the action.” § 3730(d)(1). That amount\\nis reduced to “no more than 10 percent” if\\n\\n the action is one which the court finds to be based\\n primarily on disclosures of specific information\\n (other than information provided by\\n the person bringing the action) relating to\\n allegations or transactions in a criminal, civil, or\\n administrative hearing, in a congressional,\\n administrative, or Government Accounting\\n Office report, hearing, audit, or investigation, or\\n from the news media . . . .”\\n\\nId.\\n\\n Where the Government declines to intervene, “the\\nperson who initiated the action shall have the right to conduct\\nthe action,” although “the court, without limiting the status and\\nrights of the person initiating the action, may nevertheless\\npermit the government to intervene at a later date upon a\\nshowing of good cause.” § 3730(c)(3). When the relator\\nconducts the action, she shall receive an amount “not less than\\n25 percent and not more than 30 percent of the proceeds of the\\naction or settlement.” § 3730(d)(2).\\n\\n This assortment of rights is rounded out by the FCA’s\\nalternate-remedy provision, under which the government may\\n“elect[] to pursue its claim through any alternate remedy\\navailable to the Government, including any administrative\\nproceeding to determine a civil money penalty.” § 3730(c)(5)\\n(emphasis added). And “[i]f any such alternate remedy is\\npursued in another proceeding, the person initiating the action\\nshall have the same rights in such proceeding as such person\\n\\n\\n\\n\\n 8\\n\\fwould have had if the action had continued under” the FCA.\\nId. (emphasis added). Moreover, “[a]ny finding of fact or\\nconclusion of law made in such other proceeding that has\\nbecome final shall be conclusive on all parties to” the FCA\\naction. Id.\\n\\n This framework sets the stage for the case at hand.\\n\\n B. Factual and Procedural\\n\\n Charte worked at American Tutor, Inc., a business that\\nreceived Title I funds to provide supplemental educational\\nservices to New Jersey school districts. She alleged that,\\nduring her employment, she noticed questionable billing\\npractices, including billing for absent students and services not\\nprovided. She filed a qui tam complaint in 2010, after her\\ntermination in 2007. The complaint, under the FCA and New\\nJersey False Claims Act, N.J. Stat. Ann. §§ 2A:32C-1 to -18\\n(West 2010), alleged that the defendants submitted false claims\\nfor reimbursement to the United States Department of\\nEducation. The district court stayed the proceeding and kept it\\nunder seal until 2017, when the Government ultimately\\ndeclined to intervene. In the interim, Charte and her counsel\\n“provided information, documents and even deposition\\ntestimony from a separate matter” to the government.\\nAppellant Br. 15; see JA 83.\\n\\n While the FCA suit was still unresolved, the\\ngovernment brought criminal charges against Wegeler, Sr. for\\ntax fraud and tax evasion. Wegeler, Sr. pleaded guilty. The\\nplea agreement requested restitution in the amount of $1.5\\nmillion representing the tax loss. It states:\\n\\n\\n\\n\\n 9\\n\\f This agreement was reached without regard to\\n any civil or administrative matters that may be\\n pending or commenced in the future against\\n JAMES WEGELER. This agreement does not\\n prohibit the United States . . . or any third party\\n from initiating or prosecuting any civil or\\n administrative proceeding against JAMES\\n WEGELER.\\n\\nPlea Agreement 5, ECF No. 4, United States v. Wegeler, No.\\n16-0273 (D.N.J. June 13, 2016). Wegeler, Sr. paid the\\nrestitution amount by the time of sentencing.\\n\\n In October 2016, before Wegeler, Sr. was sentenced,\\nCharte filed a motion to intervene in the criminal proceeding,\\nalleging a right to a relator’s award from the restitution amount.\\nShe also filed the same motion in the FCA proceeding. At the\\nhearing on Charte’s motion to intervene in the criminal case,\\nthe government admitted that it likely would not have focused\\non Wegeler, Sr., as a potential subject of a criminal proceeding,\\nif Charte had not named him in the qui tam action.\\n\\n The District Court denied the motion, noting that\\nnothing here warranted an exception to the general rule that\\nprivate citizens “lack[] a judicially cognizable interest in the\\nprosecution or non-prosecution of another” and no Federal\\nRule of Criminal Procedure permits intervention. JA 10\\n(quoting United States v. Kurlander, 24 F. Supp. 3d 417, 424\\n(D.N.J. 2014)). It rejected Charte’s argument that the criminal\\nproceeding was an “alternate remedy” under the FCA,\\nparticularly in this case where the FCA’s bar on Internal\\nRevenue Code qui tam claims meant that Charte could not have\\nincluded tax fraud allegations in her complaint.\\n\\n\\n\\n\\n 10\\n\\f The district court in the FCA action later granted\\nsummary judgment in favor of the defendants. The court\\napplied New Jersey preclusion law and held that Charte’s\\nsettlement and dismissal of a state case that alleged defamation\\nand other claims arose out of the same transaction and\\noccurrence and among substantially the same parties, therefore\\nbarring her FCA suit. Charte appealed the summary judgment\\ndecision. Since this case could be affected by that appeal, we\\nheld it C.A.V. pending resolution of the appeal. The district\\ncourt’s summary judgment decision was reversed on August\\n12, 2019. Am. Tutor, Inc., 934 F.3d at 354 (holding that New\\nJersey’s entire controversy doctrine did not apply to bar\\nCharte’s federal qui tam action). We now turn to this case.\\n\\n II. Jurisdiction and Standard of Review\\n\\n A. Jurisdiction\\n\\n Charte’s contention comes by way of three appeals,\\nonly one of which—the appeal from the denial of intervention\\nin the criminal proceeding, docketed as No. 17-1717—is\\n\\n\\n\\n\\n 11\\n\\fproperly before us.2 The District Court had jurisdiction over\\nthat proceeding under 18 U.S.C. § 3231.3\\n\\n We lack jurisdiction over the appeals in the FCA action,\\nNo. 17-1718. Charte filed her notice of appeal in the FCA case\\nconcerning the motion to intervene after her thirty days to\\nappeal had expired, see Fed. R. App. P. 4(a). The district court\\nnever extended the time to appeal.4 Thus, even if she were able\\n\\n 2\\n We need not determine whether a motion to intervene\\nas of right in criminal cases is immediately appealable as it is\\nin civil cases, see McClune v. Shamah, 593 F.2d 482, 485 (3d\\nCir. 1979), because the notice became ripe once a judgment\\nwas entered, see Khan v. Att’y Gen. of U.S., 691 F.3d 488, 494\\nn.3 (3d Cir. 2012) (stating that a premature notice is sufficient\\n“so long as the notice of appeal adequately advised the\\ngovernment of what was being appealed, the premature filing\\ndid not cause prejudice, and the notice of appeal was not filed\\nextraordinarily prematurely”).\\n 3\\n The District Court denied Charte’s motion to\\nintervene on January 31, 2017, and Charte filed her notice of\\nappeal on March 28, 2017. The District Court subsequently\\ngranted her request for an extension of time to file the notice\\nbecause of technical issues.\\n 4\\n Charte argues that she was entitled to sixty days to\\nfile an appeal in the FCA case because the government, having\\nnot decided whether to intervene at the time the notice was\\nfiled, was a party to the case. Her argument is unpersuasive,\\nand her attempt to distinguish United States ex rel. Eisenstein\\nv. City of New York, 556 U.S. 928 (2009), is belied by the clear\\nlanguage in that case. Id. at 931 (“Although the United States\\nis aware of and minimally involved in every FCA action, we\\n\\n\\n\\n\\n 12\\n\\fto appeal the interlocutory order, her notice of appeal was\\nuntimely, and we lack appellate jurisdiction in No. 17-1718.\\n\\n Charte’s “Petition for Permission to Appeal,” (No. 17-\\n8009) meanwhile, was filed fifty-eight days after the District\\nCourt’s January 31, 2017 order denying her motion to\\nintervene and did not identify any statute or rule authorizing\\nthe appeal. We discern no basis to exercise appellate\\njurisdiction over it, see Fed. R. App. P. 5(b)(1)(D), and the\\nearlier referral of the appeal to a merits panel does not\\neliminate this Court’s responsibility to ensure that we have\\njurisdiction. Anthony v. Council, 316 F.3d 412, 416 (3d Cir.\\n2003); see also FW/PBS Inc. v. City of Dallas, 493 U.S. 215,\\n230-31 (1990) (We review our subject matter jurisdiction over\\nthe matter Aeven if the courts below have not passed on it, and\\neven if the parties fail to raise the issue before us.@).\\n\\n B. Standard of Review\\n\\n As to the standard of review for No. 17-1717,\\n“[a]lthough we generally review dispositions of motions to\\nintervene for abuse of discretion, the district court here did not\\nexercise discretion in denying the motion to intervene but\\nbarred the claims because of its legal conclusion” that Charte\\ndoes not have a basis to intervene in a criminal proceeding.\\nNelson v. Cty. Of Allegheny, 60 F.3d 1010, 1012 (3d Cir. 1995).\\nOur review is plenary where that is the case. Id.\\n\\n\\n\\n\\nhold that it is not a ‘party’ to an FCA action for purposes of the\\nappellate filing deadline unless it has exercised its right to\\nintervene in the case.”).\\n\\n\\n\\n\\n 13\\n\\f III. Discussion\\n\\n Charte casts a wide net in framing the question on\\nappeal,5 but it is simply “whether a criminal . . . proceeding\\nconstitutes an ‘alternate remedy’ to a civil qui tam action under\\nthe False Claims Act, entitling a relator to intervene in the\\ncriminal action and recover a share of the proceeds pursuant to\\n31 U.S.C. § 3730(c)(5).” United States v. Van Dyck, 866 F.3d\\n1130, 1131 (9th Cir. 2017). The answer is no. First, a relator\\nlacks standing to intervene in the criminal prosecution of\\nanother. Moreover, the FCA does not provide a right to\\nintervene to recover a share of the proceeds derived from a\\nproceeding that the government pursues under the alternate-\\nremedy provision.\\n\\n\\n\\n\\n5\\n Charte frames the question in four different ways: as (1)\\n“[w]hether the Court erred when it found that the criminal\\nproceeding against the Defendant James Wegeler, Sr., did not\\nconstitute an ‘alternate remedy’ . . . [,]” (2) “[w]hether the\\nCourt erred when it determined that the Relator in this qui tam\\nproceeding could not intervene in a criminal proceeding that\\nconstituted an ‘alternate remedy’ . . . [,]” (3) “[w]hether the\\nRelator may recover a relator’s share award from the restitution\\npaid by the criminal Defendant within a proceeding that\\nconstitutes an ‘alternate remedy’ . . . [,]” and (4) “[w]hether the\\nGovernment can rely upon 31 U.S.C. § 3729(d) where as here\\nthe Relator has not alleged any violations of the IRC in her\\nComplaint.” Appellant’s Op. Br. 7.\\n\\n\\n\\n\\n 14\\n\\f A.\\n\\n The rights the FCA provides to a relator when the\\ngovernment “proceeds with the action” and that would also be\\nafforded to a relator if the government pursues an alternate\\nremedy under § 3730(c)(5) are twofold.\\n\\n First, a relator “shall have the right to continue as a\\nparty to the action . . . .” § 3730 (c)(1) (emphasis added). This\\nencompasses a suite of rights to participate in a proceeding\\npursuant to the alternate-remedy provision, consisting of the\\nrights to: (i) notice and an opportunity to be heard if the\\ngovernment moves to dismiss the action, (ii) object to a\\nsettlement so that the court can ensure it is “fair, adequate, and\\nreasonable under all the circumstances,” and (iii) an otherwise\\nunrestricted ability to participate “during the course of\\nlitigation” unless the government shows that such “unrestricted\\nparticipation . . . would interfere with or unduly delay the\\nGovernment’s prosecution of the case, or would be repetitious,\\nirrelevant,” or if, “for purposes of harassment,” the court\\ndecides “in its discretion” to “impose limitations on the\\nperson’s participation . . . .” § 3730(c)(2)(A)–(D). The\\nlimitations consist of “(i) limiting the number of witnesses the\\nperson may call; (ii) limiting the length of the testimony of\\nsuch witnesses; (iii) limiting the person’s cross-examination of\\nwitnesses; or (iv) otherwise limiting the participation by the\\nperson in the litigation.” § 3730(c)(2)(C). Second, a relator has\\na right to “at least 15 percent but not more than 25 percent” of\\nthe proceeds that result from such an action, or, under certain\\ncircumstances, “no . . . more than 10 percent.” § 3730(d)(1).\\n\\n The Senate Report regarding this provision sums up\\nmany of these rights as: “the qui tam relator retains all the\\nsame rights to copies of filings and depositions, to objections\\n\\n\\n\\n\\n 15\\n\\fof settlements or dismissals, to taking over the action if the\\nGovernment fails to proceed with ‘reasonable diligence’, as\\nwell as to receiving a portion of any recovery.” S. Rep. 99-\\n345, at 27 (1986), as reprinted in 1986 U.S.C.C.A.N. 5266,\\n5292.6\\n\\n\\n6\\n The Sixth Circuit has noted that “the quoted passage of the\\nSenate Report refers to § 3730(c)(3), not § 3730(c)(5),\\nsuggesting that it might refer to an earlier draft of the 1986\\nFCA amendments.” United States ex rel. Bledsoe v. Cmty.\\nHealth Sys., Inc., 342 F.3d 634, 648 (6th Cir. 2003). However,\\nthe proposed legislative language in the report concerning the\\nalternate-remedy provision is substantially similar to that\\nwhich appears in the current text. Compare S. Rep. 99-345, at\\n42 (“Notwithstanding subsection (b), the Government may\\nelect to pursue its claim through any alternate remedy available\\nto it, including, but not limited to, any administrative civil\\nmoney penalty proceeding.” (italics removed)), with 31 U.S.C.\\n§ 3730(c)(5) (“Notwithstanding subsection (b), the\\nGovernment may elect to pursue its claim through any alternate\\nremedy available to the Government, including any\\nadministrative proceeding to determine a civil money\\npenalty.”).\\n\\n The Sixth Circuit also stated that the report may be\\ninternally inconsistent in that it suggests both that the\\nGovernment must first intervene before pursuing an alternate\\nremedy, see S. Rep. 99-345, at 42 (“Subsection (c)(3)\\nof section 3730 clarifies that the Government, once it\\nintervenes and takes over a false claim suit brought by a private\\nindividual, may elect to pursue any alternate remedy . . . .”\\n(emphasis added)), and that pursuit of an alternate remedy is\\nan either/or, see id. (“[T]he Government must elect to pursue\\n\\n\\n\\n\\n 16\\n\\f 1.\\n\\n The assertion of the first set of rights in the criminal case\\nof another whereby the relator would be a party to the action\\nwould amount to an interest in that person’s prosecution.\\nIndeed, relators would essentially have a voice in whether and\\nhow the government would go about securing a guilty verdict\\n(or plea), as well as in determining the sentence(s) it will ask\\nthe court to impose. That is squarely at odds with the long held\\ntradition of American jurisprudence that “a private citizen\\nlacks a judicially cognizable interest in the prosecution or\\nnon[-]prosecution of another.” Linda, 410 U.S. at 619.\\n\\n\\nthe false claims action either judicially or administratively . .\\n. .”). Bledsoe, 342 F.3d at 648. Courts have adopted that the\\nlatter interpretation. See id. at 647 (“We hold that ‘alternate\\nremedy’ refers to the government’s pursuit of any alternative\\nto intervening in a relator’s qui tam action.”); United States ex\\nrel. Barajas v. U.S., 258 F.3d 1004, 1010 (9th Cir. 2001) (“An\\nalternate remedy under § 3730(c)(5) is a remedy achieved\\nthrough the government’s pursuit of a claim after it has chosen\\nnot to intervene in a qui tam relator’s FCA action.”); United\\nStates ex rel. LaCorte v. Wagner, 185 F.3d 188, 192 (4th Cir.\\n1999) (“Section 3730(c)(5) assumes that the original qui tam\\naction did not continue.”); United States ex rel. Dunleavy v.\\nCty. of Delaware, 123 F.3d 734, 739 (3d Cir. 1997) (noting the\\n“Government’s right to proceed administratively as an\\nalternate remedy to an FCA action”), abrogated on other\\ngrounds by Graham Cty. Soil & Water Conservation Dist. v.\\nUnited States ex rel. Wilson, 559 U.S. 280 (2010).\\n\\n\\n\\n\\n 17\\n\\f The tradition derives from the Case or Controversy\\nClause of Article III of the Constitution, which “establish[es\\nan] irreducible constitutional minimum of” an injury in fact7\\nthat is caused by the conduct complained of and which is likely\\nto be redressed by a favorable decision. Lujan v. Defenders of\\nWildlife, 504 U.S. 555, 560–61 (1992). While “Congress may\\nenact statutes creating legal rights, the invasion of which\\ncreates standing,” Linda, 410 U.S. at 617 n.3, the injury-in-fact\\nrequirement does not dissipate “whenever a statute grants a\\nperson a statutory right and purports to authorize that person to\\nsue to vindicate that right.” Spokeo, Inc. v. Robins, 136 S.Ct.\\n1540, 1549 (2016). Congress is merely capable of invoking\\nthe absolute limit of this Constitutional floor by “creating legal\\nrights, the invasion of which creates [injury],” where none\\nwould have previously existed. Linda, 410 U.S. at 617 n.3.\\n\\n In that vein, as to the interest created by the first set of\\nrights the FCA provides relators, the District Court properly\\nassessed that an interest in the prosecution or non-prosecution\\nof an individual has been considered too generalized and\\nspeculative to meet the floor set by Article III. See, e.g., Lujan,\\n504 U.S. at 576 (“Vindicating the public interest . . . is the\\nfunction of Congress and the Chief Executive.” (emphasis in\\noriginal)). Even where Congress has authorized a private\\nindividual “to enforce public rights in their own names,” the\\nSupreme Court has required her to “demonstrate that the\\nviolation of that public right has caused [her] a concrete,\\n\\n 7\\n “Injury in fact” is defined as “an invasion of a legally\\nprotected interest which is (a) concrete and particularized . . .\\nand (b) actual or imminent, not ‘conjectural or\\n‘hypothetical[.]’” Lujan v. Defenders of Wildlife, 504 U.S.\\n555, 560 (1992) (citations omitted).\\n\\n\\n\\n\\n 18\\n\\findividual harm distinct from the general population.” Spokeo,\\n136 S. Ct. at 1553. Here, Charte is no different than any other\\nmember of the public in terms of the concrete harm she\\nsuffered when the government chose to prosecute or not\\nprosecute Wegeler, Sr. Thus, regardless of whether these\\nrights stem from the FCA, she lacks standing to assert them.8\\n\\n 2.\\n\\n Perhaps anticipating the foregoing, Charte says:\\n\\n [she] does not seek to intervene in the criminal\\n proceeding proper. James Wegeler, Sr. has\\n already been sentenced and has paid his\\n restitution. [Her] proposed intervention will\\n\\n\\n 8\\n In that regard, the other instances of third parties being\\npermitted to intervene in criminal proceedings to which Charte\\npoints us are inapposite. Those instances concern the\\nadjudication of limited, collateral questions such as the third\\nparty’s constitutional right to access the proceeding or their\\nright to assert a privilege in the proceeding. See, e.g., In re\\nAssociated Press, 162 F.3d 503, 506–09 (7th Cir. 1998)\\n(concerning the first amendment right of access to court\\nproceedings); United States v. Criden, 675 F.2d 550, 554–57\\n(3d Cir. 1982) (same); Fed. R. Crim. P. 60 (allowing victims to\\nassert a right to notice of a proceeding, to attend, and “to be\\nreasonably heard at any public proceeding in the district court\\nconcerning release, plea, or sentencing involving a crime”\\n(emphases added)). That is a far cry from being allowed to\\ncriminally prosecute another in the name of, and along with,\\nthe United States.\\n\\n\\n\\n\\n 19\\n\\f simply be to protect the [her] interest, and that of\\n the United States, in [her] share.\\n\\nAppellant Op. Br. 5. She made a similar statement to the\\nDistrict Court. JA 40 (stating in the preliminary statement of\\nthe brief supporting her motion that, “Jean Charte files this\\nMotion to ensure that monies received by the United States\\nfrom Mr. James Wegeler, Sr. are subject to her claim under the\\nFalse Claims Act.” (emphasis added)).\\n\\n We routinely adjudicate the assertion of statutory-\\nprocedural rights regarding similar property interests in\\ncriminal proceedings. For example, in criminal forfeiture\\nproceedings, 21 U.S.C. § 853 permits intervention only in\\nlimited circumstances “(1) third parties who had a vested\\ninterest in the property at the time of the commission of the acts\\nthat gave rise to forfeiture, and (2) bona fide purchasers for\\nvalue without cause to believe the property was subject to\\nforfeiture.” Van Dyck, 866 F.3d at 1133 (citing § 853(n)(6)).\\n\\n Charte’s assertions are similar: that she has a vested\\ninterest in a share of the restitution and that the FCA grants her\\na procedural right to intervene to protect that interest. The\\nformer assertion is aided by the fact that, as to this set of rights,\\nthe FCA is “regarded as effecting a partial assignment of the\\nGovernment’s damages claim,” such that “the United States’\\ninjury in fact suffices to confer standing on” relators in FCA\\nsuits. Vermont Agency of Nat. Res. v. U.S. ex rel. Stevens, 529\\nU.S. 765, 773–74 (2000) (“[The] adequate basis for the\\nrelator’s [FCA] suit for his bounty is to be found in the doctrine\\nthat the assignee of a claim has standing to assert the injury in\\nfact suffered by the assignor.” (emphasis added)).\\n\\n\\n\\n\\n 20\\n\\f In that light, a ruling against Charte on this point would\\nrequire accepting that a relator has standing to “obtain[]\\ncompensation for, or prevent[] the violation of” her right to a\\nrelator’s award, id. at 772, but nonetheless saying that she lacks\\nstanding to do exactly that, all against the backdrop that we\\nroutinely adjudicate similar interests by third-parties in\\ncriminal proceedings. To be clear, when it comes to a criminal\\nforfeiture proceeding, we agree that a relator has standing to\\nassert the relator’s “statutory procedural right . . . under the\\nalternate-remedy provision to have her relator’s share\\nadjudicated in the criminal forfeiture proceeding.”. See United\\nStates v. Couch, 906 F.3d 1223, 1226–27 (11th Cir. 2018)\\n(explaining that the relator’s “motion to intervene in a\\n[criminal] proceeding to enforce an alleged property interest is\\nmaterially different from an attempt to compel a criminal\\nprosecution or alter a sentence”). That agreement\\nnotwithstanding, however, we are not persuaded that a relator\\nin fact possesses such a statutory procedural right.\\n\\n As the government forcefully argues, the text of the\\nFCA “compels the understanding” that “the district court in the\\n[FCA] suit remains responsible for adjudicating the relator’s\\nshare of the proceeds of an alternate proceeding” brought by\\nthe government under the alternate-remedy provision.\\nAppellee Br. 22. The alternate-remedy provision assumes that\\nthe FCA suit will continue after the alternate-remedy\\nproceeding has concluded when it states “[a]ny finding of fact\\nor conclusion of law made in such proceeding that has become\\nfinal shall be conclusive on all parties to an action under this\\nsection.” 31 U.S.C. § 3730(c)(5). The FCA then provides\\ndetailed guidelines for determining a relator’s share in the\\n“proceeds of the action or settlement of the claim,” where “the\\ngovernment proceeds with [the] action.” § 3730(d)(1). That\\n\\n\\n\\n\\n 21\\n\\fis, that the relator is entitled to “at least 15 percent but not more\\nthan 25 percent . . ., depending upon the extent to which the\\nperson substantially contributed to the prosecution of the\\naction[,]” and “no . . . more than 10 percent” where “the action\\nis one which the court finds to be based primarily on\\ndisclosures of specific information (other than information\\nprovided by the person bringing the action) . . . taking into\\naccount the significance of the information and the role of the\\nperson bringing the action in advancing the case to litigation.”\\nId. (emphases added).\\n\\n While other courts may use the procedural devices\\navailable to them to assess the requisite “finding[s] of fact or\\nconclusion of law made in another proceeding,” that the FCA\\noutright provides this to the FCA court, as well as that the FCA\\ncourt is readily apprised of the information a relator provides\\nto the government, is a strong indication that Congress\\nintended the FCA court to be the one to make these\\ncomparative determinations. That indication is even stronger\\nwhen one considers that the provisions setting forth the right to\\na relator’s award are set forth in § 3730(d)(1), labeled “Award\\nto qui tam plaintiff,” whereas the rights that accompany “the\\nright to continue as a party to the action” are all set forth in\\n§ 3730(c)(1) and (2), labeled “Rights of the parties to qui tam\\nactions.”\\n\\n Those textual and structural indicia are reinforced by\\nthe Senate Report’s statement that “[i]f the Government\\nproceeds administratively, the district court shall stay the civil\\naction pending the administrative proceeding and any petitions\\nby the relator, in order to exercise his rights [in such\\nproceeding,] will be to the district court” rather than the court\\nin the proceeding pursued by the government under the\\nalternate-remedy provision. S. Rep. No. 99-345, at 27.\\n\\n\\n\\n\\n 22\\n\\fTogether, these points compel the conclusion that, to the extent\\nthat the FCA provides relators a right to intervene in another\\nproceeding, their interest in a share in the proceeds recovered\\nin that proceeding is not among those for which this right is\\nprovided.\\n\\n In other words, Charte is less like third parties in the 21\\nU.S.C. § 853 context, who are provided an express right to\\nintervene to assert their property interest, than she is like\\nvictims, who also have an interest in any restitution that is\\nawarded but are not granted a statutory right to intervene and\\nassert it. See 18 U.S.C.A. § 3663A(a)(1) (requiring a court to\\norder restitution “to the victim of the offense or, if the victim\\nis deceased, to the victim’s estate”); Federal Sentencing\\nGuidelines Manual § 3E1.1(a) (U.S. Sentencing Comm’n\\n2016) (requiring that, “[i]n the case of an identifiable victim,\\nthe court shall . . . enter a restitution order for the full amount\\nof the victim’s loss . . .”); but see Stoerr, 695 F.3d at 278\\n(noting that restitution orders can only be appealed and\\nmodified “by the defendant and by the Government,” and that\\n“[crime] victims are non-parties to criminal proceedings”);\\nKelly v. Robinson, 479 U.S. 36, 52 (1986) (“Although\\nrestitution does resemble a judgment ‘for the benefit of’ the\\nvictim, . . . [t]he victim has no control over the amount of\\nrestitution awarded or over the decision to award restitution.”).\\n\\n We are therefore aligned with our two sister circuits that\\nhave addressed this question and hold that (1) a relator “lacks\\nstanding to intervene in [the] criminal prosecution[] of\\nanother” as it pertains to her participation rights, Van Dyck, 866\\nF.3d at 1133, and (2) even if a relator had standing to intervene\\nonly as to her alleged interest in her share of the proceeds\\ncollected by the government, the “sole remedy” that the FCA\\nprovides her is to “commence” or continue the FCA action, id.\\n\\n\\n\\n\\n 23\\n\\fat 1135 (“The ‘alternate remedy’ provisions of the False\\nClaims Act do not permit a relator to intervene in a criminal\\naction for the purpose of asserting a right to the proceeds of\\nthat action.”); see also Couch, 906 F.3d at 1228 (“[T]he\\nalternate-remedy provision does not expressly provide a right\\nof intervention in an ‘alternate proceeding.’” (emphasis\\nadded)).\\n\\n In so holding, we do not opine on whether a criminal\\nproceeding is an alternate remedy such that a relator retains her\\nFCA rights, including the right to a share in the proceeds.9 Nor\\ndo we need to decide whether, even if a criminal proceeding\\nconstituted an alternate remedy, the proceedings here would\\nqualify in light of the fact that 31 U.S.C. § 3729(d) precludes a\\nrelator from obtaining a relator’s share in a claim under the\\nInternal Revenue Code. See § 3729(d) (“This section does not\\napply to claims, records, or statements made under the Internal\\nRevenue Code of 1986.”). District Courts adjudicating FCA\\nsuits routinely make these determinations and are best\\nequipped to do so.\\n\\n *****\\n\\n In the end, then, we maintain “the long line of precedent\\nholding that a [private individual] lacks a judicially cognizable\\ninterest in [another]’s prosecution” and likewise, “in\\n[another’s] sentence.” Stoerr, 695 F.3d at 277–78. And Charte\\n\\n 9\\n Charte’s argument that “[d]enying the existence of an\\nalternate remedy works an anomalous outcome that treats [her]\\nless favorabl[y] than tax whistleblowers under Title 26,”\\nAppellant Op. Br. 51, speaks to whether she is entitled to a\\nshare in the restitution, so it too does not warrant opining.\\n\\n\\n\\n\\n 24\\n\\fis not the exception she claimed to be: she may not pursue her\\nalleged interest in a relator’s award in Wegeler, Sr.’s criminal\\ncase. Charte may nonetheless take solace in the government’s\\nrepresentation—to this Court and to our two sister circuits that\\nhave confronted this question—that it “allow[s] a qualified\\nrelator to a share of the full amount of [a] damages award,\\nincluding the restitution previously paid.” Appellee Br. 29\\n(citing United States v. Wellcare Health Plans, Inc., 2011 WL\\n4431157, *2 (M.D. Fla. 2011), where “the Government . . .\\nescrowed 25% of [a] $40 million restitution, pending a\\nresolution of the [related] qui tam cases for [the] purpose” of\\nallowing the “Movant and the other relators” to “participat[e]\\nin the distribution of restitution paid incident to the criminal\\nprosecution”); see also Couch, 906 F.3d at 1228–29; Van\\nDyck, 866 F.3d at 1135 n.3. For our part, we will affirm the\\nDistrict Court’s order denying her motion to intervene.\\n\\n\\n\\n\\n 25\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4566,"cells":{"id":{"kind":"number","value":4673497,"string":"4,673,497"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Joy Denby-Peterson v."},"decision_date":{"kind":"string","value":"2019-10-28"},"docket_number":{"kind":"string","value":"18-3562"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Third Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: McKEE, SHWARTZ, and FUENTES, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"FUENTES, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"PRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n ______________\\n\\n No. 18-3562\\n _______________\\n\\n\\n In re: JOY DENBY-PETERSON,\\n Appellant\\n ______________\\n\\n Appeal from the United States District Court\\n for the District of New Jersey\\n (D.C. No. 1-17-cv-09985)\\n District Judge: Hon. Noel L. Hillman\\n ______________\\n\\n Argued May 23, 2019\\n ______________\\n\\nBefore: McKEE, SHWARTZ, and FUENTES, Circuit\\n Judges.\\n\\n (Filed: October 28, 2019)\\n ______________\\n\\fEllen M. McDowell [Argued]\\nDaniel Reinganum\\nMcDowell Law\\n46 West Main Street\\nP.O. Box 127\\nMaple Shade, NJ 08052\\n\\n Counsel for Appellant\\n\\nCraig Goldblatt [Argued]\\nWilmerHale\\n1875 Pennsylvania Avenue, N.W.\\nWashington, DC 20006\\n\\n Counsel for Amicus Curiae in Support of the District\\nCourt’s Judgment\\n\\n ______________\\n\\n OPINION OF THE COURT\\n ______________\\n\\nFUENTES, Circuit Judge.\\n\\n At the center of this bankruptcy appeal is “America’s\\nfirst sports car”: the Chevrolet Corvette.1 Joy Denby-Peterson\\npurchased a Chevrolet Corvette in July 2016. Several months\\nlater, the Corvette was repossessed by creditors after Denby-\\nPeterson defaulted on her car payments. Denby-Peterson\\nsubsequently filed an emergency voluntary Chapter 13\\npetition in the Bankruptcy Court for the District of New\\n\\n1\\n H.R. Res. 970, 110th Cong. (2008).\\n\\n\\n\\n\\n 2\\n\\fJersey. She then notified the creditors of the bankruptcy filing\\nand demanded that they return the Corvette to her.\\n\\n After the creditors did not comply with her demand,\\nDenby-Peterson filed a motion for turnover in the Bankruptcy\\nCourt. She sought an order (1) compelling the creditors to\\nreturn the Corvette to her, and (2) imposing sanctions for the\\ncreditors’ alleged violation of the Bankruptcy Code’s\\nautomatic stay.2 The Bankruptcy Court entered an order\\nmandating turnover of the Corvette to Denby-Peterson but\\ndenying Denby-Peterson’s request for sanctions. The\\nBankruptcy Court denied the sanctions request on the basis\\nthat the creditors did not violate the automatic stay by failing\\nto return the repossessed Corvette to Denby-Peterson upon\\nreceiving notice of the bankruptcy filing. Denby-Peterson\\nappeals from an order of the District Court affirming the\\nBankruptcy Court.\\n\\n We are now presented with an issue of first impression\\nfor our Court: whether, upon notice of the debtor’s\\nbankruptcy, a secured creditor’s failure to return collateral\\nthat was repossessed pre-bankruptcy petition is a violation of\\nthe automatic stay. We answer in the negative, and thus join\\nthe minority of our sister courts—the Tenth and D.C.\\nCircuits—in holding that a secured creditor does not have an\\naffirmative obligation under the automatic stay to return a\\ndebtor’s collateral to the bankruptcy estate immediately upon\\nnotice of the debtor’s bankruptcy because failure to return the\\ncollateral received pre-petition does not constitute “an[] act . .\\n. to exercise control over property of the estate.”3 We will\\n\\n2\\n See 11 U.S.C. §§ 362(a)(3), (k).\\n3\\n Id. § 362(a)(3).\\n\\n\\n\\n\\n 3\\n\\ftherefore affirm the order of the District Court affirming the\\nBankruptcy Court.\\n\\n I.\\n\\n A. Facts\\n\\n On July 21, 2016, Debtor Joy Denby-Peterson\\npurchased a used yellow 2008 Chevrolet Corvette from a car\\ndealership named Pine Valley Motors. To finance her\\npurchase, Denby-Peterson entered into a retail installment\\ncontract with Pine Valley Motors, which, in turn, assigned its\\nrights under the contract to its affiliate company, NU2U Auto\\nWorld.4 Under the contract, Denby-Peterson agreed to pay (1)\\na $3,000 cash down payment; (2) a deferred down payment of\\n$2,491 by August 11, 2016 to pay sales taxes and registration\\nfees to obtain permanent license plate tags; and (3) weekly\\ninstallment payments of $200 for 212 weeks. Between July\\n2016 and February 2017, Denby-Peterson made payments\\ntotaling $9,200 under the contract, including the $3,000 down\\npayment applied on the day of the sale. She never made the\\nrequired down payment of $2,491. As a result, the creditors\\nrepossessed the Corvette in February or March 2017.5 The\\n\\n4\\n For the sake of brevity, we will collectively refer to Pine\\nValley Motors and NU2U Auto World as “the creditors.”\\n5\\n The retail installment contract’s “repossession” clause\\nstates, in relevant part: “[i]f you are in default, we may take\\nthe vehicle from you after we give you any notice required by\\nlaw.” Bankr. Petition No. 17-15532-ABA, Doc. No. 17-5 at 3.\\n“Default,” in turn, is defined as including, among other\\nthings: (1) “failure to pay any installment when due”; (2)\\n“failure to perform or breach of any section of th[e] contract”;\\n\\n\\n\\n\\n 4\\n\\fCorvette was never titled or registered in Denby-Peterson’s\\nname.\\n\\n B. Bankruptcy Court Proceedings\\n\\n i. Denby-Peterson’s Chapter 13 Bankruptcy\\n Petition\\n\\n After the Corvette was repossessed, Denby-Peterson\\nfiled a voluntary petition for relief under Chapter 13 of the\\nBankruptcy Code on March 21, 2017. Under Section 362 of\\nthe Code, the filing of the petition triggered an automatic stay\\nof “any act to obtain possession of property of the estate or of\\nproperty from the estate or to exercise control over property\\nof the estate.”6\\n\\n Within two days, the creditors received notice of\\nDenby-Peterson’s bankruptcy filing. Counsel for Denby-\\nPeterson had notified them of the filing and demanded that\\nthey return the Corvette to Denby-Peterson. Counsel also\\nmaintained that the creditors’ failure to return the Corvette\\n\\n\\nand (3) “failure to obtain and maintain the insurance required\\nby th[e] contract.” Id.\\n\\n Before the Bankruptcy Court, the parties disputed the\\ndate of repossession. Denby-Peterson claimed that the\\nCorvette was repossessed on March 13, 2017, while the\\ncreditors claimed that it was repossessed one month earlier, in\\nFebruary 2017. All parties nevertheless agree that the\\nrepossession occurred before Denby-Peterson filed for\\nbankruptcy.\\n6\\n 11 U.S.C. § 362(a)(3).\\n\\n\\n\\n\\n 5\\n\\fwould result in a violation of the automatic stay. He faxed a\\nletter to the creditors which stated, in relevant part:\\n\\n BE ADVISED your failure to release the\\n vehicle to Ms. Denby-Peterson is a violation of\\n the Automatic Stay. If the vehicle has not been\\n released before 5pm today, this firm will seek\\n damages, costs, and attorneys’ fees against your\\n company for willful violations of the automatic\\n stay.7\\n\\nThe creditors did not comply with Denby-Peterson’s demand\\nand thus remained in possession of the Corvette.\\n\\n ii. Denby-Peterson’s Motion for Turnover and\\n Sanctions\\n\\n Denby-Peterson then filed a motion8 for turnover in\\nBankruptcy Court, asking the Bankruptcy Court to (1) order\\nthe creditors to return the Corvette to her, and (2) impose\\nsanctions for the creditors alleged violation of the automatic\\nstay. Denby-Peterson sought costs and attorneys’ fees for\\nfiling the motion; compensation for “non-economic\\n\\n\\n\\n\\n7\\n Bankr. Petition No. 17-15532-ABA, Doc. No. 5-3 at 3. See\\n11 U.S.C. § 362(k)(1).\\n8\\n The motion was entitled “motion for return of repossessed\\nauto and seeking sanctions against creditor for violat[ing] the\\nautomatic stay.” Bankr. Petition No. 17-15532-ABA, Doc.\\nNo. 5 (original in uppercase and bold).\\n\\n\\n\\n\\n 6\\n\\fdamages”; punitive damages; and “all other relief the Court\\ndeem[ed] just and equitable.”9\\n\\n The creditors opposed the motion. They also filed a\\nproof of claim, asserting a security interest in the Corvette in\\nthe amount of $28,773.10\\n\\n iii. The Bankruptcy Court’s Decision\\n\\n Following a two-day hearing, the Bankruptcy Court\\nissued a written decision and order granting the motion in part\\nand denying it in part. The Bankruptcy Court, inter alia,\\ngranted Denby-Peterson’s request for turnover and thus\\nordered the creditors to return the Corvette to Denby-Peterson\\nwithin seven days, but denied Denby-Peterson’s sanctions\\nrequest.\\n\\n\\n9\\n Bankr. Petition No. 17-15532-ABA, Doc. No. 5-7 at 3. See\\n11 U.S.C. § 362(k)(1) (stating, in relevant part, that “an\\nindividual injured by any willful violation of a stay . . . shall\\nrecover actual damages, including costs and attorneys’ fees,\\nand, in appropriate circumstances, may recover punitive\\ndamages”); see also In re Lansaw, 853 F.3d 657, 667 (3d Cir.\\n2017), cert. denied sub nom. Zokaites v. Lansaw, 138 S. Ct.\\n1001 (2018) (“expressly concluding that ‘actual damages’\\nunder § 362(k)(1) include damages for emotional distress\\nresulting from a willful violation of the automatic stay.”).\\n10\\n The retail installment contract’s “security interest” clause\\nprovides that (1) Denby-Peterson gave the creditors a security\\ninterest in, inter alia, the Corvette, and (2) the security\\ninterest “cover[ed] all amounts [she] owe[d].” Bankr. Petition\\nNo. 17-15532-ABA, Doc. No. 17-5 at 3.\\n\\n\\n\\n\\n 7\\n\\f The Bankruptcy Court held, inter alia, that (1) the\\ncreditors must return the Corvette under the Bankruptcy\\nCode’s turnover provision in Section 542(a),11 and (2) the\\ncreditors did not violate the automatic stay by retaining\\npossession of the Corvette upon receiving notice of the\\nbankruptcy filing. Thus, the Bankruptcy Court determined\\nthat the creditors were not liable for sanctions based on an\\nalleged violation of the automatic stay.\\n\\n In reaching its holdings, the Bankruptcy Court found\\nthat Denby-Peterson had an equitable interest in the Corvette\\nat the time of the bankruptcy filing, and therefore, the\\nCorvette was property of the estate subject to turnover.12\\n\\n Next, the Bankruptcy Court considered whether the\\ncreditors violated the automatic stay by failing to return the\\nCorvette after learning of the bankruptcy filing. It identified\\nthe split among our sister circuits on this issue, pointing out\\nthat the Second, Seventh, Eighth, and Ninth Circuits (“the\\nmajority”) have held that the Bankruptcy Code’s turnover\\nprovision requires immediate turnover of estate property that\\nwas seized pre-petition and that failure to do so violates the\\n\\n11\\n See 11 U.S.C. § 542(a) (stating, in relevant part, that “an\\nentity, other than a custodian, in possession, custody, or\\ncontrol, during the case, of property that the [debtor] may use,\\nsell, or lease under section 363 of this title . . . shall deliver to\\nthe [debtor], and account for, such property or the value of\\nsuch property, unless such property is of inconsequential\\nvalue or benefit to the estate”).\\n12\\n See id. § 541(a) (defining “property of the estate,” in\\nrelevant part, as “all legal or equitable interests of the debtor\\nin property as of the commencement of the case”).\\n\\n\\n\\n\\n 8\\n\\fautomatic stay.13 However, the Tenth and D.C. Circuits (“the\\nminority”) “have instead held that a creditor does not violate\\nthe stay in regard to property of the estate if it merely\\nmaintains the status quo.”14 The Bankruptcy Court noted that\\nthe minority was critical of the majority’s rule that Section\\n542(a)’s turnover provision “is self-effectuating” because “it\\ndoes not allow for the possibility of defenses to turnover.”15\\n\\n The Bankruptcy Court ultimately adopted the minority\\nposition, describing it as “particularly persuasive”16 and\\npointing out that “[f]rom the inception of this case there was\\nan issue regarding exactly what . . . [Denby-Peterson]’s\\ninterest in . . . [the Corvette] was.”17 Accordingly, the\\nBankruptcy Court concluded that the creditors did not violate\\nthe automatic stay by failing to turn over the Corvette to\\nDenby-Peterson “prior to adjudication of . . . [her] right to\\n\\n\\n13\\n See In re Fulton, 926 F.3d 916 (7th Cir. 2019); In re\\nWeber, 719 F.3d 72 (2d Cir. 2013); In re Del Mission Ltd., 98\\nF.3d 1147 (9th Cir. 1996); In re Knaus, 889 F.2d 773 (8th\\nCir. 1989); see also In re Rozier, 376 F.3d 1323, 1324 (11th\\nCir. 2004) (per curiam) (holding that the “district court did\\nnot err by affirming the bankruptcy court’s order holding [the\\ncreditor] in willful contempt of the automatic stay . . . by\\nrefusing to return the vehicle”).\\n14\\n In re Denby-Peterson, 576 B.R. 66, 80 (Bankr. D.N.J.\\n2017) (citing In re Cowen, 849 F.3d 943 (10th Cir. 2017);\\nUnited States v. Inslaw, Inc., 932 F.2d 1467 (D.C. Cir.\\n1991)).\\n15\\n Denby-Peterson, 576 B.R. at 82.\\n16\\n Id.\\n17\\n Id.\\n\\n\\n\\n\\n 9\\n\\fredeem the [Corvette],” and thus, sanctions were not\\nwarranted.18\\n\\n C. Denby-Peterson’s Appeal to the District Court\\n\\n Denby-Peterson appealed the Bankruptcy Court’s\\norder denying her sanctions request. Similar to the\\nBankruptcy Court, the District Court found “the minority\\nposition more persuasive.”19 The District Court thus affirmed\\nthe Bankruptcy Court’s order denying Denby-Peterson’s\\nsanctions request.20\\n\\n Denby-Peterson now appeals to our Court.21 Because\\nthe creditors are not participating in this appeal, we appointed\\n\\n\\n18\\n Id. at 83.\\n19\\n Denby-Peterson v. Nu2u Auto World, 595 B.R. 184, 190\\n(D.N.J. 2018).\\n20\\n While Denby-Peterson’s appeal to the District Court was\\npending, the Bankruptcy Court dismissed the underlying\\nbankruptcy case based on Denby-Peterson’s failure to make\\nall required pre-confirmation payments to the Trustee. Before\\naddressing the merits of the appeal, the District Court\\nconcluded that Denby-Peterson’s appeal was not mooted by\\nthe dismissal because the automatic-stay-related issue “is an\\nancillary issue not closely intertwined with the underlying\\nbankruptcy.” Denby-Peterson, 595 B.R. at 188.\\n21\\n The District Court had jurisdiction under 28 U.S.C. § 158\\n(a). We have jurisdiction under 28 U.S.C. § 158(d)(1).\\nBecause the District Court acted as an appellate court, we\\nreview its determinations de novo. In re Bocchino, 794 F.3d\\n376, 379 (3d Cir. 2015). We review the legal conclusions of\\n\\n\\n\\n\\n 10\\n\\fCraig Goldblatt as amicus curiae to defend the judgment of\\nthe District Court.22\\n II.\\n\\n On appeal, Denby-Peterson renews her argument that\\nthe creditors violated the automatic stay by not returning the\\nrepossessed Corvette upon learning of the bankruptcy filing.\\nTo provide context for the issue before us, we will discuss the\\nBankruptcy Code’s automatic stay before addressing the\\nmerits of this appeal.\\n\\n Under Section 362 of the Bankruptcy Code, entitled\\n“[a]utomatic stay,” the filing of a bankruptcy petition\\nautomatically triggers a stay.23 Of particular relevance to this\\nappeal, subsection (a)(3) provides that a bankruptcy petition\\n“operates as a stay, applicable to all entities, of . . . any act to\\n\\n\\nthe Bankruptcy Court de novo and its factual determinations\\nfor clear error. Id. at 380.\\n\\n Generally, “[t]he imposition or denial of sanctions is\\nsubject to abuse-of-discretion review.” In re Miller, 730 F.3d\\n198, 203 (3d Cir. 2013). We have not, however, addressed\\nour standard of review for the imposition or denial of\\nsanctions for violations of the automatic stay. We\\nnevertheless need not do so now given that (1) the\\nBankruptcy Court denied sanctions based on its conclusion\\nthat the creditors did not violate the automatic stay, and (2)\\nwe now hold that both the Bankruptcy Court and the District\\nCourt correctly concluded that there was no such violation.\\n22\\n We thank Mr. Goldblatt for his excellent briefing and oral\\nadvocacy in this matter.\\n23\\n 11 U.S.C. § 362.\\n\\n\\n\\n\\n 11\\n\\fobtain possession of property of the estate . . . or to exercise\\ncontrol over property of the estate.”24 Property of the\\nbankruptcy estate, in turn, generally includes “all legal or\\nequitable interests of the debtor in property as of the\\ncommencement of the case,”25 “wherever located and by\\nwhomever held.”26\\n\\n The automatic stay imposed by the Bankruptcy Code\\nhas a “twofold” purpose:\\n\\n (1) to protect the debtor, by stopping all\\n collection efforts, harassment, and foreclosure\\n actions, thereby giving the debtor a respite from\\n creditors and a chance ‘to attempt a repayment\\n or reorganization plan or simply be relieved of\\n the financial pressures that drove him [or her]\\n into bankruptcy;’ and (2) to protect ‘creditors\\n by preventing particular creditors from acting\\n unilaterally in self-interest to obtain payment\\n\\n\\n24\\n Id. § 362(a)(3). See H.R. Rep. No. 95-595, at 340 (1977)\\n(stating that “[s]ubsection (a) defines the scope of the\\nautomatic stay, by listing the acts that are stayed by the\\ncommencement of the case”).\\n25\\n 11 U.S.C. § 541(a)(1).\\n26\\n Id. § 541(a). In a Chapter 13 case, such as this case, the\\nconcept of property of the estate is broader. See id. § 1306\\n(a)(1) (providing that the Chapter 13 estate includes, in\\naddition to the property specified in Section 541, property\\n“that the debtor acquires after the commencement of the\\nbankruptcy case” but before the case is either closed,\\ndismissed, or converted).\\n\\n\\n\\n\\n 12\\n\\f from a debtor to the detriment of other\\n creditors.’27\\n\\nIn furtherance of the automatic stay’s overarching purpose,\\nSection 362(a)(3) “prevent[s] dismemberment of the estate,”\\nand enables an “orderly” distribution of the debtor’s assets.28\\n\\n The consequences for willful violations of the\\nautomatic stay are set forth in Section 362(k) which provides\\nthat, subject to one exception, “an individual injured by any\\nwillful violation” of the automatic stay is entitled to “actual\\ndamages, including costs and attorneys’ fees, and, in\\nappropriate circumstances, may recover punitive damages.”29\\nWe have explained that “[i]t is a willful violation of the\\nautomatic stay when a creditor violates the stay with\\nknowledge that the bankruptcy petition has been filed.\\nWillfulness does not require that the creditor intend to violate\\n\\n\\n\\n\\n27\\n Constitution Bank v. Tubbs, 68 F.3d 685, 691 (3d Cir.\\n1995) (quoting Maritime Elec. Co. v. United Jersey Bank, 959\\nF.2d 1194, 1204 (3d Cir. 1991)). See Taggart v. Lorenzen,\\n139 S. Ct. 1795, 1804 (2019) (explaining that the automatic\\nstay “aims to prevent damaging disruptions to the\\nadministration of a bankruptcy case in the short run”); Inslaw,\\n932 F.2d at 1473 (“The object of the automatic stay provision\\nis essentially to solve a collective action problem—to make\\nsure that creditors do not destroy the bankrupt estate in their\\nscramble for relief.”).\\n28\\n H.R. Rep. No. 95-595, at 341.\\n29\\n 11 U.S.C. § 362(k)(1). See id. § 362(k)(2) (providing a\\n“good faith” exception to Section 362(k)(1)).\\n\\n\\n\\n\\n 13\\n\\fthe automatic stay provision, rather it requires that the acts\\nwhich violate the stay be intentional.”30\\n\\n III.\\n\\n With the foregoing statutory background in mind, we\\nnow turn our attention to the issue of first impression before\\nour Court: whether, upon receiving notice of a bankruptcy\\npetition, a secured creditor violates the automatic stay by\\nmaintaining possession of collateral that it lawfully\\nrepossessed pre-petition. Specifically, we must decide\\nwhether the creditors’ failure to return the Corvette to Denby-\\nPeterson upon learning of her bankruptcy filing was a\\nviolation of the automatic stay.31\\n\\n As we previously acknowledged, there is a circuit split\\non this issue, which we have not yet joined. Under the\\nmajority position, held by the Second, Seventh, Eighth, Ninth,\\nand Eleventh Circuits, a secured creditor, upon learning of the\\nbankruptcy filing, must return the collateral to the debtor and\\nfailure to do so violates the automatic stay.32 However, both\\nthe Tenth and D.C. Circuits disagree with the majority’s\\n\\n\\n30\\n In re Lansdale Family Rests., Inc., 977 F.2d 826, 829 (3d\\nCir. 1992) (internal citations omitted).\\n31\\n It is undisputed here that the creditors repossessed the\\nCorvette before Denby-Peterson had filed for bankruptcy and\\nthat the Corvette was property of Denby-Peterson’s\\nbankruptcy estate.\\n32\\n See Fulton, 926 F.3d 916; Weber, 719 F.3d 72; Del\\nMission, 98 F.3d 1147; Knaus, 889 F.2d 773; Rozier, 376\\nF.3d 1323.\\n\\n\\n\\n\\n 14\\n\\finterpretation of the automatic stay provision.33 Under their\\nview, a secured creditor is not obligated to return the\\ncollateral to the debtor until the debtor obtains a court order\\nfrom the Bankruptcy Court requiring the creditor to do so.\\nThus, according to the minority, a creditor does not violate\\nthe automatic stay by retaining possession of the collateral\\nafter being notified of the bankruptcy filing.\\n\\n Here, Denby-Peterson urges us to adopt the view of\\nthe majority of our sister circuits, advancing two theories in\\nsupport of her position that the creditors violated the\\nautomatic stay. First, she maintains that the creditors’ failure\\nto return the Corvette violated the plain language of Section\\n362(a)(3)’s automatic stay provision by being “an[] act . . . to\\nexercise control over property of the estate.”34 Second,\\nDenby-Peterson asserts that Section 362(a)(3)’s automatic\\nstay provision and Section 542(a)’s turnover provision\\noperate together such that a violation of the turnover\\nprovision results in a violation of the automatic stay. Thus,\\naccording to Denby-Peterson, the creditors were required to\\nimmediately turn over the Corvette, and by not doing so, they\\nviolated the automatic stay. For the reasons that follow, we\\nare not persuaded by those arguments and thus hold that the\\ncreditors in this case did not violate the automatic stay. In so\\nholding, we join the minority of our sister circuits.\\n\\n\\n\\n\\n33\\n See Cowen, 849 F.3d 943; Inslaw, 932 F.2d 1467.\\n34\\n 11 U.S.C. § 362(a)(3).\\n\\n\\n\\n\\n 15\\n\\f IV.\\n\\n A.\\n\\n We begin our interpretation of Section 362(a)(3) of the\\nBankruptcy Code “where all such inquiries must begin: with\\nthe language of the statute itself.”35\\n\\n In examining the Bankruptcy Code, we are not “guided\\nby a single sentence or member of a sentence, but look to the\\nprovisions of the whole law, and to its object and policy.”36\\nThus, to determine the plainness or ambiguity of Section\\n362(a)(3)’s statutory language, in addition to considering the\\nstatutory language itself, we may also engage in “a studied\\nexamination of the statutory context.”37 If we ultimately\\ndetermine that a provision “is clear and unambiguous, [we]\\n\\n\\n35\\n Ransom v. FIA Card Servs., N.A., 562 U.S. 61, 69 (2011)\\n(internal quotation marks omitted).\\n36\\n Kelly v. Robinson, 479 U.S. 36, 43 (1986) (internal\\nquotation marks omitted). See In re Price, 370 F.3d 362, 369\\n(3d Cir. 2004) (emphasizing that “in interpreting the\\nBankruptcy Code, the Supreme Court has been reluctant to\\ndeclare its provisions ambiguous, preferring instead to take a\\nbroader, contextual view”); Official Comm. of Unsecured\\nCreditors of Cybergenics Corp., ex rel. Cybergenics Corp. v.\\nChinery, 330 F.3d 548, 559 (3d Cir. 2003) (“Statutory\\nconstruction is a holistic endeavor, and this is especially true\\nof the Bankruptcy Code.” (quotation marks, alterations and\\ncitations omitted)).\\n37\\n Price, 370 F.3d at 369.\\n\\n\\n\\n\\n 16\\n\\fmust simply apply it.”38 However, if we find that a provision\\nis ambiguous,39 “we then turn to pre-Code practice and\\nlegislative history to find meaning.”40\\n\\n With these principles of construction in mind, we will\\nnow examine the language of Section 362(a)(3). To reiterate,\\nSection 362(a)(3) provides, in relevant part, that the filing of\\na bankruptcy petition “operates as a stay . . . of . . . any act to .\\n. . exercise control over property of the estate.”41 According\\nto Denby-Peterson, under the plain language of the automatic\\nstay, a creditor who does not turn over property of the estate\\nafter a debtor demands its return exercises control over that\\nproperty, thereby violating the automatic stay. While we\\nagree that Section 362(a)(3) is unambiguous, we decline to\\nhold that a plain reading of that Section compels the\\nconclusion that the creditors in this case violated the\\nautomatic stay by failing to turn over the Corvette to Denby-\\nPeterson.\\n\\n The operative terms and phrases of Section 362(a)(3)\\nare “stay,” “act,” and “exercise control.” Because the\\n\\n\\n\\n\\n38\\n In re KB Toys Inc., 736 F.3d 247, 251 (3d Cir. 2013) (citing\\nRoth v. Norfalco L.L.C., 651 F.3d 367, 379 (3d Cir. 2011)).\\n39\\n See Price, 370 F.3d at 369 (explaining that “a provision is\\nambiguous when, despite a studied examination of the\\nstatutory context, the natural reading of a provision remains\\nelusive”).\\n40\\n In re Friedman’s Inc., 738 F.3d 547, 554 (3d Cir. 2013).\\n41\\n 11 U.S.C. § 362(a)(3).\\n\\n\\n\\n\\n 17\\n\\fBankruptcy Code does not define them, we must look to their\\nordinary meanings.42\\n\\n We start with the meaning of the word “stay.” Black’s\\nLaw Dictionary defines “stay” as “[t]he postponement or\\nhalting of a proceeding, judgment, or the like” or “[a]n order\\nto suspend all or part of a judicial proceeding or a judgment\\nresulting from that proceeding.”43 Moreover, Webster’s Third\\nNew International Dictionary defines “stay” as a noun (as it\\nis used in Section 362) as: (1) “a bringing to a stop,” (2) “the\\naction of halting,” and (3) “the state of being stopped.”44\\n\\n Next, the noun “act” means, among other things,\\n“[s]omething done; the action or process of achieving this.”45\\nBlack’s Law Dictionary similarly defines “act,” in relevant\\n\\n\\n42\\n See Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct.\\n1752, 1759 (2018).\\n43\\n Stay, Black’s Law Dictionary (11th ed. 2019). Black’s Law\\nDictionary further defines “automatic stay” as “[a] bar to all\\njudicial and extrajudicial collection efforts against the debtor\\nor the debtor’s property, subject to specific statutory\\nexceptions.” Id.\\n44\\n Webster’s Third New International Dictionary 2231\\n(1993); see Stay, Oxford English Dictionary Online,\\nhttps://www.oed.com/view/Entry/189408?rskey=uCJBz6&\\nresult=3&isAdvanced=false (including, among its definitions\\nof “stay,” “[t]he action of stopping or bringing to a stand or\\npause”) (last visited Aug. 15, 2019).\\n45\\n Act, Oxford English Dictionary Online,\\nhttps://www.oed.com/view/Entry/1888?rskey=eprROF&\\nresult=4 (last visited Aug. 15, 2019).\\n\\n\\n\\n\\n 18\\n\\fpart, as “[s]omething done or performed,” or “[t]he process of\\ndoing or performing.”46\\n\\n Finally, as to the phrase “exercise control,” we will\\nseparately consider the verb “exercise” and the noun\\n“control.” The relevant definition of “exercise” is “[t]o put in\\naction or motion.”47 Webster’s Third New International\\nDictionary also defines “exercise,” in relevant part, as “to . . .\\nmake effective in action.”48 Additionally, “control,” as a\\nnoun, means, among other things, “[t]he fact or power of\\ndirecting and regulating the actions of people or things;\\ndirection, management; command.”49\\n\\n From these definitions, we gather that Section\\n362(a)(3) prohibits creditors from taking any affirmative act\\nto exercise control over property of the estate. As correctly\\npointed out by the District Court, the statutory language “is\\nprospective in nature . . . the exercise of control is not stayed,\\n\\n46\\n Act, Black’s Law Dictionary (11th ed. 2019).\\n47\\n Exercise, Oxford English Dictionary Online,\\nhttps://www.oed.com/view/Entry/66089?rskey=QNVdyF&\\nresult=2&isAdvanced=false (last visited Aug. 15, 2019); see\\nExercise, Black’s Law Dictionary (11th ed. 2019) (describing\\n“exercise” as meaning, in relevant part, “[t]o make use of; to\\nput into action”).\\n48\\n Webster’s Third New International Dictionary 795.\\n49\\n Control, Oxford English Dictionary Online,\\nhttps://www.oed.com/view/Entry/40562?rskey=qZlHZj&\\nresult=1 (last visited Aug. 15, 2019); see Control, Black’s\\nLaw Dictionary (11th ed. 2019) (identifying “the power or\\nauthority to manage, direct, or oversee” as one of the\\ndefinitions of “control”).\\n\\n\\n\\n\\n 19\\n\\fbut the act to exercise control is stayed.”50 Therefore, we\\nagree with the minority position held by two of our sister\\ncourts—the text of Section 362(a)(3) requires a post-petition\\naffirmative act to exercise control over property of the\\nestate.51\\n B.\\n\\n Here, a post-petition affirmative act to exercise control\\nover the Corvette is not present. The creditors repossessed the\\nCorvette before Denby-Peterson had filed for bankruptcy.\\nAccordingly, pre-bankruptcy petition, the creditors had\\npossession and control of the Corvette, and post-bankruptcy\\npetition, the creditors merely passively retained that same\\npossession and control. Although the creditors exercised\\ncontrol over the Corvette by keeping it in their possession\\nafter learning of the bankruptcy filing, the requisite post-\\npetition affirmative “act . . . to exercise control over” the\\nCorvette is not present in this case.52 An application of the\\nplain language of the statute to the facts of this case thus\\nshows that the creditors did not violate the automatic stay.53\\n\\n50\\n Denby-Peterson, 595 B.R. at 190.\\n51\\n See Cowen, 849 F.3d at 949 (concluding that Section\\n362(a)(3) “stays entities from doing something to . . . exercise\\ncontrol over the estate’s property”); Inslaw, 932 F.2d at 1474\\n(“The automatic stay, as its name suggests, serves as a\\nrestraint only on acts to gain possession or control over\\nproperty of the estate.”).\\n52\\n 11 U.S.C. § 362(a)(3).\\n53\\n Denby-Peterson’s characterization of the creditors’ post-\\npetition behavior as a refusal to return the Corvette upon\\nrequest does not alter our conclusion. A creditor’s refusal to\\ncomply with a debtor’s turnover request is not an affirmative\\n\\n\\n\\n\\n 20\\n\\f Our conclusion is bolstered by the legislative purpose\\nand underlying policy goals of the automatic stay. It is well-\\nestablished that one of the automatic stay’s primary purposes\\nis “‘to maintain the status quo between the debtor and [his]\\ncreditors, thereby affording the parties and the [Bankruptcy]\\nCourt an opportunity to appropriately resolve competing\\neconomic interests in an orderly and effective way.’”54 Here,\\nthe creditors had possession of the Corvette both before and\\nafter the bankruptcy filing. Thus, by keeping possession of\\nthe Corvette after learning of the bankruptcy filing, the\\ncreditors preserved the pre-petition status quo. To hold that\\nsuch a retention of possession violates the automatic stay\\nwould directly contravene the status-quo aims of the\\nautomatic stay.\\n\\n In sum, the plain language of the automatic stay\\nprovision in Section 362(a)(3) and the automatic stay’s\\nlegislative purpose indicate that Congress did not intend\\npassive retention to qualify as “an act to . . . exercise control\\nover property of the estate.”55 In light of our interpretation of\\nSection 362(a)(3), we thus hold that the creditors did not\\n\\n\\n\\nact; rather, it is inaction. Denby-Peterson’s attempt to reframe\\ncreditors’ failure to act as an affirmative act is unavailing as it\\ndoes not alter the passive nature of the creditors’ post-petition\\nrole in relation to the Corvette. See Nat’l Fed’n of Indep. Bus.\\nv. Sebelius, 567 U.S. 519, 555 (2012) (recognizing “the\\ndistinction between doing something and doing nothing”).\\n54\\n Taylor v. Slick, 178 F.3d 698, 702 (3d Cir. 1999) (quoting\\nZeoli v. RIHT Mortg. Corp., 148 B.R. 698, 700 (D.N.H.\\n1993)) (emphasis and alteration in original).\\n55\\n 11 U.S.C. § 362(a)(3).\\n\\n\\n\\n\\n 21\\n\\fengage in a post-petition “act to . . . exercise control” over the\\nCorvette and thus did not violate the automatic stay. 56\\n\\n C.\\n\\n Denby-Peterson, on the other hand, disregards the\\nautomatic stay’s legislative purpose and instead relies on\\nSection 362(a)(3)’s scarce legislative history to support her\\nposition. She maintains that her “plain language reading of\\nSection 362 is bolstered by the 1984 Amendments to the\\nBankruptcy Code.”57 We disagree.\\n\\n Given Section 362(a)(3)’s unambiguous text, we need\\nnot resort to legislative history to uncover its meaning.58 In\\nany event, we point out that the relevant legislative history\\nfails to shed light on Congress’s intent behind the 1984\\naddition of the “exercise control over property of the estate”\\nclause. The legislative history reveals that, as originally\\nenacted in 1978, Section 362(a)(3) only stayed “any act to\\nobtain possession of property of the estate or of property from\\nthe estate.”59 Thereafter, in 1984, Congress amended Section\\n362(a)(3) by inserting the “or to exercise control over\\n\\n\\n\\n\\n56\\n Id.\\n57\\n Appellant’s Br. at 13.\\n58\\n See Doe v. Hesketh, 828 F.3d 159, 167 (3d Cir. 2016).\\n59\\n Bankruptcy Reform Act of 1978, Pub. L. 95-598, § 362\\n(a)(3), 92 Stat. 2549, 2570 (1978).\\n\\n\\n\\n\\n 22\\n\\fproperty of the estate” clause.60 Congress, however, “gave no\\nexplanation of its intent.”61\\n\\n Denby-Peterson nevertheless urges us to follow the\\nSeventh Circuit’s view that “the mere fact that Congress\\nexpanded the provision to prohibit conduct above and beyond\\nobtaining possession of an asset suggests that it intended to\\ninclude conduct by creditors who seized an asset pre-\\npetition.”62 We will not do so because the legislative history\\nwould be pertinent only to the extent that Congress clearly\\nexpressed an intent to interpret Section 362(a)(3) contrary to\\nits plain language. Here, Congress did not express any intent,\\nmuch less an intent to include creditors’ passive retention of\\nproperty that was seized pre-petition.63 Moreover, even\\n\\n60\\n Bankruptcy Amendments and Federal Judgeship Act of\\n1984, Pub. L. No. 98-353, § 362(a)(3), 98 Stat. 333, 371\\n(1984).\\n61\\n In re Young, 193 B.R. 620, 623 (Bankr. D.D.C. 1996).\\n62\\n Thompson v. Gen. Motors Acceptance Corp., LLC, 566\\nF.3d 699, 702 (7th Cir. 2009). See Fulton, 926 F.3d at 923\\n(declining to overrule Thompson and reiterating that the\\namendment “suggested congressional intent to make the stay\\nmore inclusive by including conduct of ‘creditors who seized\\nan asset pre-petition’” (quoting Thompson, 566 F.3d at 702));\\nsee also Weber, 719 F.3d at 80 (describing the amendment as\\na “significant textual enlargement” that supports the view that\\n“Congress intended to prevent creditors from retaining\\nproperty of the debtor in derogation of the bankruptcy\\nprocedure . . . without regard to what party was in possession\\nof the property in question when the petition was filed”).\\n63\\n See Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc.,\\n447 U.S. 102, 108 (1980) (“Absent a clearly expressed\\n\\n\\n\\n\\n 23\\n\\fassuming that Section 362(a)(3) is ambiguous, thereby\\nwarranting consideration of legislative history, the legislative\\nhistory’s silence provides no guidance regarding Congress’s\\nrationale for adding the “or to exercise control over property\\nof the estate” clause. Accordingly, the interpretation that\\nDenby-Peterson urges us to adopt is unsupported by Section\\n362(a)(3)’s legislative history as well as its statutory\\nlanguage.\\n\\n V.\\n\\n We now consider Denby-Peterson’s final attempt to\\novercome the plain language of Section 362(a)(3). Denby-\\nPeterson asserts that Section 362’s automatic stay should be\\nread in conjunction with Section 542(a)’s allegedly self-\\neffectuating turnover provision. We are not persuaded.\\n\\n Under Section 542(a), creditors who are in possession\\nof property of the estate must turn over such property to the\\ndebtor “during the [Bankruptcy] case.”64 The turnover\\nprovision states, in relevant part, that “an entity, other than a\\ncustodian,” such as a creditor,65\\n\\n\\n\\nlegislative intention to the contrary, th[e] [statutory] language\\nmust ordinarily be regarded as conclusive.”).\\n64\\n 11 U.S.C. § 542(a). In a Chapter 13 case, such as this case,\\nthe debtor retains control over property of the estate. See id.\\n§ 1306(b). Accordingly, a Chapter 13 trustee does not take\\npossession or liquidate property of the estate, except with\\nrespect to money collected for the purpose of making\\ndistributions to creditors under a plan. See id. §§ 1302, 1303.\\n65\\n See id. § 101(10)(A).\\n\\n\\n\\n\\n 24\\n\\f in possession, custody, or control, during the\\n case, of property that the [debtor] may use, sell,\\n or lease under section 363 . . . , or that the\\n debtor may exempt under section 522 . . . shall\\n deliver to the [debtor], and account for, such\\n property or the value of such property, unless\\n such property is of inconsequential value or\\n benefit to the estate.66\\n\\n Denby-Peterson contends that we should join the\\nmajority of our sister circuits and conclude that: (1) Section\\n542(a)’s turnover provision is self-executing; (2) therefore,\\nthe creditors had a mandatory duty to return the Corvette to\\nDenby-Peterson upon receiving notice of the bankruptcy\\nfiling; and (3) when the creditors rejected Denby-Peterson’s\\ndemand for turnover, they violated the automatic stay.67 We\\nrespectfully disagree with the majority. For the following\\nreasons, we conclude that Denby-Peterson’s threefold\\nargument is unpersuasive.\\n\\n A.\\n\\n First, in our view, Section 542(a)’s turnover provision\\nis not self-executing; in other words, a creditor’s obligation to\\n\\n\\n66\\n Id. § 542(a). See id. § 1303 (providing the Chapter 13\\ndebtor “the rights and powers of a trustee under sections\\n363(b), 363(d), 363(e), 363(f), and 363(l)”); id. § 1306(b)\\n(stating, in relevant part, that “the [Chapter 13] debtor shall\\nremain in possession of all property of the estate”).\\n67\\n See Fulton, 926 F.3d 916; Weber, 719 F.3d 72; Del\\nMission, 98 F.3d 1147; Knaus, 889 F.2d 773.\\n\\n\\n\\n\\n 25\\n\\fturn over estate property to the debtor is not automatic.68\\nRather, the turnover provision requires the debtor to bring an\\nadversary proceeding in Bankruptcy Court in order to give the\\nCourt the opportunity to determine whether the property is\\nsubject to turnover under Section 542(a).\\n\\n Both the Federal Rules of Bankruptcy Procedure and\\nthe text of the turnover provision support our conclusion by\\ndemonstrating that the debtor’s right to turnover is subject to\\nsubstantive and procedural requirements that must be\\nevaluated by the Bankruptcy Court.69 It is only after the\\nBankruptcy Court determines whether those requirements are\\nmet that the debtor’s right to turnover is triggered.\\n\\n i.\\n\\n We start with the procedure behind turnover. Denby-\\nPeterson argues that a creditor’s duty to turn over collateral is\\nautomatically triggered when a creditor receives notice of the\\nbankruptcy petition. In other words, procedurally, says\\n\\n68\\n But see Fulton, 926 F.3d at 924 (reaffirming that Section\\n362(a)(3) “becomes effective immediately upon filing the\\npetition and is not dependent on the debtor first bringing a\\nturnover action”); Weber, 719 F.3d at 79 (“Section 542\\nrequires that any entity in possession of property of the estate\\ndeliver it to the trustees, without condition or any further\\naction: the provision is self-executing.” (internal quotation\\nmarks omitted)).\\n69\\n See 4 Norton Bankr. L. & Prac. 3d § 62:3 (2019) (stating\\nthat “several [Bankruptcy] Code provisions play a role in\\ndetermining whether a turnover will be ordered pursuant to\\nCode § 542(a)”).\\n\\n\\n\\n\\n 26\\n\\fDenby-Peterson, all the debtor must do to initiate turnover is\\nfile a bankruptcy petition and notify the creditor of the filing.\\nHowever, Federal Rule of Bankruptcy Procedure 7001(1)\\nexplicitly indicates otherwise. Under that Rule, the debtor\\nmust bring a request for turnover in an adversary proceeding\\nbefore a Bankruptcy Court.70 Accordingly, contrary to\\nDenby-Peterson’s claim, the debtor must not only file a\\nbankruptcy petition, he or she must also initiate a turnover\\nproceeding by (1) filing a complaint in Bankruptcy Court and\\n(2) serving a creditor with a copy of the complaint.71 This\\nprocedural requirement negates any possibility that a\\ncreditor’s duty to turn over property is automatic.72\\n\\n70\\n See Fed. R. Bankr. P. 7001(1) (identifying, in relevant part,\\n“a proceeding to recover money or property” as an adversary\\nproceeding).\\n71\\n “An adversary proceeding is essentially a self-contained\\ntrial—still within the original bankruptcy case—in which a\\npanoply of additional procedures apply,” In re Mansaray-\\nRuffin, 530 F.3d 230, 234 (3d Cir. 2008)\\n(citing Fed. R. Bankr. P. 7001-7087), including the\\nrequirement that a complaint must be filed to commence such\\na proceeding, see Fed. R. Bankr. P. 7003 (stating that Federal\\nRule of Civil Procedure 3 “applies in adversary\\nproceedings”).\\n72\\n Here, as noted by the Bankruptcy Court, Denby-Peterson\\ndid not initiate an adversary proceeding. Instead, she filed a\\nmotion for turnover entitled, in relevant part, “Motion for\\nReturn of Repossessed Auto.” Denby-Peterson, 576 B.R. at\\n69.\\n\\n Faced with this procedural posture, the Bankruptcy\\nCourt concluded that the parties waived their right to an\\n\\n\\n\\n\\n 27\\n\\f ii.\\n\\n Moreover, the plain language of the Bankruptcy\\nCode’s turnover provision also shows that the provision is not\\nself-effectuating. Section 542(a) provides that only property\\nof the estate, as defined in Section 541, that is either (1)\\n“property that the [debtor] may use, sell, or lease under\\nsection 363” or (2) property “that the debtor may exempt\\nunder section 522,” is subject to turnover.73 The turnover\\nprovision also explicitly limits the right to turnover to estate\\nproperty that (1) is in the possession, custody or control of a\\ncreditor, and (2) is not “of inconsequential value or benefit to\\nthe estate.”74 Thus, on its face, the turnover provision\\nincludes numerous explicit conditions that must be satisfied\\nbefore a property is subject to turnover.\\n\\n In the case before us today, Denby-Peterson asks us to\\nessentially ignore Section 542(a)’s statutory prerequisites and\\nfind that a creditor must immediately turn over any collateral\\n\\n\\nadversary proceeding. See In re Village Mobile Homes, Inc.,\\n947 F.2d 1282, 1283 (5th Cir. 1991) (“Compliance with the\\nrequisites of an adversary proceeding may be excused by\\nwaiver of the parties.”). Treating the matter as a contested\\nmotion, the Court then addressed the merits of the turnover\\nrequest. This difference in the procedural mechanism used to\\nachieve turnover does not change our conclusion because,\\nregardless of the form, a debtor must initiate a procedural\\nevent before the Bankruptcy Court in order for turnover to\\noccur, if applicable, under the Bankruptcy Court’s\\nsupervision.\\n73\\n 11 U.S.C. § 542(a).\\n74\\n Id.\\n\\n\\n\\n\\n 28\\n\\fthat a debtor deems to be subject to turnover. We will not do\\nso. We further note that mandating creditors to automatically\\nturn over any property that the debtor deems worthy of\\nturnover would allow debtors to temporarily strip creditors of\\ntheir rights to assert affirmative defenses such as laches,75 or\\nto claim that the property is not property of the estate. While\\nit is true that creditors would presumably be able to assert\\nthese defenses in Bankruptcy Court after turning over the\\ncollateral to the debtor, we do not read the turnover provision\\nas placing the onus on creditors to surrender the collateral and\\nthen immediately file a motion in Bankruptcy Court asserting\\ntheir rights.\\n\\n In sum, in light of the plain language of Section\\n542(a)’s turnover provision, and the procedural and\\nsubstantive requirements underlying turnover, it would be\\nillogical for us to interpret the turnover provision as imposing\\nan automatic duty on creditors to turn over collateral to the\\ndebtor upon learning of a bankruptcy petition. We therefore\\nreject Denby-Peterson’s claim that the turnover provision is\\nself-effectuating.76 Instead, we conclude that the turnover\\n\\n75\\n See In re Mushroom Transp. Co., Inc., 382 F.3d 325, 337\\n(3d Cir. 2004); see also In re Stancil, 473 B.R. 478, 484\\n(Bankr. D.D.C. 2012) (“The plain language of section 542(a)\\ndemonstrates that establishing inconsequential value or\\nbenefit to the estate is an affirmative defense to a turnover\\naction.”).\\n76\\n Denby-Peterson’s reliance on the Supreme Court’s decision\\nin United States v. Whiting Pools, Inc. is misplaced. 462 U.S.\\n198, 201 (1983). Contrary to Denby-Peterson’s claim that\\nWhiting Pools implicitly supports the proposition that the\\nturnover provision is self-effectuating, Whiting Pools\\n\\n\\n\\n\\n 29\\n\\fprovision is effectuated by virtue of judicial action. The\\nChapter 13 debtor must first seek court intervention, such as\\nthrough an adversary proceeding, and then the Bankruptcy\\n\\n\\n\\n\\nsuggests the opposite: that the turnover provision is not self-\\neffectuating because adequate protection can serve as a\\ncondition precedent before turnover. See 11 U.S.C. § 542(a)\\n(providing that “property that the [debtor] may use, sell, or\\nlease under section 363” may be subject to turnover); id.\\n§ 363(e) (stating, in relevant part, that “the court, with or\\nwithout a hearing, shall prohibit or condition such use, sale,\\nor lease as is necessary to provide adequate protection of such\\ninterest”); id. § 361 (providing examples of “adequate\\nprotection”).\\n\\n In Whiting Pools, the Bankruptcy Court, not the\\nChapter 11 debtor, ordered the creditor to turn over property\\nto the debtor. 462 U.S. at 201. Moreover, it did so only “on\\nthe condition that [the Chapter 11 corporate-debtor] provide\\nthe [creditor] with specified [adequate] protection for its\\ninterests.” Id. See id. at n.7 (“Pursuant to [Section 363(e) of\\nthe Bankruptcy Code], the Bankruptcy Court set the\\nfollowing conditions to protect the tax lien: [the debtor] was\\nto pay the [creditor] $20,000 before the turnover occurred;\\n[the debtor] also was to pay $1,000 a month until the taxes\\nwere satisfied; the [creditor] was to retain its lien during this\\nperiod; and if [the debtor] failed to make the payments, the\\nstay was to be lifted.”). Whiting Pools thus suggests that\\nturnover is required upon (1) the debtor’s filing of a motion\\nfor turnover, and (2) the issuance of a court order.\\n\\n\\n\\n\\n 30\\n\\fCourt, not the debtor, must ultimately decide whether certain\\nproperty must be turned over to the debtor.77\\n\\n B.\\n\\n Additionally, we point out that our interpretation of the\\nturnover provision is not changed by the turnover provision’s\\nuse of the phrase “shall deliver to the [debtor].”78 As argued\\nby Denby-Peterson, it may well be so that the word “shall”\\nstrongly suggests that turnover is mandatory.79 However,\\n\\n77\\n We also note that under pre-Code practice, turnover was\\nnot viewed as self-effectuating. Before the Bankruptcy Code\\nwas enacted, a secured creditor, who had repossessed\\ncollateral pre-bankruptcy, retained possession pending the\\nBankruptcy Court’s entry of a turnover order, see Ralph\\nBrubaker, Turnover, Adequate Protection, and the Automatic\\nStay (Part I): Origins and Evolution of the Turnover Power,\\n33 Bankr. L. Letter No. 8, at 4-7 (Aug. 2013), and “[n]othing\\nin the legislative history evinces a congressional intent to\\ndepart from that [pre-Code] practice.” Whiting Pools, 462\\nU.S. at 208. See In re VistaCare Grp., LLC, 678 F.3d 218,\\n227-28 (3d Cir. 2012) (recognizing that “courts should be\\n‘reluctant to accept arguments that would interpret the Code .\\n. . to effect a major change in pre-Code practice,’ absent at\\nleast some suggestion in the legislative history that such a\\nchange was intended” (quoting Dewsnup v. Timm, 502 U.S.\\n410, 419 (1992))).\\n78\\n 11 U.S.C. § 542(a).\\n79\\n See Alabama v. Bozeman, 533 U.S. 146, 153 (2001) (“The\\nword ‘shall’ is ordinarily the language of command.” (internal\\nquotation marks omitted)); Dessouki v. Att’y Gen. of United\\nStates, 915 F.3d 964, 966 (3d Cir. 2019) (recognizing that\\n\\n\\n\\n\\n 31\\n\\fturnover is mandatory only in the context of an adversary\\nproceeding presided over by the Bankruptcy Court. Under\\nRule 7001(1), the debtor must bring an adversary proceeding\\nseeking turnover. True, the turnover provision states: “shall\\ndeliver,” but the question before us is when must a creditor\\ndeliver? The answer is when the Bankruptcy Court says so in\\nthe context of an adversary proceeding brought under Rule\\n7001(1). We view the statutory and procedural framework as:\\n(1) the Chapter 13 debtor must seek court relief, such as by\\ninitiating an adversary proceeding requesting turnover; (2) the\\nBankruptcy Court then determines whether the property is\\nsubject to turnover; and (3) if it is, in accordance with that\\ndetermination, the Bankruptcy Court issues a court order\\ncompelling a creditor to turn over property to the debtor.\\n\\n Our conclusion is further supported by the United\\nStates Supreme Court’s reasoning in Citizens Bank of\\nMaryland v. Strumpf.80 In that case, the Court considered the\\ninterplay between the automatic stay81 and the turnover\\nprovision in Section 542(b). Notably, notwithstanding the\\n\\n\\n\\n“the word ‘shall’ imposes a mandatory requirement”); see\\nalso Shall, Black’s Law Dictionary (11th ed. 2019) (defining\\n“shall,” in relevant part, as “[h]as a duty to; more broadly, is\\nrequired to,” and characterizing that usage as “the mandatory\\nsense that drafters typically intend and that courts typically\\nuphold”).\\n80\\n 516 U.S. 16 (1995).\\n81\\n As relevant to Strumpf, the filing of a bankruptcy petition\\nstays “the setoff of any debt owing to the debtor that arose\\nbefore the commencement of the [bankruptcy] case . . .\\nagainst any claim against the debtor.” 11 U.S.C. § 362(a)(7).\\n\\n\\n\\n\\n 32\\n\\fword “shall” in that turnover provision, the Strumpf Court did\\nnot interpret the provision as self-executing.\\n\\n Section 542(b)’s turnover provision states: “an entity\\nthat owes a debt that is property of the estate . . . shall pay\\nsuch debt to . . . the trustee.”82 However, an entity is excused\\nfrom that obligation “to the extent that such debt may be\\noffset under section 553 . . . against a claim against the\\ndebtor.”83 Thus, similar to the turnover provision at issue in\\nthis case, the turnover provision in subsection (b) includes the\\nword “shall” as well as a defense to turnover.\\n\\n In Strumpf, the Supreme Court held that a bank’s\\ntemporary withholding of funds in a debtor’s bank account,\\npending resolution of the bank’s setoff right,84 did not violate\\nthe automatic stay. In reaching that holding, the Court\\nreasoned, among other things, that interpreting Section\\n542(b)’s turnover provision as self-executing would\\n“eviscerate” the provision’s exceptions to the duty to pay.85\\nHere, we likewise decline to interpret Section 542(a)’s “shall\\ndeliver” clause in a way that would disregard the provision’s\\nexplicit defenses.86\\n\\n\\n82\\n Id. § 542(b) (emphasis added).\\n83\\n Id.\\n84\\n See Strumpf, 516 U.S. at 19 (“Petitioner refused to pay its\\ndebt, not permanently and absolutely, but only while it sought\\nrelief under § 362(d) from the automatic stay.”).\\n85\\n Id. at 20.\\n86\\n See Smith v. City of Jackson, 544 U.S. 228, 233 (2005)\\n(“[W]hen Congress uses the same language in two statutes\\nhaving similar purposes . . . it is appropriate to presume that\\n\\n\\n\\n\\n 33\\n\\f C.\\n\\n Even assuming the turnover provision is self-\\nexecuting, as pointed out by the Tenth Circuit, “there is still\\nno textual link between [Section] 542 and [Section] 362.”87\\nThe language of the automatic stay provision and the turnover\\nprovision do not refer to each other. The absence of an\\nexpress textual link between the two provisions indicates that\\nthey should not be read together, so violation of the turnover\\nprovision would not warrant sanctions for violation of the\\nautomatic stay provision.\\n\\n VI.\\n\\n Guided by the plain language of the Bankruptcy\\nCode’s automatic stay and turnover provisions, the legislative\\npurpose and policy goals of the automatic stay, and the\\nreasoning of the Supreme Court and our two sister circuits,\\nwe hold that a creditor in possession of collateral that was\\nrepossessed before a bankruptcy filing does not violate the\\nautomatic stay by retaining the collateral post-bankruptcy\\npetition.\\n\\n We will thus affirm the order of the District Court\\naffirming the Bankruptcy Court’s order denying Denby-\\nPeterson’s request for sanctions.\\n\\n\\n\\n\\nCongress intended that text to have the same meaning in both\\nstatutes.”).\\n87\\n Cowen, 849 F.3d at 950.\\n\\n\\n\\n\\n 34\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4450750/\", \"author_raw\": \"FUENTES, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"MCKEE"},"judge2":{"kind":"string","value":"SHWARTZ"},"judge3":{"kind":"string","value":"FUENTES"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"McKEE\": \", Circuit\", \"SHWARTZ\": \", Circuit\", \"FUENTES\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4673497/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Joy Denby-Peterson v.\nCourt: U.S. Court of Appeals for the Third Circuit\nDate decided: 2019-10-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ______________\n\n No. 18-3562\n _______________\n\n\n In re: JOY DENBY-PETERSON,\n Appellant\n ______________\n\n Appeal from the United States District Court\n for the District of New Jersey\n (D.C. No. 1-17-cv-09985)\n District Judge: Hon. Noel L. Hillman\n ______________\n\n Argued May 23, 2019\n ______________\n\nBefore: McKEE, SHWARTZ, and FUENTES, Circuit\n Judges.\n\n (Filed: October 28, 2019)\n ______________\n\fEllen M. McDowell [Argued]\nDaniel Reinganum\nMcDowell Law\n46 West Main Street\nP.O. Box 127\nMaple Shade, NJ 08052\n\n Counsel for Appellant\n\nCraig Goldblatt [Argued]\nWilmerHale\n1875 Pennsylvania Avenue, N.W.\nWashington, DC 20006\n\n Counsel for Amicus Curiae in Support of the District\nCourt’s Judgment\n\n ______________\n\n OPINION OF THE COURT\n ______________\n\nFUENTES, Circuit Judge.\n\n At the center of this bankruptcy appeal is “America’s\nfirst sports car”: the Chevrolet Corvette.1 Joy Denby-Peterson\npurchased a Chevrolet Corvette in July 2016. Several months\nlater, the Corvette was repossessed by creditors after Denby-\nPeterson defaulted on her car payments. Denby-Peterson\nsubsequently filed an emergency voluntary Chapter 13\npetition in the Bankruptcy Court for the District of New\n\n1\n H.R. Res. 970, 110th Cong. (2008).\n\n\n\n\n 2\n\fJersey. She then notified the creditors of the bankruptcy filing\nand demanded that they return the Corvette to her.\n\n After the creditors did not comply with her demand,\nDenby-Peterson filed a motion for turnover in the Bankruptcy\nCourt. She sought an order (1) compelling the creditors to\nreturn the Corvette to her, and (2) imposing sanctions for the\ncreditors’ alleged violation of the Bankruptcy Code’s\nautomatic stay.2 The Bankruptcy Court entered an order\nmandating turnover of the Corvette to Denby-Peterson but\ndenying Denby-Peterson’s request for sanctions. The\nBankruptcy Court denied the sanctions request on the basis\nthat the creditors did not violate the automatic stay by failing\nto return the repossessed Corvette to Denby-Peterson upon\nreceiving notice of the bankruptcy filing. Denby-Peterson\nappeals from an order of the District Court affirming the\nBankruptcy Court.\n\n We are now presented with an issue of first impression\nfor our Court: whether, upon notice of the debtor’s\nbankruptcy, a secured creditor’s failure to return collateral\nthat was repossessed pre-bankruptcy petition is a violation of\nthe automatic stay. We answer in the negative, and thus join\nthe minority of our sister courts—the Tenth and D.C.\nCircuits—in holding that a secured creditor does not have an\naffirmative obligation under the automatic stay to return a\ndebtor’s collateral to the bankruptcy estate immediately upon\nnotice of the debtor’s bankruptcy because failure to return the\ncollateral received pre-petition does not constitute “an[] act . .\n. to exercise control over property of the estate.”3 We will\n\n2\n See 11 U.S.C. §§ 362(a)(3), (k).\n3\n Id. § 362(a)(3).\n\n\n\n\n 3\n\ftherefore affirm the order of the District Court affirming the\nBankruptcy Court.\n\n I.\n\n A. Facts\n\n On July 21, 2016, Debtor Joy Denby-Peterson\npurchased a used yellow 2008 Chevrolet Corvette from a car\ndealership named Pine Valley Motors. To finance her\npurchase, Denby-Peterson entered into a retail installment\ncontract with Pine Valley Motors, which, in turn, assigned its\nrights under the contract to its affiliate company, NU2U Auto\nWorld.4 Under the contract, Denby-Peterson agreed to pay (1)\na $3,000 cash down payment; (2) a deferred down payment of\n$2,491 by August 11, 2016 to pay sales taxes and registration\nfees to obtain permanent license plate tags; and (3) weekly\ninstallment payments of $200 for 212 weeks. Between July\n2016 and February 2017, Denby-Peterson made payments\ntotaling $9,200 under the contract, including the $3,000 down\npayment applied on the day of the sale. She never made the\nrequired down payment of $2,491. As a result, the creditors\nrepossessed the Corvette in February or March 2017.5 The\n\n4\n For the sake of brevity, we will collectively refer to Pine\nValley Motors and NU2U Auto World as “the creditors.”\n5\n The retail installment contract’s “repossession” clause\nstates, in relevant part: “[i]f you are in default, we may take\nthe vehicle from you after we give you any notice required by\nlaw.” Bankr. Petition No. 17-15532-ABA, Doc. No. 17-5 at 3.\n“Default,” in turn, is defined as including, among other\nthings: (1) “failure to pay any installment when due”; (2)\n“failure to perform or breach of any section of th[e] contract”;\n\n\n\n\n 4\n\fCorvette was never titled or registered in Denby-Peterson’s\nname.\n\n B. Bankruptcy Court Proceedings\n\n i. Denby-Peterson’s Chapter 13 Bankruptcy\n Petition\n\n After the Corvette was repossessed, Denby-Peterson\nfiled a voluntary petition for relief under Chapter 13 of the\nBankruptcy Code on March 21, 2017. Under Section 362 of\nthe Code, the filing of the petition triggered an automatic stay\nof “any act to obtain possession of property of the estate or of\nproperty from the estate or to exercise control over property\nof the estate.”6\n\n Within two days, the creditors received notice of\nDenby-Peterson’s bankruptcy filing. Counsel for Denby-\nPeterson had notified them of the filing and demanded that\nthey return the Corvette to Denby-Peterson. Counsel also\nmaintained that the creditors’ failure to return the Corvette\n\n\nand (3) “failure to obtain and maintain the insurance required\nby th[e] contract.” Id.\n\n Before the Bankruptcy Court, the parties disputed the\ndate of repossession. Denby-Peterson claimed that the\nCorvette was repossessed on March 13, 2017, while the\ncreditors claimed that it was repossessed one month earlier, in\nFebruary 2017. All parties nevertheless agree that the\nrepossession occurred before Denby-Peterson filed for\nbankruptcy.\n6\n 11 U.S.C. § 362(a)(3).\n\n\n\n\n 5\n\fwould result in a violation of the automatic stay. He faxed a\nletter to the creditors which stated, in relevant part:\n\n BE ADVISED your failure to release the\n vehicle to Ms. Denby-Peterson is a violation of\n the Automatic Stay. If the vehicle has not been\n released before 5pm today, this firm will seek\n damages, costs, and attorneys’ fees against your\n company for willful violations of the automatic\n stay.7\n\nThe creditors did not comply with Denby-Peterson’s demand\nand thus remained in possession of the Corvette.\n\n ii. Denby-Peterson’s Motion for Turnover and\n Sanctions\n\n Denby-Peterson then filed a motion8 for turnover in\nBankruptcy Court, asking the Bankruptcy Court to (1) order\nthe creditors to return the Corvette to her, and (2) impose\nsanctions for the creditors alleged violation of the automatic\nstay. Denby-Peterson sought costs and attorneys’ fees for\nfiling the motion; compensation for “non-economic\n\n\n\n\n7\n Bankr. Petition No. 17-15532-ABA, Doc. No. 5-3 at 3. See\n11 U.S.C. § 362(k)(1).\n8\n The motion was entitled “motion for return of repossessed\nauto and seeking sanctions against creditor for violat[ing] the\nautomatic stay.” Bankr. Petition No. 17-15532-ABA, Doc.\nNo. 5 (original in uppercase and bold).\n\n\n\n\n 6\n\fdamages”; punitive damages; and “all other relief the Court\ndeem[ed] just and equitable.”9\n\n The creditors opposed the motion. They also filed a\nproof of claim, asserting a security interest in the Corvette in\nthe amount of $28,773.10\n\n iii. The Bankruptcy Court’s Decision\n\n Following a two-day hearing, the Bankruptcy Court\nissued a written decision and order granting the motion in part\nand denying it in part. The Bankruptcy Court, inter alia,\ngranted Denby-Peterson’s request for turnover and thus\nordered the creditors to return the Corvette to Denby-Peterson\nwithin seven days, but denied Denby-Peterson’s sanctions\nrequest.\n\n\n9\n Bankr. Petition No. 17-15532-ABA, Doc. No. 5-7 at 3. See\n11 U.S.C. § 362(k)(1) (stating, in relevant part, that “an\nindividual injured by any willful violation of a stay . . . shall\nrecover actual damages, including costs and attorneys’ fees,\nand, in appropriate circumstances, may recover punitive\ndamages”); see also In re Lansaw, 853 F.3d 657, 667 (3d Cir.\n2017), cert. denied sub nom. Zokaites v. Lansaw, 138 S. Ct.\n1001 (2018) (“expressly concluding that ‘actual damages’\nunder § 362(k)(1) include damages for emotional distress\nresulting from a willful violation of the automatic stay.”).\n10\n The retail installment contract’s “security interest” clause\nprovides that (1) Denby-Peterson gave the creditors a security\ninterest in, inter alia, the Corvette, and (2) the security\ninterest “cover[ed] all amounts [she] owe[d].” Bankr. Petition\nNo. 17-15532-ABA, Doc. No. 17-5 at 3.\n\n\n\n\n 7\n\f The Bankruptcy Court held, inter alia, that (1) the\ncreditors must return the Corvette under the Bankruptcy\nCode’s turnover provision in Section 542(a),11 and (2) the\ncreditors did not violate the automatic stay by retaining\npossession of the Corvette upon receiving notice of the\nbankruptcy filing. Thus, the Bankruptcy Court determined\nthat the creditors were not liable for sanctions based on an\nalleged violation of the automatic stay.\n\n In reaching its holdings, the Bankruptcy Court found\nthat Denby-Peterson had an equitable interest in the Corvette\nat the time of the bankruptcy filing, and therefore, the\nCorvette was property of the estate subject to turnover.12\n\n Next, the Bankruptcy Court considered whether the\ncreditors violated the automatic stay by failing to return the\nCorvette after learning of the bankruptcy filing. It identified\nthe split among our sister circuits on this issue, pointing out\nthat the Second, Seventh, Eighth, and Ninth Circuits (“the\nmajority”) have held that the Bankruptcy Code’s turnover\nprovision requires immediate turnover of estate property that\nwas seized pre-petition and that failure to do so violates the\n\n11\n See 11 U.S.C. § 542(a) (stating, in relevant part, that “an\nentity, other than a custodian, in possession, custody, or\ncontrol, during the case, of property that the [debtor] may use,\nsell, or lease under section 363 of this title . . . shall deliver to\nthe [debtor], and account for, such property or the value of\nsuch property, unless such property is of inconsequential\nvalue or benefit to the estate”).\n12\n See id. § 541(a) (defining “property of the estate,” in\nrelevant part, as “all legal or equitable interests of the debtor\nin property as of the commencement of the case”).\n\n\n\n\n 8\n\fautomatic stay.13 However, the Tenth and D.C. Circuits (“the\nminority”) “have instead held that a creditor does not violate\nthe stay in regard to property of the estate if it merely\nmaintains the status quo.”14 The Bankruptcy Court noted that\nthe minority was critical of the majority’s rule that Section\n542(a)’s turnover provision “is self-effectuating” because “it\ndoes not allow for the possibility of defenses to turnover.”15\n\n The Bankruptcy Court ultimately adopted the minority\nposition, describing it as “particularly persuasive”16 and\npointing out that “[f]rom the inception of this case there was\nan issue regarding exactly what . . . [Denby-Peterson]’s\ninterest in . . . [the Corvette] was.”17 Accordingly, the\nBankruptcy Court concluded that the creditors did not violate\nthe automatic stay by failing to turn over the Corvette to\nDenby-Peterson “prior to adjudication of . . . [her] right to\n\n\n13\n See In re Fulton, 926 F.3d 916 (7th Cir. 2019); In re\nWeber, 719 F.3d 72 (2d Cir. 2013); In re Del Mission Ltd., 98\nF.3d 1147 (9th Cir. 1996); In re Knaus, 889 F.2d 773 (8th\nCir. 1989); see also In re Rozier, 376 F.3d 1323, 1324 (11th\nCir. 2004) (per curiam) (holding that the “district court did\nnot err by affirming the bankruptcy court’s order holding [the\ncreditor] in willful contempt of the automatic stay . . . by\nrefusing to return the vehicle”).\n14\n In re Denby-Peterson, 576 B.R. 66, 80 (Bankr. D.N.J.\n2017) (citing In re Cowen, 849 F.3d 943 (10th Cir. 2017);\nUnited States v. Inslaw, Inc., 932 F.2d 1467 (D.C. Cir.\n1991)).\n15\n Denby-Peterson, 576 B.R. at 82.\n16\n Id.\n17\n Id.\n\n\n\n\n 9\n\fredeem the [Corvette],” and thus, sanctions were not\nwarranted.18\n\n C. Denby-Peterson’s Appeal to the District Court\n\n Denby-Peterson appealed the Bankruptcy Court’s\norder denying her sanctions request. Similar to the\nBankruptcy Court, the District Court found “the minority\nposition more persuasive.”19 The District Court thus affirmed\nthe Bankruptcy Court’s order denying Denby-Peterson’s\nsanctions request.20\n\n Denby-Peterson now appeals to our Court.21 Because\nthe creditors are not participating in this appeal, we appointed\n\n\n18\n Id. at 83.\n19\n Denby-Peterson v. Nu2u Auto World, 595 B.R. 184, 190\n(D.N.J. 2018).\n20\n While Denby-Peterson’s appeal to the District Court was\npending, the Bankruptcy Court dismissed the underlying\nbankruptcy case based on Denby-Peterson’s failure to make\nall required pre-confirmation payments to the Trustee. Before\naddressing the merits of the appeal, the District Court\nconcluded that Denby-Peterson’s appeal was not mooted by\nthe dismissal because the automatic-stay-related issue “is an\nancillary issue not closely intertwined with the underlying\nbankruptcy.” Denby-Peterson, 595 B.R. at 188.\n21\n The District Court had jurisdiction under 28 U.S.C. § 158\n(a). We have jurisdiction under 28 U.S.C. § 158(d)(1).\nBecause the District Court acted as an appellate court, we\nreview its determinations de novo. In re Bocchino, 794 F.3d\n376, 379 (3d Cir. 2015). We review the legal conclusions of\n\n\n\n\n 10\n\fCraig Goldblatt as amicus curiae to defend the judgment of\nthe District Court.22\n II.\n\n On appeal, Denby-Peterson renews her argument that\nthe creditors violated the automatic stay by not returning the\nrepossessed Corvette upon learning of the bankruptcy filing.\nTo provide context for the issue before us, we will discuss the\nBankruptcy Code’s automatic stay before addressing the\nmerits of this appeal.\n\n Under Section 362 of the Bankruptcy Code, entitled\n“[a]utomatic stay,” the filing of a bankruptcy petition\nautomatically triggers a stay.23 Of particular relevance to this\nappeal, subsection (a)(3) provides that a bankruptcy petition\n“operates as a stay, applicable to all entities, of . . . any act to\n\n\nthe Bankruptcy Court de novo and its factual determinations\nfor clear error. Id. at 380.\n\n Generally, “[t]he imposition or denial of sanctions is\nsubject to abuse-of-discretion review.” In re Miller, 730 F.3d\n198, 203 (3d Cir. 2013). We have not, however, addressed\nour standard of review for the imposition or denial of\nsanctions for violations of the automatic stay. We\nnevertheless need not do so now given that (1) the\nBankruptcy Court denied sanctions based on its conclusion\nthat the creditors did not violate the automatic stay, and (2)\nwe now hold that both the Bankruptcy Court and the District\nCourt correctly concluded that there was no such violation.\n22\n We thank Mr. Goldblatt for his excellent briefing and oral\nadvocacy in this matter.\n23\n 11 U.S.C. § 362.\n\n\n\n\n 11\n\fobtain possession of property of the estate . . . or to exercise\ncontrol over property of the estate.”24 Property of the\nbankruptcy estate, in turn, generally includes “all legal or\nequitable interests of the debtor in property as of the\ncommencement of the case,”25 “wherever located and by\nwhomever held.”26\n\n The automatic stay imposed by the Bankruptcy Code\nhas a “twofold” purpose:\n\n (1) to protect the debtor, by stopping all\n collection efforts, harassment, and foreclosure\n actions, thereby giving the debtor a respite from\n creditors and a chance ‘to attempt a repayment\n or reorganization plan or simply be relieved of\n the financial pressures that drove him [or her]\n into bankruptcy;’ and (2) to protect ‘creditors\n by preventing particular creditors from acting\n unilaterally in self-interest to obtain payment\n\n\n24\n Id. § 362(a)(3). See H.R. Rep. No. 95-595, at 340 (1977)\n(stating that “[s]ubsection (a) defines the scope of the\nautomatic stay, by listing the acts that are stayed by the\ncommencement of the case”).\n25\n 11 U.S.C. § 541(a)(1).\n26\n Id. § 541(a). In a Chapter 13 case, such as this case, the\nconcept of property of the estate is broader. See id. § 1306\n(a)(1) (providing that the Chapter 13 estate includes, in\naddition to the property specified in Section 541, property\n“that the debtor acquires after the commencement of the\nbankruptcy case” but before the case is either closed,\ndismissed, or converted).\n\n\n\n\n 12\n\f from a debtor to the detriment of other\n creditors.’27\n\nIn furtherance of the automatic stay’s overarching purpose,\nSection 362(a)(3) “prevent[s] dismemberment of the estate,”\nand enables an “orderly” distribution of the debtor’s assets.28\n\n The consequences for willful violations of the\nautomatic stay are set forth in Section 362(k) which provides\nthat, subject to one exception, “an individual injured by any\nwillful violation” of the automatic stay is entitled to “actual\ndamages, including costs and attorneys’ fees, and, in\nappropriate circumstances, may recover punitive damages.”29\nWe have explained that “[i]t is a willful violation of the\nautomatic stay when a creditor violates the stay with\nknowledge that the bankruptcy petition has been filed.\nWillfulness does not require that the creditor intend to violate\n\n\n\n\n27\n Constitution Bank v. Tubbs, 68 F.3d 685, 691 (3d Cir.\n1995) (quoting Maritime Elec. Co. v. United Jersey Bank, 959\nF.2d 1194, 1204 (3d Cir. 1991)). See Taggart v. Lorenzen,\n139 S. Ct. 1795, 1804 (2019) (explaining that the automatic\nstay “aims to prevent damaging disruptions to the\nadministration of a bankruptcy case in the short run”); Inslaw,\n932 F.2d at 1473 (“The object of the automatic stay provision\nis essentially to solve a collective action problem—to make\nsure that creditors do not destroy the bankrupt estate in their\nscramble for relief.”).\n28\n H.R. Rep. No. 95-595, at 341.\n29\n 11 U.S.C. § 362(k)(1). See id. § 362(k)(2) (providing a\n“good faith” exception to Section 362(k)(1)).\n\n\n\n\n 13\n\fthe automatic stay provision, rather it requires that the acts\nwhich violate the stay be intentional.”30\n\n III.\n\n With the foregoing statutory background in mind, we\nnow turn our attention to the issue of first impression before\nour Court: whether, upon receiving notice of a bankruptcy\npetition, a secured creditor violates the automatic stay by\nmaintaining possession of collateral that it lawfully\nrepossessed pre-petition. Specifically, we must decide\nwhether the creditors’ failure to return the Corvette to Denby-\nPeterson upon learning of her bankruptcy filing was a\nviolation of the automatic stay.31\n\n As we previously acknowledged, there is a circuit split\non this issue, which we have not yet joined. Under the\nmajority position, held by the Second, Seventh, Eighth, Ninth,\nand Eleventh Circuits, a secured creditor, upon learning of the\nbankruptcy filing, must return the collateral to the debtor and\nfailure to do so violates the automatic stay.32 However, both\nthe Tenth and D.C. Circuits disagree with the majority’s\n\n\n30\n In re Lansdale Family Rests., Inc., 977 F.2d 826, 829 (3d\nCir. 1992) (internal citations omitted).\n31\n It is undisputed here that the creditors repossessed the\nCorvette before Denby-Peterson had filed for bankruptcy and\nthat the Corvette was property of Denby-Peterson’s\nbankruptcy estate.\n32\n See Fulton, 926 F.3d 916; Weber, 719 F.3d 72; Del\nMission, 98 F.3d 1147; Knaus, 889 F.2d 773; Rozier, 376\nF.3d 1323.\n\n\n\n\n 14\n\finterpretation of the automatic stay provision.33 Under their\nview, a secured creditor is not obligated to return the\ncollateral to the debtor until the debtor obtains a court order\nfrom the Bankruptcy Court requiring the creditor to do so.\nThus, according to the minority, a creditor does not violate\nthe automatic stay by retaining possession of the collateral\nafter being notified of the bankruptcy filing.\n\n Here, Denby-Peterson urges us to adopt the view of\nthe majority of our sister circuits, advancing two theories in\nsupport of her position that the creditors violated the\nautomatic stay. First, she maintains that the creditors’ failure\nto return the Corvette violated the plain language of Section\n362(a)(3)’s automatic stay provision by being “an[] act . . . to\nexercise control over property of the estate.”34 Second,\nDenby-Peterson asserts that Section 362(a)(3)’s automatic\nstay provision and Section 542(a)’s turnover provision\noperate together such that a violation of the turnover\nprovision results in a violation of the automatic stay. Thus,\naccording to Denby-Peterson, the creditors were required to\nimmediately turn over the Corvette, and by not doing so, they\nviolated the automatic stay. For the reasons that follow, we\nare not persuaded by those arguments and thus hold that the\ncreditors in this case did not violate the automatic stay. In so\nholding, we join the minority of our sister circuits.\n\n\n\n\n33\n See Cowen, 849 F.3d 943; Inslaw, 932 F.2d 1467.\n34\n 11 U.S.C. § 362(a)(3).\n\n\n\n\n 15\n\f IV.\n\n A.\n\n We begin our interpretation of Section 362(a)(3) of the\nBankruptcy Code “where all such inquiries must begin: with\nthe language of the statute itself.”35\n\n In examining the Bankruptcy Code, we are not “guided\nby a single sentence or member of a sentence, but look to the\nprovisions of the whole law, and to its object and policy.”36\nThus, to determine the plainness or ambiguity of Section\n362(a)(3)’s statutory language, in addition to considering the\nstatutory language itself, we may also engage in “a studied\nexamination of the statutory context.”37 If we ultimately\ndetermine that a provision “is clear and unambiguous, [we]\n\n\n35\n Ransom v. FIA Card Servs., N.A., 562 U.S. 61, 69 (2011)\n(internal quotation marks omitted).\n36\n Kelly v. Robinson, 479 U.S. 36, 43 (1986) (internal\nquotation marks omitted). See In re Price, 370 F.3d 362, 369\n(3d Cir. 2004) (emphasizing that “in interpreting the\nBankruptcy Code, the Supreme Court has been reluctant to\ndeclare its provisions ambiguous, preferring instead to take a\nbroader, contextual view”); Official Comm. of Unsecured\nCreditors of Cybergenics Corp., ex rel. Cybergenics Corp. v.\nChinery, 330 F.3d 548, 559 (3d Cir. 2003) (“Statutory\nconstruction is a holistic endeavor, and this is especially true\nof the Bankruptcy Code.” (quotation marks, alterations and\ncitations omitted)).\n37\n Price, 370 F.3d at 369.\n\n\n\n\n 16\n\fmust simply apply it.”38 However, if we find that a provision\nis ambiguous,39 “we then turn to pre-Code practice and\nlegislative history to find meaning.”40\n\n With these principles of construction in mind, we will\nnow examine the language of Section 362(a)(3). To reiterate,\nSection 362(a)(3) provides, in relevant part, that the filing of\na bankruptcy petition “operates as a stay . . . of . . . any act to .\n. . exercise control over property of the estate.”41 According\nto Denby-Peterson, under the plain language of the automatic\nstay, a creditor who does not turn over property of the estate\nafter a debtor demands its return exercises control over that\nproperty, thereby violating the automatic stay. While we\nagree that Section 362(a)(3) is unambiguous, we decline to\nhold that a plain reading of that Section compels the\nconclusion that the creditors in this case violated the\nautomatic stay by failing to turn over the Corvette to Denby-\nPeterson.\n\n The operative terms and phrases of Section 362(a)(3)\nare “stay,” “act,” and “exercise control.” Because the\n\n\n\n\n38\n In re KB Toys Inc., 736 F.3d 247, 251 (3d Cir. 2013) (citing\nRoth v. Norfalco L.L.C., 651 F.3d 367, 379 (3d Cir. 2011)).\n39\n See Price, 370 F.3d at 369 (explaining that “a provision is\nambiguous when, despite a studied examination of the\nstatutory context, the natural reading of a provision remains\nelusive”).\n40\n In re Friedman’s Inc., 738 F.3d 547, 554 (3d Cir. 2013).\n41\n 11 U.S.C. § 362(a)(3).\n\n\n\n\n 17\n\fBankruptcy Code does not define them, we must look to their\nordinary meanings.42\n\n We start with the meaning of the word “stay.” Black’s\nLaw Dictionary defines “stay” as “[t]he postponement or\nhalting of a proceeding, judgment, or the like” or “[a]n order\nto suspend all or part of a judicial proceeding or a judgment\nresulting from that proceeding.”43 Moreover, Webster’s Third\nNew International Dictionary defines “stay” as a noun (as it\nis used in Section 362) as: (1) “a bringing to a stop,” (2) “the\naction of halting,” and (3) “the state of being stopped.”44\n\n Next, the noun “act” means, among other things,\n“[s]omething done; the action or process of achieving this.”45\nBlack’s Law Dictionary similarly defines “act,” in relevant\n\n\n42\n See Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct.\n1752, 1759 (2018).\n43\n Stay, Black’s Law Dictionary (11th ed. 2019). Black’s Law\nDictionary further defines “automatic stay” as “[a] bar to all\njudicial and extrajudicial collection efforts against the debtor\nor the debtor’s property, subject to specific statutory\nexceptions.” Id.\n44\n Webster’s Third New International Dictionary 2231\n(1993); see Stay, Oxford English Dictionary Online,\nhttps://www.oed.com/view/Entry/189408?rskey=uCJBz6&\nresult=3&isAdvanced=false (including, among its definitions\nof “stay,” “[t]he action of stopping or bringing to a stand or\npause”) (last visited Aug. 15, 2019).\n45\n Act, Oxford English Dictionary Online,\nhttps://www.oed.com/view/Entry/1888?rskey=eprROF&\nresult=4 (last visited Aug. 15, 2019).\n\n\n\n\n 18\n\fpart, as “[s]omething done or performed,” or “[t]he process of\ndoing or performing.”46\n\n Finally, as to the phrase “exercise control,” we will\nseparately consider the verb “exercise” and the noun\n“control.” The relevant definition of “exercise” is “[t]o put in\naction or motion.”47 Webster’s Third New International\nDictionary also defines “exercise,” in relevant part, as “to . . .\nmake effective in action.”48 Additionally, “control,” as a\nnoun, means, among other things, “[t]he fact or power of\ndirecting and regulating the actions of people or things;\ndirection, management; command.”49\n\n From these definitions, we gather that Section\n362(a)(3) prohibits creditors from taking any affirmative act\nto exercise control over property of the estate. As correctly\npointed out by the District Court, the statutory language “is\nprospective in nature . . . the exercise of control is not stayed,\n\n46\n Act, Black’s Law Dictionary (11th ed. 2019).\n47\n Exercise, Oxford English Dictionary Online,\nhttps://www.oed.com/view/Entry/66089?rskey=QNVdyF&\nresult=2&isAdvanced=false (last visited Aug. 15, 2019); see\nExercise, Black’s Law Dictionary (11th ed. 2019) (describing\n“exercise” as meaning, in relevant part, “[t]o make use of; to\nput into action”).\n48\n Webster’s Third New International Dictionary 795.\n49\n Control, Oxford English Dictionary Online,\nhttps://www.oed.com/view/Entry/40562?rskey=qZlHZj&\nresult=1 (last visited Aug. 15, 2019); see Control, Black’s\nLaw Dictionary (11th ed. 2019) (identifying “the power or\nauthority to manage, direct, or oversee” as one of the\ndefinitions of “control”).\n\n\n\n\n 19\n\fbut the act to exercise control is stayed.”50 Therefore, we\nagree with the minority position held by two of our sister\ncourts—the text of Section 362(a)(3) requires a post-petition\naffirmative act to exercise control over property of the\nestate.51\n B.\n\n Here, a post-petition affirmative act to exercise control\nover the Corvette is not present. The creditors repossessed the\nCorvette before Denby-Peterson had filed for bankruptcy.\nAccordingly, pre-bankruptcy petition, the creditors had\npossession and control of the Corvette, and post-bankruptcy\npetition, the creditors merely passively retained that same\npossession and control. Although the creditors exercised\ncontrol over the Corvette by keeping it in their possession\nafter learning of the bankruptcy filing, the requisite post-\npetition affirmative “act . . . to exercise control over” the\nCorvette is not present in this case.52 An application of the\nplain language of the statute to the facts of this case thus\nshows that the creditors did not violate the automatic stay.53\n\n50\n Denby-Peterson, 595 B.R. at 190.\n51\n See Cowen, 849 F.3d at 949 (concluding that Section\n362(a)(3) “stays entities from doing something to . . . exercise\ncontrol over the estate’s property”); Inslaw, 932 F.2d at 1474\n(“The automatic stay, as its name suggests, serves as a\nrestraint only on acts to gain possession or control over\nproperty of the estate.”).\n52\n 11 U.S.C. § 362(a)(3).\n53\n Denby-Peterson’s characterization of the creditors’ post-\npetition behavior as a refusal to return the Corvette upon\nrequest does not alter our conclusion. A creditor’s refusal to\ncomply with a debtor’s turnover request is not an affirmative\n\n\n\n\n 20\n\f Our conclusion is bolstered by the legislative purpose\nand underlying policy goals of the automatic stay. It is well-\nestablished that one of the automatic stay’s primary purposes\nis “‘to maintain the status quo between the debtor and [his]\ncreditors, thereby affording the parties and the [Bankruptcy]\nCourt an opportunity to appropriately resolve competing\neconomic interests in an orderly and effective way.’”54 Here,\nthe creditors had possession of the Corvette both before and\nafter the bankruptcy filing. Thus, by keeping possession of\nthe Corvette after learning of the bankruptcy filing, the\ncreditors preserved the pre-petition status quo. To hold that\nsuch a retention of possession violates the automatic stay\nwould directly contravene the status-quo aims of the\nautomatic stay.\n\n In sum, the plain language of the automatic stay\nprovision in Section 362(a)(3) and the automatic stay’s\nlegislative purpose indicate that Congress did not intend\npassive retention to qualify as “an act to . . . exercise control\nover property of the estate.”55 In light of our interpretation of\nSection 362(a)(3), we thus hold that the creditors did not\n\n\n\nact; rather, it is inaction. Denby-Peterson’s attempt to reframe\ncreditors’ failure to act as an affirmative act is unavailing as it\ndoes not alter the passive nature of the creditors’ post-petition\nrole in relation to the Corvette. See Nat’l Fed’n of Indep. Bus.\nv. Sebelius, 567 U.S. 519, 555 (2012) (recognizing “the\ndistinction between doing something and doing nothing”).\n54\n Taylor v. Slick, 178 F.3d 698, 702 (3d Cir. 1999) (quoting\nZeoli v. RIHT Mortg. Corp., 148 B.R. 698, 700 (D.N.H.\n1993)) (emphasis and alteration in original).\n55\n 11 U.S.C. § 362(a)(3).\n\n\n\n\n 21\n\fengage in a post-petition “act to . . . exercise control” over the\nCorvette and thus did not violate the automatic stay. 56\n\n C.\n\n Denby-Peterson, on the other hand, disregards the\nautomatic stay’s legislative purpose and instead relies on\nSection 362(a)(3)’s scarce legislative history to support her\nposition. She maintains that her “plain language reading of\nSection 362 is bolstered by the 1984 Amendments to the\nBankruptcy Code.”57 We disagree.\n\n Given Section 362(a)(3)’s unambiguous text, we need\nnot resort to legislative history to uncover its meaning.58 In\nany event, we point out that the relevant legislative history\nfails to shed light on Congress’s intent behind the 1984\naddition of the “exercise control over property of the estate”\nclause. The legislative history reveals that, as originally\nenacted in 1978, Section 362(a)(3) only stayed “any act to\nobtain possession of property of the estate or of property from\nthe estate.”59 Thereafter, in 1984, Congress amended Section\n362(a)(3) by inserting the “or to exercise control over\n\n\n\n\n56\n Id.\n57\n Appellant’s Br. at 13.\n58\n See Doe v. Hesketh, 828 F.3d 159, 167 (3d Cir. 2016).\n59\n Bankruptcy Reform Act of 1978, Pub. L. 95-598, § 362\n(a)(3), 92 Stat. 2549, 2570 (1978).\n\n\n\n\n 22\n\fproperty of the estate” clause.60 Congress, however, “gave no\nexplanation of its intent.”61\n\n Denby-Peterson nevertheless urges us to follow the\nSeventh Circuit’s view that “the mere fact that Congress\nexpanded the provision to prohibit conduct above and beyond\nobtaining possession of an asset suggests that it intended to\ninclude conduct by creditors who seized an asset pre-\npetition.”62 We will not do so because the legislative history\nwould be pertinent only to the extent that Congress clearly\nexpressed an intent to interpret Section 362(a)(3) contrary to\nits plain language. Here, Congress did not express any intent,\nmuch less an intent to include creditors’ passive retention of\nproperty that was seized pre-petition.63 Moreover, even\n\n60\n Bankruptcy Amendments and Federal Judgeship Act of\n1984, Pub. L. No. 98-353, § 362(a)(3), 98 Stat. 333, 371\n(1984).\n61\n In re Young, 193 B.R. 620, 623 (Bankr. D.D.C. 1996).\n62\n Thompson v. Gen. Motors Acceptance Corp., LLC, 566\nF.3d 699, 702 (7th Cir. 2009). See Fulton, 926 F.3d at 923\n(declining to overrule Thompson and reiterating that the\namendment “suggested congressional intent to make the stay\nmore inclusive by including conduct of ‘creditors who seized\nan asset pre-petition’” (quoting Thompson, 566 F.3d at 702));\nsee also Weber, 719 F.3d at 80 (describing the amendment as\na “significant textual enlargement” that supports the view that\n“Congress intended to prevent creditors from retaining\nproperty of the debtor in derogation of the bankruptcy\nprocedure . . . without regard to what party was in possession\nof the property in question when the petition was filed”).\n63\n See Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc.,\n447 U.S. 102, 108 (1980) (“Absent a clearly expressed\n\n\n\n\n 23\n\fassuming that Section 362(a)(3) is ambiguous, thereby\nwarranting consideration of legislative history, the legislative\nhistory’s silence provides no guidance regarding Congress’s\nrationale for adding the “or to exercise control over property\nof the estate” clause. Accordingly, the interpretation that\nDenby-Peterson urges us to adopt is unsupported by Section\n362(a)(3)’s legislative history as well as its statutory\nlanguage.\n\n V.\n\n We now consider Denby-Peterson’s final attempt to\novercome the plain language of Section 362(a)(3). Denby-\nPeterson asserts that Section 362’s automatic stay should be\nread in conjunction with Section 542(a)’s allegedly self-\neffectuating turnover provision. We are not persuaded.\n\n Under Section 542(a), creditors who are in possession\nof property of the estate must turn over such property to the\ndebtor “during the [Bankruptcy] case.”64 The turnover\nprovision states, in relevant part, that “an entity, other than a\ncustodian,” such as a creditor,65\n\n\n\nlegislative intention to the contrary, th[e] [statutory] language\nmust ordinarily be regarded as conclusive.”).\n64\n 11 U.S.C. § 542(a). In a Chapter 13 case, such as this case,\nthe debtor retains control over property of the estate. See id.\n§ 1306(b). Accordingly, a Chapter 13 trustee does not take\npossession or liquidate property of the estate, except with\nrespect to money collected for the purpose of making\ndistributions to creditors under a plan. See id. §§ 1302, 1303.\n65\n See id. § 101(10)(A).\n\n\n\n\n 24\n\f in possession, custody, or control, during the\n case, of property that the [debtor] may use, sell,\n or lease under section 363 . . . , or that the\n debtor may exempt under section 522 . . . shall\n deliver to the [debtor], and account for, such\n property or the value of such property, unless\n such property is of inconsequential value or\n benefit to the estate.66\n\n Denby-Peterson contends that we should join the\nmajority of our sister circuits and conclude that: (1) Section\n542(a)’s turnover provision is self-executing; (2) therefore,\nthe creditors had a mandatory duty to return the Corvette to\nDenby-Peterson upon receiving notice of the bankruptcy\nfiling; and (3) when the creditors rejected Denby-Peterson’s\ndemand for turnover, they violated the automatic stay.67 We\nrespectfully disagree with the majority. For the following\nreasons, we conclude that Denby-Peterson’s threefold\nargument is unpersuasive.\n\n A.\n\n First, in our view, Section 542(a)’s turnover provision\nis not self-executing; in other words, a creditor’s obligation to\n\n\n66\n Id. § 542(a). See id. § 1303 (providing the Chapter 13\ndebtor “the rights and powers of a trustee under sections\n363(b), 363(d), 363(e), 363(f), and 363(l)”); id. § 1306(b)\n(stating, in relevant part, that “the [Chapter 13] debtor shall\nremain in possession of all property of the estate”).\n67\n See Fulton, 926 F.3d 916; Weber, 719 F.3d 72; Del\nMission, 98 F.3d 1147; Knaus, 889 F.2d 773.\n\n\n\n\n 25\n\fturn over estate property to the debtor is not automatic.68\nRather, the turnover provision requires the debtor to bring an\nadversary proceeding in Bankruptcy Court in order to give the\nCourt the opportunity to determine whether the property is\nsubject to turnover under Section 542(a).\n\n Both the Federal Rules of Bankruptcy Procedure and\nthe text of the turnover provision support our conclusion by\ndemonstrating that the debtor’s right to turnover is subject to\nsubstantive and procedural requirements that must be\nevaluated by the Bankruptcy Court.69 It is only after the\nBankruptcy Court determines whether those requirements are\nmet that the debtor’s right to turnover is triggered.\n\n i.\n\n We start with the procedure behind turnover. Denby-\nPeterson argues that a creditor’s duty to turn over collateral is\nautomatically triggered when a creditor receives notice of the\nbankruptcy petition. In other words, procedurally, says\n\n68\n But see Fulton, 926 F.3d at 924 (reaffirming that Section\n362(a)(3) “becomes effective immediately upon filing the\npetition and is not dependent on the debtor first bringing a\nturnover action”); Weber, 719 F.3d at 79 (“Section 542\nrequires that any entity in possession of property of the estate\ndeliver it to the trustees, without condition or any further\naction: the provision is self-executing.” (internal quotation\nmarks omitted)).\n69\n See 4 Norton Bankr. L. & Prac. 3d § 62:3 (2019) (stating\nthat “several [Bankruptcy] Code provisions play a role in\ndetermining whether a turnover will be ordered pursuant to\nCode § 542(a)”).\n\n\n\n\n 26\n\fDenby-Peterson, all the debtor must do to initiate turnover is\nfile a bankruptcy petition and notify the creditor of the filing.\nHowever, Federal Rule of Bankruptcy Procedure 7001(1)\nexplicitly indicates otherwise. Under that Rule, the debtor\nmust bring a request for turnover in an adversary proceeding\nbefore a Bankruptcy Court.70 Accordingly, contrary to\nDenby-Peterson’s claim, the debtor must not only file a\nbankruptcy petition, he or she must also initiate a turnover\nproceeding by (1) filing a complaint in Bankruptcy Court and\n(2) serving a creditor with a copy of the complaint.71 This\nprocedural requirement negates any possibility that a\ncreditor’s duty to turn over property is automatic.72\n\n70\n See Fed. R. Bankr. P. 7001(1) (identifying, in relevant part,\n“a proceeding to recover money or property” as an adversary\nproceeding).\n71\n “An adversary proceeding is essentially a self-contained\ntrial—still within the original bankruptcy case—in which a\npanoply of additional procedures apply,” In re Mansaray-\nRuffin, 530 F.3d 230, 234 (3d Cir. 2008)\n(citing Fed. R. Bankr. P. 7001-7087), including the\nrequirement that a complaint must be filed to commence such\na proceeding, see Fed. R. Bankr. P. 7003 (stating that Federal\nRule of Civil Procedure 3 “applies in adversary\nproceedings”).\n72\n Here, as noted by the Bankruptcy Court, Denby-Peterson\ndid not initiate an adversary proceeding. Instead, she filed a\nmotion for turnover entitled, in relevant part, “Motion for\nReturn of Repossessed Auto.” Denby-Peterson, 576 B.R. at\n69.\n\n Faced with this procedural posture, the Bankruptcy\nCourt concluded that the parties waived their right to an\n\n\n\n\n 27\n\f ii.\n\n Moreover, the plain language of the Bankruptcy\nCode’s turnover provision also shows that the provision is not\nself-effectuating. Section 542(a) provides that only property\nof the estate, as defined in Section 541, that is either (1)\n“property that the [debtor] may use, sell, or lease under\nsection 363” or (2) property “that the debtor may exempt\nunder section 522,” is subject to turnover.73 The turnover\nprovision also explicitly limits the right to turnover to estate\nproperty that (1) is in the possession, custody or control of a\ncreditor, and (2) is not “of inconsequential value or benefit to\nthe estate.”74 Thus, on its face, the turnover provision\nincludes numerous explicit conditions that must be satisfied\nbefore a property is subject to turnover.\n\n In the case before us today, Denby-Peterson asks us to\nessentially ignore Section 542(a)’s statutory prerequisites and\nfind that a creditor must immediately turn over any collateral\n\n\nadversary proceeding. See In re Village Mobile Homes, Inc.,\n947 F.2d 1282, 1283 (5th Cir. 1991) (“Compliance with the\nrequisites of an adversary proceeding may be excused by\nwaiver of the parties.”). Treating the matter as a contested\nmotion, the Court then addressed the merits of the turnover\nrequest. This difference in the procedural mechanism used to\nachieve turnover does not change our conclusion because,\nregardless of the form, a debtor must initiate a procedural\nevent before the Bankruptcy Court in order for turnover to\noccur, if applicable, under the Bankruptcy Court’s\nsupervision.\n73\n 11 U.S.C. § 542(a).\n74\n Id.\n\n\n\n\n 28\n\fthat a debtor deems to be subject to turnover. We will not do\nso. We further note that mandating creditors to automatically\nturn over any property that the debtor deems worthy of\nturnover would allow debtors to temporarily strip creditors of\ntheir rights to assert affirmative defenses such as laches,75 or\nto claim that the property is not property of the estate. While\nit is true that creditors would presumably be able to assert\nthese defenses in Bankruptcy Court after turning over the\ncollateral to the debtor, we do not read the turnover provision\nas placing the onus on creditors to surrender the collateral and\nthen immediately file a motion in Bankruptcy Court asserting\ntheir rights.\n\n In sum, in light of the plain language of Section\n542(a)’s turnover provision, and the procedural and\nsubstantive requirements underlying turnover, it would be\nillogical for us to interpret the turnover provision as imposing\nan automatic duty on creditors to turn over collateral to the\ndebtor upon learning of a bankruptcy petition. We therefore\nreject Denby-Peterson’s claim that the turnover provision is\nself-effectuating.76 Instead, we conclude that the turnover\n\n75\n See In re Mushroom Transp. Co., Inc., 382 F.3d 325, 337\n(3d Cir. 2004); see also In re Stancil, 473 B.R. 478, 484\n(Bankr. D.D.C. 2012) (“The plain language of section 542(a)\ndemonstrates that establishing inconsequential value or\nbenefit to the estate is an affirmative defense to a turnover\naction.”).\n76\n Denby-Peterson’s reliance on the Supreme Court’s decision\nin United States v. Whiting Pools, Inc. is misplaced. 462 U.S.\n198, 201 (1983). Contrary to Denby-Peterson’s claim that\nWhiting Pools implicitly supports the proposition that the\nturnover provision is self-effectuating, Whiting Pools\n\n\n\n\n 29\n\fprovision is effectuated by virtue of judicial action. The\nChapter 13 debtor must first seek court intervention, such as\nthrough an adversary proceeding, and then the Bankruptcy\n\n\n\n\nsuggests the opposite: that the turnover provision is not self-\neffectuating because adequate protection can serve as a\ncondition precedent before turnover. See 11 U.S.C. § 542(a)\n(providing that “property that the [debtor] may use, sell, or\nlease under section 363” may be subject to turnover); id.\n§ 363(e) (stating, in relevant part, that “the court, with or\nwithout a hearing, shall prohibit or condition such use, sale,\nor lease as is necessary to provide adequate protection of such\ninterest”); id. § 361 (providing examples of “adequate\nprotection”).\n\n In Whiting Pools, the Bankruptcy Court, not the\nChapter 11 debtor, ordered the creditor to turn over property\nto the debtor. 462 U.S. at 201. Moreover, it did so only “on\nthe condition that [the Chapter 11 corporate-debtor] provide\nthe [creditor] with specified [adequate] protection for its\ninterests.” Id. See id. at n.7 (“Pursuant to [Section 363(e) of\nthe Bankruptcy Code], the Bankruptcy Court set the\nfollowing conditions to protect the tax lien: [the debtor] was\nto pay the [creditor] $20,000 before the turnover occurred;\n[the debtor] also was to pay $1,000 a month until the taxes\nwere satisfied; the [creditor] was to retain its lien during this\nperiod; and if [the debtor] failed to make the payments, the\nstay was to be lifted.”). Whiting Pools thus suggests that\nturnover is required upon (1) the debtor’s filing of a motion\nfor turnover, and (2) the issuance of a court order.\n\n\n\n\n 30\n\fCourt, not the debtor, must ultimately decide whether certain\nproperty must be turned over to the debtor.77\n\n B.\n\n Additionally, we point out that our interpretation of the\nturnover provision is not changed by the turnover provision’s\nuse of the phrase “shall deliver to the [debtor].”78 As argued\nby Denby-Peterson, it may well be so that the word “shall”\nstrongly suggests that turnover is mandatory.79 However,\n\n77\n We also note that under pre-Code practice, turnover was\nnot viewed as self-effectuating. Before the Bankruptcy Code\nwas enacted, a secured creditor, who had repossessed\ncollateral pre-bankruptcy, retained possession pending the\nBankruptcy Court’s entry of a turnover order, see Ralph\nBrubaker, Turnover, Adequate Protection, and the Automatic\nStay (Part I): Origins and Evolution of the Turnover Power,\n33 Bankr. L. Letter No. 8, at 4-7 (Aug. 2013), and “[n]othing\nin the legislative history evinces a congressional intent to\ndepart from that [pre-Code] practice.” Whiting Pools, 462\nU.S. at 208. See In re VistaCare Grp., LLC, 678 F.3d 218,\n227-28 (3d Cir. 2012) (recognizing that “courts should be\n‘reluctant to accept arguments that would interpret the Code .\n. . to effect a major change in pre-Code practice,’ absent at\nleast some suggestion in the legislative history that such a\nchange was intended” (quoting Dewsnup v. Timm, 502 U.S.\n410, 419 (1992))).\n78\n 11 U.S.C. § 542(a).\n79\n See Alabama v. Bozeman, 533 U.S. 146, 153 (2001) (“The\nword ‘shall’ is ordinarily the language of command.” (internal\nquotation marks omitted)); Dessouki v. Att’y Gen. of United\nStates, 915 F.3d 964, 966 (3d Cir. 2019) (recognizing that\n\n\n\n\n 31\n\fturnover is mandatory only in the context of an adversary\nproceeding presided over by the Bankruptcy Court. Under\nRule 7001(1), the debtor must bring an adversary proceeding\nseeking turnover. True, the turnover provision states: “shall\ndeliver,” but the question before us is when must a creditor\ndeliver? The answer is when the Bankruptcy Court says so in\nthe context of an adversary proceeding brought under Rule\n7001(1). We view the statutory and procedural framework as:\n(1) the Chapter 13 debtor must seek court relief, such as by\ninitiating an adversary proceeding requesting turnover; (2) the\nBankruptcy Court then determines whether the property is\nsubject to turnover; and (3) if it is, in accordance with that\ndetermination, the Bankruptcy Court issues a court order\ncompelling a creditor to turn over property to the debtor.\n\n Our conclusion is further supported by the United\nStates Supreme Court’s reasoning in Citizens Bank of\nMaryland v. Strumpf.80 In that case, the Court considered the\ninterplay between the automatic stay81 and the turnover\nprovision in Section 542(b). Notably, notwithstanding the\n\n\n\n“the word ‘shall’ imposes a mandatory requirement”); see\nalso Shall, Black’s Law Dictionary (11th ed. 2019) (defining\n“shall,” in relevant part, as “[h]as a duty to; more broadly, is\nrequired to,” and characterizing that usage as “the mandatory\nsense that drafters typically intend and that courts typically\nuphold”).\n80\n 516 U.S. 16 (1995).\n81\n As relevant to Strumpf, the filing of a bankruptcy petition\nstays “the setoff of any debt owing to the debtor that arose\nbefore the commencement of the [bankruptcy] case . . .\nagainst any claim against the debtor.” 11 U.S.C. § 362(a)(7).\n\n\n\n\n 32\n\fword “shall” in that turnover provision, the Strumpf Court did\nnot interpret the provision as self-executing.\n\n Section 542(b)’s turnover provision states: “an entity\nthat owes a debt that is property of the estate . . . shall pay\nsuch debt to . . . the trustee.”82 However, an entity is excused\nfrom that obligation “to the extent that such debt may be\noffset under section 553 . . . against a claim against the\ndebtor.”83 Thus, similar to the turnover provision at issue in\nthis case, the turnover provision in subsection (b) includes the\nword “shall” as well as a defense to turnover.\n\n In Strumpf, the Supreme Court held that a bank’s\ntemporary withholding of funds in a debtor’s bank account,\npending resolution of the bank’s setoff right,84 did not violate\nthe automatic stay. In reaching that holding, the Court\nreasoned, among other things, that interpreting Section\n542(b)’s turnover provision as self-executing would\n“eviscerate” the provision’s exceptions to the duty to pay.85\nHere, we likewise decline to interpret Section 542(a)’s “shall\ndeliver” clause in a way that would disregard the provision’s\nexplicit defenses.86\n\n\n82\n Id. § 542(b) (emphasis added).\n83\n Id.\n84\n See Strumpf, 516 U.S. at 19 (“Petitioner refused to pay its\ndebt, not permanently and absolutely, but only while it sought\nrelief under § 362(d) from the automatic stay.”).\n85\n Id. at 20.\n86\n See Smith v. City of Jackson, 544 U.S. 228, 233 (2005)\n(“[W]hen Congress uses the same language in two statutes\nhaving similar purposes . . . it is appropriate to presume that\n\n\n\n\n 33\n\f C.\n\n Even assuming the turnover provision is self-\nexecuting, as pointed out by the Tenth Circuit, “there is still\nno textual link between [Section] 542 and [Section] 362.”87\nThe language of the automatic stay provision and the turnover\nprovision do not refer to each other. The absence of an\nexpress textual link between the two provisions indicates that\nthey should not be read together, so violation of the turnover\nprovision would not warrant sanctions for violation of the\nautomatic stay provision.\n\n VI.\n\n Guided by the plain language of the Bankruptcy\nCode’s automatic stay and turnover provisions, the legislative\npurpose and policy goals of the automatic stay, and the\nreasoning of the Supreme Court and our two sister circuits,\nwe hold that a creditor in possession of collateral that was\nrepossessed before a bankruptcy filing does not violate the\nautomatic stay by retaining the collateral post-bankruptcy\npetition.\n\n We will thus affirm the order of the District Court\naffirming the Bankruptcy Court’s order denying Denby-\nPeterson’s request for sanctions.\n\n\n\n\nCongress intended that text to have the same meaning in both\nstatutes.”).\n87\n Cowen, 849 F.3d at 950.\n\n\n\n\n 34\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Joy Denby-Peterson v.\\nCourt: U.S. Court of Appeals for the Third Circuit\\nDate decided: 2019-10-28\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n ______________\\n\\n No. 18-3562\\n _______________\\n\\n\\n In re: JOY DENBY-PETERSON,\\n Appellant\\n ______________\\n\\n Appeal from the United States District Court\\n for the District of New Jersey\\n (D.C. No. 1-17-cv-09985)\\n District Judge: Hon. Noel L. Hillman\\n ______________\\n\\n Argued May 23, 2019\\n ______________\\n\\nBefore: McKEE, SHWARTZ, and FUENTES, Circuit\\n Judges.\\n\\n (Filed: October 28, 2019)\\n ______________\\n\\fEllen M. McDowell [Argued]\\nDaniel Reinganum\\nMcDowell Law\\n46 West Main Street\\nP.O. Box 127\\nMaple Shade, NJ 08052\\n\\n Counsel for Appellant\\n\\nCraig Goldblatt [Argued]\\nWilmerHale\\n1875 Pennsylvania Avenue, N.W.\\nWashington, DC 20006\\n\\n Counsel for Amicus Curiae in Support of the District\\nCourt’s Judgment\\n\\n ______________\\n\\n OPINION OF THE COURT\\n ______________\\n\\nFUENTES, Circuit Judge.\\n\\n At the center of this bankruptcy appeal is “America’s\\nfirst sports car”: the Chevrolet Corvette.1 Joy Denby-Peterson\\npurchased a Chevrolet Corvette in July 2016. Several months\\nlater, the Corvette was repossessed by creditors after Denby-\\nPeterson defaulted on her car payments. Denby-Peterson\\nsubsequently filed an emergency voluntary Chapter 13\\npetition in the Bankruptcy Court for the District of New\\n\\n1\\n H.R. Res. 970, 110th Cong. (2008).\\n\\n\\n\\n\\n 2\\n\\fJersey. She then notified the creditors of the bankruptcy filing\\nand demanded that they return the Corvette to her.\\n\\n After the creditors did not comply with her demand,\\nDenby-Peterson filed a motion for turnover in the Bankruptcy\\nCourt. She sought an order (1) compelling the creditors to\\nreturn the Corvette to her, and (2) imposing sanctions for the\\ncreditors’ alleged violation of the Bankruptcy Code’s\\nautomatic stay.2 The Bankruptcy Court entered an order\\nmandating turnover of the Corvette to Denby-Peterson but\\ndenying Denby-Peterson’s request for sanctions. The\\nBankruptcy Court denied the sanctions request on the basis\\nthat the creditors did not violate the automatic stay by failing\\nto return the repossessed Corvette to Denby-Peterson upon\\nreceiving notice of the bankruptcy filing. Denby-Peterson\\nappeals from an order of the District Court affirming the\\nBankruptcy Court.\\n\\n We are now presented with an issue of first impression\\nfor our Court: whether, upon notice of the debtor’s\\nbankruptcy, a secured creditor’s failure to return collateral\\nthat was repossessed pre-bankruptcy petition is a violation of\\nthe automatic stay. We answer in the negative, and thus join\\nthe minority of our sister courts—the Tenth and D.C.\\nCircuits—in holding that a secured creditor does not have an\\naffirmative obligation under the automatic stay to return a\\ndebtor’s collateral to the bankruptcy estate immediately upon\\nnotice of the debtor’s bankruptcy because failure to return the\\ncollateral received pre-petition does not constitute “an[] act . .\\n. to exercise control over property of the estate.”3 We will\\n\\n2\\n See 11 U.S.C. §§ 362(a)(3), (k).\\n3\\n Id. § 362(a)(3).\\n\\n\\n\\n\\n 3\\n\\ftherefore affirm the order of the District Court affirming the\\nBankruptcy Court.\\n\\n I.\\n\\n A. Facts\\n\\n On July 21, 2016, Debtor Joy Denby-Peterson\\npurchased a used yellow 2008 Chevrolet Corvette from a car\\ndealership named Pine Valley Motors. To finance her\\npurchase, Denby-Peterson entered into a retail installment\\ncontract with Pine Valley Motors, which, in turn, assigned its\\nrights under the contract to its affiliate company, NU2U Auto\\nWorld.4 Under the contract, Denby-Peterson agreed to pay (1)\\na $3,000 cash down payment; (2) a deferred down payment of\\n$2,491 by August 11, 2016 to pay sales taxes and registration\\nfees to obtain permanent license plate tags; and (3) weekly\\ninstallment payments of $200 for 212 weeks. Between July\\n2016 and February 2017, Denby-Peterson made payments\\ntotaling $9,200 under the contract, including the $3,000 down\\npayment applied on the day of the sale. She never made the\\nrequired down payment of $2,491. As a result, the creditors\\nrepossessed the Corvette in February or March 2017.5 The\\n\\n4\\n For the sake of brevity, we will collectively refer to Pine\\nValley Motors and NU2U Auto World as “the creditors.”\\n5\\n The retail installment contract’s “repossession” clause\\nstates, in relevant part: “[i]f you are in default, we may take\\nthe vehicle from you after we give you any notice required by\\nlaw.” Bankr. Petition No. 17-15532-ABA, Doc. No. 17-5 at 3.\\n“Default,” in turn, is defined as including, among other\\nthings: (1) “failure to pay any installment when due”; (2)\\n“failure to perform or breach of any section of th[e] contract”;\\n\\n\\n\\n\\n 4\\n\\fCorvette was never titled or registered in Denby-Peterson’s\\nname.\\n\\n B. Bankruptcy Court Proceedings\\n\\n i. Denby-Peterson’s Chapter 13 Bankruptcy\\n Petition\\n\\n After the Corvette was repossessed, Denby-Peterson\\nfiled a voluntary petition for relief under Chapter 13 of the\\nBankruptcy Code on March 21, 2017. Under Section 362 of\\nthe Code, the filing of the petition triggered an automatic stay\\nof “any act to obtain possession of property of the estate or of\\nproperty from the estate or to exercise control over property\\nof the estate.”6\\n\\n Within two days, the creditors received notice of\\nDenby-Peterson’s bankruptcy filing. Counsel for Denby-\\nPeterson had notified them of the filing and demanded that\\nthey return the Corvette to Denby-Peterson. Counsel also\\nmaintained that the creditors’ failure to return the Corvette\\n\\n\\nand (3) “failure to obtain and maintain the insurance required\\nby th[e] contract.” Id.\\n\\n Before the Bankruptcy Court, the parties disputed the\\ndate of repossession. Denby-Peterson claimed that the\\nCorvette was repossessed on March 13, 2017, while the\\ncreditors claimed that it was repossessed one month earlier, in\\nFebruary 2017. All parties nevertheless agree that the\\nrepossession occurred before Denby-Peterson filed for\\nbankruptcy.\\n6\\n 11 U.S.C. § 362(a)(3).\\n\\n\\n\\n\\n 5\\n\\fwould result in a violation of the automatic stay. He faxed a\\nletter to the creditors which stated, in relevant part:\\n\\n BE ADVISED your failure to release the\\n vehicle to Ms. Denby-Peterson is a violation of\\n the Automatic Stay. If the vehicle has not been\\n released before 5pm today, this firm will seek\\n damages, costs, and attorneys’ fees against your\\n company for willful violations of the automatic\\n stay.7\\n\\nThe creditors did not comply with Denby-Peterson’s demand\\nand thus remained in possession of the Corvette.\\n\\n ii. Denby-Peterson’s Motion for Turnover and\\n Sanctions\\n\\n Denby-Peterson then filed a motion8 for turnover in\\nBankruptcy Court, asking the Bankruptcy Court to (1) order\\nthe creditors to return the Corvette to her, and (2) impose\\nsanctions for the creditors alleged violation of the automatic\\nstay. Denby-Peterson sought costs and attorneys’ fees for\\nfiling the motion; compensation for “non-economic\\n\\n\\n\\n\\n7\\n Bankr. Petition No. 17-15532-ABA, Doc. No. 5-3 at 3. See\\n11 U.S.C. § 362(k)(1).\\n8\\n The motion was entitled “motion for return of repossessed\\nauto and seeking sanctions against creditor for violat[ing] the\\nautomatic stay.” Bankr. Petition No. 17-15532-ABA, Doc.\\nNo. 5 (original in uppercase and bold).\\n\\n\\n\\n\\n 6\\n\\fdamages”; punitive damages; and “all other relief the Court\\ndeem[ed] just and equitable.”9\\n\\n The creditors opposed the motion. They also filed a\\nproof of claim, asserting a security interest in the Corvette in\\nthe amount of $28,773.10\\n\\n iii. The Bankruptcy Court’s Decision\\n\\n Following a two-day hearing, the Bankruptcy Court\\nissued a written decision and order granting the motion in part\\nand denying it in part. The Bankruptcy Court, inter alia,\\ngranted Denby-Peterson’s request for turnover and thus\\nordered the creditors to return the Corvette to Denby-Peterson\\nwithin seven days, but denied Denby-Peterson’s sanctions\\nrequest.\\n\\n\\n9\\n Bankr. Petition No. 17-15532-ABA, Doc. No. 5-7 at 3. See\\n11 U.S.C. § 362(k)(1) (stating, in relevant part, that “an\\nindividual injured by any willful violation of a stay . . . shall\\nrecover actual damages, including costs and attorneys’ fees,\\nand, in appropriate circumstances, may recover punitive\\ndamages”); see also In re Lansaw, 853 F.3d 657, 667 (3d Cir.\\n2017), cert. denied sub nom. Zokaites v. Lansaw, 138 S. Ct.\\n1001 (2018) (“expressly concluding that ‘actual damages’\\nunder § 362(k)(1) include damages for emotional distress\\nresulting from a willful violation of the automatic stay.”).\\n10\\n The retail installment contract’s “security interest” clause\\nprovides that (1) Denby-Peterson gave the creditors a security\\ninterest in, inter alia, the Corvette, and (2) the security\\ninterest “cover[ed] all amounts [she] owe[d].” Bankr. Petition\\nNo. 17-15532-ABA, Doc. No. 17-5 at 3.\\n\\n\\n\\n\\n 7\\n\\f The Bankruptcy Court held, inter alia, that (1) the\\ncreditors must return the Corvette under the Bankruptcy\\nCode’s turnover provision in Section 542(a),11 and (2) the\\ncreditors did not violate the automatic stay by retaining\\npossession of the Corvette upon receiving notice of the\\nbankruptcy filing. Thus, the Bankruptcy Court determined\\nthat the creditors were not liable for sanctions based on an\\nalleged violation of the automatic stay.\\n\\n In reaching its holdings, the Bankruptcy Court found\\nthat Denby-Peterson had an equitable interest in the Corvette\\nat the time of the bankruptcy filing, and therefore, the\\nCorvette was property of the estate subject to turnover.12\\n\\n Next, the Bankruptcy Court considered whether the\\ncreditors violated the automatic stay by failing to return the\\nCorvette after learning of the bankruptcy filing. It identified\\nthe split among our sister circuits on this issue, pointing out\\nthat the Second, Seventh, Eighth, and Ninth Circuits (“the\\nmajority”) have held that the Bankruptcy Code’s turnover\\nprovision requires immediate turnover of estate property that\\nwas seized pre-petition and that failure to do so violates the\\n\\n11\\n See 11 U.S.C. § 542(a) (stating, in relevant part, that “an\\nentity, other than a custodian, in possession, custody, or\\ncontrol, during the case, of property that the [debtor] may use,\\nsell, or lease under section 363 of this title . . . shall deliver to\\nthe [debtor], and account for, such property or the value of\\nsuch property, unless such property is of inconsequential\\nvalue or benefit to the estate”).\\n12\\n See id. § 541(a) (defining “property of the estate,” in\\nrelevant part, as “all legal or equitable interests of the debtor\\nin property as of the commencement of the case”).\\n\\n\\n\\n\\n 8\\n\\fautomatic stay.13 However, the Tenth and D.C. Circuits (“the\\nminority”) “have instead held that a creditor does not violate\\nthe stay in regard to property of the estate if it merely\\nmaintains the status quo.”14 The Bankruptcy Court noted that\\nthe minority was critical of the majority’s rule that Section\\n542(a)’s turnover provision “is self-effectuating” because “it\\ndoes not allow for the possibility of defenses to turnover.”15\\n\\n The Bankruptcy Court ultimately adopted the minority\\nposition, describing it as “particularly persuasive”16 and\\npointing out that “[f]rom the inception of this case there was\\nan issue regarding exactly what . . . [Denby-Peterson]’s\\ninterest in . . . [the Corvette] was.”17 Accordingly, the\\nBankruptcy Court concluded that the creditors did not violate\\nthe automatic stay by failing to turn over the Corvette to\\nDenby-Peterson “prior to adjudication of . . . [her] right to\\n\\n\\n13\\n See In re Fulton, 926 F.3d 916 (7th Cir. 2019); In re\\nWeber, 719 F.3d 72 (2d Cir. 2013); In re Del Mission Ltd., 98\\nF.3d 1147 (9th Cir. 1996); In re Knaus, 889 F.2d 773 (8th\\nCir. 1989); see also In re Rozier, 376 F.3d 1323, 1324 (11th\\nCir. 2004) (per curiam) (holding that the “district court did\\nnot err by affirming the bankruptcy court’s order holding [the\\ncreditor] in willful contempt of the automatic stay . . . by\\nrefusing to return the vehicle”).\\n14\\n In re Denby-Peterson, 576 B.R. 66, 80 (Bankr. D.N.J.\\n2017) (citing In re Cowen, 849 F.3d 943 (10th Cir. 2017);\\nUnited States v. Inslaw, Inc., 932 F.2d 1467 (D.C. Cir.\\n1991)).\\n15\\n Denby-Peterson, 576 B.R. at 82.\\n16\\n Id.\\n17\\n Id.\\n\\n\\n\\n\\n 9\\n\\fredeem the [Corvette],” and thus, sanctions were not\\nwarranted.18\\n\\n C. Denby-Peterson’s Appeal to the District Court\\n\\n Denby-Peterson appealed the Bankruptcy Court’s\\norder denying her sanctions request. Similar to the\\nBankruptcy Court, the District Court found “the minority\\nposition more persuasive.”19 The District Court thus affirmed\\nthe Bankruptcy Court’s order denying Denby-Peterson’s\\nsanctions request.20\\n\\n Denby-Peterson now appeals to our Court.21 Because\\nthe creditors are not participating in this appeal, we appointed\\n\\n\\n18\\n Id. at 83.\\n19\\n Denby-Peterson v. Nu2u Auto World, 595 B.R. 184, 190\\n(D.N.J. 2018).\\n20\\n While Denby-Peterson’s appeal to the District Court was\\npending, the Bankruptcy Court dismissed the underlying\\nbankruptcy case based on Denby-Peterson’s failure to make\\nall required pre-confirmation payments to the Trustee. Before\\naddressing the merits of the appeal, the District Court\\nconcluded that Denby-Peterson’s appeal was not mooted by\\nthe dismissal because the automatic-stay-related issue “is an\\nancillary issue not closely intertwined with the underlying\\nbankruptcy.” Denby-Peterson, 595 B.R. at 188.\\n21\\n The District Court had jurisdiction under 28 U.S.C. § 158\\n(a). We have jurisdiction under 28 U.S.C. § 158(d)(1).\\nBecause the District Court acted as an appellate court, we\\nreview its determinations de novo. In re Bocchino, 794 F.3d\\n376, 379 (3d Cir. 2015). We review the legal conclusions of\\n\\n\\n\\n\\n 10\\n\\fCraig Goldblatt as amicus curiae to defend the judgment of\\nthe District Court.22\\n II.\\n\\n On appeal, Denby-Peterson renews her argument that\\nthe creditors violated the automatic stay by not returning the\\nrepossessed Corvette upon learning of the bankruptcy filing.\\nTo provide context for the issue before us, we will discuss the\\nBankruptcy Code’s automatic stay before addressing the\\nmerits of this appeal.\\n\\n Under Section 362 of the Bankruptcy Code, entitled\\n“[a]utomatic stay,” the filing of a bankruptcy petition\\nautomatically triggers a stay.23 Of particular relevance to this\\nappeal, subsection (a)(3) provides that a bankruptcy petition\\n“operates as a stay, applicable to all entities, of . . . any act to\\n\\n\\nthe Bankruptcy Court de novo and its factual determinations\\nfor clear error. Id. at 380.\\n\\n Generally, “[t]he imposition or denial of sanctions is\\nsubject to abuse-of-discretion review.” In re Miller, 730 F.3d\\n198, 203 (3d Cir. 2013). We have not, however, addressed\\nour standard of review for the imposition or denial of\\nsanctions for violations of the automatic stay. We\\nnevertheless need not do so now given that (1) the\\nBankruptcy Court denied sanctions based on its conclusion\\nthat the creditors did not violate the automatic stay, and (2)\\nwe now hold that both the Bankruptcy Court and the District\\nCourt correctly concluded that there was no such violation.\\n22\\n We thank Mr. Goldblatt for his excellent briefing and oral\\nadvocacy in this matter.\\n23\\n 11 U.S.C. § 362.\\n\\n\\n\\n\\n 11\\n\\fobtain possession of property of the estate . . . or to exercise\\ncontrol over property of the estate.”24 Property of the\\nbankruptcy estate, in turn, generally includes “all legal or\\nequitable interests of the debtor in property as of the\\ncommencement of the case,”25 “wherever located and by\\nwhomever held.”26\\n\\n The automatic stay imposed by the Bankruptcy Code\\nhas a “twofold” purpose:\\n\\n (1) to protect the debtor, by stopping all\\n collection efforts, harassment, and foreclosure\\n actions, thereby giving the debtor a respite from\\n creditors and a chance ‘to attempt a repayment\\n or reorganization plan or simply be relieved of\\n the financial pressures that drove him [or her]\\n into bankruptcy;’ and (2) to protect ‘creditors\\n by preventing particular creditors from acting\\n unilaterally in self-interest to obtain payment\\n\\n\\n24\\n Id. § 362(a)(3). See H.R. Rep. No. 95-595, at 340 (1977)\\n(stating that “[s]ubsection (a) defines the scope of the\\nautomatic stay, by listing the acts that are stayed by the\\ncommencement of the case”).\\n25\\n 11 U.S.C. § 541(a)(1).\\n26\\n Id. § 541(a). In a Chapter 13 case, such as this case, the\\nconcept of property of the estate is broader. See id. § 1306\\n(a)(1) (providing that the Chapter 13 estate includes, in\\naddition to the property specified in Section 541, property\\n“that the debtor acquires after the commencement of the\\nbankruptcy case” but before the case is either closed,\\ndismissed, or converted).\\n\\n\\n\\n\\n 12\\n\\f from a debtor to the detriment of other\\n creditors.’27\\n\\nIn furtherance of the automatic stay’s overarching purpose,\\nSection 362(a)(3) “prevent[s] dismemberment of the estate,”\\nand enables an “orderly” distribution of the debtor’s assets.28\\n\\n The consequences for willful violations of the\\nautomatic stay are set forth in Section 362(k) which provides\\nthat, subject to one exception, “an individual injured by any\\nwillful violation” of the automatic stay is entitled to “actual\\ndamages, including costs and attorneys’ fees, and, in\\nappropriate circumstances, may recover punitive damages.”29\\nWe have explained that “[i]t is a willful violation of the\\nautomatic stay when a creditor violates the stay with\\nknowledge that the bankruptcy petition has been filed.\\nWillfulness does not require that the creditor intend to violate\\n\\n\\n\\n\\n27\\n Constitution Bank v. Tubbs, 68 F.3d 685, 691 (3d Cir.\\n1995) (quoting Maritime Elec. Co. v. United Jersey Bank, 959\\nF.2d 1194, 1204 (3d Cir. 1991)). See Taggart v. Lorenzen,\\n139 S. Ct. 1795, 1804 (2019) (explaining that the automatic\\nstay “aims to prevent damaging disruptions to the\\nadministration of a bankruptcy case in the short run”); Inslaw,\\n932 F.2d at 1473 (“The object of the automatic stay provision\\nis essentially to solve a collective action problem—to make\\nsure that creditors do not destroy the bankrupt estate in their\\nscramble for relief.”).\\n28\\n H.R. Rep. No. 95-595, at 341.\\n29\\n 11 U.S.C. § 362(k)(1). See id. § 362(k)(2) (providing a\\n“good faith” exception to Section 362(k)(1)).\\n\\n\\n\\n\\n 13\\n\\fthe automatic stay provision, rather it requires that the acts\\nwhich violate the stay be intentional.”30\\n\\n III.\\n\\n With the foregoing statutory background in mind, we\\nnow turn our attention to the issue of first impression before\\nour Court: whether, upon receiving notice of a bankruptcy\\npetition, a secured creditor violates the automatic stay by\\nmaintaining possession of collateral that it lawfully\\nrepossessed pre-petition. Specifically, we must decide\\nwhether the creditors’ failure to return the Corvette to Denby-\\nPeterson upon learning of her bankruptcy filing was a\\nviolation of the automatic stay.31\\n\\n As we previously acknowledged, there is a circuit split\\non this issue, which we have not yet joined. Under the\\nmajority position, held by the Second, Seventh, Eighth, Ninth,\\nand Eleventh Circuits, a secured creditor, upon learning of the\\nbankruptcy filing, must return the collateral to the debtor and\\nfailure to do so violates the automatic stay.32 However, both\\nthe Tenth and D.C. Circuits disagree with the majority’s\\n\\n\\n30\\n In re Lansdale Family Rests., Inc., 977 F.2d 826, 829 (3d\\nCir. 1992) (internal citations omitted).\\n31\\n It is undisputed here that the creditors repossessed the\\nCorvette before Denby-Peterson had filed for bankruptcy and\\nthat the Corvette was property of Denby-Peterson’s\\nbankruptcy estate.\\n32\\n See Fulton, 926 F.3d 916; Weber, 719 F.3d 72; Del\\nMission, 98 F.3d 1147; Knaus, 889 F.2d 773; Rozier, 376\\nF.3d 1323.\\n\\n\\n\\n\\n 14\\n\\finterpretation of the automatic stay provision.33 Under their\\nview, a secured creditor is not obligated to return the\\ncollateral to the debtor until the debtor obtains a court order\\nfrom the Bankruptcy Court requiring the creditor to do so.\\nThus, according to the minority, a creditor does not violate\\nthe automatic stay by retaining possession of the collateral\\nafter being notified of the bankruptcy filing.\\n\\n Here, Denby-Peterson urges us to adopt the view of\\nthe majority of our sister circuits, advancing two theories in\\nsupport of her position that the creditors violated the\\nautomatic stay. First, she maintains that the creditors’ failure\\nto return the Corvette violated the plain language of Section\\n362(a)(3)’s automatic stay provision by being “an[] act . . . to\\nexercise control over property of the estate.”34 Second,\\nDenby-Peterson asserts that Section 362(a)(3)’s automatic\\nstay provision and Section 542(a)’s turnover provision\\noperate together such that a violation of the turnover\\nprovision results in a violation of the automatic stay. Thus,\\naccording to Denby-Peterson, the creditors were required to\\nimmediately turn over the Corvette, and by not doing so, they\\nviolated the automatic stay. For the reasons that follow, we\\nare not persuaded by those arguments and thus hold that the\\ncreditors in this case did not violate the automatic stay. In so\\nholding, we join the minority of our sister circuits.\\n\\n\\n\\n\\n33\\n See Cowen, 849 F.3d 943; Inslaw, 932 F.2d 1467.\\n34\\n 11 U.S.C. § 362(a)(3).\\n\\n\\n\\n\\n 15\\n\\f IV.\\n\\n A.\\n\\n We begin our interpretation of Section 362(a)(3) of the\\nBankruptcy Code “where all such inquiries must begin: with\\nthe language of the statute itself.”35\\n\\n In examining the Bankruptcy Code, we are not “guided\\nby a single sentence or member of a sentence, but look to the\\nprovisions of the whole law, and to its object and policy.”36\\nThus, to determine the plainness or ambiguity of Section\\n362(a)(3)’s statutory language, in addition to considering the\\nstatutory language itself, we may also engage in “a studied\\nexamination of the statutory context.”37 If we ultimately\\ndetermine that a provision “is clear and unambiguous, [we]\\n\\n\\n35\\n Ransom v. FIA Card Servs., N.A., 562 U.S. 61, 69 (2011)\\n(internal quotation marks omitted).\\n36\\n Kelly v. Robinson, 479 U.S. 36, 43 (1986) (internal\\nquotation marks omitted). See In re Price, 370 F.3d 362, 369\\n(3d Cir. 2004) (emphasizing that “in interpreting the\\nBankruptcy Code, the Supreme Court has been reluctant to\\ndeclare its provisions ambiguous, preferring instead to take a\\nbroader, contextual view”); Official Comm. of Unsecured\\nCreditors of Cybergenics Corp., ex rel. Cybergenics Corp. v.\\nChinery, 330 F.3d 548, 559 (3d Cir. 2003) (“Statutory\\nconstruction is a holistic endeavor, and this is especially true\\nof the Bankruptcy Code.” (quotation marks, alterations and\\ncitations omitted)).\\n37\\n Price, 370 F.3d at 369.\\n\\n\\n\\n\\n 16\\n\\fmust simply apply it.”38 However, if we find that a provision\\nis ambiguous,39 “we then turn to pre-Code practice and\\nlegislative history to find meaning.”40\\n\\n With these principles of construction in mind, we will\\nnow examine the language of Section 362(a)(3). To reiterate,\\nSection 362(a)(3) provides, in relevant part, that the filing of\\na bankruptcy petition “operates as a stay . . . of . . . any act to .\\n. . exercise control over property of the estate.”41 According\\nto Denby-Peterson, under the plain language of the automatic\\nstay, a creditor who does not turn over property of the estate\\nafter a debtor demands its return exercises control over that\\nproperty, thereby violating the automatic stay. While we\\nagree that Section 362(a)(3) is unambiguous, we decline to\\nhold that a plain reading of that Section compels the\\nconclusion that the creditors in this case violated the\\nautomatic stay by failing to turn over the Corvette to Denby-\\nPeterson.\\n\\n The operative terms and phrases of Section 362(a)(3)\\nare “stay,” “act,” and “exercise control.” Because the\\n\\n\\n\\n\\n38\\n In re KB Toys Inc., 736 F.3d 247, 251 (3d Cir. 2013) (citing\\nRoth v. Norfalco L.L.C., 651 F.3d 367, 379 (3d Cir. 2011)).\\n39\\n See Price, 370 F.3d at 369 (explaining that “a provision is\\nambiguous when, despite a studied examination of the\\nstatutory context, the natural reading of a provision remains\\nelusive”).\\n40\\n In re Friedman’s Inc., 738 F.3d 547, 554 (3d Cir. 2013).\\n41\\n 11 U.S.C. § 362(a)(3).\\n\\n\\n\\n\\n 17\\n\\fBankruptcy Code does not define them, we must look to their\\nordinary meanings.42\\n\\n We start with the meaning of the word “stay.” Black’s\\nLaw Dictionary defines “stay” as “[t]he postponement or\\nhalting of a proceeding, judgment, or the like” or “[a]n order\\nto suspend all or part of a judicial proceeding or a judgment\\nresulting from that proceeding.”43 Moreover, Webster’s Third\\nNew International Dictionary defines “stay” as a noun (as it\\nis used in Section 362) as: (1) “a bringing to a stop,” (2) “the\\naction of halting,” and (3) “the state of being stopped.”44\\n\\n Next, the noun “act” means, among other things,\\n“[s]omething done; the action or process of achieving this.”45\\nBlack’s Law Dictionary similarly defines “act,” in relevant\\n\\n\\n42\\n See Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct.\\n1752, 1759 (2018).\\n43\\n Stay, Black’s Law Dictionary (11th ed. 2019). Black’s Law\\nDictionary further defines “automatic stay” as “[a] bar to all\\njudicial and extrajudicial collection efforts against the debtor\\nor the debtor’s property, subject to specific statutory\\nexceptions.” Id.\\n44\\n Webster’s Third New International Dictionary 2231\\n(1993); see Stay, Oxford English Dictionary Online,\\nhttps://www.oed.com/view/Entry/189408?rskey=uCJBz6&\\nresult=3&isAdvanced=false (including, among its definitions\\nof “stay,” “[t]he action of stopping or bringing to a stand or\\npause”) (last visited Aug. 15, 2019).\\n45\\n Act, Oxford English Dictionary Online,\\nhttps://www.oed.com/view/Entry/1888?rskey=eprROF&\\nresult=4 (last visited Aug. 15, 2019).\\n\\n\\n\\n\\n 18\\n\\fpart, as “[s]omething done or performed,” or “[t]he process of\\ndoing or performing.”46\\n\\n Finally, as to the phrase “exercise control,” we will\\nseparately consider the verb “exercise” and the noun\\n“control.” The relevant definition of “exercise” is “[t]o put in\\naction or motion.”47 Webster’s Third New International\\nDictionary also defines “exercise,” in relevant part, as “to . . .\\nmake effective in action.”48 Additionally, “control,” as a\\nnoun, means, among other things, “[t]he fact or power of\\ndirecting and regulating the actions of people or things;\\ndirection, management; command.”49\\n\\n From these definitions, we gather that Section\\n362(a)(3) prohibits creditors from taking any affirmative act\\nto exercise control over property of the estate. As correctly\\npointed out by the District Court, the statutory language “is\\nprospective in nature . . . the exercise of control is not stayed,\\n\\n46\\n Act, Black’s Law Dictionary (11th ed. 2019).\\n47\\n Exercise, Oxford English Dictionary Online,\\nhttps://www.oed.com/view/Entry/66089?rskey=QNVdyF&\\nresult=2&isAdvanced=false (last visited Aug. 15, 2019); see\\nExercise, Black’s Law Dictionary (11th ed. 2019) (describing\\n“exercise” as meaning, in relevant part, “[t]o make use of; to\\nput into action”).\\n48\\n Webster’s Third New International Dictionary 795.\\n49\\n Control, Oxford English Dictionary Online,\\nhttps://www.oed.com/view/Entry/40562?rskey=qZlHZj&\\nresult=1 (last visited Aug. 15, 2019); see Control, Black’s\\nLaw Dictionary (11th ed. 2019) (identifying “the power or\\nauthority to manage, direct, or oversee” as one of the\\ndefinitions of “control”).\\n\\n\\n\\n\\n 19\\n\\fbut the act to exercise control is stayed.”50 Therefore, we\\nagree with the minority position held by two of our sister\\ncourts—the text of Section 362(a)(3) requires a post-petition\\naffirmative act to exercise control over property of the\\nestate.51\\n B.\\n\\n Here, a post-petition affirmative act to exercise control\\nover the Corvette is not present. The creditors repossessed the\\nCorvette before Denby-Peterson had filed for bankruptcy.\\nAccordingly, pre-bankruptcy petition, the creditors had\\npossession and control of the Corvette, and post-bankruptcy\\npetition, the creditors merely passively retained that same\\npossession and control. Although the creditors exercised\\ncontrol over the Corvette by keeping it in their possession\\nafter learning of the bankruptcy filing, the requisite post-\\npetition affirmative “act . . . to exercise control over” the\\nCorvette is not present in this case.52 An application of the\\nplain language of the statute to the facts of this case thus\\nshows that the creditors did not violate the automatic stay.53\\n\\n50\\n Denby-Peterson, 595 B.R. at 190.\\n51\\n See Cowen, 849 F.3d at 949 (concluding that Section\\n362(a)(3) “stays entities from doing something to . . . exercise\\ncontrol over the estate’s property”); Inslaw, 932 F.2d at 1474\\n(“The automatic stay, as its name suggests, serves as a\\nrestraint only on acts to gain possession or control over\\nproperty of the estate.”).\\n52\\n 11 U.S.C. § 362(a)(3).\\n53\\n Denby-Peterson’s characterization of the creditors’ post-\\npetition behavior as a refusal to return the Corvette upon\\nrequest does not alter our conclusion. A creditor’s refusal to\\ncomply with a debtor’s turnover request is not an affirmative\\n\\n\\n\\n\\n 20\\n\\f Our conclusion is bolstered by the legislative purpose\\nand underlying policy goals of the automatic stay. It is well-\\nestablished that one of the automatic stay’s primary purposes\\nis “‘to maintain the status quo between the debtor and [his]\\ncreditors, thereby affording the parties and the [Bankruptcy]\\nCourt an opportunity to appropriately resolve competing\\neconomic interests in an orderly and effective way.’”54 Here,\\nthe creditors had possession of the Corvette both before and\\nafter the bankruptcy filing. Thus, by keeping possession of\\nthe Corvette after learning of the bankruptcy filing, the\\ncreditors preserved the pre-petition status quo. To hold that\\nsuch a retention of possession violates the automatic stay\\nwould directly contravene the status-quo aims of the\\nautomatic stay.\\n\\n In sum, the plain language of the automatic stay\\nprovision in Section 362(a)(3) and the automatic stay’s\\nlegislative purpose indicate that Congress did not intend\\npassive retention to qualify as “an act to . . . exercise control\\nover property of the estate.”55 In light of our interpretation of\\nSection 362(a)(3), we thus hold that the creditors did not\\n\\n\\n\\nact; rather, it is inaction. Denby-Peterson’s attempt to reframe\\ncreditors’ failure to act as an affirmative act is unavailing as it\\ndoes not alter the passive nature of the creditors’ post-petition\\nrole in relation to the Corvette. See Nat’l Fed’n of Indep. Bus.\\nv. Sebelius, 567 U.S. 519, 555 (2012) (recognizing “the\\ndistinction between doing something and doing nothing”).\\n54\\n Taylor v. Slick, 178 F.3d 698, 702 (3d Cir. 1999) (quoting\\nZeoli v. RIHT Mortg. Corp., 148 B.R. 698, 700 (D.N.H.\\n1993)) (emphasis and alteration in original).\\n55\\n 11 U.S.C. § 362(a)(3).\\n\\n\\n\\n\\n 21\\n\\fengage in a post-petition “act to . . . exercise control” over the\\nCorvette and thus did not violate the automatic stay. 56\\n\\n C.\\n\\n Denby-Peterson, on the other hand, disregards the\\nautomatic stay’s legislative purpose and instead relies on\\nSection 362(a)(3)’s scarce legislative history to support her\\nposition. She maintains that her “plain language reading of\\nSection 362 is bolstered by the 1984 Amendments to the\\nBankruptcy Code.”57 We disagree.\\n\\n Given Section 362(a)(3)’s unambiguous text, we need\\nnot resort to legislative history to uncover its meaning.58 In\\nany event, we point out that the relevant legislative history\\nfails to shed light on Congress’s intent behind the 1984\\naddition of the “exercise control over property of the estate”\\nclause. The legislative history reveals that, as originally\\nenacted in 1978, Section 362(a)(3) only stayed “any act to\\nobtain possession of property of the estate or of property from\\nthe estate.”59 Thereafter, in 1984, Congress amended Section\\n362(a)(3) by inserting the “or to exercise control over\\n\\n\\n\\n\\n56\\n Id.\\n57\\n Appellant’s Br. at 13.\\n58\\n See Doe v. Hesketh, 828 F.3d 159, 167 (3d Cir. 2016).\\n59\\n Bankruptcy Reform Act of 1978, Pub. L. 95-598, § 362\\n(a)(3), 92 Stat. 2549, 2570 (1978).\\n\\n\\n\\n\\n 22\\n\\fproperty of the estate” clause.60 Congress, however, “gave no\\nexplanation of its intent.”61\\n\\n Denby-Peterson nevertheless urges us to follow the\\nSeventh Circuit’s view that “the mere fact that Congress\\nexpanded the provision to prohibit conduct above and beyond\\nobtaining possession of an asset suggests that it intended to\\ninclude conduct by creditors who seized an asset pre-\\npetition.”62 We will not do so because the legislative history\\nwould be pertinent only to the extent that Congress clearly\\nexpressed an intent to interpret Section 362(a)(3) contrary to\\nits plain language. Here, Congress did not express any intent,\\nmuch less an intent to include creditors’ passive retention of\\nproperty that was seized pre-petition.63 Moreover, even\\n\\n60\\n Bankruptcy Amendments and Federal Judgeship Act of\\n1984, Pub. L. No. 98-353, § 362(a)(3), 98 Stat. 333, 371\\n(1984).\\n61\\n In re Young, 193 B.R. 620, 623 (Bankr. D.D.C. 1996).\\n62\\n Thompson v. Gen. Motors Acceptance Corp., LLC, 566\\nF.3d 699, 702 (7th Cir. 2009). See Fulton, 926 F.3d at 923\\n(declining to overrule Thompson and reiterating that the\\namendment “suggested congressional intent to make the stay\\nmore inclusive by including conduct of ‘creditors who seized\\nan asset pre-petition’” (quoting Thompson, 566 F.3d at 702));\\nsee also Weber, 719 F.3d at 80 (describing the amendment as\\na “significant textual enlargement” that supports the view that\\n“Congress intended to prevent creditors from retaining\\nproperty of the debtor in derogation of the bankruptcy\\nprocedure . . . without regard to what party was in possession\\nof the property in question when the petition was filed”).\\n63\\n See Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc.,\\n447 U.S. 102, 108 (1980) (“Absent a clearly expressed\\n\\n\\n\\n\\n 23\\n\\fassuming that Section 362(a)(3) is ambiguous, thereby\\nwarranting consideration of legislative history, the legislative\\nhistory’s silence provides no guidance regarding Congress’s\\nrationale for adding the “or to exercise control over property\\nof the estate” clause. Accordingly, the interpretation that\\nDenby-Peterson urges us to adopt is unsupported by Section\\n362(a)(3)’s legislative history as well as its statutory\\nlanguage.\\n\\n V.\\n\\n We now consider Denby-Peterson’s final attempt to\\novercome the plain language of Section 362(a)(3). Denby-\\nPeterson asserts that Section 362’s automatic stay should be\\nread in conjunction with Section 542(a)’s allegedly self-\\neffectuating turnover provision. We are not persuaded.\\n\\n Under Section 542(a), creditors who are in possession\\nof property of the estate must turn over such property to the\\ndebtor “during the [Bankruptcy] case.”64 The turnover\\nprovision states, in relevant part, that “an entity, other than a\\ncustodian,” such as a creditor,65\\n\\n\\n\\nlegislative intention to the contrary, th[e] [statutory] language\\nmust ordinarily be regarded as conclusive.”).\\n64\\n 11 U.S.C. § 542(a). In a Chapter 13 case, such as this case,\\nthe debtor retains control over property of the estate. See id.\\n§ 1306(b). Accordingly, a Chapter 13 trustee does not take\\npossession or liquidate property of the estate, except with\\nrespect to money collected for the purpose of making\\ndistributions to creditors under a plan. See id. §§ 1302, 1303.\\n65\\n See id. § 101(10)(A).\\n\\n\\n\\n\\n 24\\n\\f in possession, custody, or control, during the\\n case, of property that the [debtor] may use, sell,\\n or lease under section 363 . . . , or that the\\n debtor may exempt under section 522 . . . shall\\n deliver to the [debtor], and account for, such\\n property or the value of such property, unless\\n such property is of inconsequential value or\\n benefit to the estate.66\\n\\n Denby-Peterson contends that we should join the\\nmajority of our sister circuits and conclude that: (1) Section\\n542(a)’s turnover provision is self-executing; (2) therefore,\\nthe creditors had a mandatory duty to return the Corvette to\\nDenby-Peterson upon receiving notice of the bankruptcy\\nfiling; and (3) when the creditors rejected Denby-Peterson’s\\ndemand for turnover, they violated the automatic stay.67 We\\nrespectfully disagree with the majority. For the following\\nreasons, we conclude that Denby-Peterson’s threefold\\nargument is unpersuasive.\\n\\n A.\\n\\n First, in our view, Section 542(a)’s turnover provision\\nis not self-executing; in other words, a creditor’s obligation to\\n\\n\\n66\\n Id. § 542(a). See id. § 1303 (providing the Chapter 13\\ndebtor “the rights and powers of a trustee under sections\\n363(b), 363(d), 363(e), 363(f), and 363(l)”); id. § 1306(b)\\n(stating, in relevant part, that “the [Chapter 13] debtor shall\\nremain in possession of all property of the estate”).\\n67\\n See Fulton, 926 F.3d 916; Weber, 719 F.3d 72; Del\\nMission, 98 F.3d 1147; Knaus, 889 F.2d 773.\\n\\n\\n\\n\\n 25\\n\\fturn over estate property to the debtor is not automatic.68\\nRather, the turnover provision requires the debtor to bring an\\nadversary proceeding in Bankruptcy Court in order to give the\\nCourt the opportunity to determine whether the property is\\nsubject to turnover under Section 542(a).\\n\\n Both the Federal Rules of Bankruptcy Procedure and\\nthe text of the turnover provision support our conclusion by\\ndemonstrating that the debtor’s right to turnover is subject to\\nsubstantive and procedural requirements that must be\\nevaluated by the Bankruptcy Court.69 It is only after the\\nBankruptcy Court determines whether those requirements are\\nmet that the debtor’s right to turnover is triggered.\\n\\n i.\\n\\n We start with the procedure behind turnover. Denby-\\nPeterson argues that a creditor’s duty to turn over collateral is\\nautomatically triggered when a creditor receives notice of the\\nbankruptcy petition. In other words, procedurally, says\\n\\n68\\n But see Fulton, 926 F.3d at 924 (reaffirming that Section\\n362(a)(3) “becomes effective immediately upon filing the\\npetition and is not dependent on the debtor first bringing a\\nturnover action”); Weber, 719 F.3d at 79 (“Section 542\\nrequires that any entity in possession of property of the estate\\ndeliver it to the trustees, without condition or any further\\naction: the provision is self-executing.” (internal quotation\\nmarks omitted)).\\n69\\n See 4 Norton Bankr. L. & Prac. 3d § 62:3 (2019) (stating\\nthat “several [Bankruptcy] Code provisions play a role in\\ndetermining whether a turnover will be ordered pursuant to\\nCode § 542(a)”).\\n\\n\\n\\n\\n 26\\n\\fDenby-Peterson, all the debtor must do to initiate turnover is\\nfile a bankruptcy petition and notify the creditor of the filing.\\nHowever, Federal Rule of Bankruptcy Procedure 7001(1)\\nexplicitly indicates otherwise. Under that Rule, the debtor\\nmust bring a request for turnover in an adversary proceeding\\nbefore a Bankruptcy Court.70 Accordingly, contrary to\\nDenby-Peterson’s claim, the debtor must not only file a\\nbankruptcy petition, he or she must also initiate a turnover\\nproceeding by (1) filing a complaint in Bankruptcy Court and\\n(2) serving a creditor with a copy of the complaint.71 This\\nprocedural requirement negates any possibility that a\\ncreditor’s duty to turn over property is automatic.72\\n\\n70\\n See Fed. R. Bankr. P. 7001(1) (identifying, in relevant part,\\n“a proceeding to recover money or property” as an adversary\\nproceeding).\\n71\\n “An adversary proceeding is essentially a self-contained\\ntrial—still within the original bankruptcy case—in which a\\npanoply of additional procedures apply,” In re Mansaray-\\nRuffin, 530 F.3d 230, 234 (3d Cir. 2008)\\n(citing Fed. R. Bankr. P. 7001-7087), including the\\nrequirement that a complaint must be filed to commence such\\na proceeding, see Fed. R. Bankr. P. 7003 (stating that Federal\\nRule of Civil Procedure 3 “applies in adversary\\nproceedings”).\\n72\\n Here, as noted by the Bankruptcy Court, Denby-Peterson\\ndid not initiate an adversary proceeding. Instead, she filed a\\nmotion for turnover entitled, in relevant part, “Motion for\\nReturn of Repossessed Auto.” Denby-Peterson, 576 B.R. at\\n69.\\n\\n Faced with this procedural posture, the Bankruptcy\\nCourt concluded that the parties waived their right to an\\n\\n\\n\\n\\n 27\\n\\f ii.\\n\\n Moreover, the plain language of the Bankruptcy\\nCode’s turnover provision also shows that the provision is not\\nself-effectuating. Section 542(a) provides that only property\\nof the estate, as defined in Section 541, that is either (1)\\n“property that the [debtor] may use, sell, or lease under\\nsection 363” or (2) property “that the debtor may exempt\\nunder section 522,” is subject to turnover.73 The turnover\\nprovision also explicitly limits the right to turnover to estate\\nproperty that (1) is in the possession, custody or control of a\\ncreditor, and (2) is not “of inconsequential value or benefit to\\nthe estate.”74 Thus, on its face, the turnover provision\\nincludes numerous explicit conditions that must be satisfied\\nbefore a property is subject to turnover.\\n\\n In the case before us today, Denby-Peterson asks us to\\nessentially ignore Section 542(a)’s statutory prerequisites and\\nfind that a creditor must immediately turn over any collateral\\n\\n\\nadversary proceeding. See In re Village Mobile Homes, Inc.,\\n947 F.2d 1282, 1283 (5th Cir. 1991) (“Compliance with the\\nrequisites of an adversary proceeding may be excused by\\nwaiver of the parties.”). Treating the matter as a contested\\nmotion, the Court then addressed the merits of the turnover\\nrequest. This difference in the procedural mechanism used to\\nachieve turnover does not change our conclusion because,\\nregardless of the form, a debtor must initiate a procedural\\nevent before the Bankruptcy Court in order for turnover to\\noccur, if applicable, under the Bankruptcy Court’s\\nsupervision.\\n73\\n 11 U.S.C. § 542(a).\\n74\\n Id.\\n\\n\\n\\n\\n 28\\n\\fthat a debtor deems to be subject to turnover. We will not do\\nso. We further note that mandating creditors to automatically\\nturn over any property that the debtor deems worthy of\\nturnover would allow debtors to temporarily strip creditors of\\ntheir rights to assert affirmative defenses such as laches,75 or\\nto claim that the property is not property of the estate. While\\nit is true that creditors would presumably be able to assert\\nthese defenses in Bankruptcy Court after turning over the\\ncollateral to the debtor, we do not read the turnover provision\\nas placing the onus on creditors to surrender the collateral and\\nthen immediately file a motion in Bankruptcy Court asserting\\ntheir rights.\\n\\n In sum, in light of the plain language of Section\\n542(a)’s turnover provision, and the procedural and\\nsubstantive requirements underlying turnover, it would be\\nillogical for us to interpret the turnover provision as imposing\\nan automatic duty on creditors to turn over collateral to the\\ndebtor upon learning of a bankruptcy petition. We therefore\\nreject Denby-Peterson’s claim that the turnover provision is\\nself-effectuating.76 Instead, we conclude that the turnover\\n\\n75\\n See In re Mushroom Transp. Co., Inc., 382 F.3d 325, 337\\n(3d Cir. 2004); see also In re Stancil, 473 B.R. 478, 484\\n(Bankr. D.D.C. 2012) (“The plain language of section 542(a)\\ndemonstrates that establishing inconsequential value or\\nbenefit to the estate is an affirmative defense to a turnover\\naction.”).\\n76\\n Denby-Peterson’s reliance on the Supreme Court’s decision\\nin United States v. Whiting Pools, Inc. is misplaced. 462 U.S.\\n198, 201 (1983). Contrary to Denby-Peterson’s claim that\\nWhiting Pools implicitly supports the proposition that the\\nturnover provision is self-effectuating, Whiting Pools\\n\\n\\n\\n\\n 29\\n\\fprovision is effectuated by virtue of judicial action. The\\nChapter 13 debtor must first seek court intervention, such as\\nthrough an adversary proceeding, and then the Bankruptcy\\n\\n\\n\\n\\nsuggests the opposite: that the turnover provision is not self-\\neffectuating because adequate protection can serve as a\\ncondition precedent before turnover. See 11 U.S.C. § 542(a)\\n(providing that “property that the [debtor] may use, sell, or\\nlease under section 363” may be subject to turnover); id.\\n§ 363(e) (stating, in relevant part, that “the court, with or\\nwithout a hearing, shall prohibit or condition such use, sale,\\nor lease as is necessary to provide adequate protection of such\\ninterest”); id. § 361 (providing examples of “adequate\\nprotection”).\\n\\n In Whiting Pools, the Bankruptcy Court, not the\\nChapter 11 debtor, ordered the creditor to turn over property\\nto the debtor. 462 U.S. at 201. Moreover, it did so only “on\\nthe condition that [the Chapter 11 corporate-debtor] provide\\nthe [creditor] with specified [adequate] protection for its\\ninterests.” Id. See id. at n.7 (“Pursuant to [Section 363(e) of\\nthe Bankruptcy Code], the Bankruptcy Court set the\\nfollowing conditions to protect the tax lien: [the debtor] was\\nto pay the [creditor] $20,000 before the turnover occurred;\\n[the debtor] also was to pay $1,000 a month until the taxes\\nwere satisfied; the [creditor] was to retain its lien during this\\nperiod; and if [the debtor] failed to make the payments, the\\nstay was to be lifted.”). Whiting Pools thus suggests that\\nturnover is required upon (1) the debtor’s filing of a motion\\nfor turnover, and (2) the issuance of a court order.\\n\\n\\n\\n\\n 30\\n\\fCourt, not the debtor, must ultimately decide whether certain\\nproperty must be turned over to the debtor.77\\n\\n B.\\n\\n Additionally, we point out that our interpretation of the\\nturnover provision is not changed by the turnover provision’s\\nuse of the phrase “shall deliver to the [debtor].”78 As argued\\nby Denby-Peterson, it may well be so that the word “shall”\\nstrongly suggests that turnover is mandatory.79 However,\\n\\n77\\n We also note that under pre-Code practice, turnover was\\nnot viewed as self-effectuating. Before the Bankruptcy Code\\nwas enacted, a secured creditor, who had repossessed\\ncollateral pre-bankruptcy, retained possession pending the\\nBankruptcy Court’s entry of a turnover order, see Ralph\\nBrubaker, Turnover, Adequate Protection, and the Automatic\\nStay (Part I): Origins and Evolution of the Turnover Power,\\n33 Bankr. L. Letter No. 8, at 4-7 (Aug. 2013), and “[n]othing\\nin the legislative history evinces a congressional intent to\\ndepart from that [pre-Code] practice.” Whiting Pools, 462\\nU.S. at 208. See In re VistaCare Grp., LLC, 678 F.3d 218,\\n227-28 (3d Cir. 2012) (recognizing that “courts should be\\n‘reluctant to accept arguments that would interpret the Code .\\n. . to effect a major change in pre-Code practice,’ absent at\\nleast some suggestion in the legislative history that such a\\nchange was intended” (quoting Dewsnup v. Timm, 502 U.S.\\n410, 419 (1992))).\\n78\\n 11 U.S.C. § 542(a).\\n79\\n See Alabama v. Bozeman, 533 U.S. 146, 153 (2001) (“The\\nword ‘shall’ is ordinarily the language of command.” (internal\\nquotation marks omitted)); Dessouki v. Att’y Gen. of United\\nStates, 915 F.3d 964, 966 (3d Cir. 2019) (recognizing that\\n\\n\\n\\n\\n 31\\n\\fturnover is mandatory only in the context of an adversary\\nproceeding presided over by the Bankruptcy Court. Under\\nRule 7001(1), the debtor must bring an adversary proceeding\\nseeking turnover. True, the turnover provision states: “shall\\ndeliver,” but the question before us is when must a creditor\\ndeliver? The answer is when the Bankruptcy Court says so in\\nthe context of an adversary proceeding brought under Rule\\n7001(1). We view the statutory and procedural framework as:\\n(1) the Chapter 13 debtor must seek court relief, such as by\\ninitiating an adversary proceeding requesting turnover; (2) the\\nBankruptcy Court then determines whether the property is\\nsubject to turnover; and (3) if it is, in accordance with that\\ndetermination, the Bankruptcy Court issues a court order\\ncompelling a creditor to turn over property to the debtor.\\n\\n Our conclusion is further supported by the United\\nStates Supreme Court’s reasoning in Citizens Bank of\\nMaryland v. Strumpf.80 In that case, the Court considered the\\ninterplay between the automatic stay81 and the turnover\\nprovision in Section 542(b). Notably, notwithstanding the\\n\\n\\n\\n“the word ‘shall’ imposes a mandatory requirement”); see\\nalso Shall, Black’s Law Dictionary (11th ed. 2019) (defining\\n“shall,” in relevant part, as “[h]as a duty to; more broadly, is\\nrequired to,” and characterizing that usage as “the mandatory\\nsense that drafters typically intend and that courts typically\\nuphold”).\\n80\\n 516 U.S. 16 (1995).\\n81\\n As relevant to Strumpf, the filing of a bankruptcy petition\\nstays “the setoff of any debt owing to the debtor that arose\\nbefore the commencement of the [bankruptcy] case . . .\\nagainst any claim against the debtor.” 11 U.S.C. § 362(a)(7).\\n\\n\\n\\n\\n 32\\n\\fword “shall” in that turnover provision, the Strumpf Court did\\nnot interpret the provision as self-executing.\\n\\n Section 542(b)’s turnover provision states: “an entity\\nthat owes a debt that is property of the estate . . . shall pay\\nsuch debt to . . . the trustee.”82 However, an entity is excused\\nfrom that obligation “to the extent that such debt may be\\noffset under section 553 . . . against a claim against the\\ndebtor.”83 Thus, similar to the turnover provision at issue in\\nthis case, the turnover provision in subsection (b) includes the\\nword “shall” as well as a defense to turnover.\\n\\n In Strumpf, the Supreme Court held that a bank’s\\ntemporary withholding of funds in a debtor’s bank account,\\npending resolution of the bank’s setoff right,84 did not violate\\nthe automatic stay. In reaching that holding, the Court\\nreasoned, among other things, that interpreting Section\\n542(b)’s turnover provision as self-executing would\\n“eviscerate” the provision’s exceptions to the duty to pay.85\\nHere, we likewise decline to interpret Section 542(a)’s “shall\\ndeliver” clause in a way that would disregard the provision’s\\nexplicit defenses.86\\n\\n\\n82\\n Id. § 542(b) (emphasis added).\\n83\\n Id.\\n84\\n See Strumpf, 516 U.S. at 19 (“Petitioner refused to pay its\\ndebt, not permanently and absolutely, but only while it sought\\nrelief under § 362(d) from the automatic stay.”).\\n85\\n Id. at 20.\\n86\\n See Smith v. City of Jackson, 544 U.S. 228, 233 (2005)\\n(“[W]hen Congress uses the same language in two statutes\\nhaving similar purposes . . . it is appropriate to presume that\\n\\n\\n\\n\\n 33\\n\\f C.\\n\\n Even assuming the turnover provision is self-\\nexecuting, as pointed out by the Tenth Circuit, “there is still\\nno textual link between [Section] 542 and [Section] 362.”87\\nThe language of the automatic stay provision and the turnover\\nprovision do not refer to each other. The absence of an\\nexpress textual link between the two provisions indicates that\\nthey should not be read together, so violation of the turnover\\nprovision would not warrant sanctions for violation of the\\nautomatic stay provision.\\n\\n VI.\\n\\n Guided by the plain language of the Bankruptcy\\nCode’s automatic stay and turnover provisions, the legislative\\npurpose and policy goals of the automatic stay, and the\\nreasoning of the Supreme Court and our two sister circuits,\\nwe hold that a creditor in possession of collateral that was\\nrepossessed before a bankruptcy filing does not violate the\\nautomatic stay by retaining the collateral post-bankruptcy\\npetition.\\n\\n We will thus affirm the order of the District Court\\naffirming the Bankruptcy Court’s order denying Denby-\\nPeterson’s request for sanctions.\\n\\n\\n\\n\\nCongress intended that text to have the same meaning in both\\nstatutes.”).\\n87\\n Cowen, 849 F.3d at 950.\\n\\n\\n\\n\\n 34\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4567,"cells":{"id":{"kind":"number","value":4673988,"string":"4,673,988"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Dwight Henley"},"decision_date":{"kind":"string","value":"2019-10-29"},"docket_number":{"kind":"string","value":"18-1428"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Third Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: HARDIMAN, SCIRICA, and RENDELL, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"HARDIMAN, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"PRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n\\n\\n No. 18-1428\\n ___________\\n\\n UNITED STATES OF AMERICA\\n\\n v.\\n\\n DWIGHT D. HENLEY,\\n Appellant\\n\\n\\n On Appeal from the United States District Court\\n for the Western District of Pennsylvania\\n (D.C. No. 2-15-cr-00199-001)\\n District Judge: Honorable Mark R. Hornak\\n\\n\\n Submitted February 5, 2019\\nBefore: HARDIMAN, SCIRICA, and RENDELL, Circuit\\n Judges.\\n\\n (Filed: October 29, 2019)\\n\\fScott W. Brady\\nDonovan J. Cocas\\nLaura S. Irwin\\nOffice of United States Attorney\\n700 Grant Street\\nSuite 4000\\nPittsburgh, PA 15219\\n Attorneys for Appellee\\n\\nGiuseppe G.C. Rosselli\\nSuite 107\\n660 Lincoln Avenue\\nPittsburgh, PA 15202\\n Attorney for Appellant\\n\\n\\n\\n OPINION OF THE COURT\\n\\n\\nHARDIMAN, Circuit Judge.\\n\\n Dwight Henley appeals an order of the District Court\\ndenying his motion to suppress evidence. Henley preserved his\\nright to appeal that issue by entering conditional guilty pleas to\\npossessing a firearm and ammunition in violation of 18 U.S.C.\\n§ 922(g)(1) and possession with intent to distribute marijuana\\nin violation of 21 U.S.C. § 841(a)(1). The question presented\\nis whether the Commonwealth of Pennsylvania violated\\nHenley’s Fourth Amendment rights when it searched his house\\nwhile he was on parole. Because reasonable suspicion\\nsupported the search, we will affirm.\\n\\n\\n\\n\\n 2\\n\\f I1\\n\\n In March 2012, Henley was a parolee subject to\\nsupervision by the Pennsylvania Board of Probation and\\nParole. A parole agent with over twenty years’ experience,\\nJoyce Douglass, was assigned to Henley. According to Agent\\nDouglass, Henley first did “really well” on parole while living\\nwith his sister in a supportive environment, App. II 109, and\\nDouglass had a “pretty decent relationship” with him. App. II\\n111. But Douglass observed a “change in attitude” as Henley\\n“became more secretive” and engaged in conduct that led\\nDouglass to ask her supervisor to search Henley and his home\\nfor evidence of drug trafficking. App. II 111.\\n\\n For starters, Douglass noticed Henley began associating\\nwith several former and current parolees suspected of drug\\ndealing. Henley also violated his parole conditions by moving\\nresidences twice without the required prior notice. He moved\\nout of his sister’s home and into a home on Pine Alley in\\nClairton, Pennsylvania, that he reportedly bought for $1.00\\nfrom his brother Quienty, who was on parole as well. Henley\\nlater moved to a home on Park Avenue in Clairton he bought\\nafter reportedly selling the Pine Alley home for $800.00 to\\n\\n 1\\n The District Court had jurisdiction under 18 U.S.C.\\n§ 3231. We have jurisdiction under 28 U.S.C. § 1291. We\\nreview de novo the District Court’s legal determination that\\nreasonable suspicion supported the search. Ornelas v. United\\nStates, 517 U.S. 690, 691 (1996). Because the suppression\\nmotion was denied, we view the facts in the light most\\nfavorable to the Government. United States v. Myers, 308 F.3d\\n251, 255 (3d Cir. 2002).\\n\\n\\n\\n\\n 3\\n\\fJarron Bell, who himself was a parolee supervised by Douglass\\nand was under investigation by the FBI for heroin trafficking.\\nDouglass learned Henley was associating with Bell when she\\ntried to visit Henley at the Pine Alley address, but was greeted\\nby Bell, who pretended to be a guest even though he had\\nbought the home from Henley. Henley admitted lying to\\nDouglass about the property transfer to cover for Bell.\\n\\n Douglass’s observations on other home visits likewise\\nsparked concern. She observed motorcycle club attire and a\\nphotograph of Henley with the club, whose members included\\nother parolees. She caught Henley in more lies and another\\nviolation of parole conditions. In late spring 2013, Agent\\nDouglass twice attempted a home visit, but Henley had\\ntraveled without permission to the club’s bike week at the\\nbeach. Henley falsely reported that he had gone fishing just\\noutside the permitted area. In response, Douglass placed him\\non electronic monitoring for a month. On a March 2014 home\\nvisit, Douglass noticed Henley’s front door had been kicked in.\\nHenley informed her someone broke into his home, which\\nraised a red flag because it suggested to Douglass that someone\\nwas looking for drugs, guns, or money. Finally, during an\\nOctober 31, 2014 home visit, Douglass smelled the “really\\nstrong” odor of a “large amount of marijuana,” which she\\ncalled “skunk weed,” coming from the enclosed porch. App. II\\n137-139.\\n\\n Another issue that troubled Douglass was Henley’s\\napparent income in relation to his lawful employment. At the\\nbeginning of his parole, Henley changed employers twice,\\nincreasing his wage to $11.00 per hour at MPW Industrial\\nServices. According to his boss, Henley “work[ed] as much\\novertime as he possibly could,” App. II 121, “trying to better\\nhimself.” App. II 110. But MPW later reported to Douglass that\\n\\n\\n\\n 4\\n\\fHenley chose to work less, rejecting available work he sought\\nbefore and “all of a sudden, he just seemed to be working a\\ncouple days a week.” App. II 121. Despite this reduced\\nschedule, Henley paid several thousand dollars in fines, when\\npreviously he had paid little. Douglass also took notice that:\\n(1) Henley owned three motor vehicles, a motorcycle, and a\\nboat; (2) Henley appeared at the parole offices with a “fair\\namount of cash,” though not enough in her estimation to\\ndocument, App. II 191; and (3) “quite a bit of money” was\\nspent to remodel and furnish Henley’s Park Avenue home.\\nApp. II 132.\\n\\n In late December 2014, MPW terminated Henley’s\\nemployment because he punched a co-worker, and multiple\\nsources reported to Douglass that Henley’s brother Quienty\\nbrought a handgun to the altercation. Yet Henley told Douglass\\nthat his employer fired him because he accidentally ate a\\nmarijuana brownie and failed a drug test.\\n\\n From October 2013 until early 2015, Douglass received\\nreports that Henley was selling marijuana, that he was paying\\nhis subordinates with heroin, and that his associates, (including\\nBell) were selling drugs.\\n\\n On February 23, 2015, after receiving approval from her\\nsupervisor, Douglass and two other Pennsylvania parole agents\\n(John Sartori, Jr. and Ronald Fine) entered Henley’s home\\nthrough an open door without a warrant, searched his person,\\nand searched his residence. Officers found and seized the\\nfollowing indicia of drug trafficking: over $2,000 in cash; over\\n800 grams of marijuana in a large plastic bag, a vacuum-sealed\\npackage, and several individual packages; scales; a marijuana\\ngrinder; a .45 caliber pistol and ammunition; and three cell\\n\\n\\n\\n\\n 5\\n\\fphones. During the search, Henley made incriminating\\nstatements as well.\\n\\n A federal grand jury returned a three-count indictment\\ncharging Henley with drug trafficking and firearm offenses.\\nHenley moved under Rule 12(b)(3)(C) of the Federal Rules of\\nCriminal Procedure to suppress the evidence obtained from the\\nsearch, contending it violated the Fourth Amendment. After an\\nevidentiary hearing, the District Court denied the motion,\\nholding the agents possessed reasonable suspicion necessary to\\nsupport the search. Consistent with his conditional guilty pleas,\\nHenley filed this appeal challenging the search.\\n\\n II\\n\\n Henley claims Douglass’s suspicion that he was dealing\\ndrugs rested on “nothing more than stale speculation premised\\nupon irrelevant innuendo.” Henley Br. at 5. In support of his\\nappeal, Henley relies on various Pennsylvania court decisions\\nconcerned with state constitutional violations. Because this\\ncase involves a federal prosecution, however, we must\\ndetermine what the Fourth Amendment demands of the\\nchallenged search. United States v. Rickus, 737 F.2d 360, 363-\\n64 (3d Cir. 1984). At the same time, we recognize that state\\nlaw may inform the contours of the government intrusion, both\\nin terms of the legitimate state interests and the parolee’s\\ndiminished expectation of privacy. See Samson v. California,\\n547 U.S. 843, 851–52 (2006).\\n\\n A\\n\\n The touchstone of the Fourth Amendment is\\nreasonableness, so we determine the constitutionality of a\\nsearch “by assessing, on the one hand, the degree to which it\\n\\n\\n\\n\\n 6\\n\\fintrudes upon an individual’s privacy and, on the other, the\\ndegree to which it is needed for the promotion of legitimate\\ngovernmental interests.” United States v. Knights, 534 U.S.\\n112, 118–19 (2001) (quoting Wyoming v. Houghton, 526 U.S.\\n295, 300 (1999)).\\n\\n As a parolee, Henley’s liberty was subject to certain\\nrestrictions. See Samson, 547 U.S. at 850–51 & n.2 (parolees\\nare more like prisoners than probationers). The state interest in\\nparolees like Henley is two-fold: (1) that they successfully\\ncomplete the term of . . . parole with integration “back into the\\ncommunity” while (2) protecting the public from their conduct\\nas individuals who are considered more likely to engage in\\ncriminal conduct than the ordinary member of the community.\\nId. at 849. “[T]he balance of these considerations requires no\\nmore than reasonable suspicion to conduct a [warrantless]\\nsearch of a [parolee’s] . . . house.” Knights, 534 U.S. at 121;\\nsee United States v. Baker, 221 F.3d 438, 444 (3d Cir. 2000)\\n(justification applies with perhaps even greater force to\\nparolees given judgment that parolee needed incarceration).\\n\\n B\\n\\n Henley claims the applicable standard for the search is\\nreasonable suspicion. The Government counters that under the\\nSupreme Court’s decision in Samson, the Fourth Amendment\\nrequires no suspicion to justify a warrantless parole search,\\neven if Pennsylvania law would. We read Samson differently\\nthan the Government.\\n\\n Before Samson, the Supreme Court in Knights held\\nconstitutional the warrantless search of a probationer on\\nreasonable suspicion where the search was a condition of\\nprobation of which the probationer was aware. 534 U.S. at 121.\\n\\n\\n\\n\\n 7\\n\\fIn Samson, the Supreme Court considered the California\\nlegislature’s determination that it was not feasible to require\\nreasonable suspicion to search parolees because of their vast\\nnumbers and high recidivism rates. California concluded that a\\nreasonable suspicion requirement “would undermine the\\nState’s ability to effectively supervise parolees and protect the\\npublic from criminal acts of reoffenders.” 547 U.S. at 854.\\n\\n Samson answered in the affirmative a question left open\\nin Knight—“whether a condition of release can so diminish or\\neliminate a released prisoner’s reasonable expectation of\\nprivacy that a suspicionless search by a law enforcement\\nofficer would not offend the Fourth Amendment.” Samson,\\n547 U.S. at 847 (emphasis added). The Samson Court upheld\\nCalifornia’s decision to impose as a condition of parole that the\\nindividual be subject to search “by a parole officer or other\\npeace officer at any time of the day or night, with or without a\\nsearch warrant and with or without cause.” 547 U.S. at 846\\n(citing CAL. PENAL CODE § 3067(a) (West 2000)). So Samson\\nsuggests that a State may make such a condition part of its\\nparole system without violating the Fourth Amendment. 547\\nU.S. at 855 (“That some States and the Federal Government\\nrequire a level of individualized suspicion is of little relevance\\nto our determination whether California’s supervisory system\\nis drawn to meet its needs and is reasonable, taking into\\naccount a parolee’s substantially diminished expectation of\\nprivacy.”). Our reading of Samson and a faithful reading of our\\ndecision in United States v. Baker requires that we reject the\\nGovernment’s proposition.\\n\\n Unlike in Samson, here neither the Pennsylvania\\nlegislature nor Henley’s conditions of release subject him to\\nsearch at any time or for any reason. In fact, reasonable\\nsuspicion is required under Pennsylvania law. 61 PA. CONS.\\n\\n\\n\\n 8\\n\\fSTAT. § 6153. 2 For that reason, in United States v. Baker, we\\nheld that although a Pennsylvania parolee consent form\\nproviding for search without a warrant waived the warrant\\nrequirement, it did not provide for suspicionless searches. 221\\nF.3d at 448. We determined the search in Baker violated the\\nFourth Amendment because it was unsupported by reasonable\\nsuspicion or a waiver of Pennsylvania’s reasonable suspicion\\nrequirement for a parole search. Id. at 449. Baker accords with\\nSamson, so we adhere to it. In sum, Henley’s search required\\nreasonable suspicion because neither a statute nor a condition\\nof parole provides that he was subject to search without\\nsuspicion.\\n\\n III\\n\\n We turn now to apply the “flexible” test of\\nreasonableness. United States v. Ramos, 443 F.3d 304, 309 (3d\\nCir. 2006). “Balancing the totality of the circumstances is the\\n‘general Fourth Amendment approach’ used to assess the\\nreasonableness of a contested search.” United States v.\\nMitchell, 652 F.3d 387, 403 (3d Cir. 2011) (quoting Knights,\\n534 U.S. at 118). We determine whether reasonable suspicion\\nexists by context and “commonsense,” Illinois v. Wardlow, 528\\nU.S. 119, 125 (2000), mindful that it is something less than\\nwhat is “required to establish probable cause, but also in the\\nsense that reasonable suspicion can arise from information that\\nis less reliable,” Alabama v. White, 496 U.S. 325, 330 (1990).\\nThus, an officer needs only “a particularized and objective\\n\\n 2\\n Section 6153(b), PA. CONS. STAT. ANN. (2009),\\nprovides for search of parolees in accordance with its\\nprovisions. Section 6153(d) provides a parole agent may\\nconduct a personal or property search on reasonable suspicion.\\n61 PA. CONS. STAT. ANN. § 6153(d)(1)-(2).\\n\\n\\n\\n 9\\n\\fbasis for suspecting legal wrongdoing,” United States v.\\nArvizu, 534 U.S. 266, 273 (2002) (internal quotations omitted).\\n\\n Parole agents, like other law enforcement officers,\\nshould “draw on their own experience and specialized training\\nto make inferences from and deductions about the cumulative\\ninformation available to them that ‘might well elude an\\nuntrained person.’” Arvizu, 534 U.S. at 273 (quoting United\\nStates v. Cortez, 449 U.S. 411, 418 (1981)). In the comparable\\nprobation context, the Supreme Court has explained that\\n\\n we deal with a situation in which there is an\\n ongoing supervisory relationship—and one that\\n is not, or at least not entirely, adversarial—\\n between the object of the search and the\\n decisionmaker.\\n In such circumstances it is both\\n unrealistic and destructive of the whole object of\\n the continuing [] relationship to insist upon the\\n same degree of demonstrable reliability of\\n particular items of supporting data, and upon the\\n same degree of certainty of violation, as is\\n required in other contexts. In some cases—\\n especially those involving drugs or illegal\\n weapons—the [] agency must be able to act\\n based upon a lesser degree of certainty than the\\n Fourth Amendment would otherwise require in\\n order to intervene before [the individual] does\\n damage to himself or society. The agency,\\n moreover, must be able to proceed on the basis\\n of its entire experience with the probationer, and\\n to assess probabilities in the light of its\\n knowledge of his life, character, and\\n circumstances.\\n\\n\\n\\n 10\\n\\fGriffin v. Wisconsin, 483 U.S. 868, 879 (1987) (footnotes\\nomitted). 3\\n\\n In this appeal, we must determine whether the facts and\\ncircumstances known to a veteran parole agent who supervised\\na parolee convicted of drug crimes would warrant an agent of\\nreasonable caution to have a particularized basis for believing\\nevidence of criminality would be found during the February\\n23, 2015 search. Arvizu, 534 U.S. at 273. We hold they would.\\n\\n In response to the Government’s argument, Henley\\nchallenges information in isolation. We address each of\\nHenley’s challenges, but we do so by considering (as we must)\\nthe totality of the circumstances.\\n\\n Henley first insists that the conduct Douglass cited in\\nsupport of her belief he had returned to drug dealing was\\nsusceptible to innocuous explanation. According to Henley, the\\nfact that he owned multiple vehicles and a boat, bought and\\nsold houses, and suddenly came up with thousands of dollars\\nwhile turning away lawful work should not have raised\\nconcerns to Douglass. Henley suggests that he might have sold\\na vehicle before buying the next one, the boat was nothing\\nimpressive, and the houses were of modest value (apparently\\nworth only $1). His association with the motorcycle club was\\n\\n 3\\n In this same vein, Pennsylvania law provides for the\\nsupervisory agent/parolee relationship that “[s]upervision\\npractices shall reflect the balance of enforcement of the\\nconditions of parole and case management techniques to\\nmaximize successful parole completion through effective\\nreentry to society.” 61 PA. CONS. STAT. ANN. § 6153(a).\\n\\n\\n\\n\\n 11\\n\\fa positive thing that should have been of no concern to\\nDouglass—despite the involvement of other parolees\\nsuspected of drug crimes. And how could Douglass hold\\nagainst him his having paid the fines he was legally obliged to\\npay?\\n\\n Henley’s approach would replace “reasonable\\nsuspicion” based on the totality of the circumstances with a “no\\nroom for doubt” that a parolee is engaged in criminal conduct\\nstandard. Such a test would severely impede the laudable and\\nlegitimate goals of parole supervision: successful re-entry and\\nprotecting the public. Evaluating factors in isolation and then\\naccording “no weight” to conduct susceptible of “innocent\\nexplanation” departs “sharply” from the Supreme Court’s\\nteachings. Arvizu, 534 U.S. at 274. The Court has stated that\\n“innocent behavior frequently will provide the basis for a\\nshowing of probable cause.” Illinois v. Gates, 462 U.S. 213,\\n243 n.13 (1983). Even more so for the lesser showing of\\nreasonable suspicion. See United States v. Sokolow, 490 U.S.\\n1, 8-9 (1989) (conduct consistent with innocent travel in\\ncombination amounted to reasonable suspicion of a drug\\nenforcement officer). For that reason, Douglass did not have to\\n“rule out the possibility of innocent conduct,” Arvizu, 534 U.S.\\nat 277, when considering Henley’s activities.\\n\\n And then there is Henley’s access to marijuana and its\\ndiscovery at his home during a search for evidence of drug\\ntrafficking. Henley incredibly claims that his veteran parole\\nagent failed to show she had experience to determine whether\\nwhat she smelled on the home visit in October 2014 was\\nmarijuana, or if the smell was just a skunk infestation.\\nDouglass’s experience supervising parolees convicted of drug\\ncrimes easily meets the bar for our evaluation of her\\nassessment. Moreover, “[i]t is well settled that the smell of\\n\\n\\n\\n 12\\n\\fmarijuana alone, if articulable and particularized, may\\nestablish not merely reasonable suspicion, but probable cause.”\\nRamos, 443 F.3d at 308.\\n\\n Henley challenges as too stale to support reasonable\\nsuspicion for the February 23, 2015 search that (1) he suffered\\na break-in back in March 2014 and (2) Douglass detected the\\nmarijuana odor in October 2014. He protests (ironically) that\\nhis circumstances did not involve “the hallmarks of an actual\\ninvestigation into narcotics dealing” because there were no\\ndrug buys or wiretaps. Henley Br. at 11. We reject the notion\\nthat absent a full-scale or ongoing drug trafficking\\ninvestigation, staleness presents an insurmountable bar to a\\nlater parole search.\\n\\n As for staleness, “[t]he likelihood that the evidence\\nsought is still in place depends on a number of variables, such\\nas the nature of the crime [or parole violation], of the criminal,\\nof the thing to be seized, and of the place to be searched,”\\nUnited States v. Tehfe, 722 F.2d 1114, 1119 (3d Cir. 1983); see\\nUnited States v. Harvey, 2 F.3d 1318, 1322 (3d Cir. 1993). The\\npassage of time “loses significance” when the evidence sought\\nrelates to protracted or ongoing criminality. United States v.\\nUrban, 404 F.3d 754, 774 (3d Cir. 2005); see Tehfe, 722 F.3d\\nat 1119.\\n\\n United States v. Ritter, 416 F.3d 256 (3d Cir. 2005), is\\ninstructive. That case involved aerial observation and seizure\\nof marijuana plants at a property plus two anonymous tips over\\nseven months later reporting marijuana growing there. We\\nfound that evidence provided probable cause to get a warrant\\nto search the property despite the time between the observation\\nand the tips. Id. at 262-63. Considering only the October 2014\\n\\n\\n\\n\\n 13\\n\\fhome visit and the February search, the gap in this appeal is\\nhalf the time at issue in Ritter.\\n\\n Henley also questions that no property search occurred\\nat the time of the October 2014 home visit. But justification for\\nan earlier search that did not occur does not vitiate lawful\\njustification to conduct a later search. Moreover, any claimed\\nstaleness disappeared in the face of the broader circumstances\\ngiving Douglass reason to believe that Henley was trafficking\\ndrugs.\\n\\n As to the ongoing reports of criminal activity to his\\nparole officer, Henley challenges them as unworthy of\\nconsideration because Douglass did not detail the who, what,\\nwhere, and when of the reports. We disagree.\\n\\n It’s true Douglass provided little detail, but she did\\ntestify that reports were ongoing. She also said the reports were\\nabout Henley, not just someone consistent with his identity.\\nAnd they specified he was selling drugs and paying\\nsubordinates with heroin.\\n\\n “Tipster” cases, whether involving probable cause or\\nreasonable suspicion determinations, focus on the tip’s indicia\\nof reliability. Alabama v. White found an anonymous tip\\nreliable enough for a Terry stop where portions of the tip were\\ncorroborated, such as the unpredictable movements of the\\nperson identified in it. 496 U.S. at 327. We require more for\\nthe tip relied on by law enforcement to justify probable cause,\\nthan for reasonable suspicion. Alabama v. White, 496 U.S. at\\n330. And under the instruction of Griffin and Samson, the\\nrequisite reliability of a tip to support the weight of reasonable\\nsuspicion for a Terry stop seems too high a bar when\\nconsidering the potentially recalcitrant parolee and a parole\\n\\n\\n\\n\\n 14\\n\\fsearch. Our approach to the reasonableness of a parole agent\\nrelying on information relayed by others, even if not law\\nenforcement, even if anonymous, and even if not intrinsically\\nreliable, bends heavily towards the twin goals of parole\\nsupervision with reasonableness of the intrusion as the\\nparamount concern.\\n\\n In considering the inherent nature of supervision, we\\nacknowledge that parole officers may consider general reports\\nin carrying out their duties—in fact, that information is their\\nstock in trade. 4 We reject Henley’s contention that the\\nreports—which Douglass found to corroborate her concerns—\\nprovide little to no support for reasonable suspicion in the\\nparole context.\\n\\n Griffin supports our approach. The Court there found\\n“reasonable grounds” for a probation search when a detective\\ncalled a probation supervisor and stated “there were or might\\nbe guns” in the probationer’s home. 483 U.S. at 871. Nothing\\nfurther to support a search—just an “unverified tip from an\\nunknown source” to a detective then relayed to probation. Id.\\nat 887 (Blackmun, Jr., dissenting).\\n\\n\\n\\n\\n 4\\n Samson recognized that a parolee’s incentive to\\nconceal criminality justifies an intensive system of\\nsupervision. 547 U.S. at 855. The delicate balance of this\\nsystem—at the same time seeking a transition into society\\nwhile protecting the public from the same individual—requires\\nparole officers to act on “reports,” “tips,” or “information” that\\nin other contexts might seem too thin.\\n\\n\\n\\n 15\\n\\f The Court explained\\n\\n we think it reasonable to permit information\\n provided by a police officer, whether or not on\\n the basis of firsthand knowledge, to support a\\n probationer search. . . .[P]olice may be unwilling\\n to disclose their confidential sources to probation\\n personnel. For the same reason, and also because\\n it is the very assumption of the institution of\\n probation that the probationer is in need of\\n rehabilitation and is more likely than the\\n ordinary citizen to violate the law, we think it\\n enough if the information provided indicates, as\\n it did here, only the likelihood (“had or might\\n have guns”) of facts justifying the search.\\n\\nGriffin, 483 U.S. at 879–80 (1987). Thus, Griffin endorses the\\nadequacy of generalized information from an unknown source\\nof evidence of a crime in a parole/probation context.\\n\\n We also find it significant that the Supreme Court in\\nGriffin did not assess traditional tip reliability factors—\\npresumably because it involved a probationer. In view of\\nHenley’s drug trafficking history, the ongoing reports (more\\nthan the one report in Griffin) would resonate with a reasonable\\nparole agent’s concerns about his activities. Under Griffin the\\nreports themselves would provide reasonable suspicion for a\\nparole search, whether or not relayed through other law\\nenforcement.\\n\\n Viewing the totality of the facts presented here,\\nHenley’s parole status and his criminal history with drugs\\nmade him more likely to commit a drug trafficking crime than\\nthe public. He also violated his conditions of parole by failing\\n\\n\\n\\n\\n 16\\n\\fto ask the permission required of his parole agent. Another\\nfactor is the apparent disparity in Henley’s income and his\\nspending. Douglass learned of Henley’s decreased interest in\\ntaking on work at MPW at the same time he exhibited an ability\\nto pay thousands of dollars in fines and purchase vehicles,\\nhomes, repairs, and new furniture. All this suggested to\\nDouglass that Henley had returned to drug trafficking to make\\nmoney. The smell of a large amount of marijuana and the\\nbreak-in of Henley’s home also suggested an intruder seeking\\nto access drugs, guns, and money in Henley’s home. Finally,\\nwe acknowledge the ongoing reports to Douglass from October\\n2013 continuing up until the time of the search that Henley\\nengaged in drug trafficking activity and his continued\\nassociation with other parolees suspected of the same. These\\nfacts ineluctably show that a reasonably prudent parole agent\\nin Douglass’s shoes would suspect that Henley returned to drug\\ntrafficking and that evidence of it would be found during the\\nFebruary 23, 2015 search.\\n\\n * * *\\n\\n The Commonwealth found evidence supporting\\nHenley’s conviction during a search supported by reasonable\\nsuspicion. Because no Fourth Amendment violation occurred,\\nthe District Court did not err when it denied Henley’s motion\\nto suppress. We will affirm the convictions and judgment of\\nsentence.\\n\\n\\n\\n\\n 17\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4451241/\", \"author_raw\": \"HARDIMAN, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"HARDIMAN"},"judge2":{"kind":"string","value":"SCIRICA"},"judge3":{"kind":"string","value":"RENDELL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"HARDIMAN\": \", Circuit\", \"SCIRICA\": \", Circuit\", \"RENDELL\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4673988/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Dwight Henley\nCourt: U.S. Court of Appeals for the Third Circuit\nDate decided: 2019-10-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n\n\n No. 18-1428\n ___________\n\n UNITED STATES OF AMERICA\n\n v.\n\n DWIGHT D. HENLEY,\n Appellant\n\n\n On Appeal from the United States District Court\n for the Western District of Pennsylvania\n (D.C. No. 2-15-cr-00199-001)\n District Judge: Honorable Mark R. Hornak\n\n\n Submitted February 5, 2019\nBefore: HARDIMAN, SCIRICA, and RENDELL, Circuit\n Judges.\n\n (Filed: October 29, 2019)\n\fScott W. Brady\nDonovan J. Cocas\nLaura S. Irwin\nOffice of United States Attorney\n700 Grant Street\nSuite 4000\nPittsburgh, PA 15219\n Attorneys for Appellee\n\nGiuseppe G.C. Rosselli\nSuite 107\n660 Lincoln Avenue\nPittsburgh, PA 15202\n Attorney for Appellant\n\n\n\n OPINION OF THE COURT\n\n\nHARDIMAN, Circuit Judge.\n\n Dwight Henley appeals an order of the District Court\ndenying his motion to suppress evidence. Henley preserved his\nright to appeal that issue by entering conditional guilty pleas to\npossessing a firearm and ammunition in violation of 18 U.S.C.\n§ 922(g)(1) and possession with intent to distribute marijuana\nin violation of 21 U.S.C. § 841(a)(1). The question presented\nis whether the Commonwealth of Pennsylvania violated\nHenley’s Fourth Amendment rights when it searched his house\nwhile he was on parole. Because reasonable suspicion\nsupported the search, we will affirm.\n\n\n\n\n 2\n\f I1\n\n In March 2012, Henley was a parolee subject to\nsupervision by the Pennsylvania Board of Probation and\nParole. A parole agent with over twenty years’ experience,\nJoyce Douglass, was assigned to Henley. According to Agent\nDouglass, Henley first did “really well” on parole while living\nwith his sister in a supportive environment, App. II 109, and\nDouglass had a “pretty decent relationship” with him. App. II\n111. But Douglass observed a “change in attitude” as Henley\n“became more secretive” and engaged in conduct that led\nDouglass to ask her supervisor to search Henley and his home\nfor evidence of drug trafficking. App. II 111.\n\n For starters, Douglass noticed Henley began associating\nwith several former and current parolees suspected of drug\ndealing. Henley also violated his parole conditions by moving\nresidences twice without the required prior notice. He moved\nout of his sister’s home and into a home on Pine Alley in\nClairton, Pennsylvania, that he reportedly bought for $1.00\nfrom his brother Quienty, who was on parole as well. Henley\nlater moved to a home on Park Avenue in Clairton he bought\nafter reportedly selling the Pine Alley home for $800.00 to\n\n 1\n The District Court had jurisdiction under 18 U.S.C.\n§ 3231. We have jurisdiction under 28 U.S.C. § 1291. We\nreview de novo the District Court’s legal determination that\nreasonable suspicion supported the search. Ornelas v. United\nStates, 517 U.S. 690, 691 (1996). Because the suppression\nmotion was denied, we view the facts in the light most\nfavorable to the Government. United States v. Myers, 308 F.3d\n251, 255 (3d Cir. 2002).\n\n\n\n\n 3\n\fJarron Bell, who himself was a parolee supervised by Douglass\nand was under investigation by the FBI for heroin trafficking.\nDouglass learned Henley was associating with Bell when she\ntried to visit Henley at the Pine Alley address, but was greeted\nby Bell, who pretended to be a guest even though he had\nbought the home from Henley. Henley admitted lying to\nDouglass about the property transfer to cover for Bell.\n\n Douglass’s observations on other home visits likewise\nsparked concern. She observed motorcycle club attire and a\nphotograph of Henley with the club, whose members included\nother parolees. She caught Henley in more lies and another\nviolation of parole conditions. In late spring 2013, Agent\nDouglass twice attempted a home visit, but Henley had\ntraveled without permission to the club’s bike week at the\nbeach. Henley falsely reported that he had gone fishing just\noutside the permitted area. In response, Douglass placed him\non electronic monitoring for a month. On a March 2014 home\nvisit, Douglass noticed Henley’s front door had been kicked in.\nHenley informed her someone broke into his home, which\nraised a red flag because it suggested to Douglass that someone\nwas looking for drugs, guns, or money. Finally, during an\nOctober 31, 2014 home visit, Douglass smelled the “really\nstrong” odor of a “large amount of marijuana,” which she\ncalled “skunk weed,” coming from the enclosed porch. App. II\n137-139.\n\n Another issue that troubled Douglass was Henley’s\napparent income in relation to his lawful employment. At the\nbeginning of his parole, Henley changed employers twice,\nincreasing his wage to $11.00 per hour at MPW Industrial\nServices. According to his boss, Henley “work[ed] as much\novertime as he possibly could,” App. II 121, “trying to better\nhimself.” App. II 110. But MPW later reported to Douglass that\n\n\n\n 4\n\fHenley chose to work less, rejecting available work he sought\nbefore and “all of a sudden, he just seemed to be working a\ncouple days a week.” App. II 121. Despite this reduced\nschedule, Henley paid several thousand dollars in fines, when\npreviously he had paid little. Douglass also took notice that:\n(1) Henley owned three motor vehicles, a motorcycle, and a\nboat; (2) Henley appeared at the parole offices with a “fair\namount of cash,” though not enough in her estimation to\ndocument, App. II 191; and (3) “quite a bit of money” was\nspent to remodel and furnish Henley’s Park Avenue home.\nApp. II 132.\n\n In late December 2014, MPW terminated Henley’s\nemployment because he punched a co-worker, and multiple\nsources reported to Douglass that Henley’s brother Quienty\nbrought a handgun to the altercation. Yet Henley told Douglass\nthat his employer fired him because he accidentally ate a\nmarijuana brownie and failed a drug test.\n\n From October 2013 until early 2015, Douglass received\nreports that Henley was selling marijuana, that he was paying\nhis subordinates with heroin, and that his associates, (including\nBell) were selling drugs.\n\n On February 23, 2015, after receiving approval from her\nsupervisor, Douglass and two other Pennsylvania parole agents\n(John Sartori, Jr. and Ronald Fine) entered Henley’s home\nthrough an open door without a warrant, searched his person,\nand searched his residence. Officers found and seized the\nfollowing indicia of drug trafficking: over $2,000 in cash; over\n800 grams of marijuana in a large plastic bag, a vacuum-sealed\npackage, and several individual packages; scales; a marijuana\ngrinder; a .45 caliber pistol and ammunition; and three cell\n\n\n\n\n 5\n\fphones. During the search, Henley made incriminating\nstatements as well.\n\n A federal grand jury returned a three-count indictment\ncharging Henley with drug trafficking and firearm offenses.\nHenley moved under Rule 12(b)(3)(C) of the Federal Rules of\nCriminal Procedure to suppress the evidence obtained from the\nsearch, contending it violated the Fourth Amendment. After an\nevidentiary hearing, the District Court denied the motion,\nholding the agents possessed reasonable suspicion necessary to\nsupport the search. Consistent with his conditional guilty pleas,\nHenley filed this appeal challenging the search.\n\n II\n\n Henley claims Douglass’s suspicion that he was dealing\ndrugs rested on “nothing more than stale speculation premised\nupon irrelevant innuendo.” Henley Br. at 5. In support of his\nappeal, Henley relies on various Pennsylvania court decisions\nconcerned with state constitutional violations. Because this\ncase involves a federal prosecution, however, we must\ndetermine what the Fourth Amendment demands of the\nchallenged search. United States v. Rickus, 737 F.2d 360, 363-\n64 (3d Cir. 1984). At the same time, we recognize that state\nlaw may inform the contours of the government intrusion, both\nin terms of the legitimate state interests and the parolee’s\ndiminished expectation of privacy. See Samson v. California,\n547 U.S. 843, 851–52 (2006).\n\n A\n\n The touchstone of the Fourth Amendment is\nreasonableness, so we determine the constitutionality of a\nsearch “by assessing, on the one hand, the degree to which it\n\n\n\n\n 6\n\fintrudes upon an individual’s privacy and, on the other, the\ndegree to which it is needed for the promotion of legitimate\ngovernmental interests.” United States v. Knights, 534 U.S.\n112, 118–19 (2001) (quoting Wyoming v. Houghton, 526 U.S.\n295, 300 (1999)).\n\n As a parolee, Henley’s liberty was subject to certain\nrestrictions. See Samson, 547 U.S. at 850–51 & n.2 (parolees\nare more like prisoners than probationers). The state interest in\nparolees like Henley is two-fold: (1) that they successfully\ncomplete the term of . . . parole with integration “back into the\ncommunity” while (2) protecting the public from their conduct\nas individuals who are considered more likely to engage in\ncriminal conduct than the ordinary member of the community.\nId. at 849. “[T]he balance of these considerations requires no\nmore than reasonable suspicion to conduct a [warrantless]\nsearch of a [parolee’s] . . . house.” Knights, 534 U.S. at 121;\nsee United States v. Baker, 221 F.3d 438, 444 (3d Cir. 2000)\n(justification applies with perhaps even greater force to\nparolees given judgment that parolee needed incarceration).\n\n B\n\n Henley claims the applicable standard for the search is\nreasonable suspicion. The Government counters that under the\nSupreme Court’s decision in Samson, the Fourth Amendment\nrequires no suspicion to justify a warrantless parole search,\neven if Pennsylvania law would. We read Samson differently\nthan the Government.\n\n Before Samson, the Supreme Court in Knights held\nconstitutional the warrantless search of a probationer on\nreasonable suspicion where the search was a condition of\nprobation of which the probationer was aware. 534 U.S. at 121.\n\n\n\n\n 7\n\fIn Samson, the Supreme Court considered the California\nlegislature’s determination that it was not feasible to require\nreasonable suspicion to search parolees because of their vast\nnumbers and high recidivism rates. California concluded that a\nreasonable suspicion requirement “would undermine the\nState’s ability to effectively supervise parolees and protect the\npublic from criminal acts of reoffenders.” 547 U.S. at 854.\n\n Samson answered in the affirmative a question left open\nin Knight—“whether a condition of release can so diminish or\neliminate a released prisoner’s reasonable expectation of\nprivacy that a suspicionless search by a law enforcement\nofficer would not offend the Fourth Amendment.” Samson,\n547 U.S. at 847 (emphasis added). The Samson Court upheld\nCalifornia’s decision to impose as a condition of parole that the\nindividual be subject to search “by a parole officer or other\npeace officer at any time of the day or night, with or without a\nsearch warrant and with or without cause.” 547 U.S. at 846\n(citing CAL. PENAL CODE § 3067(a) (West 2000)). So Samson\nsuggests that a State may make such a condition part of its\nparole system without violating the Fourth Amendment. 547\nU.S. at 855 (“That some States and the Federal Government\nrequire a level of individualized suspicion is of little relevance\nto our determination whether California’s supervisory system\nis drawn to meet its needs and is reasonable, taking into\naccount a parolee’s substantially diminished expectation of\nprivacy.”). Our reading of Samson and a faithful reading of our\ndecision in United States v. Baker requires that we reject the\nGovernment’s proposition.\n\n Unlike in Samson, here neither the Pennsylvania\nlegislature nor Henley’s conditions of release subject him to\nsearch at any time or for any reason. In fact, reasonable\nsuspicion is required under Pennsylvania law. 61 PA. CONS.\n\n\n\n 8\n\fSTAT. § 6153. 2 For that reason, in United States v. Baker, we\nheld that although a Pennsylvania parolee consent form\nproviding for search without a warrant waived the warrant\nrequirement, it did not provide for suspicionless searches. 221\nF.3d at 448. We determined the search in Baker violated the\nFourth Amendment because it was unsupported by reasonable\nsuspicion or a waiver of Pennsylvania’s reasonable suspicion\nrequirement for a parole search. Id. at 449. Baker accords with\nSamson, so we adhere to it. In sum, Henley’s search required\nreasonable suspicion because neither a statute nor a condition\nof parole provides that he was subject to search without\nsuspicion.\n\n III\n\n We turn now to apply the “flexible” test of\nreasonableness. United States v. Ramos, 443 F.3d 304, 309 (3d\nCir. 2006). “Balancing the totality of the circumstances is the\n‘general Fourth Amendment approach’ used to assess the\nreasonableness of a contested search.” United States v.\nMitchell, 652 F.3d 387, 403 (3d Cir. 2011) (quoting Knights,\n534 U.S. at 118). We determine whether reasonable suspicion\nexists by context and “commonsense,” Illinois v. Wardlow, 528\nU.S. 119, 125 (2000), mindful that it is something less than\nwhat is “required to establish probable cause, but also in the\nsense that reasonable suspicion can arise from information that\nis less reliable,” Alabama v. White, 496 U.S. 325, 330 (1990).\nThus, an officer needs only “a particularized and objective\n\n 2\n Section 6153(b), PA. CONS. STAT. ANN. (2009),\nprovides for search of parolees in accordance with its\nprovisions. Section 6153(d) provides a parole agent may\nconduct a personal or property search on reasonable suspicion.\n61 PA. CONS. STAT. ANN. § 6153(d)(1)-(2).\n\n\n\n 9\n\fbasis for suspecting legal wrongdoing,” United States v.\nArvizu, 534 U.S. 266, 273 (2002) (internal quotations omitted).\n\n Parole agents, like other law enforcement officers,\nshould “draw on their own experience and specialized training\nto make inferences from and deductions about the cumulative\ninformation available to them that ‘might well elude an\nuntrained person.’” Arvizu, 534 U.S. at 273 (quoting United\nStates v. Cortez, 449 U.S. 411, 418 (1981)). In the comparable\nprobation context, the Supreme Court has explained that\n\n we deal with a situation in which there is an\n ongoing supervisory relationship—and one that\n is not, or at least not entirely, adversarial—\n between the object of the search and the\n decisionmaker.\n In such circumstances it is both\n unrealistic and destructive of the whole object of\n the continuing [] relationship to insist upon the\n same degree of demonstrable reliability of\n particular items of supporting data, and upon the\n same degree of certainty of violation, as is\n required in other contexts. In some cases—\n especially those involving drugs or illegal\n weapons—the [] agency must be able to act\n based upon a lesser degree of certainty than the\n Fourth Amendment would otherwise require in\n order to intervene before [the individual] does\n damage to himself or society. The agency,\n moreover, must be able to proceed on the basis\n of its entire experience with the probationer, and\n to assess probabilities in the light of its\n knowledge of his life, character, and\n circumstances.\n\n\n\n 10\n\fGriffin v. Wisconsin, 483 U.S. 868, 879 (1987) (footnotes\nomitted). 3\n\n In this appeal, we must determine whether the facts and\ncircumstances known to a veteran parole agent who supervised\na parolee convicted of drug crimes would warrant an agent of\nreasonable caution to have a particularized basis for believing\nevidence of criminality would be found during the February\n23, 2015 search. Arvizu, 534 U.S. at 273. We hold they would.\n\n In response to the Government’s argument, Henley\nchallenges information in isolation. We address each of\nHenley’s challenges, but we do so by considering (as we must)\nthe totality of the circumstances.\n\n Henley first insists that the conduct Douglass cited in\nsupport of her belief he had returned to drug dealing was\nsusceptible to innocuous explanation. According to Henley, the\nfact that he owned multiple vehicles and a boat, bought and\nsold houses, and suddenly came up with thousands of dollars\nwhile turning away lawful work should not have raised\nconcerns to Douglass. Henley suggests that he might have sold\na vehicle before buying the next one, the boat was nothing\nimpressive, and the houses were of modest value (apparently\nworth only $1). His association with the motorcycle club was\n\n 3\n In this same vein, Pennsylvania law provides for the\nsupervisory agent/parolee relationship that “[s]upervision\npractices shall reflect the balance of enforcement of the\nconditions of parole and case management techniques to\nmaximize successful parole completion through effective\nreentry to society.” 61 PA. CONS. STAT. ANN. § 6153(a).\n\n\n\n\n 11\n\fa positive thing that should have been of no concern to\nDouglass—despite the involvement of other parolees\nsuspected of drug crimes. And how could Douglass hold\nagainst him his having paid the fines he was legally obliged to\npay?\n\n Henley’s approach would replace “reasonable\nsuspicion” based on the totality of the circumstances with a “no\nroom for doubt” that a parolee is engaged in criminal conduct\nstandard. Such a test would severely impede the laudable and\nlegitimate goals of parole supervision: successful re-entry and\nprotecting the public. Evaluating factors in isolation and then\naccording “no weight” to conduct susceptible of “innocent\nexplanation” departs “sharply” from the Supreme Court’s\nteachings. Arvizu, 534 U.S. at 274. The Court has stated that\n“innocent behavior frequently will provide the basis for a\nshowing of probable cause.” Illinois v. Gates, 462 U.S. 213,\n243 n.13 (1983). Even more so for the lesser showing of\nreasonable suspicion. See United States v. Sokolow, 490 U.S.\n1, 8-9 (1989) (conduct consistent with innocent travel in\ncombination amounted to reasonable suspicion of a drug\nenforcement officer). For that reason, Douglass did not have to\n“rule out the possibility of innocent conduct,” Arvizu, 534 U.S.\nat 277, when considering Henley’s activities.\n\n And then there is Henley’s access to marijuana and its\ndiscovery at his home during a search for evidence of drug\ntrafficking. Henley incredibly claims that his veteran parole\nagent failed to show she had experience to determine whether\nwhat she smelled on the home visit in October 2014 was\nmarijuana, or if the smell was just a skunk infestation.\nDouglass’s experience supervising parolees convicted of drug\ncrimes easily meets the bar for our evaluation of her\nassessment. Moreover, “[i]t is well settled that the smell of\n\n\n\n 12\n\fmarijuana alone, if articulable and particularized, may\nestablish not merely reasonable suspicion, but probable cause.”\nRamos, 443 F.3d at 308.\n\n Henley challenges as too stale to support reasonable\nsuspicion for the February 23, 2015 search that (1) he suffered\na break-in back in March 2014 and (2) Douglass detected the\nmarijuana odor in October 2014. He protests (ironically) that\nhis circumstances did not involve “the hallmarks of an actual\ninvestigation into narcotics dealing” because there were no\ndrug buys or wiretaps. Henley Br. at 11. We reject the notion\nthat absent a full-scale or ongoing drug trafficking\ninvestigation, staleness presents an insurmountable bar to a\nlater parole search.\n\n As for staleness, “[t]he likelihood that the evidence\nsought is still in place depends on a number of variables, such\nas the nature of the crime [or parole violation], of the criminal,\nof the thing to be seized, and of the place to be searched,”\nUnited States v. Tehfe, 722 F.2d 1114, 1119 (3d Cir. 1983); see\nUnited States v. Harvey, 2 F.3d 1318, 1322 (3d Cir. 1993). The\npassage of time “loses significance” when the evidence sought\nrelates to protracted or ongoing criminality. United States v.\nUrban, 404 F.3d 754, 774 (3d Cir. 2005); see Tehfe, 722 F.3d\nat 1119.\n\n United States v. Ritter, 416 F.3d 256 (3d Cir. 2005), is\ninstructive. That case involved aerial observation and seizure\nof marijuana plants at a property plus two anonymous tips over\nseven months later reporting marijuana growing there. We\nfound that evidence provided probable cause to get a warrant\nto search the property despite the time between the observation\nand the tips. Id. at 262-63. Considering only the October 2014\n\n\n\n\n 13\n\fhome visit and the February search, the gap in this appeal is\nhalf the time at issue in Ritter.\n\n Henley also questions that no property search occurred\nat the time of the October 2014 home visit. But justification for\nan earlier search that did not occur does not vitiate lawful\njustification to conduct a later search. Moreover, any claimed\nstaleness disappeared in the face of the broader circumstances\ngiving Douglass reason to believe that Henley was trafficking\ndrugs.\n\n As to the ongoing reports of criminal activity to his\nparole officer, Henley challenges them as unworthy of\nconsideration because Douglass did not detail the who, what,\nwhere, and when of the reports. We disagree.\n\n It’s true Douglass provided little detail, but she did\ntestify that reports were ongoing. She also said the reports were\nabout Henley, not just someone consistent with his identity.\nAnd they specified he was selling drugs and paying\nsubordinates with heroin.\n\n “Tipster” cases, whether involving probable cause or\nreasonable suspicion determinations, focus on the tip’s indicia\nof reliability. Alabama v. White found an anonymous tip\nreliable enough for a Terry stop where portions of the tip were\ncorroborated, such as the unpredictable movements of the\nperson identified in it. 496 U.S. at 327. We require more for\nthe tip relied on by law enforcement to justify probable cause,\nthan for reasonable suspicion. Alabama v. White, 496 U.S. at\n330. And under the instruction of Griffin and Samson, the\nrequisite reliability of a tip to support the weight of reasonable\nsuspicion for a Terry stop seems too high a bar when\nconsidering the potentially recalcitrant parolee and a parole\n\n\n\n\n 14\n\fsearch. Our approach to the reasonableness of a parole agent\nrelying on information relayed by others, even if not law\nenforcement, even if anonymous, and even if not intrinsically\nreliable, bends heavily towards the twin goals of parole\nsupervision with reasonableness of the intrusion as the\nparamount concern.\n\n In considering the inherent nature of supervision, we\nacknowledge that parole officers may consider general reports\nin carrying out their duties—in fact, that information is their\nstock in trade. 4 We reject Henley’s contention that the\nreports—which Douglass found to corroborate her concerns—\nprovide little to no support for reasonable suspicion in the\nparole context.\n\n Griffin supports our approach. The Court there found\n“reasonable grounds” for a probation search when a detective\ncalled a probation supervisor and stated “there were or might\nbe guns” in the probationer’s home. 483 U.S. at 871. Nothing\nfurther to support a search—just an “unverified tip from an\nunknown source” to a detective then relayed to probation. Id.\nat 887 (Blackmun, Jr., dissenting).\n\n\n\n\n 4\n Samson recognized that a parolee’s incentive to\nconceal criminality justifies an intensive system of\nsupervision. 547 U.S. at 855. The delicate balance of this\nsystem—at the same time seeking a transition into society\nwhile protecting the public from the same individual—requires\nparole officers to act on “reports,” “tips,” or “information” that\nin other contexts might seem too thin.\n\n\n\n 15\n\f The Court explained\n\n we think it reasonable to permit information\n provided by a police officer, whether or not on\n the basis of firsthand knowledge, to support a\n probationer search. . . .[P]olice may be unwilling\n to disclose their confidential sources to probation\n personnel. For the same reason, and also because\n it is the very assumption of the institution of\n probation that the probationer is in need of\n rehabilitation and is more likely than the\n ordinary citizen to violate the law, we think it\n enough if the information provided indicates, as\n it did here, only the likelihood (“had or might\n have guns”) of facts justifying the search.\n\nGriffin, 483 U.S. at 879–80 (1987). Thus, Griffin endorses the\nadequacy of generalized information from an unknown source\nof evidence of a crime in a parole/probation context.\n\n We also find it significant that the Supreme Court in\nGriffin did not assess traditional tip reliability factors—\npresumably because it involved a probationer. In view of\nHenley’s drug trafficking history, the ongoing reports (more\nthan the one report in Griffin) would resonate with a reasonable\nparole agent’s concerns about his activities. Under Griffin the\nreports themselves would provide reasonable suspicion for a\nparole search, whether or not relayed through other law\nenforcement.\n\n Viewing the totality of the facts presented here,\nHenley’s parole status and his criminal history with drugs\nmade him more likely to commit a drug trafficking crime than\nthe public. He also violated his conditions of parole by failing\n\n\n\n\n 16\n\fto ask the permission required of his parole agent. Another\nfactor is the apparent disparity in Henley’s income and his\nspending. Douglass learned of Henley’s decreased interest in\ntaking on work at MPW at the same time he exhibited an ability\nto pay thousands of dollars in fines and purchase vehicles,\nhomes, repairs, and new furniture. All this suggested to\nDouglass that Henley had returned to drug trafficking to make\nmoney. The smell of a large amount of marijuana and the\nbreak-in of Henley’s home also suggested an intruder seeking\nto access drugs, guns, and money in Henley’s home. Finally,\nwe acknowledge the ongoing reports to Douglass from October\n2013 continuing up until the time of the search that Henley\nengaged in drug trafficking activity and his continued\nassociation with other parolees suspected of the same. These\nfacts ineluctably show that a reasonably prudent parole agent\nin Douglass’s shoes would suspect that Henley returned to drug\ntrafficking and that evidence of it would be found during the\nFebruary 23, 2015 search.\n\n * * *\n\n The Commonwealth found evidence supporting\nHenley’s conviction during a search supported by reasonable\nsuspicion. Because no Fourth Amendment violation occurred,\nthe District Court did not err when it denied Henley’s motion\nto suppress. We will affirm the convictions and judgment of\nsentence.\n\n\n\n\n 17\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Dwight Henley\\nCourt: U.S. Court of Appeals for the Third Circuit\\nDate decided: 2019-10-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n\\n\\n No. 18-1428\\n ___________\\n\\n UNITED STATES OF AMERICA\\n\\n v.\\n\\n DWIGHT D. HENLEY,\\n Appellant\\n\\n\\n On Appeal from the United States District Court\\n for the Western District of Pennsylvania\\n (D.C. No. 2-15-cr-00199-001)\\n District Judge: Honorable Mark R. Hornak\\n\\n\\n Submitted February 5, 2019\\nBefore: HARDIMAN, SCIRICA, and RENDELL, Circuit\\n Judges.\\n\\n (Filed: October 29, 2019)\\n\\fScott W. Brady\\nDonovan J. Cocas\\nLaura S. Irwin\\nOffice of United States Attorney\\n700 Grant Street\\nSuite 4000\\nPittsburgh, PA 15219\\n Attorneys for Appellee\\n\\nGiuseppe G.C. Rosselli\\nSuite 107\\n660 Lincoln Avenue\\nPittsburgh, PA 15202\\n Attorney for Appellant\\n\\n\\n\\n OPINION OF THE COURT\\n\\n\\nHARDIMAN, Circuit Judge.\\n\\n Dwight Henley appeals an order of the District Court\\ndenying his motion to suppress evidence. Henley preserved his\\nright to appeal that issue by entering conditional guilty pleas to\\npossessing a firearm and ammunition in violation of 18 U.S.C.\\n§ 922(g)(1) and possession with intent to distribute marijuana\\nin violation of 21 U.S.C. § 841(a)(1). The question presented\\nis whether the Commonwealth of Pennsylvania violated\\nHenley’s Fourth Amendment rights when it searched his house\\nwhile he was on parole. Because reasonable suspicion\\nsupported the search, we will affirm.\\n\\n\\n\\n\\n 2\\n\\f I1\\n\\n In March 2012, Henley was a parolee subject to\\nsupervision by the Pennsylvania Board of Probation and\\nParole. A parole agent with over twenty years’ experience,\\nJoyce Douglass, was assigned to Henley. According to Agent\\nDouglass, Henley first did “really well” on parole while living\\nwith his sister in a supportive environment, App. II 109, and\\nDouglass had a “pretty decent relationship” with him. App. II\\n111. But Douglass observed a “change in attitude” as Henley\\n“became more secretive” and engaged in conduct that led\\nDouglass to ask her supervisor to search Henley and his home\\nfor evidence of drug trafficking. App. II 111.\\n\\n For starters, Douglass noticed Henley began associating\\nwith several former and current parolees suspected of drug\\ndealing. Henley also violated his parole conditions by moving\\nresidences twice without the required prior notice. He moved\\nout of his sister’s home and into a home on Pine Alley in\\nClairton, Pennsylvania, that he reportedly bought for $1.00\\nfrom his brother Quienty, who was on parole as well. Henley\\nlater moved to a home on Park Avenue in Clairton he bought\\nafter reportedly selling the Pine Alley home for $800.00 to\\n\\n 1\\n The District Court had jurisdiction under 18 U.S.C.\\n§ 3231. We have jurisdiction under 28 U.S.C. § 1291. We\\nreview de novo the District Court’s legal determination that\\nreasonable suspicion supported the search. Ornelas v. United\\nStates, 517 U.S. 690, 691 (1996). Because the suppression\\nmotion was denied, we view the facts in the light most\\nfavorable to the Government. United States v. Myers, 308 F.3d\\n251, 255 (3d Cir. 2002).\\n\\n\\n\\n\\n 3\\n\\fJarron Bell, who himself was a parolee supervised by Douglass\\nand was under investigation by the FBI for heroin trafficking.\\nDouglass learned Henley was associating with Bell when she\\ntried to visit Henley at the Pine Alley address, but was greeted\\nby Bell, who pretended to be a guest even though he had\\nbought the home from Henley. Henley admitted lying to\\nDouglass about the property transfer to cover for Bell.\\n\\n Douglass’s observations on other home visits likewise\\nsparked concern. She observed motorcycle club attire and a\\nphotograph of Henley with the club, whose members included\\nother parolees. She caught Henley in more lies and another\\nviolation of parole conditions. In late spring 2013, Agent\\nDouglass twice attempted a home visit, but Henley had\\ntraveled without permission to the club’s bike week at the\\nbeach. Henley falsely reported that he had gone fishing just\\noutside the permitted area. In response, Douglass placed him\\non electronic monitoring for a month. On a March 2014 home\\nvisit, Douglass noticed Henley’s front door had been kicked in.\\nHenley informed her someone broke into his home, which\\nraised a red flag because it suggested to Douglass that someone\\nwas looking for drugs, guns, or money. Finally, during an\\nOctober 31, 2014 home visit, Douglass smelled the “really\\nstrong” odor of a “large amount of marijuana,” which she\\ncalled “skunk weed,” coming from the enclosed porch. App. II\\n137-139.\\n\\n Another issue that troubled Douglass was Henley’s\\napparent income in relation to his lawful employment. At the\\nbeginning of his parole, Henley changed employers twice,\\nincreasing his wage to $11.00 per hour at MPW Industrial\\nServices. According to his boss, Henley “work[ed] as much\\novertime as he possibly could,” App. II 121, “trying to better\\nhimself.” App. II 110. But MPW later reported to Douglass that\\n\\n\\n\\n 4\\n\\fHenley chose to work less, rejecting available work he sought\\nbefore and “all of a sudden, he just seemed to be working a\\ncouple days a week.” App. II 121. Despite this reduced\\nschedule, Henley paid several thousand dollars in fines, when\\npreviously he had paid little. Douglass also took notice that:\\n(1) Henley owned three motor vehicles, a motorcycle, and a\\nboat; (2) Henley appeared at the parole offices with a “fair\\namount of cash,” though not enough in her estimation to\\ndocument, App. II 191; and (3) “quite a bit of money” was\\nspent to remodel and furnish Henley’s Park Avenue home.\\nApp. II 132.\\n\\n In late December 2014, MPW terminated Henley’s\\nemployment because he punched a co-worker, and multiple\\nsources reported to Douglass that Henley’s brother Quienty\\nbrought a handgun to the altercation. Yet Henley told Douglass\\nthat his employer fired him because he accidentally ate a\\nmarijuana brownie and failed a drug test.\\n\\n From October 2013 until early 2015, Douglass received\\nreports that Henley was selling marijuana, that he was paying\\nhis subordinates with heroin, and that his associates, (including\\nBell) were selling drugs.\\n\\n On February 23, 2015, after receiving approval from her\\nsupervisor, Douglass and two other Pennsylvania parole agents\\n(John Sartori, Jr. and Ronald Fine) entered Henley’s home\\nthrough an open door without a warrant, searched his person,\\nand searched his residence. Officers found and seized the\\nfollowing indicia of drug trafficking: over $2,000 in cash; over\\n800 grams of marijuana in a large plastic bag, a vacuum-sealed\\npackage, and several individual packages; scales; a marijuana\\ngrinder; a .45 caliber pistol and ammunition; and three cell\\n\\n\\n\\n\\n 5\\n\\fphones. During the search, Henley made incriminating\\nstatements as well.\\n\\n A federal grand jury returned a three-count indictment\\ncharging Henley with drug trafficking and firearm offenses.\\nHenley moved under Rule 12(b)(3)(C) of the Federal Rules of\\nCriminal Procedure to suppress the evidence obtained from the\\nsearch, contending it violated the Fourth Amendment. After an\\nevidentiary hearing, the District Court denied the motion,\\nholding the agents possessed reasonable suspicion necessary to\\nsupport the search. Consistent with his conditional guilty pleas,\\nHenley filed this appeal challenging the search.\\n\\n II\\n\\n Henley claims Douglass’s suspicion that he was dealing\\ndrugs rested on “nothing more than stale speculation premised\\nupon irrelevant innuendo.” Henley Br. at 5. In support of his\\nappeal, Henley relies on various Pennsylvania court decisions\\nconcerned with state constitutional violations. Because this\\ncase involves a federal prosecution, however, we must\\ndetermine what the Fourth Amendment demands of the\\nchallenged search. United States v. Rickus, 737 F.2d 360, 363-\\n64 (3d Cir. 1984). At the same time, we recognize that state\\nlaw may inform the contours of the government intrusion, both\\nin terms of the legitimate state interests and the parolee’s\\ndiminished expectation of privacy. See Samson v. California,\\n547 U.S. 843, 851–52 (2006).\\n\\n A\\n\\n The touchstone of the Fourth Amendment is\\nreasonableness, so we determine the constitutionality of a\\nsearch “by assessing, on the one hand, the degree to which it\\n\\n\\n\\n\\n 6\\n\\fintrudes upon an individual’s privacy and, on the other, the\\ndegree to which it is needed for the promotion of legitimate\\ngovernmental interests.” United States v. Knights, 534 U.S.\\n112, 118–19 (2001) (quoting Wyoming v. Houghton, 526 U.S.\\n295, 300 (1999)).\\n\\n As a parolee, Henley’s liberty was subject to certain\\nrestrictions. See Samson, 547 U.S. at 850–51 & n.2 (parolees\\nare more like prisoners than probationers). The state interest in\\nparolees like Henley is two-fold: (1) that they successfully\\ncomplete the term of . . . parole with integration “back into the\\ncommunity” while (2) protecting the public from their conduct\\nas individuals who are considered more likely to engage in\\ncriminal conduct than the ordinary member of the community.\\nId. at 849. “[T]he balance of these considerations requires no\\nmore than reasonable suspicion to conduct a [warrantless]\\nsearch of a [parolee’s] . . . house.” Knights, 534 U.S. at 121;\\nsee United States v. Baker, 221 F.3d 438, 444 (3d Cir. 2000)\\n(justification applies with perhaps even greater force to\\nparolees given judgment that parolee needed incarceration).\\n\\n B\\n\\n Henley claims the applicable standard for the search is\\nreasonable suspicion. The Government counters that under the\\nSupreme Court’s decision in Samson, the Fourth Amendment\\nrequires no suspicion to justify a warrantless parole search,\\neven if Pennsylvania law would. We read Samson differently\\nthan the Government.\\n\\n Before Samson, the Supreme Court in Knights held\\nconstitutional the warrantless search of a probationer on\\nreasonable suspicion where the search was a condition of\\nprobation of which the probationer was aware. 534 U.S. at 121.\\n\\n\\n\\n\\n 7\\n\\fIn Samson, the Supreme Court considered the California\\nlegislature’s determination that it was not feasible to require\\nreasonable suspicion to search parolees because of their vast\\nnumbers and high recidivism rates. California concluded that a\\nreasonable suspicion requirement “would undermine the\\nState’s ability to effectively supervise parolees and protect the\\npublic from criminal acts of reoffenders.” 547 U.S. at 854.\\n\\n Samson answered in the affirmative a question left open\\nin Knight—“whether a condition of release can so diminish or\\neliminate a released prisoner’s reasonable expectation of\\nprivacy that a suspicionless search by a law enforcement\\nofficer would not offend the Fourth Amendment.” Samson,\\n547 U.S. at 847 (emphasis added). The Samson Court upheld\\nCalifornia’s decision to impose as a condition of parole that the\\nindividual be subject to search “by a parole officer or other\\npeace officer at any time of the day or night, with or without a\\nsearch warrant and with or without cause.” 547 U.S. at 846\\n(citing CAL. PENAL CODE § 3067(a) (West 2000)). So Samson\\nsuggests that a State may make such a condition part of its\\nparole system without violating the Fourth Amendment. 547\\nU.S. at 855 (“That some States and the Federal Government\\nrequire a level of individualized suspicion is of little relevance\\nto our determination whether California’s supervisory system\\nis drawn to meet its needs and is reasonable, taking into\\naccount a parolee’s substantially diminished expectation of\\nprivacy.”). Our reading of Samson and a faithful reading of our\\ndecision in United States v. Baker requires that we reject the\\nGovernment’s proposition.\\n\\n Unlike in Samson, here neither the Pennsylvania\\nlegislature nor Henley’s conditions of release subject him to\\nsearch at any time or for any reason. In fact, reasonable\\nsuspicion is required under Pennsylvania law. 61 PA. CONS.\\n\\n\\n\\n 8\\n\\fSTAT. § 6153. 2 For that reason, in United States v. Baker, we\\nheld that although a Pennsylvania parolee consent form\\nproviding for search without a warrant waived the warrant\\nrequirement, it did not provide for suspicionless searches. 221\\nF.3d at 448. We determined the search in Baker violated the\\nFourth Amendment because it was unsupported by reasonable\\nsuspicion or a waiver of Pennsylvania’s reasonable suspicion\\nrequirement for a parole search. Id. at 449. Baker accords with\\nSamson, so we adhere to it. In sum, Henley’s search required\\nreasonable suspicion because neither a statute nor a condition\\nof parole provides that he was subject to search without\\nsuspicion.\\n\\n III\\n\\n We turn now to apply the “flexible” test of\\nreasonableness. United States v. Ramos, 443 F.3d 304, 309 (3d\\nCir. 2006). “Balancing the totality of the circumstances is the\\n‘general Fourth Amendment approach’ used to assess the\\nreasonableness of a contested search.” United States v.\\nMitchell, 652 F.3d 387, 403 (3d Cir. 2011) (quoting Knights,\\n534 U.S. at 118). We determine whether reasonable suspicion\\nexists by context and “commonsense,” Illinois v. Wardlow, 528\\nU.S. 119, 125 (2000), mindful that it is something less than\\nwhat is “required to establish probable cause, but also in the\\nsense that reasonable suspicion can arise from information that\\nis less reliable,” Alabama v. White, 496 U.S. 325, 330 (1990).\\nThus, an officer needs only “a particularized and objective\\n\\n 2\\n Section 6153(b), PA. CONS. STAT. ANN. (2009),\\nprovides for search of parolees in accordance with its\\nprovisions. Section 6153(d) provides a parole agent may\\nconduct a personal or property search on reasonable suspicion.\\n61 PA. CONS. STAT. ANN. § 6153(d)(1)-(2).\\n\\n\\n\\n 9\\n\\fbasis for suspecting legal wrongdoing,” United States v.\\nArvizu, 534 U.S. 266, 273 (2002) (internal quotations omitted).\\n\\n Parole agents, like other law enforcement officers,\\nshould “draw on their own experience and specialized training\\nto make inferences from and deductions about the cumulative\\ninformation available to them that ‘might well elude an\\nuntrained person.’” Arvizu, 534 U.S. at 273 (quoting United\\nStates v. Cortez, 449 U.S. 411, 418 (1981)). In the comparable\\nprobation context, the Supreme Court has explained that\\n\\n we deal with a situation in which there is an\\n ongoing supervisory relationship—and one that\\n is not, or at least not entirely, adversarial—\\n between the object of the search and the\\n decisionmaker.\\n In such circumstances it is both\\n unrealistic and destructive of the whole object of\\n the continuing [] relationship to insist upon the\\n same degree of demonstrable reliability of\\n particular items of supporting data, and upon the\\n same degree of certainty of violation, as is\\n required in other contexts. In some cases—\\n especially those involving drugs or illegal\\n weapons—the [] agency must be able to act\\n based upon a lesser degree of certainty than the\\n Fourth Amendment would otherwise require in\\n order to intervene before [the individual] does\\n damage to himself or society. The agency,\\n moreover, must be able to proceed on the basis\\n of its entire experience with the probationer, and\\n to assess probabilities in the light of its\\n knowledge of his life, character, and\\n circumstances.\\n\\n\\n\\n 10\\n\\fGriffin v. Wisconsin, 483 U.S. 868, 879 (1987) (footnotes\\nomitted). 3\\n\\n In this appeal, we must determine whether the facts and\\ncircumstances known to a veteran parole agent who supervised\\na parolee convicted of drug crimes would warrant an agent of\\nreasonable caution to have a particularized basis for believing\\nevidence of criminality would be found during the February\\n23, 2015 search. Arvizu, 534 U.S. at 273. We hold they would.\\n\\n In response to the Government’s argument, Henley\\nchallenges information in isolation. We address each of\\nHenley’s challenges, but we do so by considering (as we must)\\nthe totality of the circumstances.\\n\\n Henley first insists that the conduct Douglass cited in\\nsupport of her belief he had returned to drug dealing was\\nsusceptible to innocuous explanation. According to Henley, the\\nfact that he owned multiple vehicles and a boat, bought and\\nsold houses, and suddenly came up with thousands of dollars\\nwhile turning away lawful work should not have raised\\nconcerns to Douglass. Henley suggests that he might have sold\\na vehicle before buying the next one, the boat was nothing\\nimpressive, and the houses were of modest value (apparently\\nworth only $1). His association with the motorcycle club was\\n\\n 3\\n In this same vein, Pennsylvania law provides for the\\nsupervisory agent/parolee relationship that “[s]upervision\\npractices shall reflect the balance of enforcement of the\\nconditions of parole and case management techniques to\\nmaximize successful parole completion through effective\\nreentry to society.” 61 PA. CONS. STAT. ANN. § 6153(a).\\n\\n\\n\\n\\n 11\\n\\fa positive thing that should have been of no concern to\\nDouglass—despite the involvement of other parolees\\nsuspected of drug crimes. And how could Douglass hold\\nagainst him his having paid the fines he was legally obliged to\\npay?\\n\\n Henley’s approach would replace “reasonable\\nsuspicion” based on the totality of the circumstances with a “no\\nroom for doubt” that a parolee is engaged in criminal conduct\\nstandard. Such a test would severely impede the laudable and\\nlegitimate goals of parole supervision: successful re-entry and\\nprotecting the public. Evaluating factors in isolation and then\\naccording “no weight” to conduct susceptible of “innocent\\nexplanation” departs “sharply” from the Supreme Court’s\\nteachings. Arvizu, 534 U.S. at 274. The Court has stated that\\n“innocent behavior frequently will provide the basis for a\\nshowing of probable cause.” Illinois v. Gates, 462 U.S. 213,\\n243 n.13 (1983). Even more so for the lesser showing of\\nreasonable suspicion. See United States v. Sokolow, 490 U.S.\\n1, 8-9 (1989) (conduct consistent with innocent travel in\\ncombination amounted to reasonable suspicion of a drug\\nenforcement officer). For that reason, Douglass did not have to\\n“rule out the possibility of innocent conduct,” Arvizu, 534 U.S.\\nat 277, when considering Henley’s activities.\\n\\n And then there is Henley’s access to marijuana and its\\ndiscovery at his home during a search for evidence of drug\\ntrafficking. Henley incredibly claims that his veteran parole\\nagent failed to show she had experience to determine whether\\nwhat she smelled on the home visit in October 2014 was\\nmarijuana, or if the smell was just a skunk infestation.\\nDouglass’s experience supervising parolees convicted of drug\\ncrimes easily meets the bar for our evaluation of her\\nassessment. Moreover, “[i]t is well settled that the smell of\\n\\n\\n\\n 12\\n\\fmarijuana alone, if articulable and particularized, may\\nestablish not merely reasonable suspicion, but probable cause.”\\nRamos, 443 F.3d at 308.\\n\\n Henley challenges as too stale to support reasonable\\nsuspicion for the February 23, 2015 search that (1) he suffered\\na break-in back in March 2014 and (2) Douglass detected the\\nmarijuana odor in October 2014. He protests (ironically) that\\nhis circumstances did not involve “the hallmarks of an actual\\ninvestigation into narcotics dealing” because there were no\\ndrug buys or wiretaps. Henley Br. at 11. We reject the notion\\nthat absent a full-scale or ongoing drug trafficking\\ninvestigation, staleness presents an insurmountable bar to a\\nlater parole search.\\n\\n As for staleness, “[t]he likelihood that the evidence\\nsought is still in place depends on a number of variables, such\\nas the nature of the crime [or parole violation], of the criminal,\\nof the thing to be seized, and of the place to be searched,”\\nUnited States v. Tehfe, 722 F.2d 1114, 1119 (3d Cir. 1983); see\\nUnited States v. Harvey, 2 F.3d 1318, 1322 (3d Cir. 1993). The\\npassage of time “loses significance” when the evidence sought\\nrelates to protracted or ongoing criminality. United States v.\\nUrban, 404 F.3d 754, 774 (3d Cir. 2005); see Tehfe, 722 F.3d\\nat 1119.\\n\\n United States v. Ritter, 416 F.3d 256 (3d Cir. 2005), is\\ninstructive. That case involved aerial observation and seizure\\nof marijuana plants at a property plus two anonymous tips over\\nseven months later reporting marijuana growing there. We\\nfound that evidence provided probable cause to get a warrant\\nto search the property despite the time between the observation\\nand the tips. Id. at 262-63. Considering only the October 2014\\n\\n\\n\\n\\n 13\\n\\fhome visit and the February search, the gap in this appeal is\\nhalf the time at issue in Ritter.\\n\\n Henley also questions that no property search occurred\\nat the time of the October 2014 home visit. But justification for\\nan earlier search that did not occur does not vitiate lawful\\njustification to conduct a later search. Moreover, any claimed\\nstaleness disappeared in the face of the broader circumstances\\ngiving Douglass reason to believe that Henley was trafficking\\ndrugs.\\n\\n As to the ongoing reports of criminal activity to his\\nparole officer, Henley challenges them as unworthy of\\nconsideration because Douglass did not detail the who, what,\\nwhere, and when of the reports. We disagree.\\n\\n It’s true Douglass provided little detail, but she did\\ntestify that reports were ongoing. She also said the reports were\\nabout Henley, not just someone consistent with his identity.\\nAnd they specified he was selling drugs and paying\\nsubordinates with heroin.\\n\\n “Tipster” cases, whether involving probable cause or\\nreasonable suspicion determinations, focus on the tip’s indicia\\nof reliability. Alabama v. White found an anonymous tip\\nreliable enough for a Terry stop where portions of the tip were\\ncorroborated, such as the unpredictable movements of the\\nperson identified in it. 496 U.S. at 327. We require more for\\nthe tip relied on by law enforcement to justify probable cause,\\nthan for reasonable suspicion. Alabama v. White, 496 U.S. at\\n330. And under the instruction of Griffin and Samson, the\\nrequisite reliability of a tip to support the weight of reasonable\\nsuspicion for a Terry stop seems too high a bar when\\nconsidering the potentially recalcitrant parolee and a parole\\n\\n\\n\\n\\n 14\\n\\fsearch. Our approach to the reasonableness of a parole agent\\nrelying on information relayed by others, even if not law\\nenforcement, even if anonymous, and even if not intrinsically\\nreliable, bends heavily towards the twin goals of parole\\nsupervision with reasonableness of the intrusion as the\\nparamount concern.\\n\\n In considering the inherent nature of supervision, we\\nacknowledge that parole officers may consider general reports\\nin carrying out their duties—in fact, that information is their\\nstock in trade. 4 We reject Henley’s contention that the\\nreports—which Douglass found to corroborate her concerns—\\nprovide little to no support for reasonable suspicion in the\\nparole context.\\n\\n Griffin supports our approach. The Court there found\\n“reasonable grounds” for a probation search when a detective\\ncalled a probation supervisor and stated “there were or might\\nbe guns” in the probationer’s home. 483 U.S. at 871. Nothing\\nfurther to support a search—just an “unverified tip from an\\nunknown source” to a detective then relayed to probation. Id.\\nat 887 (Blackmun, Jr., dissenting).\\n\\n\\n\\n\\n 4\\n Samson recognized that a parolee’s incentive to\\nconceal criminality justifies an intensive system of\\nsupervision. 547 U.S. at 855. The delicate balance of this\\nsystem—at the same time seeking a transition into society\\nwhile protecting the public from the same individual—requires\\nparole officers to act on “reports,” “tips,” or “information” that\\nin other contexts might seem too thin.\\n\\n\\n\\n 15\\n\\f The Court explained\\n\\n we think it reasonable to permit information\\n provided by a police officer, whether or not on\\n the basis of firsthand knowledge, to support a\\n probationer search. . . .[P]olice may be unwilling\\n to disclose their confidential sources to probation\\n personnel. For the same reason, and also because\\n it is the very assumption of the institution of\\n probation that the probationer is in need of\\n rehabilitation and is more likely than the\\n ordinary citizen to violate the law, we think it\\n enough if the information provided indicates, as\\n it did here, only the likelihood (“had or might\\n have guns”) of facts justifying the search.\\n\\nGriffin, 483 U.S. at 879–80 (1987). Thus, Griffin endorses the\\nadequacy of generalized information from an unknown source\\nof evidence of a crime in a parole/probation context.\\n\\n We also find it significant that the Supreme Court in\\nGriffin did not assess traditional tip reliability factors—\\npresumably because it involved a probationer. In view of\\nHenley’s drug trafficking history, the ongoing reports (more\\nthan the one report in Griffin) would resonate with a reasonable\\nparole agent’s concerns about his activities. Under Griffin the\\nreports themselves would provide reasonable suspicion for a\\nparole search, whether or not relayed through other law\\nenforcement.\\n\\n Viewing the totality of the facts presented here,\\nHenley’s parole status and his criminal history with drugs\\nmade him more likely to commit a drug trafficking crime than\\nthe public. He also violated his conditions of parole by failing\\n\\n\\n\\n\\n 16\\n\\fto ask the permission required of his parole agent. Another\\nfactor is the apparent disparity in Henley’s income and his\\nspending. Douglass learned of Henley’s decreased interest in\\ntaking on work at MPW at the same time he exhibited an ability\\nto pay thousands of dollars in fines and purchase vehicles,\\nhomes, repairs, and new furniture. All this suggested to\\nDouglass that Henley had returned to drug trafficking to make\\nmoney. The smell of a large amount of marijuana and the\\nbreak-in of Henley’s home also suggested an intruder seeking\\nto access drugs, guns, and money in Henley’s home. Finally,\\nwe acknowledge the ongoing reports to Douglass from October\\n2013 continuing up until the time of the search that Henley\\nengaged in drug trafficking activity and his continued\\nassociation with other parolees suspected of the same. These\\nfacts ineluctably show that a reasonably prudent parole agent\\nin Douglass’s shoes would suspect that Henley returned to drug\\ntrafficking and that evidence of it would be found during the\\nFebruary 23, 2015 search.\\n\\n * * *\\n\\n The Commonwealth found evidence supporting\\nHenley’s conviction during a search supported by reasonable\\nsuspicion. Because no Fourth Amendment violation occurred,\\nthe District Court did not err when it denied Henley’s motion\\nto suppress. We will affirm the convictions and judgment of\\nsentence.\\n\\n\\n\\n\\n 17\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4568,"cells":{"id":{"kind":"number","value":4674312,"string":"4,674,312"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Joseph Brown v. Sage"},"decision_date":{"kind":"string","value":"2019-10-30"},"docket_number":{"kind":"string","value":"17-1222"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Third Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before Merits Panel Resubmitted En Banc July 23, 2019 Before: SMITH, Chief Judge, MCKEE, AMBRO, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., SHWARTZ, RESTREPO, BIBAS, PORTER, MATEY, PHIPPS, and FUENTES, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"CHAGARES, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"PRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n _____________\\n\\n Nos. 17-1222, 17-1527, 17-1714\\n _____________\\n\\n JOSEPH A. BROWN,\\n Appellant\\n\\n v.\\n\\n DR. SAGE, (Psych Dept.);\\n DR. EIGENBRODE, (Psych Dept.);\\n DR. SHOUEY, (Psych Dept.)\\n Appellees in No. 17-1222\\n\\n\\n JOSEPH A. BROWN,\\n Appellant\\n\\n v.\\n\\n C.O. KEMMERER;\\n UNITED STATES; B.R. PEALER;\\n T. CRAWFORD; C.O. J. YOUNG;\\n C.O. J. TREIBLY; C.O. J. HARDY;\\n Lt. R. MILLER; C.O. D. HERR;\\n C.O. A. CRAVELING; C.O. J. FINCK;\\n C.O. R. WICKHAM; Lt. J. SHERMAN; Lt. DOUH;\\nLt. J. SEEBA; Lt. R. JOHNSON; Lt. P. CARRASQUITTO;\\n P.A. S. DEES; P.A. L. POTTER; P.A. BRENNAMAN;\\n P.A. H. MIOSI; J. CARPENTER; J. RUSSO\\n Appellees in No. 17-1527\\n\\n\\n JOSEPH A. BROWN,\\n Appellant\\n\\n v.\\n\\n SARAH DEES, PHYSICIAN ASSISTANT, USP\\n Appellee in No. 17-1714\\n\\n On Appeal from the United States District Court\\n for the Middle District of Pennsylvania\\n (Nos. 1:16-cv-02477, 1:14-cv-01520, and 1:17-cv-00025)\\n District Judge: Honorable Sylvia H. Rambo\\n\\n Argued June 14, 2018 Before Merits Panel\\n Resubmitted En Banc July 23, 2019\\n\\n Before: SMITH, Chief Judge, MCKEE, AMBRO, CHAGARES, JORDAN,\\n HARDIMAN, GREENAWAY, JR., SHWARTZ, RESTREPO, BIBAS, PORTER,\\n MATEY, PHIPPS, and FUENTES, Circuit Judges.\\n\\n (Filed: October 30, 2019)\\n ____________\\n\\nJulia Chapman\\nMichael S. Doluisio\\nEllen L. Ratigan\\nStefanie A. Tubbs\\nDechert\\n2929 Arch Street\\n18th Floor, Cira Centre\\nPhiladelphia, PA 19104\\n\\n Counsel for Appellant\\n\\nMichael J. Butler\\nOffice of United States Attorney\\n228 Walnut Street, P.O. Box 11754\\n220 Federal Building and Courthouse\\nHarrisburg, PA 17108\\n\\nCaroline D. Lopez\\nUnited States Department of Justice\\nCivil Division, Appellate Staff\\nRoom 7535\\n950 Pennsylvania Avenue, N.W.\\nWashington, DC 20530\\n\\n Counsel for Appellees in No. 17-1527\\n\\n 2\\n\\n ____________\\n\\n OPINION OF THE COURT\\n ____________\\n\\nCHAGARES, Circuit Judge.\\n\\n Plaintiffs filing lawsuits in federal court generally need to pay a filing fee. But\\n\\nthat does not mean the courthouse doors are closed to those who cannot afford it.\\n\\nIndigent plaintiffs can avoid the filing fee if they file a successful application for leave to\\n\\nproceed “in forma pauperis,” or IFP. Plaintiffs who are prisoners, however, may be\\n\\nbarred from proceeding IFP by operation of the so-called “three-strikes rule.” That rule,\\n\\nenacted as part of the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321-\\n\\n66 (1996) (the “PLRA”), provides that a prisoner cannot proceed IFP if, “on 3 or more\\n\\nprior occasions, while incarcerated or detained in any facility,” the prisoner has “brought\\n\\nan action or appeal in a court of the United States that was dismissed on the grounds that\\n\\nit is frivolous, malicious, or fails to state a claim upon which relief may be granted,\\n\\nunless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C.\\n\\n§ 1915(g).\\n\\n Appellant Joseph Brown moved for leave to proceed IFP in three cases in the\\n\\nUnited States District Court for the Middle District of Pennsylvania. The District Court\\n\\ndenied his motions, finding that Brown had accrued three strikes in three earlier cases in\\n\\nfederal courts in California. Brown appealed, but appeals have fees too, so he also moves\\n\\nfor leave to proceed IFP in each of his three appeals.\\n\\n\\n\\n 3\\n\\n We granted the petition for rehearing en banc in this case to clarify the framework\\n\\nthat courts may use in assessing IFP applications under the PLRA. Previously, we\\n\\nsuggested that courts must employ a “two-step” analysis: first, assess the plaintiff’s\\n\\neconomic status, and second, consider the merits of the complaint. But we clarify today\\n\\nthat the PLRA does not require such a rigid, stepwise process; rather, courts are free to\\n\\nassess the merits of the lawsuit “at any time.” § 1915(e)(2). With this flexible approach\\n\\nin mind, we will deny Brown’s motions for leave to proceed IFP.\\n\\n I.\\n\\n Joseph Brown has been a federal prisoner at all times pertinent to this consolidated\\n\\nappeal. In 2014, he filed a complaint in the United States District Court for the Middle\\n\\nDistrict of Pennsylvania, alleging that various prison officials at the United States\\n\\nPenitentiary in Lewisburg, Pennsylvania — where Brown was then incarcerated — had\\n\\ninjured him, in violation of his Fifth and Eighth Amendment rights. See Brown v.\\n\\nKemmerer, No. 1:14-cv-01520. Brown moved in Kemmerer for leave to proceed IFP,\\n\\nand the District Court granted his motion.\\n\\n Then, in 2016, Brown started another federal action in the Middle District of\\n\\nPennsylvania, alleging that prison psychologists, among others, were deliberately\\n\\nindifferent to his serious mental-health needs. See Brown v. Sage, No. 1:16-cv-02477.\\n\\nAs in Kemmerer, Brown again moved for leave to proceed IFP. But this time, the\\n\\nDistrict Court denied the motion, concluding that Brown was barred by the three-strikes\\n\\nrule. The District Court found that Brown had filed three other actions in federal courts\\n\\n\\n\\n 4\\n\\nin California that all had been dismissed for failure to state a claim upon which relief may\\n\\nbe granted:\\n\\n 1. Brown v. United States (“Brown I”), No. 1:11-cv-01562, which the United States\\n\\n District Court for the Eastern District of California dismissed in June 2013 for\\n\\n failure to state a claim.\\n\\n 2. Brown v. United States (“Brown II”), No. 1:12-cv-00165, which the United States\\n\\n District Court for the Eastern District of California dismissed in November 2014,\\n\\n also for failure to state a claim.\\n\\n 3. Brown v. Profitt (“Profitt”), No. 5:13-cv-02338, which the United States District\\n\\n Court for the Central District of California dismissed in March 2014, again for\\n\\n failure to state a claim.\\n\\nIn all three cases, the federal district courts in California explicitly stated that the\\n\\ndismissals qualified as strikes under § 1915(g). So, finding also that Brown did not\\n\\nqualify for the imminent-danger exception to the three-strikes rule, the District Court in\\n\\nSage denied Brown’s IFP motion and dismissed his complaint without prejudice.\\n\\n Brown’s IFP motion in Sage prompted the District Court to revisit its earlier\\n\\ndecision to grant Brown’s IFP motion in Kemmerer. On the very same day it denied\\n\\nBrown’s motion in Sage, the District Court vacated its earlier order in Kemmerer and\\n\\ndenied Brown’s IFP motion there as well. As it did in Sage, the District Court pointed to\\n\\nthe three strikes that Brown had accrued in federal courts in California.\\n\\n\\n\\n\\n 5\\n\\n The day after the District Court denied his IFP motions in Sage and Kemmerer,\\n\\nBrown filed one more lawsuit in the Middle District of Pennsylvania. See Brown v.\\n\\nDees, No. 1:17-cv-00025. In this third suit, he alleged that a prison physician assistant\\n\\nwas deliberately indifferent to severe burns he received from accidentally spilling hot\\n\\nwater on his groin. Brown again moved to proceed IFP, arguing that, although he had\\n\\nthree strikes against him, he qualified for the imminent-danger exception. The District\\n\\nCourt denied the motion, concluding that Brown had not shown imminent danger.\\n\\n Brown appealed the denial of his IFP motions in Sage, Kemmerer, and Dees, and\\n\\nhe also moved to proceed IFP in those appeals. We consolidated Brown’s three cases and\\n\\nappointed counsel to represent him. 1 A divided panel of this Court granted Brown’s IFP\\n\\nmotions. See Brown v. Sage, 903 F.3d 300 (3d Cir. 2018). We subsequently granted the\\n\\ndefendants’ petition for rehearing en banc and vacated the panel’s opinion and judgment.\\n\\n II. 2\\n\\n Brown has moved to proceed IFP in his three appeals. So, before we can consider\\n\\nwhether the District Court erred in denying Brown’s original IFP motions, we must\\n\\ndecide whether Brown can proceed IFP before us. In so deciding, we will confront the\\n\\nsame issues that the District Court did. But technically we are not yet reviewing the\\n\\n\\n\\n\\n1\\n We extend our gratitude to Judah Bellin, Julia Chapman, Michael Doluisio, Ellen\\nMossman, and Stefanie Tubbs of Dechert LLP for donating their time and talent in\\naccepting this pro bono appointment and for zealously representing Joseph Brown before\\nour Court.\\n2\\n The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction\\nunder 28 U.S.C. § 1291.\\n 6\\n\\nDistrict Court’s orders; we are assessing Brown’s IFP motions on appeal under 28 U.S.C.\\n\\n§ 1915. 3 We begin by clarifying the process by which we assess IFP motions.\\n\\n A.\\n\\n Some form of the IFP statute has been in existence for over a century. See Abdul-\\n\\nAkbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001) (en banc). The statute ensures that\\n\\nno person is barred from “pursuing meaningful litigation” solely because of an inability\\n\\nto pay administrative court fees. Deutsch v. United States, 67 F.3d 1080, 1084 (3d Cir.\\n\\n1995). But Congress, in creating the IFP procedure, also “recognized that ‘a litigant\\n\\nwhose filing fees and court costs are assumed by the public, unlike a paying litigant,\\n\\nlacks an economic incentive to refrain from filing frivolous, malicious, or repetitive\\n\\nlawsuits.’” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams,\\n\\n490 U.S. 319, 324 (1989)). Accordingly, the IFP statute, as originally enacted, provided\\n\\nthat the court “may dismiss” any IFP action if the court determined that “the alleged\\n\\ncause of action is frivolous or malicious.” Act of July 20, 1892, ch. 209 §§ 1–5, 27 Stat.\\n\\n252.\\n\\n This Court thereafter construed the IFP statute generally to require a “two-step\\n\\nanalysis.” Roman v. Jeffes, 904 F.2d 192, 194 n.1 (3d Cir. 1990). First, we explained, a\\n\\n\\n\\n3\\n For this reason, we do not address, for instance, whether the District Court incorrectly\\ndetermined that Brown had three strikes at the time he submitted his complaint and IFP\\napplication in Kemmerer. We do, however, note that a case counts as a strike if it was\\ndismissed as of the date on which the plaintiff submits his application for leave to\\nproceed IFP and his complaint or notice of appeal. Cf. Millhouse v. Heath, 866 F.3d 152,\\n161 (3d Cir. 2017) (holding that we “look to the date the notice of appeal is filed in\\nassessing whether a dismissal counts as a strike”).\\n 7\\n\\ncourt must determine whether the litigant, “based on economic criteria alone,” qualifies\\n\\nfor IFP status. Id. Second, and only after “evaluat[ing] a litigant’s financial status,” the\\n\\ncourt considers whether the complaint is frivolous. Id.\\n\\n In 1996, however, Congress changed the statutory landscape. Over time, it had\\n\\nbecome deeply concerned that a large volume of frivolous and vexatious prisoner\\n\\nlawsuits both overburdened the judiciary and were unnecessarily costly for defendants.\\n\\nIndeed, by 1995, prisoner lawsuits constituted more than twenty-five percent of federal\\n\\ncivil cases. Roller v. Gunn, 107 F.3d 227, 230 (4th Cir. 1997). So in 1996, to “preserv[e]\\n\\n[the] resources of both the courts and the defendants in prisoner litigation,” Byrd v.\\n\\nShannon, 715 F.3d 117, 125 (3d Cir. 2013), and to ensure “fewer and better prisoner\\n\\nsuits,” Jones v. Bock, 549 U.S. 199, 203 (2007), Congress passed the PLRA.\\n\\n The PLRA amended the IFP statute in several important respects. Whereas the\\n\\nprior version had provided that a court “may” dismiss “frivolous or malicious” actions,\\n\\nthe statute now provides that “a court shall dismiss the case at any time if . . . the action\\n\\nor appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be\\n\\ngranted; or (iii) seeks monetary relief against a defendant who is immune from such\\n\\nrelief.” 28 U.S.C. § 1915(e)(2) (emphases added). The PLRA also added 28 U.S.C.\\n\\n§ 1915A, which requires courts to screen prisoner complaints for possible dismissal\\n\\n“before docketing, if feasible or, in any event, as soon as practicable after docketing.” Id.\\n\\n§ 1915A(a). And relevant here, the PLRA added the three-strikes rule, id. § 1915(g),\\n\\nwhich “supplie[s] a powerful economic incentive not to file frivolous lawsuits or\\n\\nappeals.” Abdul-Akbar, 239 F.3d at 314.\\n\\n 8\\n\\n B.\\n\\n Brown argues that we should continue to apply our two-step analysis, which the\\n\\ndistrict court in Profitt did not follow. Instead, the district court considered the merits of\\n\\nthe case and evaluated Brown’s IFP application simultaneously. We disagree with\\n\\nBrown’s argument because the PLRA has superseded our former rigid, stepwise\\n\\nprocedure and prescribes a flexible approach. Accordingly, we hold that a court has the\\n\\nauthority to dismiss a case “at any time,” 28 U.S.C. § 1915(e)(2), regardless of the status\\n\\nof a filing fee; that is, a court has the discretion to consider the merits of a case and\\n\\nevaluate an IFP application in either order or even simultaneously.\\n\\n The text, history, and purpose of the PLRA compel our decision. One of the\\n\\nimportant reforms instituted by the PLRA was to require “early judicial screening of\\n\\nprisoner complaints.” Bock, 549 U.S. at 202; see also 141 Cong. Rec. S14414 (daily ed.\\n\\nSept. 27, 1995) (statement of Sen. Dole) (noting that the PLRA “would allow a Federal\\n\\njudge to immediately dismiss a complaint” (emphasis added)). The PLRA thus\\n\\nempowered courts to screen complaints “before docketing” or “as soon as practicable”\\n\\nthereafter, 28 U.S.C. § 1915A(a), and dismiss cases “at any time,” id. § 1915(e)(2). See\\n\\ngenerally 10 James Wm. Moore et al., Moore’s Federal Practice § 54.104[1][a] (3d ed.\\n\\n2019) (noting that “the court may dismiss the case, either before ruling on or after\\n\\ngranting in forma pauperis status”). This process permits courts to move early to screen\\n\\ncomplaints in order to conserve judicial resources and “the resources of defendants forced\\n\\nto respond to baseless lawsuits.” Buchheit v. Green, 705 F.3d 1157, 1161 (10th Cir.\\n\\n2012).\\n\\n 9\\n\\n In addition, we note that the flexible approach we now adopt aligns us with our\\n\\nsister Courts of Appeals. See id. at 1160–61 (noting that, although not required,\\n\\n“screening might be a good practice and more efficient” before considering an IFP\\n\\napplication, and observing that “the language of the present rule . . . provides needed\\n\\nflexibility”); Torres v. O’Quinn, 612 F.3d 237, 249 (4th Cir. 2010) (“[I]n keeping with\\n\\nthe sensible practice of many district courts around the country, the district court in these\\n\\ncases promptly determined that the complaints failed to state a claim upon which relief\\n\\ncould be granted and dismissed each case pursuant to 28 U.S.C. § 1915A without\\n\\nbothering to process [the plaintiff’s] request for in forma pauperis status.”), abrogated on\\n\\nother grounds by Bruce v. Samuels, 136 S. Ct. 627 (2016); Ford v. Johnson, 362 F.3d\\n\\n395, 399–400 (7th Cir. 2004) (“A prisoner’s civil action may be dismissed . . . before any\\n\\nfees have been paid, and thus before ‘filing’ occurs.”); Leonard v. Lacy, 88 F.3d 181, 185\\n\\n(2d Cir. 1996) (observing the various practices amongst the district courts with regard to\\n\\ndocketing and dismissing of frivolous prisoner IFP actions, which include the\\n\\nsimultaneous docketing and dismissal of complaints, and “[a]s to such dismissed\\n\\ncomplaints, the [IFP] motion is granted in some courts, and denied in other courts”); cf.\\n\\nO’Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008); McGore v. Wrigglesworth, 114\\n\\nF.3d 601, 608 (6th Cir. 1997) (noting that the court’s two-step process does not prohibit\\n\\ncourts from simultaneously considering both steps).\\n\\n III.\\n\\n Applying the flexible approach mandated by the PLRA, we now consider whether\\n\\nBrown is barred from proceeding IFP under the three-strikes rule. See 28 U.S.C.\\n\\n 10\\n\\n§ 1915(g). As noted earlier, Brown had three prior lawsuits dismissed in federal courts in\\n\\nCalifornia: Brown I, Brown II, and Profitt. The parties agree that the dismissals of\\n\\nBrown I and Brown II both count as strikes. But they disagree about Profitt. Brown\\n\\nargues that, even if our old two-step approach is no longer good law, he did not accrue a\\n\\nstrike in Profitt for two reasons. First, the action there was never “brought.” And second,\\n\\nthe district court there did not explicitly state why it dismissed the case. We address each\\n\\nargument in turn.\\n\\n A.\\n\\n Brown claims that because the district court in Profitt never granted his IFP\\n\\napplication — it just dismissed the case on the merits — the action there was never\\n\\n“brought” and cannot count as a strike under § 1915(g). The government, however,\\n\\ndisagrees, arguing that a prisoner has “brought an action” for purposes of the PLRA as\\n\\nsoon as he tenders or submits a complaint to the district court. We agree with the\\n\\ngovernment.\\n\\n We are interpreting a statute, so we start with its text. See, e.g., Ross v. Blake,\\n\\n136 S. Ct. 1850, 1856 (2016). Section 1915(g) provides in full:\\n\\n In no event shall a prisoner bring a civil action or appeal a judgment in a civil\\n action or proceeding under this section if the prisoner has, on 3 or more prior\\n occasions, while incarcerated or detained in any facility, brought an action\\n or appeal in a court of the United States that was dismissed on the grounds\\n that it is frivolous, malicious, or fails to state a claim upon which relief may\\n be granted, unless the prisoner is under imminent danger of serious physical\\n injury.\\n\\n28 U.S.C. § 1915(g) (emphasis added).\\n\\n\\n\\n 11\\n\\n The question, therefore, is: when has a prisoner “brought an action or appeal in a\\n\\ncourt of the United States”? Just considering that phrase in isolation will not get us very\\n\\nfar. We have observed “that the word ‘bring’ in [the context of § 1915(g)] plainly refers\\n\\nto the time when the civil action is initiated.” Abdul-Akbar, 239 F.3d at 313; see also\\n\\nGibbs v. Ryan, 160 F.3d 160, 162 (3d Cir. 1998) (“In the context of filing a civil action,\\n\\n‘bring’ ordinarily refers to the ‘initiation of legal proceedings in a suit.’” (quoting Bring,\\n\\nBlack’s Law Dictionary (6th ed. 1990))). Or as the most recent edition of Black’s Law\\n\\nDictionary puts it, “bring an action” means “[t]o sue” or “institute legal proceedings.”\\n\\nBring an Action, Black’s Law Dictionary (11th ed. 2019). But those words — initiate,\\n\\nsue, institute — are broad. When exactly has a prisoner sued or initiated an action?\\n\\nWhen tendering or submitting the complaint to the court? Or when the court ultimately\\n\\nauthorizes the action?\\n\\n Instead of “squinting myopically” at the phrase brought an action, we must widen\\n\\nour lens. M.A. ex rel. E.S. v. State-Operated Sch. Dist. of City of Newark, 344 F.3d 335,\\n\\n348 (3d Cir. 2003). As we have instructed, “the ‘plain meaning’ of statutory language is\\n\\noften illuminated by considering not only ‘the particular statutory language’ at issue, but\\n\\nalso the structure of the section in which the key language is found, ‘the design of the\\n\\nstatute as a whole and its object.’” United States v. Tupone, 442 F.3d 145, 151 (3d Cir.\\n\\n2006) (quoting United States v. Schneider, 14 F.3d 876, 879 (3d Cir. 1994)). Indeed,\\n\\n“[i]t is a ‘fundamental canon of statutory construction that the words of a statute must be\\n\\nread in their context and with a view to their place in the overall statutory scheme.’”\\n\\nFDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis\\n\\n 12\\n\\nv. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989)). When we consider the PLRA’s\\n\\nstatutory scheme more broadly, the answer to our question becomes apparent: a prisoner\\n\\nhas “brought an action” when he tenders or submits his complaint to the court.\\n\\n The PLRA, as we have explained, was enacted “to limit the filing of frivolous and\\n\\nvexatious prisoner lawsuits” by “curtail[ing] the ability of prisoners to take advantage of\\n\\nthe privilege of filing [IFP].” Abdul-Akbar, 239 F.3d at 314. To repeat, the statute\\n\\nrequires a court to dismiss an IFP complaint “at any time” if it determines that the\\n\\ncomplaint is frivolous, malicious, or fails to state a claim. Moreover, § 1915A\\n\\nencourages review of prisoner complaints before docketing or as soon as practicable.\\n\\nAnd the three-strikes rule was added to “filter out the bad claims and facilitate\\n\\nconsideration of the good.” Coleman v. Tollefson, 135 S. Ct. 1759, 1764 (2015) (quoting\\n\\nBock, 549 U.S. at 204).\\n\\n Brown’s proposed interpretation of “brought an action” would undermine that\\n\\nstatutory scheme. A prisoner could file frivolous lawsuit after frivolous lawsuit, and, so\\n\\nlong as the courts continue to screen the suits early, as the PLRA encourages, the prisoner\\n\\nwould accrue no strikes and could continue the barrage of meritless suits. That would\\n\\nnegate the PLRA’s scheme of limiting frivolous lawsuits. See O’Neal, 531 F.3d at 1152\\n\\n(“[C]onstruing ‘brought’ in § 1915(g) to mean ‘submitted to the court’ furthers\\n\\nCongress’s intent to screen out frivolous complaints by precluding prisoners from\\n\\nsubmitting an endless stream of frivolous in forma pauperis complaints.”); cf. Ford, 362\\n\\nF.3d at 399 (interpreting “brought” in another provision of the PLRA to mean submitting\\n\\nthe complaint to the court because “[o]therwise the statute cannot work”). Indeed, it\\n\\n 13\\n\\nwould be strange for Congress to, on the one hand, create the three-strikes rule and\\n\\npromote the “early judicial screening of prisoner complaints,” Bock, 549 U.S. at 202, but\\n\\non the other, not count the early dismissals as strikes.\\n\\n Our reading is bolstered by the statute’s specific use of the word “brought,” as\\n\\nopposed to “commenced” or “filed.” The verb “brought” — whose subject in § 1915(g)\\n\\nis “the prisoner” — “properly focuses attention on what the prisoner-plaintiff does.”\\n\\nVaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). And what the prisoner-\\n\\nplaintiff does is tender or submit a complaint and request to proceed IFP. By contrast,\\n\\n“filing” and “commencement” involve court action. Under Federal Rule of Civil\\n\\nProcedure 3, commencement is triggered by the filing of a complaint, and “[w]hen a\\n\\ncomplaint is accompanied by a motion to proceed in forma pauperis, rather than by\\n\\npayment of a filing fee, the complaint is not docketed, and it is therefore not filed, until\\n\\nthe motion has been granted.” Oatess v. Sobolevitch, 914 F.2d 428, 429 n.1 (3d Cir.\\n\\n1990). So, in the IFP context, it is the court that “authorize[s] the commencement” of the\\n\\naction, and consequently the filing of the complaint. 28 U.S.C. § 1915(a); see also\\n\\nUrrutia v. Harrisburg Cty. Police Dep’t, 91 F.3d 451, 458 n.13 (3d Cir. 1996). That\\n\\n§ 1915(g) uses the verb “brought,” not “commenced” or “filed,” underscores that court\\n\\napproval of an IFP application is not necessary for an action to count as a strike. See\\n\\nVaden, 449 F.3d at 1050; Ford, 362 F.3d at 399–400 (observing differences in the PLRA\\n\\namong “brought,” “filed,” and “commenced”).\\n\\n We hold, therefore, that for the purposes of § 1915(g), a prisoner has “brought an\\n\\naction” once he tenders or submits a complaint to the court. In so holding, we reach the\\n\\n 14\\n\\nsame conclusion as the Court of Appeals for the Ninth Circuit, the only other circuit court\\n\\nthat, to the best of our knowledge, has addressed the meaning of “brought an action” in\\n\\n§ 1915(g). See O’Neal, 531 F.3d at 1152. And our conclusion accords with how the\\n\\nCourts of Appeals for the Seventh and Ninth Circuits have interpreted “brought” as it\\n\\nappears in another section of the PLRA. See Vaden, 449 F.3d at 1050; Ford, 362 F.3d at\\n\\n399–400. 4\\n\\n Brown presents a variety of counterarguments based on the PLRA’s text and\\n\\npurpose. 5 We are unconvinced.\\n\\n Brown’s textual argument rests on two particular phrases. First, Brown observes\\n\\nthat subsection (a)(1) provides that “any court of the United States may authorize the\\n\\ncommencement . . . of any suit . . . without prepayment of fees.” 28 U.S.C. § 1915(a)(1).\\n\\nBrown understands subsection (a)(1) to mean that, until a court has authorized the action\\n\\n— that is, granted the IFP application — the suit has not been “brought” because it has\\n\\nnot yet commenced. We agree with Brown that commencement of the action requires\\n\\ncourt authorization, but, as we have explained, “commence” and “brought” do not\\n\\nnecessarily mean the same thing here.\\n\\n\\n\\n4\\n Brown cites Harris v. Garner, 216 F.3d 970 (11th Cir. 2000) (en banc), but the\\n“dispositive question” there was “whether ‘bring’ means to commence or start a lawsuit,\\nor instead means to maintain or continue it to conclusion.” Id. at 973. The court did not\\nconsider when exactly a plaintiff has “brought an action.”\\n5\\n Brown also cites language from our past decisions to suggest that we have held that a\\nprisoner has not “brought” an action until his or her IFP motion has been granted. But we\\nhave never considered the issue we face today: whether, for the purposes of § 1915(g), a\\nprisoner has “brought an action” upon tendering or submitting a complaint to the court or\\nonly once the court has approved his or her IFP motion.\\n 15\\n\\n Second, Brown points to subsection (a)(2), which provides that “[a] prisoner\\n\\nseeking to bring a civil action . . . without prepayment of fees” must submit certain\\n\\ndocumentation. 28 U.S.C. § 1915(a)(2). Focusing on the phrase “seeking to bring,”\\n\\nBrown contends that this language demonstrates that a prisoner has not “brought” an\\n\\naction until the court grants the IFP application. We disagree. At most, subsection (a)(2)\\n\\nsuggests that a prisoner has not yet “brought an action” until he submits all of his IFP\\n\\npaperwork. It does not suggest that a prisoner has not “brought an action” until the court\\n\\napproves it.\\n\\n Moving beyond the statute’s text, Brown contends that his approach “is consistent\\n\\nwith the ‘driving purpose of the PLRA — preserving resources of both the courts and the\\n\\ndefendants in prisoner litigation.’” Brown Resp. to Pet. for Reh’g 6 (quoting Byrd, 715\\n\\nF.3d at 125). He suggests that a prisoner complaint “that survives prescreening” will\\n\\n“generate[] more briefing and adjudication” and thus is “more deserving of a strike\\n\\ndetermination.” Id. We cannot accept such an argument. Once more: the three-strikes\\n\\nrule was designed to “filter out the bad claims and facilitate consideration of the good.”\\n\\nColeman, 135 S. Ct. at 1764 (quoting Bock, 549 U.S. at 204). Brown’s interpretation\\n\\nwould achieve precisely the opposite — it would penalize the bringer of more-\\n\\nmeritorious claims while allowing a serial filer of frivolous lawsuits to continue\\n\\nunabated.\\n\\n B.\\n\\n Brown also argues that Profitt was not a strike because the district court there did\\n\\nnot explicitly state why it dismissed the case. We are unpersuaded.\\n\\n 16\\n\\n In Byrd, we set forth a bright-line rule: “a strike under § 1915(g) will accrue only\\n\\nif the entire action or appeal is (1) dismissed explicitly because it is ‘frivolous,’\\n\\n‘malicious,’ or ‘fails to state a claim’ or (2) dismissed pursuant to a statutory provision or\\n\\nrule that is limited solely to dismissals for such reasons.” 715 F.3d at 126. Profitt passes\\n\\nthat test.\\n\\n The Profitt court denied Brown’s IFP motion by using a form order. That form\\n\\norder contained three sections. The first, left untouched, contained language permitting\\n\\nthe matter to go forward without prepayment of the filing fee. The second, signed by the\\n\\nmagistrate judge, began with: “IT IS RECOMMENDED that the request of prisoner-\\n\\nplaintiff to file the action without prepayment of the full filing fee be DENIED for the\\n\\nfollowing reason(s).” Joint Appendix 59. The form provided nine reasons for denial, all\\n\\nwith checkboxes next to them. The magistrate judge checked the following four: “Other:\\n\\nFailure to state a claim”; “Frivolous, malicious or fails to state a claim upon which relief\\n\\nmay be granted”; “Leave to amend would be futile”; and “This denial may constitute a\\n\\nstrike under the ‘Three Strikes’ provision governing the filing of prisoner suits.” Id. The\\n\\nsection also had room for comments, and the magistrate judge wrote, among other things,\\n\\nthat Brown had “failed to state a valid claim in two attempts.” Id. Finally, in the third\\n\\nsection of the form, the district judge checked the “DENIED” box and signed the form.\\n\\nId. That section also provided that: “If plaintiff does not timely submit an appropriate\\n\\nresponse to the Order, the Clerk is directed to close the case.” Id. The case was\\n\\neventually closed.\\n\\n\\n\\n 17\\n\\n That order constituted a strike under Byrd. The district court, in the form order,\\n\\nexplicitly found that Brown’s complaint failed to state a claim and directed the clerk to\\n\\nclose the case, unless Brown timely responded. Brown did not, and so the case was\\n\\nclosed. The “entire action” in Profitt was therefore “dismissed explicitly because it . . .\\n\\n‘fail[ed] to state a claim.’” Byrd, 715 F.3d at 126. 6\\n\\n Brown contends that this form order did not actually dismiss the entire action.\\n\\nRather, he argues, it just denied his IFP application. He observes that the form order\\n\\nallowed him to respond, which is inconsistent with a straight dismissal. But Brown\\n\\nfocuses too narrowly on the form order. It is clear from the record that the order, while\\n\\nnot artfully drafted, ended the case. And the district court’s basis for that order appears\\n\\nunequivocally on its face. Profitt is not a case where “we cannot determine with certainty\\n\\nthat [the case] was dismissed for reasons warranting a strike under § 1915(g).” Id. at 127.\\n\\n *****\\n\\n To sum up: Brown “brought an action” in Profitt when he tendered his complaint\\n\\nto the district court and asked to proceed IFP. When the district court ultimately\\n\\ndismissed his complaint for failing to state a claim, Brown accrued a strike under\\n\\n§ 1915(g). It is immaterial that this dismissal occurred before Brown’s IFP motion was\\n\\n\\n6\\n Brown points out that the reasons for rejecting Brown’s complaint were provided in the\\nmagistrate judge’s recommendation, not the district judge’s ultimate order. That is, the\\ndistrict judge just checked the “DENIED” box, without explicitly adopting the magistrate\\njudge’s reasons. But, given the circumstances here, we do not think that renders Profitt\\nnot a strike. The magistrate judge’s recommendation and the district court’s order appear\\non the same one-page form order. In fact, the former appears directly above the latter.\\nWe believe it is clear from the form’s structure that the district judge adopted the reasons\\nprovided by the magistrate judge.\\n 18\\n\\ndecided. As Profitt was Brown’s third strike, he is barred from proceeding IFP here. See\\n\\n28 U.S.C. § 1915(g). 7\\n\\n IV.\\n\\n For the foregoing reasons, we will deny Brown’s motions for leave to proceed IFP\\n\\nin these consolidated appeals.\\n\\n\\n\\n\\n7\\n Brown has not established that he “is under imminent danger of serious physical\\ninjury.” 28 U.S.C. § 1915(g). We note that Brown is no longer an inmate at the United\\nStates Penitentiary in Lewisburg, Pennsylvania.\\n 19\\n\\nBrown v. Sage, Nos. 17-1222, 17-1527, 17-1714\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4451565/\", \"author_raw\": \"CHAGARES, Circuit Judge.\"}, {\"author\": \"SMITH, Chief Judge, concurring\", \"type\": \"concurrence\", \"text\": \"SMITH, Chief Judge, concurring, joined by FUENTES,\\nCircuit Judge.\\n\\n I am pleased to join the en banc majority opinion\\nand judgment. I write separately only to explain why,\\nhaving been part of the majority in the three-judge panel\\ndecision in Brown v. Sage, 1 I now change course.\\n\\n It is a well-established “tradition of this court” that\\nour precedential authority “is binding on subsequent\\npanels.” 3d Cir. I.O.P. 9.1. Accordingly, subsequent\\npanels are not free to disregard any precedent of this court,\\nno matter how flawed the reasoning of that precedent may\\nseem. Rather, en banc consideration is the only means by\\nwhich we can overrule our existing precedential authority.\\nId.; see also United States v. Monaco, 23 F.3d 793, 803\\n(3d Cir. 1994) (“To the extent that the decision of a later\\npanel conflicts with existing circuit precedent, we are\\nbound by the earlier, not the later, decision.”); In re\\nZermano-Gomez, 868 F.3d 1048, 1052 (9th Cir. 2017)\\n(noting that the published decisions of the circuit\\nconstitute “binding authority which must be followed\\nunless and until overruled by a body competent to do so”\\n(omitting citation and internal quotation marks)).\\n\\n Mindful of this tradition, I considered Millhouse v.\\nHeath, which was decided well after the enactment of the\\n\\n1\\n 903 F.3d 300, vacated and reh’g en banc granted, 910\\nF.3d 738 (3d Cir. 2018).\\n\\nPrison Litigation Reform Act, to require that we apply the\\nspecific two-step process we have consistently followed\\nfor addressing prisoner complaints and in forma pauperis\\napplications. 2 866 F.3d 152 (3d Cir. 2017). That two-step\\nprocess directed that “when a litigant submits a complaint\\nwith an [in forma pauperis] motion, the complaint is duly\\nfiled after the motion to proceed [in forma pauperis] is\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4451565/\", \"author_raw\": \"SMITH, Chief Judge, concurring\"}, {\"author\": \"granted.” Id. at 158–59. Judge Chagares, in concurring\", \"type\": \"concurrence\", \"text\": \"granted.” Id. at 158–59. Judge Chagares, in concurring\\nwith our panel decision, wisely exhorted us to “take this\\ncase en banc,” recognizing that our jurisprudence required\\nus to employ the “rigid two-step procedure.” Brown, 903\\nF.3d at 308–309.\\n\\n When our Court accepted Judge Chagares’s\\nsuggestion, we had the opportunity to consider whether we\\nshould continue to employ a process that was wooden and\\nmechanical. See 3d Cir. I.O.P. 9.1. We have altered\\ncourse, and because I believe that decision to be a sound\\none, I now join my colleagues in unanimously embracing\\nthe flexible approach set out in the majority opinion.\\n\\n\\n\\n\\n2\\n See Roman v. Jeffes, 904 F.2d 192, 194 n.1 (3d Cir.\\n1990); see also Gibbs v. Ryan, 160 F.3d 160, 162 (3d Cir.\\n1998); Urratia v. Harrisburg Cnty. Police Dep’t, 91 F.3d\\n451, 458 n.12 & 13 (3d Cir. 1996).\\n 2\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4451565/\", \"author_raw\": \"granted.” Id. at 158–59. Judge Chagares, in concurring\"}]}"},"judge1":{"kind":"string","value":"AMBRO"},"judge2":{"kind":"string","value":"SMITH"},"judge3":{"kind":"string","value":"MCKEE"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":"CHAGARES; JORDAN; HARDIMAN; GREENAWAY JR; SHWARTZ; RESTREPO; BIBAS; PORTER; MATEY; PHIPPS; FUENTES"},"judge_designations":{"kind":"string","value":"{\"SMITH\": \", Chief\", \"MCKEE\": \", Circuit\", \"AMBRO\": \", Circuit\", \"CHAGARES\": \", Circuit\", \"JORDAN\": \", Circuit\", \"HARDIMAN\": \", Circuit\", \"GREENAWAY JR\": \", Circuit\", \"SHWARTZ\": \", Circuit\", \"RESTREPO\": \", Circuit\", \"BIBAS\": \", Circuit\", \"PORTER\": \", Circuit\", \"MATEY\": \", Circuit\", \"PHIPPS\": \", Circuit\", \"FUENTES\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":3,"string":"3"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":2,"string":"2"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4674312/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Joseph Brown v. Sage\nCourt: U.S. Court of Appeals for the Third Circuit\nDate decided: 2019-10-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nPRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n Nos. 17-1222, 17-1527, 17-1714\n _____________\n\n JOSEPH A. BROWN,\n Appellant\n\n v.\n\n DR. SAGE, (Psych Dept.);\n DR. EIGENBRODE, (Psych Dept.);\n DR. SHOUEY, (Psych Dept.)\n Appellees in No. 17-1222\n\n\n JOSEPH A. BROWN,\n Appellant\n\n v.\n\n C.O. KEMMERER;\n UNITED STATES; B.R. PEALER;\n T. CRAWFORD; C.O. J. YOUNG;\n C.O. J. TREIBLY; C.O. J. HARDY;\n Lt. R. MILLER; C.O. D. HERR;\n C.O. A. CRAVELING; C.O. J. FINCK;\n C.O. R. WICKHAM; Lt. J. SHERMAN; Lt. DOUH;\nLt. J. SEEBA; Lt. R. JOHNSON; Lt. P. CARRASQUITTO;\n P.A. S. DEES; P.A. L. POTTER; P.A. BRENNAMAN;\n P.A. H. MIOSI; J. CARPENTER; J. RUSSO\n Appellees in No. 17-1527\n\n\n JOSEPH A. BROWN,\n Appellant\n\n v.\n\n SARAH DEES, PHYSICIAN ASSISTANT, USP\n Appellee in No. 17-1714\n\n On Appeal from the United States District Court\n for the Middle District of Pennsylvania\n (Nos. 1:16-cv-02477, 1:14-cv-01520, and 1:17-cv-00025)\n District Judge: Honorable Sylvia H. Rambo\n\n Argued June 14, 2018 Before Merits Panel\n Resubmitted En Banc July 23, 2019\n\n Before: SMITH, Chief Judge, MCKEE, AMBRO, CHAGARES, JORDAN,\n HARDIMAN, GREENAWAY, JR., SHWARTZ, RESTREPO, BIBAS, PORTER,\n MATEY, PHIPPS, and FUENTES, Circuit Judges.\n\n (Filed: October 30, 2019)\n ____________\n\nJulia Chapman\nMichael S. Doluisio\nEllen L. Ratigan\nStefanie A. Tubbs\nDechert\n2929 Arch Street\n18th Floor, Cira Centre\nPhiladelphia, PA 19104\n\n Counsel for Appellant\n\nMichael J. Butler\nOffice of United States Attorney\n228 Walnut Street, P.O. Box 11754\n220 Federal Building and Courthouse\nHarrisburg, PA 17108\n\nCaroline D. Lopez\nUnited States Department of Justice\nCivil Division, Appellate Staff\nRoom 7535\n950 Pennsylvania Avenue, N.W.\nWashington, DC 20530\n\n Counsel for Appellees in No. 17-1527\n\n 2\n\n ____________\n\n OPINION OF THE COURT\n ____________\n\nCHAGARES, Circuit Judge.\n\n Plaintiffs filing lawsuits in federal court generally need to pay a filing fee. But\n\nthat does not mean the courthouse doors are closed to those who cannot afford it.\n\nIndigent plaintiffs can avoid the filing fee if they file a successful application for leave to\n\nproceed “in forma pauperis,” or IFP. Plaintiffs who are prisoners, however, may be\n\nbarred from proceeding IFP by operation of the so-called “three-strikes rule.” That rule,\n\nenacted as part of the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321-\n\n66 (1996) (the “PLRA”), provides that a prisoner cannot proceed IFP if, “on 3 or more\n\nprior occasions, while incarcerated or detained in any facility,” the prisoner has “brought\n\nan action or appeal in a court of the United States that was dismissed on the grounds that\n\nit is frivolous, malicious, or fails to state a claim upon which relief may be granted,\n\nunless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C.\n\n§ 1915(g).\n\n Appellant Joseph Brown moved for leave to proceed IFP in three cases in the\n\nUnited States District Court for the Middle District of Pennsylvania. The District Court\n\ndenied his motions, finding that Brown had accrued three strikes in three earlier cases in\n\nfederal courts in California. Brown appealed, but appeals have fees too, so he also moves\n\nfor leave to proceed IFP in each of his three appeals.\n\n\n\n 3\n\n We granted the petition for rehearing en banc in this case to clarify the framework\n\nthat courts may use in assessing IFP applications under the PLRA. Previously, we\n\nsuggested that courts must employ a “two-step” analysis: first, assess the plaintiff’s\n\neconomic status, and second, consider the merits of the complaint. But we clarify today\n\nthat the PLRA does not require such a rigid, stepwise process; rather, courts are free to\n\nassess the merits of the lawsuit “at any time.” § 1915(e)(2). With this flexible approach\n\nin mind, we will deny Brown’s motions for leave to proceed IFP.\n\n I.\n\n Joseph Brown has been a federal prisoner at all times pertinent to this consolidated\n\nappeal. In 2014, he filed a complaint in the United States District Court for the Middle\n\nDistrict of Pennsylvania, alleging that various prison officials at the United States\n\nPenitentiary in Lewisburg, Pennsylvania — where Brown was then incarcerated — had\n\ninjured him, in violation of his Fifth and Eighth Amendment rights. See Brown v.\n\nKemmerer, No. 1:14-cv-01520. Brown moved in Kemmerer for leave to proceed IFP,\n\nand the District Court granted his motion.\n\n Then, in 2016, Brown started another federal action in the Middle District of\n\nPennsylvania, alleging that prison psychologists, among others, were deliberately\n\nindifferent to his serious mental-health needs. See Brown v. Sage, No. 1:16-cv-02477.\n\nAs in Kemmerer, Brown again moved for leave to proceed IFP. But this time, the\n\nDistrict Court denied the motion, concluding that Brown was barred by the three-strikes\n\nrule. The District Court found that Brown had filed three other actions in federal courts\n\n\n\n 4\n\nin California that all had been dismissed for failure to state a claim upon which relief may\n\nbe granted:\n\n 1. Brown v. United States (“Brown I”), No. 1:11-cv-01562, which the United States\n\n District Court for the Eastern District of California dismissed in June 2013 for\n\n failure to state a claim.\n\n 2. Brown v. United States (“Brown II”), No. 1:12-cv-00165, which the United States\n\n District Court for the Eastern District of California dismissed in November 2014,\n\n also for failure to state a claim.\n\n 3. Brown v. Profitt (“Profitt”), No. 5:13-cv-02338, which the United States District\n\n Court for the Central District of California dismissed in March 2014, again for\n\n failure to state a claim.\n\nIn all three cases, the federal district courts in California explicitly stated that the\n\ndismissals qualified as strikes under § 1915(g). So, finding also that Brown did not\n\nqualify for the imminent-danger exception to the three-strikes rule, the District Court in\n\nSage denied Brown’s IFP motion and dismissed his complaint without prejudice.\n\n Brown’s IFP motion in Sage prompted the District Court to revisit its earlier\n\ndecision to grant Brown’s IFP motion in Kemmerer. On the very same day it denied\n\nBrown’s motion in Sage, the District Court vacated its earlier order in Kemmerer and\n\ndenied Brown’s IFP motion there as well. As it did in Sage, the District Court pointed to\n\nthe three strikes that Brown had accrued in federal courts in California.\n\n\n\n\n 5\n\n The day after the District Court denied his IFP motions in Sage and Kemmerer,\n\nBrown filed one more lawsuit in the Middle District of Pennsylvania. See Brown v.\n\nDees, No. 1:17-cv-00025. In this third suit, he alleged that a prison physician assistant\n\nwas deliberately indifferent to severe burns he received from accidentally spilling hot\n\nwater on his groin. Brown again moved to proceed IFP, arguing that, although he had\n\nthree strikes against him, he qualified for the imminent-danger exception. The District\n\nCourt denied the motion, concluding that Brown had not shown imminent danger.\n\n Brown appealed the denial of his IFP motions in Sage, Kemmerer, and Dees, and\n\nhe also moved to proceed IFP in those appeals. We consolidated Brown’s three cases and\n\nappointed counsel to represent him. 1 A divided panel of this Court granted Brown’s IFP\n\nmotions. See Brown v. Sage, 903 F.3d 300 (3d Cir. 2018). We subsequently granted the\n\ndefendants’ petition for rehearing en banc and vacated the panel’s opinion and judgment.\n\n II. 2\n\n Brown has moved to proceed IFP in his three appeals. So, before we can consider\n\nwhether the District Court erred in denying Brown’s original IFP motions, we must\n\ndecide whether Brown can proceed IFP before us. In so deciding, we will confront the\n\nsame issues that the District Court did. But technically we are not yet reviewing the\n\n\n\n\n1\n We extend our gratitude to Judah Bellin, Julia Chapman, Michael Doluisio, Ellen\nMossman, and Stefanie Tubbs of Dechert LLP for donating their time and talent in\naccepting this pro bono appointment and for zealously representing Joseph Brown before\nour Court.\n2\n The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction\nunder 28 U.S.C. § 1291.\n 6\n\nDistrict Court’s orders; we are assessing Brown’s IFP motions on appeal under 28 U.S.C.\n\n§ 1915. 3 We begin by clarifying the process by which we assess IFP motions.\n\n A.\n\n Some form of the IFP statute has been in existence for over a century. See Abdul-\n\nAkbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001) (en banc). The statute ensures that\n\nno person is barred from “pursuing meaningful litigation” solely because of an inability\n\nto pay administrative court fees. Deutsch v. United States, 67 F.3d 1080, 1084 (3d Cir.\n\n1995). But Congress, in creating the IFP procedure, also “recognized that ‘a litigant\n\nwhose filing fees and court costs are assumed by the public, unlike a paying litigant,\n\nlacks an economic incentive to refrain from filing frivolous, malicious, or repetitive\n\nlawsuits.’” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams,\n\n490 U.S. 319, 324 (1989)). Accordingly, the IFP statute, as originally enacted, provided\n\nthat the court “may dismiss” any IFP action if the court determined that “the alleged\n\ncause of action is frivolous or malicious.” Act of July 20, 1892, ch. 209 §§ 1–5, 27 Stat.\n\n252.\n\n This Court thereafter construed the IFP statute generally to require a “two-step\n\nanalysis.” Roman v. Jeffes, 904 F.2d 192, 194 n.1 (3d Cir. 1990). First, we explained, a\n\n\n\n3\n For this reason, we do not address, for instance, whether the District Court incorrectly\ndetermined that Brown had three strikes at the time he submitted his complaint and IFP\napplication in Kemmerer. We do, however, note that a case counts as a strike if it was\ndismissed as of the date on which the plaintiff submits his application for leave to\nproceed IFP and his complaint or notice of appeal. Cf. Millhouse v. Heath, 866 F.3d 152,\n161 (3d Cir. 2017) (holding that we “look to the date the notice of appeal is filed in\nassessing whether a dismissal counts as a strike”).\n 7\n\ncourt must determine whether the litigant, “based on economic criteria alone,” qualifies\n\nfor IFP status. Id. Second, and only after “evaluat[ing] a litigant’s financial status,” the\n\ncourt considers whether the complaint is frivolous. Id.\n\n In 1996, however, Congress changed the statutory landscape. Over time, it had\n\nbecome deeply concerned that a large volume of frivolous and vexatious prisoner\n\nlawsuits both overburdened the judiciary and were unnecessarily costly for defendants.\n\nIndeed, by 1995, prisoner lawsuits constituted more than twenty-five percent of federal\n\ncivil cases. Roller v. Gunn, 107 F.3d 227, 230 (4th Cir. 1997). So in 1996, to “preserv[e]\n\n[the] resources of both the courts and the defendants in prisoner litigation,” Byrd v.\n\nShannon, 715 F.3d 117, 125 (3d Cir. 2013), and to ensure “fewer and better prisoner\n\nsuits,” Jones v. Bock, 549 U.S. 199, 203 (2007), Congress passed the PLRA.\n\n The PLRA amended the IFP statute in several important respects. Whereas the\n\nprior version had provided that a court “may” dismiss “frivolous or malicious” actions,\n\nthe statute now provides that “a court shall dismiss the case at any time if . . . the action\n\nor appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be\n\ngranted; or (iii) seeks monetary relief against a defendant who is immune from such\n\nrelief.” 28 U.S.C. § 1915(e)(2) (emphases added). The PLRA also added 28 U.S.C.\n\n§ 1915A, which requires courts to screen prisoner complaints for possible dismissal\n\n“before docketing, if feasible or, in any event, as soon as practicable after docketing.” Id.\n\n§ 1915A(a). And relevant here, the PLRA added the three-strikes rule, id. § 1915(g),\n\nwhich “supplie[s] a powerful economic incentive not to file frivolous lawsuits or\n\nappeals.” Abdul-Akbar, 239 F.3d at 314.\n\n 8\n\n B.\n\n Brown argues that we should continue to apply our two-step analysis, which the\n\ndistrict court in Profitt did not follow. Instead, the district court considered the merits of\n\nthe case and evaluated Brown’s IFP application simultaneously. We disagree with\n\nBrown’s argument because the PLRA has superseded our former rigid, stepwise\n\nprocedure and prescribes a flexible approach. Accordingly, we hold that a court has the\n\nauthority to dismiss a case “at any time,” 28 U.S.C. § 1915(e)(2), regardless of the status\n\nof a filing fee; that is, a court has the discretion to consider the merits of a case and\n\nevaluate an IFP application in either order or even simultaneously.\n\n The text, history, and purpose of the PLRA compel our decision. One of the\n\nimportant reforms instituted by the PLRA was to require “early judicial screening of\n\nprisoner complaints.” Bock, 549 U.S. at 202; see also 141 Cong. Rec. S14414 (daily ed.\n\nSept. 27, 1995) (statement of Sen. Dole) (noting that the PLRA “would allow a Federal\n\njudge to immediately dismiss a complaint” (emphasis added)). The PLRA thus\n\nempowered courts to screen complaints “before docketing” or “as soon as practicable”\n\nthereafter, 28 U.S.C. § 1915A(a), and dismiss cases “at any time,” id. § 1915(e)(2). See\n\ngenerally 10 James Wm. Moore et al., Moore’s Federal Practice § 54.104[1][a] (3d ed.\n\n2019) (noting that “the court may dismiss the case, either before ruling on or after\n\ngranting in forma pauperis status”). This process permits courts to move early to screen\n\ncomplaints in order to conserve judicial resources and “the resources of defendants forced\n\nto respond to baseless lawsuits.” Buchheit v. Green, 705 F.3d 1157, 1161 (10th Cir.\n\n2012).\n\n 9\n\n In addition, we note that the flexible approach we now adopt aligns us with our\n\nsister Courts of Appeals. See id. at 1160–61 (noting that, although not required,\n\n“screening might be a good practice and more efficient” before considering an IFP\n\napplication, and observing that “the language of the present rule . . . provides needed\n\nflexibility”); Torres v. O’Quinn, 612 F.3d 237, 249 (4th Cir. 2010) (“[I]n keeping with\n\nthe sensible practice of many district courts around the country, the district court in these\n\ncases promptly determined that the complaints failed to state a claim upon which relief\n\ncould be granted and dismissed each case pursuant to 28 U.S.C. § 1915A without\n\nbothering to process [the plaintiff’s] request for in forma pauperis status.”), abrogated on\n\nother grounds by Bruce v. Samuels, 136 S. Ct. 627 (2016); Ford v. Johnson, 362 F.3d\n\n395, 399–400 (7th Cir. 2004) (“A prisoner’s civil action may be dismissed . . . before any\n\nfees have been paid, and thus before ‘filing’ occurs.”); Leonard v. Lacy, 88 F.3d 181, 185\n\n(2d Cir. 1996) (observing the various practices amongst the district courts with regard to\n\ndocketing and dismissing of frivolous prisoner IFP actions, which include the\n\nsimultaneous docketing and dismissal of complaints, and “[a]s to such dismissed\n\ncomplaints, the [IFP] motion is granted in some courts, and denied in other courts”); cf.\n\nO’Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008); McGore v. Wrigglesworth, 114\n\nF.3d 601, 608 (6th Cir. 1997) (noting that the court’s two-step process does not prohibit\n\ncourts from simultaneously considering both steps).\n\n III.\n\n Applying the flexible approach mandated by the PLRA, we now consider whether\n\nBrown is barred from proceeding IFP under the three-strikes rule. See 28 U.S.C.\n\n 10\n\n§ 1915(g). As noted earlier, Brown had three prior lawsuits dismissed in federal courts in\n\nCalifornia: Brown I, Brown II, and Profitt. The parties agree that the dismissals of\n\nBrown I and Brown II both count as strikes. But they disagree about Profitt. Brown\n\nargues that, even if our old two-step approach is no longer good law, he did not accrue a\n\nstrike in Profitt for two reasons. First, the action there was never “brought.” And second,\n\nthe district court there did not explicitly state why it dismissed the case. We address each\n\nargument in turn.\n\n A.\n\n Brown claims that because the district court in Profitt never granted his IFP\n\napplication — it just dismissed the case on the merits — the action there was never\n\n“brought” and cannot count as a strike under § 1915(g). The government, however,\n\ndisagrees, arguing that a prisoner has “brought an action” for purposes of the PLRA as\n\nsoon as he tenders or submits a complaint to the district court. We agree with the\n\ngovernment.\n\n We are interpreting a statute, so we start with its text. See, e.g., Ross v. Blake,\n\n136 S. Ct. 1850, 1856 (2016). Section 1915(g) provides in full:\n\n In no event shall a prisoner bring a civil action or appeal a judgment in a civil\n action or proceeding under this section if the prisoner has, on 3 or more prior\n occasions, while incarcerated or detained in any facility, brought an action\n or appeal in a court of the United States that was dismissed on the grounds\n that it is frivolous, malicious, or fails to state a claim upon which relief may\n be granted, unless the prisoner is under imminent danger of serious physical\n injury.\n\n28 U.S.C. § 1915(g) (emphasis added).\n\n\n\n 11\n\n The question, therefore, is: when has a prisoner “brought an action or appeal in a\n\ncourt of the United States”? Just considering that phrase in isolation will not get us very\n\nfar. We have observed “that the word ‘bring’ in [the context of § 1915(g)] plainly refers\n\nto the time when the civil action is initiated.” Abdul-Akbar, 239 F.3d at 313; see also\n\nGibbs v. Ryan, 160 F.3d 160, 162 (3d Cir. 1998) (“In the context of filing a civil action,\n\n‘bring’ ordinarily refers to the ‘initiation of legal proceedings in a suit.’” (quoting Bring,\n\nBlack’s Law Dictionary (6th ed. 1990))). Or as the most recent edition of Black’s Law\n\nDictionary puts it, “bring an action” means “[t]o sue” or “institute legal proceedings.”\n\nBring an Action, Black’s Law Dictionary (11th ed. 2019). But those words — initiate,\n\nsue, institute — are broad. When exactly has a prisoner sued or initiated an action?\n\nWhen tendering or submitting the complaint to the court? Or when the court ultimately\n\nauthorizes the action?\n\n Instead of “squinting myopically” at the phrase brought an action, we must widen\n\nour lens. M.A. ex rel. E.S. v. State-Operated Sch. Dist. of City of Newark, 344 F.3d 335,\n\n348 (3d Cir. 2003). As we have instructed, “the ‘plain meaning’ of statutory language is\n\noften illuminated by considering not only ‘the particular statutory language’ at issue, but\n\nalso the structure of the section in which the key language is found, ‘the design of the\n\nstatute as a whole and its object.’” United States v. Tupone, 442 F.3d 145, 151 (3d Cir.\n\n2006) (quoting United States v. Schneider, 14 F.3d 876, 879 (3d Cir. 1994)). Indeed,\n\n“[i]t is a ‘fundamental canon of statutory construction that the words of a statute must be\n\nread in their context and with a view to their place in the overall statutory scheme.’”\n\nFDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis\n\n 12\n\nv. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989)). When we consider the PLRA’s\n\nstatutory scheme more broadly, the answer to our question becomes apparent: a prisoner\n\nhas “brought an action” when he tenders or submits his complaint to the court.\n\n The PLRA, as we have explained, was enacted “to limit the filing of frivolous and\n\nvexatious prisoner lawsuits” by “curtail[ing] the ability of prisoners to take advantage of\n\nthe privilege of filing [IFP].” Abdul-Akbar, 239 F.3d at 314. To repeat, the statute\n\nrequires a court to dismiss an IFP complaint “at any time” if it determines that the\n\ncomplaint is frivolous, malicious, or fails to state a claim. Moreover, § 1915A\n\nencourages review of prisoner complaints before docketing or as soon as practicable.\n\nAnd the three-strikes rule was added to “filter out the bad claims and facilitate\n\nconsideration of the good.” Coleman v. Tollefson, 135 S. Ct. 1759, 1764 (2015) (quoting\n\nBock, 549 U.S. at 204).\n\n Brown’s proposed interpretation of “brought an action” would undermine that\n\nstatutory scheme. A prisoner could file frivolous lawsuit after frivolous lawsuit, and, so\n\nlong as the courts continue to screen the suits early, as the PLRA encourages, the prisoner\n\nwould accrue no strikes and could continue the barrage of meritless suits. That would\n\nnegate the PLRA’s scheme of limiting frivolous lawsuits. See O’Neal, 531 F.3d at 1152\n\n(“[C]onstruing ‘brought’ in § 1915(g) to mean ‘submitted to the court’ furthers\n\nCongress’s intent to screen out frivolous complaints by precluding prisoners from\n\nsubmitting an endless stream of frivolous in forma pauperis complaints.”); cf. Ford, 362\n\nF.3d at 399 (interpreting “brought” in another provision of the PLRA to mean submitting\n\nthe complaint to the court because “[o]therwise the statute cannot work”). Indeed, it\n\n 13\n\nwould be strange for Congress to, on the one hand, create the three-strikes rule and\n\npromote the “early judicial screening of prisoner complaints,” Bock, 549 U.S. at 202, but\n\non the other, not count the early dismissals as strikes.\n\n Our reading is bolstered by the statute’s specific use of the word “brought,” as\n\nopposed to “commenced” or “filed.” The verb “brought” — whose subject in § 1915(g)\n\nis “the prisoner” — “properly focuses attention on what the prisoner-plaintiff does.”\n\nVaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). And what the prisoner-\n\nplaintiff does is tender or submit a complaint and request to proceed IFP. By contrast,\n\n“filing” and “commencement” involve court action. Under Federal Rule of Civil\n\nProcedure 3, commencement is triggered by the filing of a complaint, and “[w]hen a\n\ncomplaint is accompanied by a motion to proceed in forma pauperis, rather than by\n\npayment of a filing fee, the complaint is not docketed, and it is therefore not filed, until\n\nthe motion has been granted.” Oatess v. Sobolevitch, 914 F.2d 428, 429 n.1 (3d Cir.\n\n1990). So, in the IFP context, it is the court that “authorize[s] the commencement” of the\n\naction, and consequently the filing of the complaint. 28 U.S.C. § 1915(a); see also\n\nUrrutia v. Harrisburg Cty. Police Dep’t, 91 F.3d 451, 458 n.13 (3d Cir. 1996). That\n\n§ 1915(g) uses the verb “brought,” not “commenced” or “filed,” underscores that court\n\napproval of an IFP application is not necessary for an action to count as a strike. See\n\nVaden, 449 F.3d at 1050; Ford, 362 F.3d at 399–400 (observing differences in the PLRA\n\namong “brought,” “filed,” and “commenced”).\n\n We hold, therefore, that for the purposes of § 1915(g), a prisoner has “brought an\n\naction” once he tenders or submits a complaint to the court. In so holding, we reach the\n\n 14\n\nsame conclusion as the Court of Appeals for the Ninth Circuit, the only other circuit court\n\nthat, to the best of our knowledge, has addressed the meaning of “brought an action” in\n\n§ 1915(g). See O’Neal, 531 F.3d at 1152. And our conclusion accords with how the\n\nCourts of Appeals for the Seventh and Ninth Circuits have interpreted “brought” as it\n\nappears in another section of the PLRA. See Vaden, 449 F.3d at 1050; Ford, 362 F.3d at\n\n399–400. 4\n\n Brown presents a variety of counterarguments based on the PLRA’s text and\n\npurpose. 5 We are unconvinced.\n\n Brown’s textual argument rests on two particular phrases. First, Brown observes\n\nthat subsection (a)(1) provides that “any court of the United States may authorize the\n\ncommencement . . . of any suit . . . without prepayment of fees.” 28 U.S.C. § 1915(a)(1).\n\nBrown understands subsection (a)(1) to mean that, until a court has authorized the action\n\n— that is, granted the IFP application — the suit has not been “brought” because it has\n\nnot yet commenced. We agree with Brown that commencement of the action requires\n\ncourt authorization, but, as we have explained, “commence” and “brought” do not\n\nnecessarily mean the same thing here.\n\n\n\n4\n Brown cites Harris v. Garner, 216 F.3d 970 (11th Cir. 2000) (en banc), but the\n“dispositive question” there was “whether ‘bring’ means to commence or start a lawsuit,\nor instead means to maintain or continue it to conclusion.” Id. at 973. The court did not\nconsider when exactly a plaintiff has “brought an action.”\n5\n Brown also cites language from our past decisions to suggest that we have held that a\nprisoner has not “brought” an action until his or her IFP motion has been granted. But we\nhave never considered the issue we face today: whether, for the purposes of § 1915(g), a\nprisoner has “brought an action” upon tendering or submitting a complaint to the court or\nonly once the court has approved his or her IFP motion.\n 15\n\n Second, Brown points to subsection (a)(2), which provides that “[a] prisoner\n\nseeking to bring a civil action . . . without prepayment of fees” must submit certain\n\ndocumentation. 28 U.S.C. § 1915(a)(2). Focusing on the phrase “seeking to bring,”\n\nBrown contends that this language demonstrates that a prisoner has not “brought” an\n\naction until the court grants the IFP application. We disagree. At most, subsection (a)(2)\n\nsuggests that a prisoner has not yet “brought an action” until he submits all of his IFP\n\npaperwork. It does not suggest that a prisoner has not “brought an action” until the court\n\napproves it.\n\n Moving beyond the statute’s text, Brown contends that his approach “is consistent\n\nwith the ‘driving purpose of the PLRA — preserving resources of both the courts and the\n\ndefendants in prisoner litigation.’” Brown Resp. to Pet. for Reh’g 6 (quoting Byrd, 715\n\nF.3d at 125). He suggests that a prisoner complaint “that survives prescreening” will\n\n“generate[] more briefing and adjudication” and thus is “more deserving of a strike\n\ndetermination.” Id. We cannot accept such an argument. Once more: the three-strikes\n\nrule was designed to “filter out the bad claims and facilitate consideration of the good.”\n\nColeman, 135 S. Ct. at 1764 (quoting Bock, 549 U.S. at 204). Brown’s interpretation\n\nwould achieve precisely the opposite — it would penalize the bringer of more-\n\nmeritorious claims while allowing a serial filer of frivolous lawsuits to continue\n\nunabated.\n\n B.\n\n Brown also argues that Profitt was not a strike because the district court there did\n\nnot explicitly state why it dismissed the case. We are unpersuaded.\n\n 16\n\n In Byrd, we set forth a bright-line rule: “a strike under § 1915(g) will accrue only\n\nif the entire action or appeal is (1) dismissed explicitly because it is ‘frivolous,’\n\n‘malicious,’ or ‘fails to state a claim’ or (2) dismissed pursuant to a statutory provision or\n\nrule that is limited solely to dismissals for such reasons.” 715 F.3d at 126. Profitt passes\n\nthat test.\n\n The Profitt court denied Brown’s IFP motion by using a form order. That form\n\norder contained three sections. The first, left untouched, contained language permitting\n\nthe matter to go forward without prepayment of the filing fee. The second, signed by the\n\nmagistrate judge, began with: “IT IS RECOMMENDED that the request of prisoner-\n\nplaintiff to file the action without prepayment of the full filing fee be DENIED for the\n\nfollowing reason(s).” Joint Appendix 59. The form provided nine reasons for denial, all\n\nwith checkboxes next to them. The magistrate judge checked the following four: “Other:\n\nFailure to state a claim”; “Frivolous, malicious or fails to state a claim upon which relief\n\nmay be granted”; “Leave to amend would be futile”; and “This denial may constitute a\n\nstrike under the ‘Three Strikes’ provision governing the filing of prisoner suits.” Id. The\n\nsection also had room for comments, and the magistrate judge wrote, among other things,\n\nthat Brown had “failed to state a valid claim in two attempts.” Id. Finally, in the third\n\nsection of the form, the district judge checked the “DENIED” box and signed the form.\n\nId. That section also provided that: “If plaintiff does not timely submit an appropriate\n\nresponse to the Order, the Clerk is directed to close the case.” Id. The case was\n\neventually closed.\n\n\n\n 17\n\n That order constituted a strike under Byrd. The district court, in the form order,\n\nexplicitly found that Brown’s complaint failed to state a claim and directed the clerk to\n\nclose the case, unless Brown timely responded. Brown did not, and so the case was\n\nclosed. The “entire action” in Profitt was therefore “dismissed explicitly because it . . .\n\n‘fail[ed] to state a claim.’” Byrd, 715 F.3d at 126. 6\n\n Brown contends that this form order did not actually dismiss the entire action.\n\nRather, he argues, it just denied his IFP application. He observes that the form order\n\nallowed him to respond, which is inconsistent with a straight dismissal. But Brown\n\nfocuses too narrowly on the form order. It is clear from the record that the order, while\n\nnot artfully drafted, ended the case. And the district court’s basis for that order appears\n\nunequivocally on its face. Profitt is not a case where “we cannot determine with certainty\n\nthat [the case] was dismissed for reasons warranting a strike under § 1915(g).” Id. at 127.\n\n *****\n\n To sum up: Brown “brought an action” in Profitt when he tendered his complaint\n\nto the district court and asked to proceed IFP. When the district court ultimately\n\ndismissed his complaint for failing to state a claim, Brown accrued a strike under\n\n§ 1915(g). It is immaterial that this dismissal occurred before Brown’s IFP motion was\n\n\n6\n Brown points out that the reasons for rejecting Brown’s complaint were provided in the\nmagistrate judge’s recommendation, not the district judge’s ultimate order. That is, the\ndistrict judge just checked the “DENIED” box, without explicitly adopting the magistrate\njudge’s reasons. But, given the circumstances here, we do not think that renders Profitt\nnot a strike. The magistrate judge’s recommendation and the district court’s order appear\non the same one-page form order. In fact, the former appears directly above the latter.\nWe believe it is clear from the form’s structure that the district judge adopted the reasons\nprovided by the magistrate judge.\n 18\n\ndecided. As Profitt was Brown’s third strike, he is barred from proceeding IFP here. See\n\n28 U.S.C. § 1915(g). 7\n\n IV.\n\n For the foregoing reasons, we will deny Brown’s motions for leave to proceed IFP\n\nin these consolidated appeals.\n\n\n\n\n7\n Brown has not established that he “is under imminent danger of serious physical\ninjury.” 28 U.S.C. § 1915(g). We note that Brown is no longer an inmate at the United\nStates Penitentiary in Lewisburg, Pennsylvania.\n 19\n\nBrown v. Sage, Nos. 17-1222, 17-1527, 17-1714\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Joseph Brown v. Sage\\nCourt: U.S. Court of Appeals for the Third Circuit\\nDate decided: 2019-10-30\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n _____________\\n\\n Nos. 17-1222, 17-1527, 17-1714\\n _____________\\n\\n JOSEPH A. BROWN,\\n Appellant\\n\\n v.\\n\\n DR. SAGE, (Psych Dept.);\\n DR. EIGENBRODE, (Psych Dept.);\\n DR. SHOUEY, (Psych Dept.)\\n Appellees in No. 17-1222\\n\\n\\n JOSEPH A. BROWN,\\n Appellant\\n\\n v.\\n\\n C.O. KEMMERER;\\n UNITED STATES; B.R. PEALER;\\n T. CRAWFORD; C.O. J. YOUNG;\\n C.O. J. TREIBLY; C.O. J. HARDY;\\n Lt. R. MILLER; C.O. D. HERR;\\n C.O. A. CRAVELING; C.O. J. FINCK;\\n C.O. R. WICKHAM; Lt. J. SHERMAN; Lt. DOUH;\\nLt. J. SEEBA; Lt. R. JOHNSON; Lt. P. CARRASQUITTO;\\n P.A. S. DEES; P.A. L. POTTER; P.A. BRENNAMAN;\\n P.A. H. MIOSI; J. CARPENTER; J. RUSSO\\n Appellees in No. 17-1527\\n\\n\\n JOSEPH A. BROWN,\\n Appellant\\n\\n v.\\n\\n SARAH DEES, PHYSICIAN ASSISTANT, USP\\n Appellee in No. 17-1714\\n\\n On Appeal from the United States District Court\\n for the Middle District of Pennsylvania\\n (Nos. 1:16-cv-02477, 1:14-cv-01520, and 1:17-cv-00025)\\n District Judge: Honorable Sylvia H. Rambo\\n\\n Argued June 14, 2018 Before Merits Panel\\n Resubmitted En Banc July 23, 2019\\n\\n Before: SMITH, Chief Judge, MCKEE, AMBRO, CHAGARES, JORDAN,\\n HARDIMAN, GREENAWAY, JR., SHWARTZ, RESTREPO, BIBAS, PORTER,\\n MATEY, PHIPPS, and FUENTES, Circuit Judges.\\n\\n (Filed: October 30, 2019)\\n ____________\\n\\nJulia Chapman\\nMichael S. Doluisio\\nEllen L. Ratigan\\nStefanie A. Tubbs\\nDechert\\n2929 Arch Street\\n18th Floor, Cira Centre\\nPhiladelphia, PA 19104\\n\\n Counsel for Appellant\\n\\nMichael J. Butler\\nOffice of United States Attorney\\n228 Walnut Street, P.O. Box 11754\\n220 Federal Building and Courthouse\\nHarrisburg, PA 17108\\n\\nCaroline D. Lopez\\nUnited States Department of Justice\\nCivil Division, Appellate Staff\\nRoom 7535\\n950 Pennsylvania Avenue, N.W.\\nWashington, DC 20530\\n\\n Counsel for Appellees in No. 17-1527\\n\\n 2\\n\\n ____________\\n\\n OPINION OF THE COURT\\n ____________\\n\\nCHAGARES, Circuit Judge.\\n\\n Plaintiffs filing lawsuits in federal court generally need to pay a filing fee. But\\n\\nthat does not mean the courthouse doors are closed to those who cannot afford it.\\n\\nIndigent plaintiffs can avoid the filing fee if they file a successful application for leave to\\n\\nproceed “in forma pauperis,” or IFP. Plaintiffs who are prisoners, however, may be\\n\\nbarred from proceeding IFP by operation of the so-called “three-strikes rule.” That rule,\\n\\nenacted as part of the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321-\\n\\n66 (1996) (the “PLRA”), provides that a prisoner cannot proceed IFP if, “on 3 or more\\n\\nprior occasions, while incarcerated or detained in any facility,” the prisoner has “brought\\n\\nan action or appeal in a court of the United States that was dismissed on the grounds that\\n\\nit is frivolous, malicious, or fails to state a claim upon which relief may be granted,\\n\\nunless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C.\\n\\n§ 1915(g).\\n\\n Appellant Joseph Brown moved for leave to proceed IFP in three cases in the\\n\\nUnited States District Court for the Middle District of Pennsylvania. The District Court\\n\\ndenied his motions, finding that Brown had accrued three strikes in three earlier cases in\\n\\nfederal courts in California. Brown appealed, but appeals have fees too, so he also moves\\n\\nfor leave to proceed IFP in each of his three appeals.\\n\\n\\n\\n 3\\n\\n We granted the petition for rehearing en banc in this case to clarify the framework\\n\\nthat courts may use in assessing IFP applications under the PLRA. Previously, we\\n\\nsuggested that courts must employ a “two-step” analysis: first, assess the plaintiff’s\\n\\neconomic status, and second, consider the merits of the complaint. But we clarify today\\n\\nthat the PLRA does not require such a rigid, stepwise process; rather, courts are free to\\n\\nassess the merits of the lawsuit “at any time.” § 1915(e)(2). With this flexible approach\\n\\nin mind, we will deny Brown’s motions for leave to proceed IFP.\\n\\n I.\\n\\n Joseph Brown has been a federal prisoner at all times pertinent to this consolidated\\n\\nappeal. In 2014, he filed a complaint in the United States District Court for the Middle\\n\\nDistrict of Pennsylvania, alleging that various prison officials at the United States\\n\\nPenitentiary in Lewisburg, Pennsylvania — where Brown was then incarcerated — had\\n\\ninjured him, in violation of his Fifth and Eighth Amendment rights. See Brown v.\\n\\nKemmerer, No. 1:14-cv-01520. Brown moved in Kemmerer for leave to proceed IFP,\\n\\nand the District Court granted his motion.\\n\\n Then, in 2016, Brown started another federal action in the Middle District of\\n\\nPennsylvania, alleging that prison psychologists, among others, were deliberately\\n\\nindifferent to his serious mental-health needs. See Brown v. Sage, No. 1:16-cv-02477.\\n\\nAs in Kemmerer, Brown again moved for leave to proceed IFP. But this time, the\\n\\nDistrict Court denied the motion, concluding that Brown was barred by the three-strikes\\n\\nrule. The District Court found that Brown had filed three other actions in federal courts\\n\\n\\n\\n 4\\n\\nin California that all had been dismissed for failure to state a claim upon which relief may\\n\\nbe granted:\\n\\n 1. Brown v. United States (“Brown I”), No. 1:11-cv-01562, which the United States\\n\\n District Court for the Eastern District of California dismissed in June 2013 for\\n\\n failure to state a claim.\\n\\n 2. Brown v. United States (“Brown II”), No. 1:12-cv-00165, which the United States\\n\\n District Court for the Eastern District of California dismissed in November 2014,\\n\\n also for failure to state a claim.\\n\\n 3. Brown v. Profitt (“Profitt”), No. 5:13-cv-02338, which the United States District\\n\\n Court for the Central District of California dismissed in March 2014, again for\\n\\n failure to state a claim.\\n\\nIn all three cases, the federal district courts in California explicitly stated that the\\n\\ndismissals qualified as strikes under § 1915(g). So, finding also that Brown did not\\n\\nqualify for the imminent-danger exception to the three-strikes rule, the District Court in\\n\\nSage denied Brown’s IFP motion and dismissed his complaint without prejudice.\\n\\n Brown’s IFP motion in Sage prompted the District Court to revisit its earlier\\n\\ndecision to grant Brown’s IFP motion in Kemmerer. On the very same day it denied\\n\\nBrown’s motion in Sage, the District Court vacated its earlier order in Kemmerer and\\n\\ndenied Brown’s IFP motion there as well. As it did in Sage, the District Court pointed to\\n\\nthe three strikes that Brown had accrued in federal courts in California.\\n\\n\\n\\n\\n 5\\n\\n The day after the District Court denied his IFP motions in Sage and Kemmerer,\\n\\nBrown filed one more lawsuit in the Middle District of Pennsylvania. See Brown v.\\n\\nDees, No. 1:17-cv-00025. In this third suit, he alleged that a prison physician assistant\\n\\nwas deliberately indifferent to severe burns he received from accidentally spilling hot\\n\\nwater on his groin. Brown again moved to proceed IFP, arguing that, although he had\\n\\nthree strikes against him, he qualified for the imminent-danger exception. The District\\n\\nCourt denied the motion, concluding that Brown had not shown imminent danger.\\n\\n Brown appealed the denial of his IFP motions in Sage, Kemmerer, and Dees, and\\n\\nhe also moved to proceed IFP in those appeals. We consolidated Brown’s three cases and\\n\\nappointed counsel to represent him. 1 A divided panel of this Court granted Brown’s IFP\\n\\nmotions. See Brown v. Sage, 903 F.3d 300 (3d Cir. 2018). We subsequently granted the\\n\\ndefendants’ petition for rehearing en banc and vacated the panel’s opinion and judgment.\\n\\n II. 2\\n\\n Brown has moved to proceed IFP in his three appeals. So, before we can consider\\n\\nwhether the District Court erred in denying Brown’s original IFP motions, we must\\n\\ndecide whether Brown can proceed IFP before us. In so deciding, we will confront the\\n\\nsame issues that the District Court did. But technically we are not yet reviewing the\\n\\n\\n\\n\\n1\\n We extend our gratitude to Judah Bellin, Julia Chapman, Michael Doluisio, Ellen\\nMossman, and Stefanie Tubbs of Dechert LLP for donating their time and talent in\\naccepting this pro bono appointment and for zealously representing Joseph Brown before\\nour Court.\\n2\\n The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction\\nunder 28 U.S.C. § 1291.\\n 6\\n\\nDistrict Court’s orders; we are assessing Brown’s IFP motions on appeal under 28 U.S.C.\\n\\n§ 1915. 3 We begin by clarifying the process by which we assess IFP motions.\\n\\n A.\\n\\n Some form of the IFP statute has been in existence for over a century. See Abdul-\\n\\nAkbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001) (en banc). The statute ensures that\\n\\nno person is barred from “pursuing meaningful litigation” solely because of an inability\\n\\nto pay administrative court fees. Deutsch v. United States, 67 F.3d 1080, 1084 (3d Cir.\\n\\n1995). But Congress, in creating the IFP procedure, also “recognized that ‘a litigant\\n\\nwhose filing fees and court costs are assumed by the public, unlike a paying litigant,\\n\\nlacks an economic incentive to refrain from filing frivolous, malicious, or repetitive\\n\\nlawsuits.’” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams,\\n\\n490 U.S. 319, 324 (1989)). Accordingly, the IFP statute, as originally enacted, provided\\n\\nthat the court “may dismiss” any IFP action if the court determined that “the alleged\\n\\ncause of action is frivolous or malicious.” Act of July 20, 1892, ch. 209 §§ 1–5, 27 Stat.\\n\\n252.\\n\\n This Court thereafter construed the IFP statute generally to require a “two-step\\n\\nanalysis.” Roman v. Jeffes, 904 F.2d 192, 194 n.1 (3d Cir. 1990). First, we explained, a\\n\\n\\n\\n3\\n For this reason, we do not address, for instance, whether the District Court incorrectly\\ndetermined that Brown had three strikes at the time he submitted his complaint and IFP\\napplication in Kemmerer. We do, however, note that a case counts as a strike if it was\\ndismissed as of the date on which the plaintiff submits his application for leave to\\nproceed IFP and his complaint or notice of appeal. Cf. Millhouse v. Heath, 866 F.3d 152,\\n161 (3d Cir. 2017) (holding that we “look to the date the notice of appeal is filed in\\nassessing whether a dismissal counts as a strike”).\\n 7\\n\\ncourt must determine whether the litigant, “based on economic criteria alone,” qualifies\\n\\nfor IFP status. Id. Second, and only after “evaluat[ing] a litigant’s financial status,” the\\n\\ncourt considers whether the complaint is frivolous. Id.\\n\\n In 1996, however, Congress changed the statutory landscape. Over time, it had\\n\\nbecome deeply concerned that a large volume of frivolous and vexatious prisoner\\n\\nlawsuits both overburdened the judiciary and were unnecessarily costly for defendants.\\n\\nIndeed, by 1995, prisoner lawsuits constituted more than twenty-five percent of federal\\n\\ncivil cases. Roller v. Gunn, 107 F.3d 227, 230 (4th Cir. 1997). So in 1996, to “preserv[e]\\n\\n[the] resources of both the courts and the defendants in prisoner litigation,” Byrd v.\\n\\nShannon, 715 F.3d 117, 125 (3d Cir. 2013), and to ensure “fewer and better prisoner\\n\\nsuits,” Jones v. Bock, 549 U.S. 199, 203 (2007), Congress passed the PLRA.\\n\\n The PLRA amended the IFP statute in several important respects. Whereas the\\n\\nprior version had provided that a court “may” dismiss “frivolous or malicious” actions,\\n\\nthe statute now provides that “a court shall dismiss the case at any time if . . . the action\\n\\nor appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be\\n\\ngranted; or (iii) seeks monetary relief against a defendant who is immune from such\\n\\nrelief.” 28 U.S.C. § 1915(e)(2) (emphases added). The PLRA also added 28 U.S.C.\\n\\n§ 1915A, which requires courts to screen prisoner complaints for possible dismissal\\n\\n“before docketing, if feasible or, in any event, as soon as practicable after docketing.” Id.\\n\\n§ 1915A(a). And relevant here, the PLRA added the three-strikes rule, id. § 1915(g),\\n\\nwhich “supplie[s] a powerful economic incentive not to file frivolous lawsuits or\\n\\nappeals.” Abdul-Akbar, 239 F.3d at 314.\\n\\n 8\\n\\n B.\\n\\n Brown argues that we should continue to apply our two-step analysis, which the\\n\\ndistrict court in Profitt did not follow. Instead, the district court considered the merits of\\n\\nthe case and evaluated Brown’s IFP application simultaneously. We disagree with\\n\\nBrown’s argument because the PLRA has superseded our former rigid, stepwise\\n\\nprocedure and prescribes a flexible approach. Accordingly, we hold that a court has the\\n\\nauthority to dismiss a case “at any time,” 28 U.S.C. § 1915(e)(2), regardless of the status\\n\\nof a filing fee; that is, a court has the discretion to consider the merits of a case and\\n\\nevaluate an IFP application in either order or even simultaneously.\\n\\n The text, history, and purpose of the PLRA compel our decision. One of the\\n\\nimportant reforms instituted by the PLRA was to require “early judicial screening of\\n\\nprisoner complaints.” Bock, 549 U.S. at 202; see also 141 Cong. Rec. S14414 (daily ed.\\n\\nSept. 27, 1995) (statement of Sen. Dole) (noting that the PLRA “would allow a Federal\\n\\njudge to immediately dismiss a complaint” (emphasis added)). The PLRA thus\\n\\nempowered courts to screen complaints “before docketing” or “as soon as practicable”\\n\\nthereafter, 28 U.S.C. § 1915A(a), and dismiss cases “at any time,” id. § 1915(e)(2). See\\n\\ngenerally 10 James Wm. Moore et al., Moore’s Federal Practice § 54.104[1][a] (3d ed.\\n\\n2019) (noting that “the court may dismiss the case, either before ruling on or after\\n\\ngranting in forma pauperis status”). This process permits courts to move early to screen\\n\\ncomplaints in order to conserve judicial resources and “the resources of defendants forced\\n\\nto respond to baseless lawsuits.” Buchheit v. Green, 705 F.3d 1157, 1161 (10th Cir.\\n\\n2012).\\n\\n 9\\n\\n In addition, we note that the flexible approach we now adopt aligns us with our\\n\\nsister Courts of Appeals. See id. at 1160–61 (noting that, although not required,\\n\\n“screening might be a good practice and more efficient” before considering an IFP\\n\\napplication, and observing that “the language of the present rule . . . provides needed\\n\\nflexibility”); Torres v. O’Quinn, 612 F.3d 237, 249 (4th Cir. 2010) (“[I]n keeping with\\n\\nthe sensible practice of many district courts around the country, the district court in these\\n\\ncases promptly determined that the complaints failed to state a claim upon which relief\\n\\ncould be granted and dismissed each case pursuant to 28 U.S.C. § 1915A without\\n\\nbothering to process [the plaintiff’s] request for in forma pauperis status.”), abrogated on\\n\\nother grounds by Bruce v. Samuels, 136 S. Ct. 627 (2016); Ford v. Johnson, 362 F.3d\\n\\n395, 399–400 (7th Cir. 2004) (“A prisoner’s civil action may be dismissed . . . before any\\n\\nfees have been paid, and thus before ‘filing’ occurs.”); Leonard v. Lacy, 88 F.3d 181, 185\\n\\n(2d Cir. 1996) (observing the various practices amongst the district courts with regard to\\n\\ndocketing and dismissing of frivolous prisoner IFP actions, which include the\\n\\nsimultaneous docketing and dismissal of complaints, and “[a]s to such dismissed\\n\\ncomplaints, the [IFP] motion is granted in some courts, and denied in other courts”); cf.\\n\\nO’Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008); McGore v. Wrigglesworth, 114\\n\\nF.3d 601, 608 (6th Cir. 1997) (noting that the court’s two-step process does not prohibit\\n\\ncourts from simultaneously considering both steps).\\n\\n III.\\n\\n Applying the flexible approach mandated by the PLRA, we now consider whether\\n\\nBrown is barred from proceeding IFP under the three-strikes rule. See 28 U.S.C.\\n\\n 10\\n\\n§ 1915(g). As noted earlier, Brown had three prior lawsuits dismissed in federal courts in\\n\\nCalifornia: Brown I, Brown II, and Profitt. The parties agree that the dismissals of\\n\\nBrown I and Brown II both count as strikes. But they disagree about Profitt. Brown\\n\\nargues that, even if our old two-step approach is no longer good law, he did not accrue a\\n\\nstrike in Profitt for two reasons. First, the action there was never “brought.” And second,\\n\\nthe district court there did not explicitly state why it dismissed the case. We address each\\n\\nargument in turn.\\n\\n A.\\n\\n Brown claims that because the district court in Profitt never granted his IFP\\n\\napplication — it just dismissed the case on the merits — the action there was never\\n\\n“brought” and cannot count as a strike under § 1915(g). The government, however,\\n\\ndisagrees, arguing that a prisoner has “brought an action” for purposes of the PLRA as\\n\\nsoon as he tenders or submits a complaint to the district court. We agree with the\\n\\ngovernment.\\n\\n We are interpreting a statute, so we start with its text. See, e.g., Ross v. Blake,\\n\\n136 S. Ct. 1850, 1856 (2016). Section 1915(g) provides in full:\\n\\n In no event shall a prisoner bring a civil action or appeal a judgment in a civil\\n action or proceeding under this section if the prisoner has, on 3 or more prior\\n occasions, while incarcerated or detained in any facility, brought an action\\n or appeal in a court of the United States that was dismissed on the grounds\\n that it is frivolous, malicious, or fails to state a claim upon which relief may\\n be granted, unless the prisoner is under imminent danger of serious physical\\n injury.\\n\\n28 U.S.C. § 1915(g) (emphasis added).\\n\\n\\n\\n 11\\n\\n The question, therefore, is: when has a prisoner “brought an action or appeal in a\\n\\ncourt of the United States”? Just considering that phrase in isolation will not get us very\\n\\nfar. We have observed “that the word ‘bring’ in [the context of § 1915(g)] plainly refers\\n\\nto the time when the civil action is initiated.” Abdul-Akbar, 239 F.3d at 313; see also\\n\\nGibbs v. Ryan, 160 F.3d 160, 162 (3d Cir. 1998) (“In the context of filing a civil action,\\n\\n‘bring’ ordinarily refers to the ‘initiation of legal proceedings in a suit.’” (quoting Bring,\\n\\nBlack’s Law Dictionary (6th ed. 1990))). Or as the most recent edition of Black’s Law\\n\\nDictionary puts it, “bring an action” means “[t]o sue” or “institute legal proceedings.”\\n\\nBring an Action, Black’s Law Dictionary (11th ed. 2019). But those words — initiate,\\n\\nsue, institute — are broad. When exactly has a prisoner sued or initiated an action?\\n\\nWhen tendering or submitting the complaint to the court? Or when the court ultimately\\n\\nauthorizes the action?\\n\\n Instead of “squinting myopically” at the phrase brought an action, we must widen\\n\\nour lens. M.A. ex rel. E.S. v. State-Operated Sch. Dist. of City of Newark, 344 F.3d 335,\\n\\n348 (3d Cir. 2003). As we have instructed, “the ‘plain meaning’ of statutory language is\\n\\noften illuminated by considering not only ‘the particular statutory language’ at issue, but\\n\\nalso the structure of the section in which the key language is found, ‘the design of the\\n\\nstatute as a whole and its object.’” United States v. Tupone, 442 F.3d 145, 151 (3d Cir.\\n\\n2006) (quoting United States v. Schneider, 14 F.3d 876, 879 (3d Cir. 1994)). Indeed,\\n\\n“[i]t is a ‘fundamental canon of statutory construction that the words of a statute must be\\n\\nread in their context and with a view to their place in the overall statutory scheme.’”\\n\\nFDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis\\n\\n 12\\n\\nv. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989)). When we consider the PLRA’s\\n\\nstatutory scheme more broadly, the answer to our question becomes apparent: a prisoner\\n\\nhas “brought an action” when he tenders or submits his complaint to the court.\\n\\n The PLRA, as we have explained, was enacted “to limit the filing of frivolous and\\n\\nvexatious prisoner lawsuits” by “curtail[ing] the ability of prisoners to take advantage of\\n\\nthe privilege of filing [IFP].” Abdul-Akbar, 239 F.3d at 314. To repeat, the statute\\n\\nrequires a court to dismiss an IFP complaint “at any time” if it determines that the\\n\\ncomplaint is frivolous, malicious, or fails to state a claim. Moreover, § 1915A\\n\\nencourages review of prisoner complaints before docketing or as soon as practicable.\\n\\nAnd the three-strikes rule was added to “filter out the bad claims and facilitate\\n\\nconsideration of the good.” Coleman v. Tollefson, 135 S. Ct. 1759, 1764 (2015) (quoting\\n\\nBock, 549 U.S. at 204).\\n\\n Brown’s proposed interpretation of “brought an action” would undermine that\\n\\nstatutory scheme. A prisoner could file frivolous lawsuit after frivolous lawsuit, and, so\\n\\nlong as the courts continue to screen the suits early, as the PLRA encourages, the prisoner\\n\\nwould accrue no strikes and could continue the barrage of meritless suits. That would\\n\\nnegate the PLRA’s scheme of limiting frivolous lawsuits. See O’Neal, 531 F.3d at 1152\\n\\n(“[C]onstruing ‘brought’ in § 1915(g) to mean ‘submitted to the court’ furthers\\n\\nCongress’s intent to screen out frivolous complaints by precluding prisoners from\\n\\nsubmitting an endless stream of frivolous in forma pauperis complaints.”); cf. Ford, 362\\n\\nF.3d at 399 (interpreting “brought” in another provision of the PLRA to mean submitting\\n\\nthe complaint to the court because “[o]therwise the statute cannot work”). Indeed, it\\n\\n 13\\n\\nwould be strange for Congress to, on the one hand, create the three-strikes rule and\\n\\npromote the “early judicial screening of prisoner complaints,” Bock, 549 U.S. at 202, but\\n\\non the other, not count the early dismissals as strikes.\\n\\n Our reading is bolstered by the statute’s specific use of the word “brought,” as\\n\\nopposed to “commenced” or “filed.” The verb “brought” — whose subject in § 1915(g)\\n\\nis “the prisoner” — “properly focuses attention on what the prisoner-plaintiff does.”\\n\\nVaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). And what the prisoner-\\n\\nplaintiff does is tender or submit a complaint and request to proceed IFP. By contrast,\\n\\n“filing” and “commencement” involve court action. Under Federal Rule of Civil\\n\\nProcedure 3, commencement is triggered by the filing of a complaint, and “[w]hen a\\n\\ncomplaint is accompanied by a motion to proceed in forma pauperis, rather than by\\n\\npayment of a filing fee, the complaint is not docketed, and it is therefore not filed, until\\n\\nthe motion has been granted.” Oatess v. Sobolevitch, 914 F.2d 428, 429 n.1 (3d Cir.\\n\\n1990). So, in the IFP context, it is the court that “authorize[s] the commencement” of the\\n\\naction, and consequently the filing of the complaint. 28 U.S.C. § 1915(a); see also\\n\\nUrrutia v. Harrisburg Cty. Police Dep’t, 91 F.3d 451, 458 n.13 (3d Cir. 1996). That\\n\\n§ 1915(g) uses the verb “brought,” not “commenced” or “filed,” underscores that court\\n\\napproval of an IFP application is not necessary for an action to count as a strike. See\\n\\nVaden, 449 F.3d at 1050; Ford, 362 F.3d at 399–400 (observing differences in the PLRA\\n\\namong “brought,” “filed,” and “commenced”).\\n\\n We hold, therefore, that for the purposes of § 1915(g), a prisoner has “brought an\\n\\naction” once he tenders or submits a complaint to the court. In so holding, we reach the\\n\\n 14\\n\\nsame conclusion as the Court of Appeals for the Ninth Circuit, the only other circuit court\\n\\nthat, to the best of our knowledge, has addressed the meaning of “brought an action” in\\n\\n§ 1915(g). See O’Neal, 531 F.3d at 1152. And our conclusion accords with how the\\n\\nCourts of Appeals for the Seventh and Ninth Circuits have interpreted “brought” as it\\n\\nappears in another section of the PLRA. See Vaden, 449 F.3d at 1050; Ford, 362 F.3d at\\n\\n399–400. 4\\n\\n Brown presents a variety of counterarguments based on the PLRA’s text and\\n\\npurpose. 5 We are unconvinced.\\n\\n Brown’s textual argument rests on two particular phrases. First, Brown observes\\n\\nthat subsection (a)(1) provides that “any court of the United States may authorize the\\n\\ncommencement . . . of any suit . . . without prepayment of fees.” 28 U.S.C. § 1915(a)(1).\\n\\nBrown understands subsection (a)(1) to mean that, until a court has authorized the action\\n\\n— that is, granted the IFP application — the suit has not been “brought” because it has\\n\\nnot yet commenced. We agree with Brown that commencement of the action requires\\n\\ncourt authorization, but, as we have explained, “commence” and “brought” do not\\n\\nnecessarily mean the same thing here.\\n\\n\\n\\n4\\n Brown cites Harris v. Garner, 216 F.3d 970 (11th Cir. 2000) (en banc), but the\\n“dispositive question” there was “whether ‘bring’ means to commence or start a lawsuit,\\nor instead means to maintain or continue it to conclusion.” Id. at 973. The court did not\\nconsider when exactly a plaintiff has “brought an action.”\\n5\\n Brown also cites language from our past decisions to suggest that we have held that a\\nprisoner has not “brought” an action until his or her IFP motion has been granted. But we\\nhave never considered the issue we face today: whether, for the purposes of § 1915(g), a\\nprisoner has “brought an action” upon tendering or submitting a complaint to the court or\\nonly once the court has approved his or her IFP motion.\\n 15\\n\\n Second, Brown points to subsection (a)(2), which provides that “[a] prisoner\\n\\nseeking to bring a civil action . . . without prepayment of fees” must submit certain\\n\\ndocumentation. 28 U.S.C. § 1915(a)(2). Focusing on the phrase “seeking to bring,”\\n\\nBrown contends that this language demonstrates that a prisoner has not “brought” an\\n\\naction until the court grants the IFP application. We disagree. At most, subsection (a)(2)\\n\\nsuggests that a prisoner has not yet “brought an action” until he submits all of his IFP\\n\\npaperwork. It does not suggest that a prisoner has not “brought an action” until the court\\n\\napproves it.\\n\\n Moving beyond the statute’s text, Brown contends that his approach “is consistent\\n\\nwith the ‘driving purpose of the PLRA — preserving resources of both the courts and the\\n\\ndefendants in prisoner litigation.’” Brown Resp. to Pet. for Reh’g 6 (quoting Byrd, 715\\n\\nF.3d at 125). He suggests that a prisoner complaint “that survives prescreening” will\\n\\n“generate[] more briefing and adjudication” and thus is “more deserving of a strike\\n\\ndetermination.” Id. We cannot accept such an argument. Once more: the three-strikes\\n\\nrule was designed to “filter out the bad claims and facilitate consideration of the good.”\\n\\nColeman, 135 S. Ct. at 1764 (quoting Bock, 549 U.S. at 204). Brown’s interpretation\\n\\nwould achieve precisely the opposite — it would penalize the bringer of more-\\n\\nmeritorious claims while allowing a serial filer of frivolous lawsuits to continue\\n\\nunabated.\\n\\n B.\\n\\n Brown also argues that Profitt was not a strike because the district court there did\\n\\nnot explicitly state why it dismissed the case. We are unpersuaded.\\n\\n 16\\n\\n In Byrd, we set forth a bright-line rule: “a strike under § 1915(g) will accrue only\\n\\nif the entire action or appeal is (1) dismissed explicitly because it is ‘frivolous,’\\n\\n‘malicious,’ or ‘fails to state a claim’ or (2) dismissed pursuant to a statutory provision or\\n\\nrule that is limited solely to dismissals for such reasons.” 715 F.3d at 126. Profitt passes\\n\\nthat test.\\n\\n The Profitt court denied Brown’s IFP motion by using a form order. That form\\n\\norder contained three sections. The first, left untouched, contained language permitting\\n\\nthe matter to go forward without prepayment of the filing fee. The second, signed by the\\n\\nmagistrate judge, began with: “IT IS RECOMMENDED that the request of prisoner-\\n\\nplaintiff to file the action without prepayment of the full filing fee be DENIED for the\\n\\nfollowing reason(s).” Joint Appendix 59. The form provided nine reasons for denial, all\\n\\nwith checkboxes next to them. The magistrate judge checked the following four: “Other:\\n\\nFailure to state a claim”; “Frivolous, malicious or fails to state a claim upon which relief\\n\\nmay be granted”; “Leave to amend would be futile”; and “This denial may constitute a\\n\\nstrike under the ‘Three Strikes’ provision governing the filing of prisoner suits.” Id. The\\n\\nsection also had room for comments, and the magistrate judge wrote, among other things,\\n\\nthat Brown had “failed to state a valid claim in two attempts.” Id. Finally, in the third\\n\\nsection of the form, the district judge checked the “DENIED” box and signed the form.\\n\\nId. That section also provided that: “If plaintiff does not timely submit an appropriate\\n\\nresponse to the Order, the Clerk is directed to close the case.” Id. The case was\\n\\neventually closed.\\n\\n\\n\\n 17\\n\\n That order constituted a strike under Byrd. The district court, in the form order,\\n\\nexplicitly found that Brown’s complaint failed to state a claim and directed the clerk to\\n\\nclose the case, unless Brown timely responded. Brown did not, and so the case was\\n\\nclosed. The “entire action” in Profitt was therefore “dismissed explicitly because it . . .\\n\\n‘fail[ed] to state a claim.’” Byrd, 715 F.3d at 126. 6\\n\\n Brown contends that this form order did not actually dismiss the entire action.\\n\\nRather, he argues, it just denied his IFP application. He observes that the form order\\n\\nallowed him to respond, which is inconsistent with a straight dismissal. But Brown\\n\\nfocuses too narrowly on the form order. It is clear from the record that the order, while\\n\\nnot artfully drafted, ended the case. And the district court’s basis for that order appears\\n\\nunequivocally on its face. Profitt is not a case where “we cannot determine with certainty\\n\\nthat [the case] was dismissed for reasons warranting a strike under § 1915(g).” Id. at 127.\\n\\n *****\\n\\n To sum up: Brown “brought an action” in Profitt when he tendered his complaint\\n\\nto the district court and asked to proceed IFP. When the district court ultimately\\n\\ndismissed his complaint for failing to state a claim, Brown accrued a strike under\\n\\n§ 1915(g). It is immaterial that this dismissal occurred before Brown’s IFP motion was\\n\\n\\n6\\n Brown points out that the reasons for rejecting Brown’s complaint were provided in the\\nmagistrate judge’s recommendation, not the district judge’s ultimate order. That is, the\\ndistrict judge just checked the “DENIED” box, without explicitly adopting the magistrate\\njudge’s reasons. But, given the circumstances here, we do not think that renders Profitt\\nnot a strike. The magistrate judge’s recommendation and the district court’s order appear\\non the same one-page form order. In fact, the former appears directly above the latter.\\nWe believe it is clear from the form’s structure that the district judge adopted the reasons\\nprovided by the magistrate judge.\\n 18\\n\\ndecided. As Profitt was Brown’s third strike, he is barred from proceeding IFP here. See\\n\\n28 U.S.C. § 1915(g). 7\\n\\n IV.\\n\\n For the foregoing reasons, we will deny Brown’s motions for leave to proceed IFP\\n\\nin these consolidated appeals.\\n\\n\\n\\n\\n7\\n Brown has not established that he “is under imminent danger of serious physical\\ninjury.” 28 U.S.C. § 1915(g). We note that Brown is no longer an inmate at the United\\nStates Penitentiary in Lewisburg, Pennsylvania.\\n 19\\n\\nBrown v. Sage, Nos. 17-1222, 17-1527, 17-1714\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4569,"cells":{"id":{"kind":"number","value":4668640,"string":"4,668,640"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Maria Guzman Chavez v. Russell Hott"},"decision_date":{"kind":"string","value":"2019-10-10"},"docket_number":{"kind":"string","value":"18-6086"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before FLOYD, HARRIS, and RICHARDSON, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PAMELA HARRIS, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-6086\\n\\n\\nMARIA ANGELICA GUZMAN CHAVEZ; DANIS FAUSTINO CASTRO\\nCASTRO; JOSE ALFONSO SERRANO COLOCHO,\\n\\n Petitioners - Appellees,\\n\\n and\\n\\nCHRISTIAN FLORES ROMERO; WILBER A. RODRIGUEZ ZOMETA,\\n\\n Petitioners,\\n\\n v.\\n\\nRUSSELL HOTT, Field Office Director, U.S. Immigration and Customs\\nEnforcement; DOJ EXECUTIVE OFFICE FOR IMMIGRATION REVIEW;\\nRONALD D. VITIELLO, Acting Director, U.S. Immigration and Customs\\nEnforcement; WILLIAM P. BARR, Attorney General,\\n\\n Respondents - Appellants,\\n\\n and\\n\\nBRENDA COOK, Court Administrator, Executive Office for Immigration Review,\\nBaltimore Immigration Court,\\n\\n Respondent.\\n\\n------------------------------\\n\\nAMERICAN IMMIGRATION COUNCIL; AMERICAN IMMIGRATION\\nLAWYERS ASSOCIATION,\\n\\n Amici Supporting Appellees.\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nAlexandria. Leonie M. Brinkema, District Judge. (1:17-cv-00754-LMB-JFA)\\n\\n\\n No. 18-6419\\n\\n\\nROGELIO AMILCAR CABRERA DIAZ; JENNRY FRANCISCO MORAN\\nBARRERA; RODOLFO EDUARDO RIVERA FLAMENCO, on behalf of\\nthemselves and all others similarly situated,\\n\\n Petitioners - Appellees,\\n\\n v.\\n\\nRUSSELL HOTT, Field Office Director, U.S. Immigration and Customs\\nEnforcement; WILLIAM P. BARR, Attorney General,\\n\\n Respondents - Appellants.\\n\\n------------------------------\\n\\nAMERICAN IMMIGRATION COUNCIL; AMERICAN IMMIGRATION\\nLAWYERS ASSOCIATION,\\n\\n Amici Supporting Appellees.\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nAlexandria. Leonie M. Brinkema, District Judge. (1:17-cv-01405-LMB-MSN)\\n\\n\\nArgued: March 21, 2019 Decided: October 10, 2019\\n\\n\\nBefore FLOYD, HARRIS, and RICHARDSON, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Harris wrote the opinion, in which Judge Floyd\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4445893/\", \"author_raw\": \"PAMELA HARRIS, Circuit Judge:\"}, {\"author\": \"joined. Judge Richardson wrote a dissenting\", \"type\": \"dissent\", \"text\": \"joined. Judge Richardson wrote a dissenting opinion.\\n\\n\\n\\n\\n 2\\n\\nARGUED: Scott Grant Stewart, UNITED STATES DEPARTMENT OF JUSTICE,\\nWashington, D.C., for Appellants. Paul Whitfield Hughes, III, MAYER BROWN LLP,\\nWashington, D.C., for Appellees. ON BRIEF: Chad A. Readler, Acting Assistant\\nAttorney General, William C. Peachey, Director, Gisela A. Westwater, Assistant Director,\\nBrian C. Ward, Senior Litigation Counsel, Lauren E. Fascett, Ari Nazarov, Civil Division,\\nOffice of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,\\nWashington, D.C., for Appellants. Simon Yehuda Sandoval-Moshenberg, Rachel Colleen\\nMcFarland, LEGAL AID JUSTICE CENTER, Falls Church, Virginia; Mark Stevens,\\nMURRAY OSORIO PLLC, Fairfax, Virginia; Adam Hudes, MAYER BROWN LLP,\\nWashington, D.C., for Appellees. Trina Realmuto, Boston, Massachusetts, Karolina J.\\nWalters, AMERICAN IMMIGRATION COUNCIL, Washington, D.C., for Amici Curiae.\\n\\n\\n\\n\\n 3\\n\\nPAMELA HARRIS, Circuit Judge:\\n\\n The petitioners in this case are a class of noncitizens subject to reinstated removal\\n\\norders, which generally are not open to challenge. The petitioners may, however, pursue\\n\\nwithholding of removal if they have a reasonable fear of persecution or torture in the\\n\\ncountries designated in their removal orders. Availing themselves of that right, these\\n\\npetitioners sought withholding of removal, and they are being detained by the government\\n\\nwhile they await the outcome of their “withholding-only” proceedings. The question\\n\\nbefore us is whether they have the right to individualized bond hearings that could lead to\\n\\ntheir release during those proceedings.\\n\\n Answering that question requires that we determine the statutory authority under\\n\\nwhich the government detains noncitizens who seek withholding of removal after a prior\\n\\nremoval order has been reinstated. The petitioners argue that their detention is governed\\n\\nby 8 U.S.C. § 1226, which authorizes detention “pending a decision on whether the alien\\n\\nis to be removed,” and would allow them to seek release on bond and to make their case\\n\\nbefore an immigration judge. The government, on the other hand, points to 8 U.S.C.\\n\\n§ 1231, which applies “when an alien is ordered removed” – as the petitioners were, the\\n\\ngovernment says, by virtue of their reinstated removal orders – and makes that detention\\n\\nmandatory during a 90-day “removal period.”\\n\\n The district court granted summary judgment to the petitioners, holding that they\\n\\nare detained under § 1226 because a decision on removal remains “pending” until their\\n\\nwithholding-only proceedings are complete. We agree with the district court’s careful\\n\\nanalysis of the relevant statutes and affirm its judgment.\\n\\n 4\\n\\n I.\\n\\n A.\\n\\n For context, we begin with a brief description of the law governing reinstated\\n\\nremoval orders and withholding-only proceedings under the Immigration and Nationality\\n\\nAct (“INA”), 8 U.S.C. § 1101 et seq.\\n\\n When a noncitizen who has been ordered removed from the United States reenters\\n\\nthe country without authorization, the “prior order of removal is reinstated from its original\\n\\ndate.” Id. § 1231(a)(5). That reinstated order “is not subject to being reopened or\\n\\nreviewed,” and the noncitizen “may not apply for any relief” but instead “shall be removed\\n\\nunder the prior order.” Id. Implementing regulations track the statute, providing that a\\n\\nnoncitizen who unlawfully reenters after a prior removal order “shall be removed from the\\n\\nUnited States by reinstating the prior order” without any right to a hearing before an\\n\\nimmigration judge. 8 C.F.R. § 241.8(a). In the great majority of cases, this process plays\\n\\nout exactly as contemplated, and a noncitizen facing a reinstated removal order is removed\\n\\nfrom the country without further legal proceedings.\\n\\n But there is an exception to that rule, which produces the issue we face today.\\n\\nConsistent with our country’s obligations under international law, Congress has provided\\n\\nthat a noncitizen may not be removed to a country where she would be persecuted – that\\n\\nis, her “life or freedom . . . threatened” based on a protected ground, such as race or religion,\\n\\n8 U.S.C. § 1231(b)(3)(A) – or tortured, see 8 U.S.C. § 1231 note (United States Policy\\n\\nWith Respect to Involuntary Return of Persons in Danger of Subjection to Torture); see\\n\\n 5\\n\\nalso 8 C.F.R. § 208.16(c) (implementing regulations). Where an individual meets the high\\n\\nstandard for showing that she will face persecution or torture in a given country, relief is\\n\\nmandatory, and the government must withhold removal to that country. See Salgado-Sosa\\n\\nv. Sessions, 882 F.3d 451, 456 (4th Cir. 2018); Dankam v. Gonzales, 495 F.3d 113, 115–\\n\\n16 (4th Cir. 2007).\\n\\n Thus, as the district court explained, although a noncitizen “cannot otherwise\\n\\nchallenge a reinstated removal order, he can seek protection from having that order\\n\\nexecuted to a particular country by initiating a withholding-only proceeding.” Romero v.\\n\\nEvans, 280 F. Supp. 3d 835, 843 (E.D. Va. 2017); see Fernandez-Vargas v. Gonzales, 548\\n\\nU.S. 30, 35 n.4 (2006) (“[E]ven an alien subject to [a reinstated removal order] may seek\\n\\nwithholding of removal.”). Those proceedings ensure that removal complies with the\\n\\nlimited statutory restrictions outlined above; if a claim is successful, it bars the government\\n\\nfrom removing an individual only to the specific country designated in the removal order.\\n\\nSee 8 C.F.R. § 208.31. A grant of withholding of removal with respect to one country does\\n\\nnot preclude the government from removing a noncitizen to a third country, see id. §\\n\\n208.16(f), nor affect a noncitizen’s status as a removable individual, see id. § 208.2(c)(2)–\\n\\n(3).\\n\\n The process works as follows. When a noncitizen subject to a reinstated removal\\n\\norder expresses a fear of persecution or torture in the country designated on the order, an\\n\\nasylum officer conducts a screening interview to make a “reasonable fear” determination.\\n\\nId. § 208.31(b). If the asylum officer identifies a “reasonable possibility” of torture or\\n\\npersecution in the designated country, then the noncitizen is permitted to apply for\\n\\n 6\\n\\nwithholding of removal. See id. § 208.31(c), (e). At that point, the case goes to an\\n\\nimmigration judge for an administrative hearing to determine whether the noncitizen can\\n\\nmeet her burden of establishing eligibility for withholding of removal. Id. § 208.31(e).\\n\\nThe noncitizen may appeal the immigration judge’s determination to the Board of\\n\\nImmigration Appeals, id., and the Board’s decision is subject to judicial review, 8 U.S.C.\\n\\n§ 1252(a)(1), (a)(4). Throughout, the only issue that may be raised is eligibility for\\n\\nwithholding of removal; the underlying (and now reinstated) removal order is not subject\\n\\nto collateral attack during these “withholding-only” proceedings. See 8 C.F.R.\\n\\n§ 208.2(c)(3)(i). 1\\n\\n B.\\n\\n 1.\\n\\n We turn now to the facts underlying this appeal, which are similar for each petitioner\\n\\nand may be sketched out briefly. Each petitioner was removed from the United States\\n\\npursuant to an order of removal. On their return to their designated countries of removal,\\n\\nthe petitioners allege, they were confronted with persecution or torture, or threats of\\n\\npersecution or torture that in several cases included death threats. Fearing for their safety,\\n\\n\\n\\n\\n 1\\n We use “withholding-only” proceedings and “withholding of removal” to\\nencompass three distinct forms of relief: persecution-based withholding of removal under\\nthe INA, see 8 C.F.R. § 1208.16(b); torture-based withholding of removal under the\\nConvention Against Torture, see id. § 1208.16(c); and torture-based deferral of removal\\nunder the Convention, see id. § 1208.17. The details of these forms of relief vary, but not\\nin ways material to the issues before us.\\n\\n 7\\n\\nthe petitioners returned to the United States, reentering without authorization and despite\\n\\ntheir prior removal orders.\\n\\n When the government discovered the petitioners’ presence, their original removal\\n\\norders were reinstated under 8 U.S.C. § 1231(a)(5). As noted above, those orders are “not\\n\\nsubject to being reopened or reviewed,” id., so the petitioners could not challenge their\\n\\nunderlying removability. But they did initiate the withholding-only process by expressing\\n\\nfear of persecution or torture in their native countries, designated as their countries of\\n\\nremoval. In every case, the asylum officer, after an initial screening interview, found that\\n\\nthe petitioner had a “reasonable fear” of persecution or torture. Accordingly, the petitioners\\n\\nwere placed in withholding-only proceedings before immigration judges.\\n\\n Although some of the petitioners initially were granted supervised release, all\\n\\nultimately were detained by the government.\\n\\n 2.\\n\\n This case arose out of a dispute over whether the petitioners could seek release on\\n\\nbond – and do so in hearings before immigration judges – while their withholding-only\\n\\nproceedings were pending. The government took the position that they could not, because\\n\\nthey were subject to mandatory detention under 8 U.S.C. § 1231, and bond hearings were\\n\\ndenied.\\n\\n Two sets of petitioners then filed habeas petitions in the same district court in\\n\\nVirginia. Each sought a declaration that 8 U.S.C. § 1226, rather than 8 U.S.C. § 1231,\\n\\ngoverns their detention, and an injunction ordering individualized bond hearings consistent\\n\\nwith § 1226. The second set of petitioners also moved to certify a Virginia-wide class of\\n\\n 8\\n\\nindividuals detained during withholding-only proceedings. The district court certified the\\n\\nclass, and that decision is unchallenged on appeal.\\n\\n In November 2017, the district court entered summary judgment in favor of the first\\n\\nset of petitioners and ordered the requested relief. See Romero v. Evans, 280 F. Supp. 3d\\n\\n835 (E.D. Va. 2017). 2 The district court began its merits analysis by identifying the\\n\\nstatutory issue at the heart of this case. According to the petitioners, they were being\\n\\ndetained under 8 U.S.C. § 1226, which provides for detention “pending a decision on\\n\\nwhether the alien is to be removed from the United States” and, critically, allows for\\n\\ndiscretionary release on bond. 8 U.S.C. § 1226(a). But the government pointed to a\\n\\ndifferent statute – 8 U.S.C. § 1231 – which applies “when an alien is ordered removed”\\n\\nand provides for mandatory detention during a 90-day “removal period” within which the\\n\\nnoncitizen “shall” be removed. 8 U.S.C. § 1231(a)(1)(A), (a)(2). So the “deceptively\\n\\nsimple question” in this case, the court explained, is this: Are the petitioners – subject to\\n\\nreinstated removal orders, but with pending claims for withholding of removal – “detained\\n\\nunder 8 U.S.C. § 1226[] or under 8 U.S.C. § 1231?” Romero, 280 F. Supp. 3d at 846.\\n\\n The answer, the district court concluded, is § 1226, which by plain terms covers\\n\\ndetention when a “decision on whether the alien is to be removed from the United States”\\n\\nis “pending.” Id. (quoting 8 U.S.C. § 1226(a)). “[T]his text governs petitioners’ detention\\n\\n\\n\\n\\n 2\\n The district court issued a separate decision on the second petition before it, relying\\non its reasoning in Romero. See Diaz v. Hott, 297 F. Supp. 3d 618 (E.D. Va. 2018). Both\\nthose decisions are before us now on appeal. Because the district court first spelled out its\\nanalysis in Romero, we focus on that decision here.\\n\\n 9\\n\\nbecause until withholding-only proceedings are complete, a decision has not been made on\\n\\nwhether they will in fact be removed from the United States.” Id. The court recognized\\n\\nthat by virtue of their reinstated removal orders, the petitioners’ “removability” already had\\n\\nbeen determined. Id. But the text of § 1226 is concerned with the “more concrete\\n\\ndetermination of whether petitioners will actually be removed,” the court reasoned, and\\n\\nthat decision “remains ‘pending’” during withholding-only proceedings and “until the\\n\\ngovernment determines that there is a country to which [the] petitioners can legally be\\n\\nremoved.” Id. (quoting 8 U.S.C. § 1226(a)).\\n\\n That conclusion, the court went on, is reinforced by the structure of § 1231 – the\\n\\nprovision mandating detention during a 90-day “removal period.” Under § 1231, the\\n\\n“removal period” begins on the latest of three dates: the date a removal order becomes\\n\\n“administratively final,” the date any judicial stay of a removal order is lifted, or the date\\n\\non which a noncitizen is released from non-immigration detention. 8 U.S.C.\\n\\n§ 1231(a)(1)(B)(i)–(iii); see also Romero, 280 F. Supp. 3d at 846. Each of those triggers,\\n\\nthe court explained, relates to “a different legal impediment to actual removal”: the\\n\\nadministrative process is not complete, or a judicial stay prevents removal, or a noncitizen\\n\\nis in criminal custody and so cannot be removed. Romero, 280 F. Supp. 3d at 846. Under\\n\\n§ 1231, in other words, it is not enough that the agency “may have already determined that\\n\\nthe noncitizen is, like petitioners here, removable.” Id. Instead, § 1231 does not come into\\n\\nplay until the government has “the present and final legal authority to actually execute that\\n\\norder of removal.” Id.\\n\\n\\n\\n 10\\n\\n That reading, the court determined, also makes sense of the standard 90-day removal\\n\\nperiod during which the government “shall” remove a noncitizen from the country, 8\\n\\nU.S.C. § 1231(a)(1)(A) (“Except as otherwise provided . . . when an alien is ordered\\n\\nremoved, the Attorney General shall remove the alien from the United States within a\\n\\nperiod of 90 days.”). Limiting that period to 90 days is reasonable if § 1231 is intended to\\n\\n“govern only the final logistical period, in which the government has actual authority to\\n\\nremove the alien and need only schedule and execute the deportation.” Romero, 280 F.\\n\\nSupp. 3d at 846. Noncitizens like the petitioners in this case, on the other hand, are detained\\n\\nduring withholding-only proceedings that “typically far exceed 90 days.” Id. at 847.\\n\\n The court rejected the government’s argument that a reinstated removal order,\\n\\nbecause it is “not subject to being reopened or reviewed,” 8 U.S.C. § 1231(a)(5), is an\\n\\n“administratively final” order of removal that triggers § 1231’s 90-day removal period and\\n\\nmandatory detention provision, see id. § 1231(a)(1)(B)(i) (listing “date the order of\\n\\nremoval becomes administratively final” as potential start of removal period). For\\n\\npurposes of judicial review, the court explained, it is widely accepted that a reinstated\\n\\nremoval order is not final and reviewable until after the adjudication of any withholding\\n\\napplications. The court found no reason to adopt a “bifurcated definition of finality” that\\n\\nwould render the same orders “administratively final” under § 1231 before withholding-\\n\\nonly proceedings conclude. Romero, 280 F. Supp. 3d at 847 (internal quotation marks\\n\\nomitted). Nor are the petitioners’ removal orders “final” under general administrative law\\n\\nprinciples, the court reasoned, because the agency’s “decisionmaking process” has yet to\\n\\n\\n\\n 11\\n\\nbe consummated while withholding-only proceedings are pending before an immigration\\n\\ncourt. Id.\\n\\n Having concluded that § 1226, rather than § 1231, provides the statutory authority\\n\\nfor the petitioners’ detention, the court granted the petitioners’ requested relief in two\\n\\nseparate decisions, ordering the government to provide individualized bond hearings under\\n\\n§ 1226. The government timely appealed both cases, which we consolidated for purposes\\n\\nof appeal.\\n\\n\\n\\n II.\\n\\n This appeal requires that we resolve a single question of statutory interpretation:\\n\\nwhether § 1226 or § 1231 governs the petitioners’ detention and, specifically, their\\n\\nentitlement to individualized bond hearings. We review that legal question de novo. Stone\\n\\nv. Instrumentation Lab. Co., 591 F.3d 239, 242–43 (4th Cir. 2009).\\n\\n The courts of appeals are divided on this question. Compare Guerra v. Shanahan,\\n\\n831 F.3d 59 (2d Cir. 2016) (holding that § 1226 applies), with Guerrero-Sanchez v. Warden\\n\\nYork Cty. Prison, 905 F.3d 208 (3d Cir. 2018), and Padilla-Ramirez v. Bible, 882 F.3d 826\\n\\n(9th Cir. 2017) (both holding that § 1231 applies). “The statutory scheme governing the\\n\\n[petitioners’] detention . . . is not a model of clarity,” Prieto-Romero v. Clark, 534 F.3d\\n\\n1053, 1058 (9th Cir. 2008) (analyzing same provisions), and as the district court\\n\\nrecognized, there are arguments of at least “some force” on both sides of the issue, Romero,\\n\\n280 F. Supp. 3d at 846. But reading the two provisions together, we conclude, like the\\n\\ndistrict court and the Second Circuit, that it is § 1226 that governs the petitioners’ detention,\\n\\n 12\\n\\nentitling them to bond hearings. Section 1231’s “removal period” – and with it, the\\n\\nrequirement of mandatory detention – begins only when the government acquires the\\n\\n“present and final legal authority” to execute a removal order, id., and so long as\\n\\nwithholding-only proceedings are pending, the government lacks that authority.\\n\\n A.\\n\\n We begin with a description of the two statutory sections at issue and, in particular,\\n\\ntheir provisions regarding release on bond. Like the parties and the district court, we have\\n\\nused general terms in framing the question as whether § 1226 or § 1231 applies to the\\n\\npetitioners. But that is shorthand for the parties’ more specific dispute: whether the\\n\\npetitioners are entitled to individualized bond hearings before immigration judges, which\\n\\nmight lead to their release during the pendency of their withholding-only proceedings. Our\\n\\nfocus here is on the provisions bearing directly on that question.\\n\\n Section 1226, as noted above, authorizes the arrest and detention of noncitizens\\n\\n“pending a decision on whether the alien is to be removed from the United States.” 8\\n\\nU.S.C. § 1226(a). For certain individuals with criminal histories, that detention is\\n\\nmandatory. See id. § 1226(c) (providing, with limited exceptions, for mandatory detention\\n\\nof noncitizens who have committed specified criminal offenses). But for all other\\n\\nnoncitizens, detention under § 1226 is not mandatory; instead, § 1226 permits discretionary\\n\\nrelease on bond or conditional parole. Id. § 1226(a)(1)–(2). 3\\n\\n\\n 3\\n Specifically, § 1226(a) provides in relevant part:\\n\\n (a) Arrest, detention, and release\\n\\n\\n 13\\n\\n Agency regulations set out the procedures governing discretionary release under\\n\\n§ 1226. See 8 C.F.R. § 236.1. Most important here, a noncitizen detained under § 1226 is\\n\\nentitled to an individualized hearing before an immigration judge to determine whether\\n\\ncontinued detention is necessary while immigration proceedings continue. See id.\\n\\n§ 236.1(d)(1). At that hearing, the noncitizen bears the burden of showing that her release\\n\\nwould pose no danger to the public and that she is likely to appear for future proceedings.\\n\\nId. § 236.1(c)(8). And even if she makes that showing, agency officials retain broad\\n\\ndiscretion in deciding whether to grant release and on what conditions. See id.\\n\\n Section 1231, on the other hand, authorizes the detention of a noncitizen who “is\\n\\nordered removed,” 8 U.S.C. § 1231(a)(1)(A), and it makes that detention mandatory during\\n\\na statutory “removal period,” id. § 1231(a)(2) (“During the removal period, the Attorney\\n\\nGeneral shall detain the alien.” (emphasis added)). The “removal period” is defined as “a\\n\\nperiod of 90 days” during which “the Attorney General shall remove the alien from the\\n\\n\\n\\n On a warrant issued by the Attorney General, an alien may be arrested and\\n detained pending a decision on whether the alien is to be removed from the\\n United States. Except as provided in subsection (c) [“Detention of criminal\\n aliens”] and pending such decision, the Attorney General—\\n\\n (1) may continue to detain the arrested alien; and\\n\\n (2) may release the alien on—\\n\\n (A) bond of at least $1,500 with security approved by, and\\n containing conditions prescribed by, the Attorney General; or\\n\\n (B) conditional parole . . . .\\n\\n8 U.S.C. § 1226(a).\\n\\n\\n 14\\n\\nUnited States.” Id. § 1231(a)(1)(A) (emphasis added). 4 That 90-day window for removal\\n\\nbegins on the latest of three dates: the date the removal order becomes “administratively\\n\\nfinal”; the date of a reviewing court’s final order, if that court has issued a stay of removal;\\n\\nor the date on which a noncitizen subject to removal is released from non-immigration\\n\\ndetention. Id. § 1231(a)(1)(B)(i)–(iii). 5\\n\\n\\n\\n\\n 4\\n The removal period may be extended beyond 90 days in certain cases involving a\\nnoncitizen’s refusal to cooperate with efforts to arrange for removal. See 8 U.S.C.\\n§ 1231(a)(1)(C). There is no indication that this exception applies here, and the\\ngovernment has not argued otherwise. Accordingly, we refer throughout to a 90-day\\nremoval period.\\n 5\\n The full text of the relevant portion of § 1231 provides:\\n\\n (a) Detention, release, and removal of aliens ordered removed\\n\\n (1) Removal period\\n\\n (A) In general\\n\\n Except as otherwise provided in this section, when an alien is\\n ordered removed, the Attorney General shall remove the alien\\n from the United States within a period of 90 days (in this\\n section referred to as the “removal period”).\\n\\n (B) Beginning of period\\n\\n The removal period begins on the latest of the following:\\n\\n (i) The date the order of removal becomes\\n administratively final.\\n\\n (ii) If the removal order is judicially reviewed and if a\\n court orders a stay of the removal of the alien, the date\\n of the court’s final order.\\n\\n\\n 15\\n\\n Again, during that 90-day period, detention is mandatory. Once the 90-day window\\n\\ncloses, however, a noncitizen who has not been removed normally is subject to supervised\\n\\nrelease. Id. § 1231(a)(3); see also 8 C.F.R. § 241.5 (governing release on bond after\\n\\nexpiration of removal period). Detention beyond the 90-day removal period is governed\\n\\nby § 1231(a)(6), which allows for the discretionary extension of detention in certain cases,\\n\\nincluding those in which the government determines that a noncitizen is a “risk to the\\n\\ncommunity or unlikely to comply with the order of removal.” 8 U.S.C. § 1231(a)(6)\\n\\n(certain noncitizens “may be detained beyond the removal period and, if released, shall be\\n\\nsubject to [supervised release]”) (emphasis added); see also Zadvydas v. Davis, 533 U.S.\\n\\n678, 683–84 (2001) (discussing post-removal-period detention provisions). 6 But –\\n\\ncritically for this case – while detainees seeking release on bond under § 1226 are entitled\\n\\nto individualized hearings before immigration judges, such hearings are not afforded in\\n\\n\\n\\n\\n (iii) If the alien is detained or confined (except under an\\n immigration process), the date the alien is released from\\n detention or confinement.\\n\\n8 U.S.C. § 1231(a)(1)(A)–(B).\\n 6\\n The dissent suggests that the petitioners may have been detained under a different\\nportion of § 1231(a)(6), providing for discretionary detention of noncitizens “inadmissible\\nunder section 1182.” Section 1182(a)(9), to which the dissent points, governs certain\\nnoncitizens previously removed who “seek[] admission” to the United States. 8 U.S.C.\\n§ 1182(a)(9)(A)(i)-(ii). It is not clear to us that this provision applies to noncitizens in\\nwithholding-only proceedings, who may not seek any substantive change in their\\nimmigration status but only “protection from having [a prior removal order] executed to a\\nparticular country,” Romero, 280 F. Supp. 3d at 843. In any event, there is no dispute that\\nall post-removal-period detention under § 1231(a)(6), whatever the precise basis, is\\ndiscretionary and not mandatory.\\n\\n\\n 16\\n\\nconnection with § 1231(a)(6) determinations. See 8 C.F.R. § 241.4 (establishing custody\\n\\nreview procedures under § 1231(a)(6)); see also Zadvydas, 533 U.S. at 683–84 (describing\\n\\nprocedures); Prieto-Romero, 534 F.3d at 1057 (whether § 1226 or § 1231 governs “can\\n\\naffect whether . . . detention is mandatory or discretionary, as well as the kind of review\\n\\nprocess available”). 7\\n\\n In short, if the petitioners are detained “pending a decision on whether [they are] to\\n\\nbe removed from the United States” under § 1226, then they are eligible to seek\\n\\ndiscretionary release during their withholding-only proceedings and to do so before\\n\\nimmigration judges in individualized bond hearings. If, on the other hand, § 1231’s 90-\\n\\nday “removal period” governs, then they are not entitled to those hearings – either because\\n\\ntheir detention is mandatory (if the 90-day window has not yet closed) or (if it has) because\\n\\nthe government may extend their detention beyond the removal period under § 1231(a)(6)\\n\\nwithout affording them a hearing. 8\\n\\n\\n\\n 7\\n Even under § 1231, however, there is an agency process to ensure compliance with\\nthe due process rights of noncitizens, providing for conditional release when “there is no\\nsignificant likelihood of removal” in the “reasonably foreseeable future.” 8 C.F.R. §\\n241.13(a); see also Zadvydas, 533 U.S. at 701 (“[A]n alien may be held in confinement\\nuntil it has been determined that there is no significant likelihood of removal in the\\nreasonably foreseeable future.”). The petitioners here have not raised Zadvydas-based\\nclaims.\\n 8\\n Before the district court, the government argued that the petitioners are subject to\\nmandatory detention under 8 U.S.C. § 1231. But if, as the government also contends, each\\npetitioner’s 90-day removal period was triggered upon reinstatement of her removal order,\\nthen that removal period has come and gone, and with it, § 1231(a)(2)’s mandatory\\ndetention provision. Accordingly, we understand the government’s current position to be\\nthat the petitioners are detained under § 1231(a)(6), which makes detention discretionary\\nbut does not provide for individualized hearings. Though the government was unable to\\n\\n 17\\n\\n B.\\n\\n The government’s central argument on appeal can be summarized like this: Each\\n\\nof the petitioners is subject to a reinstated removal order which may not be “reopened or\\n\\nreviewed,” 8 U.S.C. § 1231(a)(5). It follows, according to the government, that there is no\\n\\n“pending” decision on removability under § 1226(a). Instead, the petitioners already have\\n\\nbeen “ordered removed” within the meaning of § 1231(a), and those removal orders are\\n\\n“administratively final,” triggering the 90-day “removal period” under § 1231(a)(1)(B). It\\n\\nis thus § 1231’s detention provisions, and not those of § 1226, that govern the petitioners’\\n\\nclaim for individualized bond hearings. That is a perfectly straightforward argument, and\\n\\nas noted above, it has been adopted by some of our sister circuits.\\n\\n We are persuaded, however, that the district court’s reading of the two statutory\\n\\nprovisions – also adopted by a sister circuit – is the better one. That reading fully\\n\\neffectuates the plain text of the provisions and also ensures that § 1226 and § 1231 fit\\n\\ntogether to form a workable statutory framework: Before the government has the actual\\n\\nauthority to remove a noncitizen from the country, § 1226 applies; once the government\\n\\nhas that authority, § 1231 governs. Because the government lacks the authority to “actually\\n\\nexecute . . . order[s] of removal” while withholding-only proceedings are ongoing, Romero,\\n\\n280 F. Supp. 3d at 846, the petitioners are detained under § 1226.\\n\\n 1.\\n\\n\\n\\n\\nclarify this point at argument, it pointed to no other source of authority for the petitioners’\\ndetention once the 90-day removal period has expired.\\n\\n 18\\n\\n We begin, like the district court, with the plain text of § 1226, which authorizes\\n\\ndetention “pending a decision on whether the alien is to be removed from the United\\n\\nStates.” 8 U.S.C. § 1226(a). There is no question that the petitioners are legally\\n\\n“removable” from the United States; they are subject to reinstated and unreviewable\\n\\nremoval orders, and may not relitigate their removability. See id. § 1231(a)(5). But at the\\n\\nsame time, thanks to the exception allowing for withholding-only relief notwithstanding\\n\\nreinstated removal orders, there are now “pending” immigration proceedings that must be\\n\\nconcluded before the petitioners may be removed. And we agree with the district court\\n\\nthat the language of § 1226(a) is better read to focus on this “more concrete determination,”\\n\\nRomero, 280 F. Supp. 3d at 846. Subsection 1226(a) does not reference legal\\n\\n“removability,” or use other language that captures “whether the alien is theoretically\\n\\nremovable.” Guerra, 831 F.3d at 62 (emphasis added). Instead, the statute applies\\n\\n“pending a decision on whether the alien is to be removed,” 8 U.S.C. § 1226(a) (emphasis\\n\\nadded), invoking the practical question of whether the government has the authority to\\n\\nexecute a removal. As the Second Circuit explained, “[a]n alien subject to a reinstated\\n\\nremoval order is clearly removable, but the purpose of withholding-only proceedings is to\\n\\ndetermine precisely whether ‘the alien is to be removed from the United States.’” Guerra,\\n\\n831 F.3d at 62 (quoting 8 U.S.C. § 1226(a)).\\n\\n That reading is confirmed by the text and structure of § 1231. The government sees\\n\\nit differently, emphasizing that the introductory language of § 1231(a)(1)(A) refers to “an\\n\\nalien [who] is ordered removed,” and arguing that a noncitizen subject to a reinstated\\n\\nremoval order by definition has been “ordered removed.” But whether the petitioners are\\n\\n 19\\n\\na match for this introductory phrase does not control the outcome here. As explained\\n\\nabove, the issue in this case is not whether § 1231 applies in the abstract; it is whether §\\n\\n1231’s detention provisions govern the petitioners. And under § 1231, those detention\\n\\nprovisions are triggered not when “an alien is ordered removed,” as the government would\\n\\nhave it, but only when the “removal period” begins. See 8 U.S.C. § 1231(a)(2) (providing\\n\\nfor mandatory detention “[d]uring the removal period”); id. § 1231(a)(6) (providing for\\n\\ndiscretionary detention “beyond the removal period”).\\n\\n So our focus is on § 1231’s “removal period,” and that period does not begin until\\n\\nthe government has the actual legal authority to remove a noncitizen from the country. It\\n\\nis only when all of three potential legal impediments to removal have been overcome, that\\n\\nis – the removal order has become “administratively final,” any court-issued stay of\\n\\nremoval has been lifted, and the noncitizen has been released from any non-immigration\\n\\ncustody so that there is jurisdiction to remove – that the 90 days of the removal period start\\n\\nto run. Id. § 1231(a)(1)(B)(i)–(iii) (listing three conditions that must be met before removal\\n\\nperiod starts). As the district court explained, those preconditions are concerned with\\n\\n“legal impediment[s] to actual removal” rather than initial determinations of removability.\\n\\nRomero, 280 F. Supp. 3d at 846. A noncitizen in criminal custody, for instance, may\\n\\nalready have been determined (and finally so) to be “removable.” Nevertheless, the 90-\\n\\nday removal period will not begin, and § 1231’s detention provisions will not apply, until\\n\\nthat noncitizen is released from non-immigration custody so that immigration authorities\\n\\nwill have jurisdiction to execute the removal order. See id.; see also 8 U.S.C. §\\n\\n1231(a)(1)(B)(iii).\\n\\n 20\\n\\n Thus, the text and structure of § 1226 and § 1231 align: Section 1226 applies when\\n\\nthere is still “pending” a legal determination that must be made before a noncitizen may be\\n\\nremoved; and once there are no remaining legal impediments to removal, § 1231’s 90-day\\n\\nremoval period begins. That result also is consistent with the nature and duration of the\\n\\nremoval period itself. As the Second Circuit explained, § 1231 is concerned primarily not\\n\\nwith detention at all, but with defining the 90-day removal period within which the\\n\\ngovernment must remove a noncitizen. Guerra, 831 F.3d at 62–63 (government “shall\\n\\nremove the alien” during removal period (quoting 8 U.S.C. § 1231(a))). But at the same\\n\\ntime, if a noncitizen prevails on a withholding-only claim, then she may not be removed to\\n\\nthe country designated on the removal order. See Salgado-Sosa, 882 F.3d at 456\\n\\n(persecution-based withholding of removal is mandatory when noncitizen makes necessary\\n\\nshowing); Dankam, 495 F.3d at 115–16 (same for torture-based withholding of removal).\\n\\nReading § 1226, rather than § 1231, to apply to noncitizens in withholding-only\\n\\nproceedings is “more logical,” Guerra, 831 F.3d at 63, than an alternative that could leave\\n\\nagency officials caught between competing mandates.\\n\\n Similarly, the fact that the removal period is limited to 90 days strongly suggests\\n\\nthat it is intended to apply only when all legal barriers to removal are cleared away, leaving\\n\\njust the “travel, consular, and various other administrative arrangements that are necessary”\\n\\nto execute a removal order, Diouf v. Mukasey, 542 F.3d 1222, 1231 (9th Cir. 2008)\\n\\n(explaining that purpose of 90-day removal period is to “afford the government a\\n\\nreasonable amount of time” for administrative arrangements associated with execution of\\n\\nremoval order). As the district court reasoned, the 90-day limitation “makes sense if the\\n\\n 21\\n\\nremoval period is only meant to govern the final logistical steps of physically removing an\\n\\nalien.” Romero, 280 F. Supp. 3d at 846. But “it is obvious that withholding-only\\n\\nproceedings take substantially longer than 90 days.” Id. at 847. The government does not\\n\\ndispute this common-sense assessment, and we have no reason to doubt it: Withholding-\\n\\nonly proceedings are lengthy, beginning, as here, with a screening interview by an asylum\\n\\nofficer, followed by referral to an immigration judge for an administrative hearing, a\\n\\nsubsequent decision by that judge, and the opportunity for appeal to the Board of\\n\\nImmigration Appeals. See 8 C.F.R. § 208.31.\\n\\n So if § 1231’s removal period – and its associated detention provisions – apply to\\n\\nnoncitizens in withholding-only proceedings, then agency officials regularly and\\n\\npredictably will find themselves unable to meet the 90-day removal deadline. That does\\n\\nnot mean that § 1231 cannot bear that meaning; as the government argues, the statute\\n\\nexpressly contemplates that there will be at least some instances in which the removal\\n\\nprocess exceeds 90 days. See 8 U.S.C. § 1231(a)(6) (providing in certain cases for\\n\\ndetention “beyond the removal period”). But absent a clearer textual command, we are\\n\\nmost reluctant to adopt a construction of § 1231 that in an entire class of cases will put\\n\\ngovernment officials – routinely and completely foreseeably – in dereliction of their\\n\\nstatutory duties.\\n\\n The result is that until withholding-only proceedings conclude, the removal period\\n\\nhas not begun and § 1231’s detention provisions do not apply. Instead, the decision\\n\\nregarding whether petitioners are “to be removed” remains “pending,” and § 1226 governs.\\n\\n 2.\\n\\n 22\\n\\n The government has a two-fold response to this understanding of § 1226 and § 1231\\n\\nand the way in which they work together. First, the government argues, it misconceives\\n\\nthe nature of withholding-only proceedings and relief. Section 1226 applies only when\\n\\nthere is a pending decision on whether the alien is to be removed, the government\\n\\nemphasizes, whereas withholding-only proceedings are about the where of removal:\\n\\nRemovability is not and may not be contested, and all that remains “pending” is a\\n\\ndetermination of the specific countries to which the petitioners will be removed. And while\\n\\n§ 1226 by terms does not apply to the petitioners, the government finishes, § 1231 does,\\n\\nbecause the petitioners’ reinstated removal orders are “administratively final” and thus\\n\\ntrigger the removal period under § 1231(a)(1)(B)(i). We disagree.\\n\\n The government’s first argument centers on the limited nature of relief available in\\n\\nwithholding-only proceedings. As the government emphasizes and we explain above,\\n\\nwithholding-only proceedings are country-specific: A grant of withholding to a petitioner\\n\\nwould mean only that the government could not remove that petitioner to the country\\n\\ndesignated on her order of removal, usually the country from which she arrived. It would\\n\\nnot preclude the government from taking steps to remove the petitioner to some third\\n\\ncountry, in which she would not face persecution or torture. See 8 C.F.R. § 208.16(f); see\\n\\nalso 8 U.S.C. § 1231(b)(2) (describing alternative countries for removal). It follows, the\\n\\ngovernment argues – and two circuits have agreed – that while withholding-only\\n\\nproceedings are ongoing, the only question “pending” is to where and not “whether the\\n\\nalien is to be removed,” 8 U.S.C. § 1226(a) (emphasis added). See Guerrero-Sanchez, 905\\n\\nF.3d at 216 (“[T]he decision that was before the Immigration Judge [in withholding-only\\n\\n 23\\n\\nproceedings] was not whether [the noncitizen] should be removed from the United States\\n\\n– as is required to trigger § 1226(a) – but rather, whether he may be removed to Mexico,\\n\\ni.e., to where he should be removed.” (internal quotation marks omitted)); Padilla-Ramirez,\\n\\n882 F.3d at 832 (“This narrow question of to where an alien may be removed is distinct\\n\\nfrom the broader question of whether the alien may be removed.”).\\n\\n We do not think the “whether” and “where” questions can be separated so cleanly.\\n\\nInstead, we agree with the district court that both legally and practically, the two are\\n\\nintertwined: Because the government’s removal authority turns on the ultimate\\n\\nidentification of an appropriate country for removal, “it is not clear” while withholding-\\n\\nonly proceedings are pending “that petitioners are in fact ‘to be removed’ from the United\\n\\nStates.” Romero, 280 F. Supp. 3d at 848 (quoting 8 U.S.C. § 1226(a)). First, as the district\\n\\ncourt explained, the provisions allowing for removal to third countries put “sharp\\n\\nlimitations” on the countries that may be designated for such removal. Id. (internal\\n\\nquotation marks omitted); see, e.g., 8 U.S.C. § 1231(b)(2)(D) (allowing for removal to\\n\\n“country of which alien is a subject, national, or citizen,” but only with permission of that\\n\\ncountry); id. § 1231(b)(2)(E) (allowing for removal to countries from which noncitizen was\\n\\nadmitted or in which noncitizen resided or was born). And as a practical matter, the\\n\\ngovernment generally cannot “simply sua sponte deport an alien to a country where he or\\n\\nshe does not have citizenship; instead, the government must typically get permission to\\n\\ndeport from the third country.” Romero, 280 F. Supp. 3d at 848; see also 8 U.S.C.\\n\\n§ 1231(b)(2)(E)(vii) (where no other alternative country is available, government may\\n\\nremove to a “country whose government will accept the alien into that country”);\\n\\n 24\\n\\nZadvydas, 533 U.S. at 684–86 (explaining that detainees had not been removed because\\n\\ntheir designated countries refused to accept them or lacked a repatriation treaty with the\\n\\nUnited States). The bottom line, according to the district court, is that the government has\\n\\nnot shown that there are “any countries that meet those limitations for petitioners” – that\\n\\nis, third countries to which they could be removed were they to succeed in their\\n\\nwithholding-only proceedings. Romero, 280 F. Supp. 3d at 848. 9\\n\\n Second, the prohibition on removal to a country where a noncitizen would face\\n\\npersecution or torture remains absolute. And precisely because withholding of removal is\\n\\ncountry-specific, as the government says, if a noncitizen who has been granted withholding\\n\\nas to one country faces removal to an alternative country, then she must be given notice\\n\\nand an opportunity to request withholding of removal to that particular country. See\\n\\nKossov v. INS, 132 F.3d 405, 409 (7th Cir. 1998). At a minimum, as the district court\\n\\nexplained, “third-country removal would require additional proceedings,” including the\\n\\nopportunity for a hearing – which means that the government lacks the “present and final\\n\\nlegal authority” to remove the petitioners during their initial withholding-only proceedings.\\n\\nRomero, 280 F. Supp. 3d at 846, 847. Unless and until the government can ensure that\\n\\nthird-country removal would comply with the statutory torture- and persecution-based\\n\\nlimits on its removal authority, in other words, “it is not clear . . . that petitioners are in fact\\n\\n\\n\\n\\n 9\\n Given the restrictions on third-country removal, that is not surprising. Other courts\\nhave suggested that noncitizens who prevail in withholding-only proceedings are only very\\nrarely removed to third countries. See Kumarasamy v. Att’y Gen. of U.S., 453 F.3d 169,\\n171 n.1 (3d Cir. 2006).\\n\\n 25\\n\\n‘to be removed’ from the United States.” Id. at 848. That determination remains\\n\\n“pending,” and § 1226(a) applies.\\n\\n The government’s second argument focuses not on § 1226 but on § 1231, and\\n\\nspecifically on the subsection of § 1231 that makes an “administratively final” order of\\n\\nremoval a trigger for the 90-day removal period. See 8 U.S.C. § 1231(a)(1)(B)(i).\\n\\nAccording to the government, a reinstated removal order, which cannot be “reopened or\\n\\nreviewed,” id. § 1231(a)(5), constitutes an “administratively final” order that initiates\\n\\n§ 1231’s 90-day removal period and related detention provisions. See Guerrero-Sanchez,\\n\\n905 F.3d at 217; Padilla-Ramirez, 882 F.3d at 831–32. Like the district court and the\\n\\nSecond Circuit, we disagree.\\n\\n To be clear, we do not doubt that in most cases, a reinstated removal order will\\n\\nqualify as “administratively final” and – so long as there is no other legal impediment to\\n\\nremoval, see 8 U.S.C. § 1231(a)(1)(B)(ii) (judicial stay); id. § 1231(a)(1)(B)(iii) (non-\\n\\nimmigration detention) – will start the § 1231 removal-period clock, giving agency officials\\n\\n90 days to make travel and administrative arrangements. That would explain why\\n\\nCongress located § 1231(a)(5), governing reinstatement of removal orders, in the same\\n\\nprovision that establishes the 90-day removal period. In the ordinary case, reinstatement\\n\\nof a removal order, which does not allow for review of the underlying removal\\n\\ndetermination, will “mark the consummation of the agency’s decisionmaking process,”\\n\\nBennett v. Spear, 520 U.S. 154, 177–78 (1997) (internal quotation marks omitted) (defining\\n\\n“finality” for administrative law purposes), leaving for the 90-day window only\\n\\nadministrative execution of the removal order.\\n\\n 26\\n\\n But the question here is about the exceptional case, not the ordinary case: The small\\n\\npercentage of cases in which – notwithstanding § 1231(a)(5)’s general bar against relief\\n\\nfrom reinstated removal orders – a noncitizen with a “reasonable fear” of persecution or\\n\\ntorture is permitted to apply for withholding of removal. In those cases, “the reinstated\\n\\nremoval order is not final in the usual legal sense because it cannot be executed until further\\n\\nagency proceedings are complete.” Luna-Garcia v. Holder, 777 F.3d 1182, 1185 (10th\\n\\nCir. 2015). As the district court explained, “[i]n agency law, finality is generally achieved\\n\\nwhen an action both ‘mark[s] the consummation of the agency’s decisionmaking process’\\n\\nand also determines legal rights or obligations.” Romero, 280 F. Supp. 3d at 847 (quoting\\n\\nBennett, 520 U.S. at 177–78). The petitioners’ legal status as “removable” already has\\n\\nbeen determined. But the decisionmaking process in their cases remains “ongoing – i.e., it\\n\\nhas not been consummated – as the agency is still determining whether petitioners will be\\n\\ngranted withholding of removal or will be removed.” Id. (emphasis added); see also\\n\\nGuerra, 831 F.3d at 63 (treating reinstated removal orders as “final” under § 1231 during\\n\\nwithholding-only proceedings “runs counter to principles of administrative law which\\n\\ncounsel that to be final, an agency action must mark the consummation of the agency’s\\n\\ndecisionmaking process” (internal quotation marks omitted)).\\n\\n Consistent with this general definition of administrative finality, courts routinely\\n\\nhave held – and the government has agreed, see Luna-Garcia, 777 F.3d at 1183 – that a\\n\\nreinstated order of removal is not “final” for purposes of judicial review until the agency\\n\\ncompletes adjudication of a noncitizen’s request for withholding of removal. See Romero,\\n\\n280 F. Supp. 3d at 847; see also Guerra, 831 F.3d at 63; Ponce-Osorio v. Johnson, 824\\n\\n 27\\n\\nF.3d 502, 505–06 (5th Cir. 2016) (per curiam); Ortiz-Alfaro v. Holder, 694 F.3d 955, 958\\n\\n(9th Cir. 2012). Under 8 U.S.C. § 1252, judicial review is limited to “final order[s] of\\n\\nremoval,” 8 U.S.C. § 1252(a)(1), and must be sought no more than 30 days after the date\\n\\nof a “final order,” id. § 1252(b)(1). In holding that a reinstated removal order is not “final”\\n\\nunder § 1252 until after the completion of withholding-only proceedings, some courts have\\n\\nexpressed concern that the 30-day deadline otherwise would make it impossible to timely\\n\\npetition for review of those proceedings. See, e.g., Ortiz-Alfaro, 694 F.3d at 958. As the\\n\\nTenth Circuit has explained, however, those decisions also rest on the more general\\n\\nadministrative-law proposition that an order is not “final” when there are pending\\n\\napplications for relief. See Luna-Garcia, 777 F.3d at 1186; see also Ortiz-Alfaro, 694 F.3d\\n\\nat 958 (noting that holding is consistent with cases determining finality in “different\\n\\ncontexts than the one presented here”).\\n\\n The government does not dispute that a removal order is “final” under § 1252’s\\n\\njudicial review provisions only when withholding-only proceedings end. 10 Instead, it\\n\\n\\n\\n\\n 10\\n The dissent, unlike the government, does suggest that a reinstated removal order\\nbecomes “final” for purposes of judicial review under § 1252 before withholding-only\\nproceedings conclude, which presumably would render the withholding-only\\ndetermination nonreviewable. But as the district court explained, Mejia v. Sessions, 866\\nF.3d 573 (4th Cir. 2017), on which the dissent relies, applied § 1252’s finality provision\\nand time bar to an underlying removal order, not to a withholding-only determination.\\nRomero, 280 F. Supp. 3d at 847 n.23; see Mejia, 866 F.3d at 588-89 (declining to “allow[]\\na challenge to an underlying removal order any time a reinstated order is issued”). Mejia\\ndid not address finality in the context of a challenge to withholding-only proceedings, and\\nso had no occasion to consider the line of cases described above. Without more, we do not\\nread Mejia as putting us in conflict with the circuits that have held, in agreement with the\\ngovernment, that when a noncitizen seeks review of a withholding-only determination, the\\n\\n 28\\n\\nargues that we should adopt a “bifurcated definition of finality,” Guerra, 831 F.3d at 63,\\n\\nunder which a reinstated removal order is simultaneously final for purposes of detention\\n\\nunder § 1231 and not final for purposes of judicial review under § 1252. The district court,\\n\\nlike the Second Circuit, see id., rejected that proposal, and so do we. It is possible, of\\n\\ncourse, for the same word – here, “final” – to mean two different things in two different\\n\\nparts of this statute; context matters, and not all the arguments that support the case law on\\n\\nfinality under § 1252 translate directly to § 1231. See Padilla-Ramirez, 882 F.3d at 833–\\n\\n34 (adopting government’s bifurcated definition of “finality”). But the presumption is that\\n\\nfinality should mean the same thing in both these provisions, see Gen. Dynamics Land Sys.,\\n\\nInc. v. Cline, 540 U.S. 581, 595 (2004), making for a far more workable statutory structure.\\n\\nAnd as described above, we find no clear indication that Congress intended § 1231 to apply\\n\\nwhile withholding-only proceedings remain pending; indeed, we think the better reading is\\n\\nthat § 1226 governs such cases. Cf. id. (explaining that presumption of same meaning\\n\\n“yields” to indications of contrary congressional intent (internal quotation marks omitted)).\\n\\nWithout some compelling reason to do so, we decline to graft a two-tiered system of finality\\n\\nonto immigration cases involving withholding-only proceedings. See Guerra, 831 F.3d at\\n\\n63 (because noncitizens with pending withholding-only proceedings clearly fall under\\n\\n§ 1226 and not § 1231, court “need not create new principles parsing administrative\\n\\n\\n\\n\\nreinstated order of removal is not “final” for purposes of appellate review until\\nwithholding-only proceedings are completed.\\n\\n\\n 29\\n\\nfinality”). 11\\n\\n In addition to the two primary arguments addressed above, the government has a\\n\\nfallback position: Even if the text and structure of § 1226 and § 1231 do not make clear\\n\\nthat the petitioners’ detention is governed by § 1231, we should adopt that position as a\\n\\nmatter of deference to reasonable agency regulations. Although the courts are divided, as\\n\\nwe have discussed, on the ultimate merits of this dispute, there is one point on which they\\n\\nare unanimous: The regulations cited by the government do not actually specify which\\n\\nsection – § 1226 or § 1231 – authorizes detention of noncitizens subject to reinstated\\n\\nremoval orders who have been placed in withholding-only proceedings. See Romero, 280\\n\\nF. Supp. 3d at 845 (“These regulations do not answer the question raised by petitioners.”);\\n\\nsee also Guerrero-Sanchez, 905 F.3d at 215 (“Chevron deference is inapplicable . . .\\n\\nbecause [the regulation] does not resolve the question of whether § 1226(a) or § 1231(a)\\n\\ngoverns [the petitioner’s] detention.”); Padilla-Ramirez, 882 F.3d at 831 (“This regulation\\n\\ntherefore does not answer the question of when the removal period begins.”); Guerra, 831\\n\\n\\n\\n 11\\n The government also argues that the petitioners’ reinstated removal orders are\\n“administratively final” under § 1231(a)(1)(B)(i), triggering the 90-day removal period, by\\nvirtue of the INA’s definitions provision, which makes a removal order “final” when it is\\naffirmed by the Board of Immigration Appeals or the time for such review has passed. See\\n8 U.S.C. § 1101(a)(47)(B). But as even one court that otherwise agreed with the\\ngovernment has explained, that general definition has “limited utility in the context of\\nreinstated removal orders” because the underlying removal order in most circumstances\\nmay not be reviewed by the Board of Immigration Appeals. Padilla-Ramirez, 882 F.3d at\\n831; see also Luna-Garcia, 777 F.3d at 1185. And because the same definition applies\\nequally to the judicial review provision at § 1252 as it does to § 1231, one position that\\n§ 1101(a)(47)(B) clearly cannot support is the government’s: that finality means\\nsomething different under those two provisions.\\n\\n\\n 30\\n\\nF.3d at 63 (“The regulations [the government] cite[s], however, do not provide which\\n\\nsection authorizes detention of aliens in [the petitioner’s] position.”). We agree. Because\\n\\nthere are no regulations to which we could defer under Chevron, we must “conduct our\\n\\nown review of the statute.” Padilla-Ramirez, 882 F.3d at 831. 12\\n\\n\\n\\n III.\\n\\n For the foregoing reasons, we agree with the district court that the relevant\\n\\nprovisions of § 1226, rather than § 1231, govern the petitioners’ detention, entitling the\\n\\npetitioners to individualized bond hearings. Accordingly, we affirm the district court’s\\n\\njudgments.\\n\\n Our holding does not, of course, guarantee the petitioners’ release from custody.\\n\\nThe petitioners must carry their burden of proving that they are eligible for conditional\\n\\nrelease, and agency officials enjoy broad discretion in making detention-related decisions.\\n\\nSee 8 C.F.R. § 236.1(c)(8); see also 8 U.S.C. § 1226(a). All that is at issue in this appeal\\n\\nis whether the petitioners are entitled to make their case for release on bond to immigration\\n\\n\\n\\n 12\\n The government also argues that this question was resolved by Zadvydas v. Davis,\\nin which the Supreme Court addressed a challenge to indefinite post-removal-period\\ndetention under § 1231(a)(6). 533 U.S. at 682. In that case, the parties assumed, and the\\nCourt did not question, that § 1231(a)(6) governed the post-90-day detention of two\\nnoncitizens who had yet to be removed because their designated countries of removal (as\\nwell as alternative third countries) refused to accept them. Id. at 684–86. But unlike the\\npetitioners here, those detainees never challenged their designated countries of removal,\\nand never were placed in withholding-only proceedings; as a result, there never was any\\nquestion that the government had the actual legal authority to remove them. Zadvydas, in\\nother words, does not implicate the withholding-only proceedings and persecution- and\\ntorture-based restrictions on removal that are at the heart of this appeal.\\n\\n 31\\n\\njudges in individualized hearings. Like the district court and the Second Circuit, we find\\n\\nthat the statutory framework entitles them to that process.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 32\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4445893/\", \"author_raw\": \"joined. Judge Richardson wrote a dissenting\"}, {\"author\": \"RICHARDSON, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"RICHARDSON, Circuit Judge, dissenting:\\n\\n This case presents a question of statutory interpretation. Are previously removed\\n\\naliens, who are subject to a reinstated order of removal from the United States, entitled to\\n\\na bond hearing when they seek withholding of removal? The answer turns on which\\n\\nprovision of the Immigration and Nationality Act governs their detention. Section 1231\\n\\napplies “when an alien is ordered removed” and provides no right to a bond hearing. On\\n\\nthe other hand, § 1226 applies to an alien awaiting “a decision on whether the alien is to be\\n\\nremoved” and permits the alien’s release on bond after a hearing. The majority holds that\\n\\n§ 1226 controls.\\n\\n I respectfully dissent. Both the plain language and the structure of the Immigration\\n\\nand Nationality Act compel the conclusion that § 1231, not § 1226, governs the detention\\n\\nof aliens with reinstated orders of removal. Petitioners are thus not entitled to a bond\\n\\nhearing while they seek withholding of removal under their reinstated orders of removal.\\n\\n I.\\n A.\\n\\n Petitioners are aliens previously ordered removed from the United States. After\\n\\ntheir removal, each returned illegally. When they were later located by immigration\\n\\nauthorities, each “prior order of removal [was] reinstated from its original date.” 8 U.S.C.\\n\\n§ 1231(a)(5). Once reinstated, the removal order “is not subject to being reopened or\\n\\nreviewed, [and] the alien is not eligible and may not apply for any relief under [the\\n\\nImmigration and Nationality Act].” Id.; see Fernandez-Vargas v. Gonzales, 548 U.S. 30,\\n\\n\\n\\n\\n 33\\n\\n35 (2006). Instead, “the alien shall be removed under the prior order.” § 1231(a)(5). Thus,\\n\\nPetitioners have, once and for all, been ordered removed.\\n\\n Section 1231(a) governs the “[d]etention, release, and removal of aliens ordered\\n\\nremoved.” It provides for a ninety-day “removal period,” during which “the Attorney\\n\\nGeneral shall detain” an alien and then “shall remove the alien from the United States.”\\n\\n§§ 1231(a)(1)(A), (a)(2) (emphasis added). The “removal period” begins on the “date the\\n\\norder of removal becomes administratively final,” unless the alien is confined for non-\\n\\nimmigration reasons or the “removal order” is stayed during judicial review.\\n\\n§ 1231(a)(1)(B) (emphasis added).\\n\\n Two paths may extend detention beyond ninety days. First, § 1231(a)(1)(C)\\n\\nrequires that the “removal period shall be extended . . . and the alien may remain in\\n\\ndetention” if the alien “acts to prevent the alien’s removal subject to an order of removal.” 1\\n\\nSecond, even where the removal period is not extended, § 1231(a)(6) authorizes continued\\n\\ndetention: an alien ordered removed “may be detained beyond the removal period” if the\\n\\nalien is either (i) “inadmissible” under § 1182 or (ii) found to be a risk to the community\\n\\nor unlikely to comply with the removal order. § 1231(a)(6).\\n\\n But extended detention is not indefinite detention. The Supreme Court has held that\\n\\nunder § 1231(a)(6) “an alien may be held in confinement until it has been determined that\\n\\nthere is no significant likelihood of removal in the reasonably foreseeable future.”\\n\\n\\n\\n 1\\n Section 1231(a)(1)(C)’s language suggests that seeking withholding of removal\\nqualifies as an “act[] to prevent the alien’s removal,” which would extend the removal\\nperiod. The parties have not argued this issue, and it is left for a future case.\\n\\n 34\\n\\nZadvydas v. Davis, 533 U.S. 678, 701 (2001). So an alien detained beyond the removal\\n\\nperiod may seek release from custody by showing that “there is no significant likelihood\\n\\nof removal to the country to which he or she was ordered removed, or to a third country,\\n\\nin the reasonably foreseeable future.” 8 C.F.R. § 241.13(a); see also Zadvydas, 533 U.S.\\n\\nat 701. In other words, an alien granted withholding of removal to his native country can\\n\\nseek release from detention if no substitute country can be found. Despite this potential\\n\\navenue for relief, Petitioners chose not to make a claim under Zadvydas. J.A. 210 n.8.\\n\\n As long as removal remains likely in the foreseeable future, § 1231’s commands\\n\\neasily apply to an alien who illegally returns to the United States after being removed. The\\n\\nalien’s prior order of removal must be “reinstated from its original date” under §\\n\\n1231(a)(5). This reinstated order may not be challenged. Id. Inside the removal period,\\n\\nthe alien must be detained and removed from the United States. §§ 1231(a)(1)(A), (a)(2).\\n\\nOutside the removal period, the returning alien is inadmissible and may be detained beyond\\n\\nthat period. § 1231(a)(6).\\n\\n B.\\n\\n Despite the seemingly “absolute terms” of § 1231’s bar on applying for relief from\\n\\nthe reinstated removal order and the mandate to remove the alien, the Supreme Court has\\n\\nrecognized that aliens like Petitioners may seek withholding of removal under\\n\\n§ 1231(b)(3)(A). Fernandez-Vargas, 548 U.S. at 35 n.4. Section 1231(b)(3)(A) bars\\n\\nremoving an alien to a particular country if the alien’s “life or freedom would be threatened\\n\\nin that country because of the alien’s race, religion, nationality, membership in a particular\\n\\nsocial group, or political opinion.” See also 8 C.F.R. § 208.17 (deferral of removal under\\n\\n 35\\n\\nthe Convention Against Torture). This limitation on how the order of removal is executed\\n\\nprovides for the withholding proceeding that Petitioners have invoked.\\n\\n This withholding proceeding permits an alien to seek protection from being\\n\\nremoved to a particular country. 8 C.F.R. § 1208.31; Majority Op. at 6. The alien cannot\\n\\nattack a reinstated order requiring removal from the United States. See Mejia v. Sessions,\\n\\n866 F.3d 573, 578–79 (4th Cir. 2017). The alien cannot raise any other issues, “including\\n\\nbut not limited to issues of admissibility, deportability, eligibility for waivers, and\\n\\neligibility for any other form of relief.” 8 C.F.R. § 1208.2(c)(3)(i). In other words,\\n\\nwithholding does not address whether an alien is ordered removed—that has already been\\n\\ndetermined. It only addresses how, and more specifically where, the removal will occur.\\n\\n Moreover, this withholding proceeding does not affect the finality of the order of\\n\\nremoval that was reinstated from its original date. See Guerrero-Sanchez v. Warden York\\n\\nCty. Prison, 905 F.3d 208, 216–17 (3d. Cir. 2018); Padilla-Ramirez v. Bible, 882 F.3d 826,\\n\\n831 (9th Cir. 2017). An order of removal “shall become final” under the Immigration and\\n\\nNationality Act when either the order is affirmed by the Board of Immigration Appeals or\\n\\nthe period for review expires, whichever occurs first. § 1101(a)(47)(B) (The order of\\n\\ndeportation “shall become final upon the earlier of—(i) a determination by the Board of\\n\\nImmigration Appeals affirming such order; or (ii) the expiration of the period in which the\\n\\nalien is permitted to seek review of such order by the Board of Immigration Appeals.”).\\n\\nAnd for each Petitioner, the order of removal was “final” long ago—either because the\\n\\nBoard has already affirmed the order or the time for any review has passed, see 8 C.F.R.\\n\\n\\n\\n 36\\n\\n§ 1003.38(b) (notice of appeal shall be filed with the Board of Immigration Appeals within\\n\\nthirty days of the Immigration Judge’s decision).\\n\\n The order of removal applicable here is the same order that already removed\\n\\nPetitioners. Section 1231(a)(5) directs that “the prior order of removal is reinstated from\\n\\nits original date.” That reinstatement does not create a new or second order of removal. It\\n\\nsimply reinstates the prior order. And it is the original “date the order of removal be[came]\\n\\nadministratively final” that triggers Petitioner’s detention and removal. § 1231(a)(1)(B)(i)\\n\\n(emphasis added). The order was final then and is final now.\\n\\n C.\\n\\n The Majority rejects this plain application of § 1231’s dictates and the statutory\\n\\ndefinition of finality in § 1101(a)(47)(B). Instead, the Majority suggests that the otherwise\\n\\nfinal order of removal is converted into a non-final order once a withholding proceeding\\n\\nbegins. But none of the bases for this suggestion is convincing.\\n\\n The Majority first claims that reinstatement somehow resets finality for the order of\\n\\nremoval. If reinstatement somehow creates a separate and “new” order of removal, they\\n\\nargue, then the statutory definition of finality’s focus on Board review does not fit because\\n\\n§ 1231(a)(5) prohibits the Board from reviewing the reinstated order at all. But\\n\\n§ 1231(a)(5) does not create a new order of removal; it simply “restore[s]” the old order,\\n\\nto its “former state.” Reinstate, BLACK’S LAW DICTIONARY (11th ed. 2019). There is only\\n\\none order of removal, and the opportunity for review by the Board of Immigration Appeals\\n\\nhas long since passed.\\n\\n\\n\\n 37\\n\\n Also flowing from this false premise is the Majority’s claim that applying the\\n\\nstatutorily required definition of finality would not make sense under the finality\\n\\nrequirements for judicial review under § 1252. As we just discussed, the single order of\\n\\nremoval is not reset by § 1231(a)(5). So it is final as of when it originally became final.\\n\\nAnd the finality required under § 1252(b)(1) runs from the original finality, not the date of\\n\\nreinstatement.\\n\\n We addressed this relationship between the reinstatement provision, § 1231(a)(5),\\n\\nand the judicial review provision, § 1252, in Mejia v. Sessions, 866 F.3d 573 (4th Cir.\\n\\n2017). 2 There, we explained that “§ 1231(a)(5) doesn’t deprive us of jurisdiction to review\\n\\nthe constitutional claims and questions of law that arise from an underlying removal order\\n\\nin the reinstatement context.” Id. at 589. So while “the underlying removal order in most\\n\\ncircumstances may not be reviewed by the Board of Immigration Appeals,” Majority Op.\\n\\n\\n\\n\\n 2\\n Mejia was an alien with a prior order of removal reinstated under § 1231(a)(5).\\nMejia, 866 F.3d at 577. She then applied for asylum and withholding of removal and was\\nplaced in withholding-only proceedings. Id. at 578. The immigration judge granted her\\nwithholding of removal but rejected her asylum claim. Id. Mejia sought review of both\\nher asylum claim and her challenge to the validity of her removal order based on defects\\nin the underlying removal order. Id. at 576. As for the latter, the Court found that it had\\nno jurisdiction to consider this issue because Mejia did not timely file her challenge. Id. at\\n588. Mejia urged the Court to read “§ 1252(b)(1)’s deadline to refer to the date on which\\nthe reinstated order of removal—not the original order—becomes final.” Id. at 589. But\\nthe Court held that “the 30-day deadline runs from the date an original order of removal\\nbecomes final.” Id. As this Court explained, it is “feasible that an individual removed to\\nher home country could illegally re-enter the United States, have the original removal order\\nreinstated by DHS, and petition for review—all within a month’s time.” Id. at 590. Thus,\\nthe Court’s holding did not abolish “review of all underlying orders in reinstatement.” Id.\\n(citations and emphasis omitted). There could be judicial review if the alien petitioned for\\nreview no more than thirty days from the date the original order of removal became final.\\n\\n 38\\n\\nat 30 n.11, there can still be judicial review of certain claims raised upon reinstatement of\\n\\na removal order, if the petition for judicial review is “filed . . . in accordance with [§ 1252].”\\n\\nMejia, 866 F.3d at 589 (citing § 1252(a)(2)(D)).\\n\\n Section 1252(b)(1) requires that “[t]he petition for review must be filed not later\\n\\nthan 30 days after the date of the final order of removal.” And we interpreted the phrase,\\n\\n“final order of removal,” to refer to the “original order of removal,” not the reinstated\\n\\norder. See Mejia, 866 F.3d at 589 (holding “that the 30-day deadline [for petitioning for\\n\\njudicial review] runs from the date an original order of removal becomes final” and\\n\\nrejecting the argument that the deadline refers to the date when the reinstated removal order\\n\\nbecomes final). Thus, in this Circuit, determining whether we have jurisdiction under\\n\\n§ 1252 turns on whether the alien filed his petition for judicial review within thirty days\\n\\nfrom the date when the “original order of removal becomes final.” Id. The statutory\\n\\ndefinition of finality applies “equally to the judicial review provision,” Majority Op. at 30\\n\\nn.11, and our jurisdictional inquiry is whether the original, not the reinstated, removal order\\n\\nmeets the definition of finality in § 1101(a)(47)(B).\\n\\n Yet the Majority still argues that a reinstated removal order is not “final” for judicial\\n\\nreview until the completion of the proceeding for withholding of removal, relying on\\n\\ndecisions from the Second, Fifth, and Ninth Circuits for support. But these cases are\\n\\nimproperly based on a pragmatic desire to permit judicial review that we rejected in Mejia.\\n\\nAs this Court explained, if we were to accept the argument that the period for judicial\\n\\nreview of a reinstated removal order depends on when the reinstatement is “final,” this\\n\\n“‘would defeat the purpose of the statute’s time bar by allowing a challenge to an\\n\\n 39\\n\\nunderlying removal order any time a reinstated order is issued.’” Mejia, 866 F.3d at 589\\n\\n(quoting Verde-Rodriguez v. Att’y Gen. U.S., 734 F.3d 198, 203 (3d Cir. 2013)).\\n\\n In another attempt to avoid the finality of the order of removal, the Majority focuses\\n\\non purported practicalities, arguing that the “finality” required under § 1231(a)(1)(B) is the\\n\\nfinal “authority” to physically remove the alien. Majority Op. at 20, 24. But nowhere does\\n\\nthe statute refer to “actual legal authority” to remove an alien. 3 Section 1231(a)(1)(B) is\\n\\ntriggered by the administrative finality of the “order of removal.” Only by this sleight of\\n\\nhand—converting the finality of an “order” to some amorphous final “authority”—can one\\n\\n\\n\\n\\n 3\\n The Majority purports to derive the “actual legal authority” standard based on the\\nthree dates listed in § 1231(a)(1)(B), the latest of which begins the removal period:\\n\\n (i) The date the order of removal becomes administratively final.\\n\\n (ii) If the removal order is judicially reviewed and if a court orders a stay of the\\n removal of the alien, the date of the court’s final order.\\n\\n (iii) If the alien is detained or confined (except under an immigration process),\\n the date the alien is released from detention or confinement.\\n\\nThose dates, it reasons, are “potential legal impediments to removal,” suggesting that,\\nrather than determine which date applies, the court should determine whether any “legal\\nimpediment” exists. Majority Op. at 20, 26. Apparently, that includes impediments that\\nare not listed, such as the withholding proceedings at issue here.\\n Creating this standard requires a judicial addition to the clear statutory language.\\nSection 1231(a)(1)(B) lists only three events that trigger the beginning of the removal\\nperiod. And the list is exclusive, not merely illustrative. Section 1231(a)(1)(B) provides\\nthat “[t]he removal period begins on the latest of the following.” The provision does not\\nwait for “all legal barriers to removal [to be] cleared away.” Majority Op. at 21 (emphasis\\nadded). While the three triggering events listed in § 1231(a)(1)(B) are themselves legal\\nimpediments, this does not mean that the list includes all other potential barriers to\\nremoval. Instead, as the expressio unius canon explains, “expressing one item of an\\nassociated group or series excludes another left unmentioned.” N.L.R.B. v. SW Gen., Inc.,\\n137 S.Ct. 929, 940 (2017) (citation and alterations omitted).\\n\\n 40\\n\\navoid the conclusion that the reinstated removal order under § 1231(a)(5) is an\\n\\nadministratively final order.\\n\\n Finally, the Majority claims that “the fact the removal period is limited to 90 days\\n\\nstrongly suggests that [§ 1231] is intended to apply only when all legal barriers to removal\\n\\nare cleared away.” Majority Op. at 21. But § 1231 provides that aliens with orders of\\n\\nremoval reinstated under § 1231(a)(5) “may be detained beyond the removal period.”\\n\\n§ 1231(a)(6). Among other ways, this extended detention applies to any alien “ordered\\n\\nremoved who is inadmissible under Section 1182.” Id. And aliens with orders of removal\\n\\nreinstated under § 1231(a)(5) are “inadmissible” under § 1182(a)(9). See Garcia-Villeda\\n\\nv. Mukasey, 531 F.3d 141, 151 (2d Cir. 2008) (an alien with a reinstated removal order was\\n\\n“permanently inadmissible” under § 1182); see also Terrazas-Hernandez v. Barr, 924 F.3d\\n\\n768, 775 (5th Cir. 2019); Mendez-Gomez v. Barr, 928 F.3d 728, 732–33 (8th Cir. 2019).\\n\\nThus, each Petitioner is subject to extended detention under § 1231(a)(6).\\n\\n And failing to effectuate removal within ninety days is no dereliction of statutory\\n\\nduties: § 1231(a)(1) directs removal within ninety days, but § 1231(b)(3)(A) bars removal\\n\\nto a country where life or freedom would be threatened on protected grounds. So where\\n\\nan alien seeks withholding from removal to one country under § 1231(b)(3), see\\n\\nFernandez-Vargas, 548 U.S. at 35 n.4, the statutory scheme itself contemplates that the\\n\\nalien may be removed to another country, § 1231(b)(2), and continued in detention under\\n\\n§ 1231(a)(6).\\n\\n In sum, the language of § 1231 governs every step: the order of removal’s\\n\\nreinstatement from its original date (§ 1231(a)(5)), the bar on reviewing the order of\\n\\n 41\\n\\nremoval (§ 1231(a)(5)), the direction to promptly remove the alien (§ 1231(a)(1)(A)), the\\n\\nextension of the removal period (§ 1231(a)(1)(C)), the withholding challenge to the\\n\\nexecution of the order (§ 1231(b)(3)(A)), and the alien’s detention (§§ 1231(a)(2),\\n\\n1231(a)(6)).\\n\\n II.\\n\\n Despite the directives in § 1231, Petitioners argue that they should be treated under\\n\\n§ 1226 and not § 1231. But § 1226 applies in a different context: when an alien is “pending\\n\\na decision on whether the alien is to be removed from the United States.” § 1226(a). For\\n\\nthis provision to apply, the decision that must remain undecided is not whether the alien is\\n\\nto be removed to a certain country but, as § 1226 states, “whether the alien is to be removed\\n\\nfrom the United States” at all.\\n\\n The Petitioners are not awaiting that decision. As explained above, they illegally\\n\\nreentered the United States after being “ordered removed.” § 1231(a)(1)(A). Their “prior\\n\\norder of removal [was] reinstated from its original date and is not subject to being reopened\\n\\nor reviewed.” § 1231(a)(5). They are barred from applying “for any relief under this\\n\\nchapter,” which includes the possibility of release from detention under § 1226.\\n\\n The statutory structure of the Immigration and Nationality Act confirms that it is\\n\\n§ 1231, not § 1226, that applies to the Petitioners. We cannot read the text of these two\\n\\nprovisions in a vacuum but must consider the statutory structure as one of the “tools of\\n\\ndivining meaning.” Abramski v. United States, 573 U.S. 169, 179 (2014).\\n\\n Both § 1226 and § 1231 are in a part of the Act entitled “Inspection, Apprehension,\\n\\nExamination, Exclusion, and Removal.” As the title implies, this part provides a timeline\\n\\n 42\\n\\nof events that spans eleven statutory provisions from § 1221 to § 1232. Sections 1221 to\\n\\n1224 discuss the arrival of aliens. Those sections are followed by § 1225, which provides\\n\\ninstructions for inspecting the aliens, expediting removal of certain “arriving aliens,” and\\n\\nreferring others for a removal hearing. Next, § 1226 concerns the “[a]pprehension and\\n\\ndetention of aliens” who are still “pending a decision on whether the alien is to be removed\\n\\nfrom the United States.” § 1226(a). It is not until three statutory provisions later, in § 1229,\\n\\nthat the Act explains the structure of the alien’s removal proceedings. See §§ 1229–1229c.\\n\\nIf the alien is admitted into the United States, § 1230 explains how to record admission.\\n\\nOn the other hand, “when an alien is ordered removed,” § 1231 directs how the alien is\\n\\ntreated. This series of events reflects that, once the alien has been ordered removed from\\n\\nthe United States in a removal proceeding under § 1229a and that order has been reinstated\\n\\nunder § 1231(a)(5), the alien cannot go back in time, so to speak, to § 1226. Section 1226\\n\\nsimply does not apply here.\\n\\n * * *\\n\\n Section 1231 speaks directly to those, like Petitioners, who illegally return to the\\n\\nUnited States after having previously been ordered removed. Section 1226 does not.\\n\\nWhile their detention remains subject to a Zadvydas claim that there is no significant\\n\\nlikelihood of removal in the foreseeable future, the statutory language and structure dictates\\n\\nthat each Petitioner may be detained without a bond hearing as permitted by § 1231.\\n\\n\\n\\n\\n 43\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4445893/\", \"author_raw\": \"RICHARDSON, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"FLOYD"},"judge2":{"kind":"string","value":"HARRIS"},"judge3":{"kind":"string","value":"RICHARDSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"FLOYD\": \", Circuit\", \"HARRIS\": \", Circuit\", \"RICHARDSON\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":3,"string":"3"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":2,"string":"2"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4668640/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Maria Guzman Chavez v. Russell Hott\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-10-10\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-6086\n\n\nMARIA ANGELICA GUZMAN CHAVEZ; DANIS FAUSTINO CASTRO\nCASTRO; JOSE ALFONSO SERRANO COLOCHO,\n\n Petitioners - Appellees,\n\n and\n\nCHRISTIAN FLORES ROMERO; WILBER A. RODRIGUEZ ZOMETA,\n\n Petitioners,\n\n v.\n\nRUSSELL HOTT, Field Office Director, U.S. Immigration and Customs\nEnforcement; DOJ EXECUTIVE OFFICE FOR IMMIGRATION REVIEW;\nRONALD D. VITIELLO, Acting Director, U.S. Immigration and Customs\nEnforcement; WILLIAM P. BARR, Attorney General,\n\n Respondents - Appellants,\n\n and\n\nBRENDA COOK, Court Administrator, Executive Office for Immigration Review,\nBaltimore Immigration Court,\n\n Respondent.\n\n------------------------------\n\nAMERICAN IMMIGRATION COUNCIL; AMERICAN IMMIGRATION\nLAWYERS ASSOCIATION,\n\n Amici Supporting Appellees.\n\nAppeal from the United States District Court for the Eastern District of Virginia, at\nAlexandria. Leonie M. Brinkema, District Judge. (1:17-cv-00754-LMB-JFA)\n\n\n No. 18-6419\n\n\nROGELIO AMILCAR CABRERA DIAZ; JENNRY FRANCISCO MORAN\nBARRERA; RODOLFO EDUARDO RIVERA FLAMENCO, on behalf of\nthemselves and all others similarly situated,\n\n Petitioners - Appellees,\n\n v.\n\nRUSSELL HOTT, Field Office Director, U.S. Immigration and Customs\nEnforcement; WILLIAM P. BARR, Attorney General,\n\n Respondents - Appellants.\n\n------------------------------\n\nAMERICAN IMMIGRATION COUNCIL; AMERICAN IMMIGRATION\nLAWYERS ASSOCIATION,\n\n Amici Supporting Appellees.\n\n\nAppeal from the United States District Court for the Eastern District of Virginia, at\nAlexandria. Leonie M. Brinkema, District Judge. (1:17-cv-01405-LMB-MSN)\n\n\nArgued: March 21, 2019 Decided: October 10, 2019\n\n\nBefore FLOYD, HARRIS, and RICHARDSON, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Harris wrote the opinion, in which Judge Floyd\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Maria Guzman Chavez v. Russell Hott\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-10-10\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-6086\\n\\n\\nMARIA ANGELICA GUZMAN CHAVEZ; DANIS FAUSTINO CASTRO\\nCASTRO; JOSE ALFONSO SERRANO COLOCHO,\\n\\n Petitioners - Appellees,\\n\\n and\\n\\nCHRISTIAN FLORES ROMERO; WILBER A. RODRIGUEZ ZOMETA,\\n\\n Petitioners,\\n\\n v.\\n\\nRUSSELL HOTT, Field Office Director, U.S. Immigration and Customs\\nEnforcement; DOJ EXECUTIVE OFFICE FOR IMMIGRATION REVIEW;\\nRONALD D. VITIELLO, Acting Director, U.S. Immigration and Customs\\nEnforcement; WILLIAM P. BARR, Attorney General,\\n\\n Respondents - Appellants,\\n\\n and\\n\\nBRENDA COOK, Court Administrator, Executive Office for Immigration Review,\\nBaltimore Immigration Court,\\n\\n Respondent.\\n\\n------------------------------\\n\\nAMERICAN IMMIGRATION COUNCIL; AMERICAN IMMIGRATION\\nLAWYERS ASSOCIATION,\\n\\n Amici Supporting Appellees.\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nAlexandria. Leonie M. Brinkema, District Judge. (1:17-cv-00754-LMB-JFA)\\n\\n\\n No. 18-6419\\n\\n\\nROGELIO AMILCAR CABRERA DIAZ; JENNRY FRANCISCO MORAN\\nBARRERA; RODOLFO EDUARDO RIVERA FLAMENCO, on behalf of\\nthemselves and all others similarly situated,\\n\\n Petitioners - Appellees,\\n\\n v.\\n\\nRUSSELL HOTT, Field Office Director, U.S. Immigration and Customs\\nEnforcement; WILLIAM P. BARR, Attorney General,\\n\\n Respondents - Appellants.\\n\\n------------------------------\\n\\nAMERICAN IMMIGRATION COUNCIL; AMERICAN IMMIGRATION\\nLAWYERS ASSOCIATION,\\n\\n Amici Supporting Appellees.\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nAlexandria. Leonie M. Brinkema, District Judge. (1:17-cv-01405-LMB-MSN)\\n\\n\\nArgued: March 21, 2019 Decided: October 10, 2019\\n\\n\\nBefore FLOYD, HARRIS, and RICHARDSON, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Harris wrote the opinion, in which Judge Floyd\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4570,"cells":{"id":{"kind":"number","value":4672701,"string":"4,672,701"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Jurother Alston, Jr."},"decision_date":{"kind":"string","value":"2019-10-24"},"docket_number":{"kind":"string","value":"18-4524"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before MOTZ, KING, and DIAZ, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"DIANA GRIBBON MOTZ, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4524\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nJUROTHER LEE ALSTON, JR.,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the Middle District of North Carolina, at\\nGreensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:17-cr-00446-NCT-1)\\n\\n\\nArgued: September 20, 2019 Decided: October 24, 2019\\n\\n\\nBefore MOTZ, KING, and DIAZ, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Motz wrote the opinion, in which Judge King and\\nJudge Diaz joined.\\n\\n\\nARGUED: Leza Lee Driscoll, LAW OFFICE OF LEZA LEE DRISCOLL, PLLC,\\nRaleigh, North Carolina, for Appellant. Terry Michael Meinecke, OFFICE OF THE\\nUNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF:\\nMatthew G.T. Martin, United States Attorney, OFFICE OF THE UNITED STATES\\nATTORNEY, Greensboro, North Carolina, for Appellee.\\n\\fDIANA GRIBBON MOTZ, Circuit Judge:\\n\\n Jurother Lee Alston, Jr., entered a conditional guilty plea to possession of a firearm\\n\\nin furtherance of a drug crime, reserving the right to appeal the district court’s order\\n\\ndenying his motion to suppress. Alston now appeals that order. For the reasons that follow,\\n\\nwe affirm.\\n\\n\\n\\n I.\\n\\n We recount the facts related to the suppression motion in the light most favorable\\n\\nto the Government. See United States v. Norman, 935 F.3d 232, 235 (4th Cir. 2019).\\n\\n On December 11, 2017, Captain Raheem Aleem of the Durham County Sheriff’s\\n\\nOffice saw Alston run a red light. Driving behind Alston, Captain Aleem activated his blue\\n\\nemergency lights, but Alston failed to stop. Aleem watched Alston reach deep under the\\n\\npassenger seat of his car — so deep that he briefly disappeared from Aleem’s view.\\n\\nCaptain Aleem suspected that Alston was reaching for a gun. Looking back at Aleem and\\n\\ncontinuing to reach down, Alston slowly drove into a parked car and came to a stop.\\n\\n Captain Aleem, concerned that Alston might try to flee, pulled up next to Alston’s\\n\\ncar. When asked why he ran a red light, Alston explained that he was distracted. Aleem\\n\\nnext asked why Alston was reaching deep under his seat, and Alston replied that he had\\n\\ndropped his cell phone. Captain Aleem was skeptical; he heard a woman’s voice in an\\n\\nongoing phone call with Alston over the car’s speakers and noticed Alston holding his\\n\\nphone in his left hand despite reaching under the seat with his right.\\n\\n\\n\\n 2\\n\\f Aleem responded, “Bro, you mighty nervous, you got anything else in the vehicle\\n\\nthat you shouldn’t have?” Alston replied, “All I got is this little bag of weed.” He held up\\n\\na small bag of marijuana and, at Aleem’s request, tossed it into the officer’s vehicle.\\n\\n Captain Aleem then asked Alston for his driver’s license, which Alston admitted\\n\\nwas suspended. Aleem asked if Alston “could call someone else to drive the vehicle,” and\\n\\nAlston called his mother to do so. Captain Aleem parked and approached Alston. Noticing\\n\\nthat Alston remained very nervous, Aleem assured him that he did not intend to take him\\n\\nto jail and “just want[ed] [him] to be honest.” The two made small talk until Alston’s\\n\\nmother arrived about five minutes later.\\n\\n Alston’s mother joined Captain Aleem outside Alston’s car, while Alston remained\\n\\nseated inside. Aleem told Alston that besides the small bag of marijuana, he “still needed\\n\\nto find out whatever else [Alston] had in the vehicle.” He added, “I’ve been straightforward\\n\\nwith you, and I need for you to be honest and straightforward with me.” Alston then handed\\n\\nover a black bag containing marijuana, a digital scale, and small plastic bags. He told\\n\\nAleem it was “all he had.”\\n\\n Captain Aleem thanked Alston but continued to suspect that Alston had been\\n\\nreaching for a gun and sought to have him turn it over. Aleem told Alston and his mother,\\n\\n“I’m going to need to get the heater” (a slang term for a firearm). Alston replied, “[A]re\\n\\nyou going to take me to jail?” Captain Aleem assured him, “I need you to be honest with\\n\\nme and I will not take you to jail today.” Alston paused, looked at his mother and Aleem,\\n\\nand admitted, “It is underneath the passenger seat.” Aleem then asked Alston to exit the\\n\\nvehicle.\\n\\n 3\\n\\f Captain Aleem searched Alston’s person and found nothing. He then searched the\\n\\npassenger side of the vehicle and retrieved a loaded Glock firearm from under the seat.\\n\\nAleem called dispatch to check the gun’s serial number and learned that the gun was stolen.\\n\\nHe returned to Alston and reiterated that he did not intend to take Alston to jail.\\n\\n As he was talking to Alston, however, Captain Aleem received a call from Durham\\n\\nCounty Deputy James Gryder, a member of a joint task force with the Federal Bureau of\\n\\nInvestigation. Based on an independent tip, the task force was separately investigating\\n\\nwhether Alston, a convicted felon, illegally possessed a firearm, and a confidential source\\n\\nhad alerted Gryder that Alston was in a traffic stop. Deputy Gryder asked Aleem if he was\\n\\nwith Alston and if Alston had a gun. Captain Aleem confirmed that he was with Alston\\n\\nand that Alston did have a gun. Deputy Gryder told Aleem to detain Alston until task force\\n\\nofficers arrived, and Aleem did so. Captain Aleem informed Alston’s mother that he did\\n\\nnot intend to take Alston to jail, but that he did not know what would happen when the\\n\\nother officers got there.\\n\\n Deputy Gryder and other task force officers soon arrived at the scene. Captain\\n\\nAleem told Gryder that he had promised Alston and his mother that he would not arrest\\n\\nAlston, but Gryder responded that Alston was “on both state and federal probation” and\\n\\nthat the task force “would be taking over.” Task force officers then arrested Alston.\\n\\n\\n\\n II.\\n\\n A grand jury indicted Alston on counts of possession of marijuana with intent to\\n\\ndistribute, possession of a firearm in furtherance of that crime, possession of a firearm by\\n\\n 4\\n\\fa felon, and possession of a stolen firearm. Alston moved to suppress all evidence obtained\\n\\nin the stop.\\n\\n The district court granted Alston’s motion in part and denied it in part. The court\\n\\nfound Captain Aleem to be “a very credible witness” and “a very sincere person” and\\n\\ncredited his testimony. The court determined that the initial stop was permissible because\\n\\nAlston had run a red light, “disappeared out of sight as if he were reaching for something\\n\\nor to hide something,” attempted to evade Aleem until hitting a parked car, and gave a\\n\\ndubious account of dropping his phone. Reviewing Captain Aleem’s words and conduct\\n\\nat the start of the stop, the court found that he had not been coercive during that time.\\n\\nAccordingly, the court held that Alston’s confession about the first bag of marijuana was\\n\\nvoluntary and denied the suppression motion for evidence obtained through that point in\\n\\nthe stop.\\n\\n Given Captain Aleem’s assurances that he did not intend to arrest Alston, however,\\n\\nthe district court found that Alston’s subsequent admissions were involuntary. The court\\n\\nemphasized that Aleem, a community liaison officer and former school resource officer\\n\\nwho preferred alternative programs to jailing offenders, was sincere. But the court\\n\\nconcluded that a reasonable person in Alston’s position would understand Captain Aleem’s\\n\\nstatements to mean that law enforcement — not only Aleem, but also any other officers —\\n\\nwould not arrest him if he confessed. These assurances, the court concluded, overbore\\n\\nAlston’s will, and the court suppressed his statements about the black bag and the gun.\\n\\n But the district court refused to exclude the gun itself. The court found that Alston’s\\n\\nadmission about and presentation of the first bag of marijuana gave Captain Aleem\\n\\n 5\\n\\fprobable cause to search the car. The court held that even if Alston had not admitted to\\n\\npossession of the gun, it “would have inevitably been found because there was probable\\n\\ncause to search.” The court did not, however, expressly find that the police would have\\n\\nconducted the search, only that there was probable cause to do so.\\n\\n Alston entered a conditional guilty plea to the sole charge of possession of a firearm\\n\\nin furtherance of a drug crime, reserving his right to appeal the suppression ruling. The\\n\\ndistrict court sentenced Alston to sixty months’ imprisonment and five years’ supervised\\n\\nrelease.\\n\\n On appeal, Alston challenges the district court’s denial of his motion to suppress\\n\\n“all derivative evidence resulting from his statements.” Opening Br. at 17. We review the\\n\\ndistrict court’s legal conclusions de novo and its factual findings for clear error, construing\\n\\nthe evidence in the light most favorable to the Government. United States v. McGee, 736\\n\\nF.3d 263, 269 (4th Cir. 2013).\\n\\n\\n\\n III.\\n\\n Alston expressly poses three arguments. All are meritless.\\n\\n First, he claims that his entire interaction with Captain Aleem amounted to custodial\\n\\ninterrogation and that because Aleem failed to read him his rights, under Miranda v.\\n\\nArizona, 384 U.S. 436 (1966), the district court should have excluded all evidence obtained\\n\\nfrom the stop, including the gun. Of course, the exclusionary rule bars admission of the\\n\\nnontestimonial physical fruits of statements obtained in violation of Miranda when those\\n\\nstatements are involuntary, and statements obtained in violation of Miranda are\\n\\n 6\\n\\fpresumptively involuntary. See United States v. Nichols, 438 F.3d 437, 442 (4th Cir. 2006).\\n\\nThe district court agreed with Alston that most of his statements were involuntary and so\\n\\nexcluded them. The court admitted the derivative evidence, including the gun, not because\\n\\nit was the fruit of voluntary statements, but because the court found that the inevitable\\n\\ndiscovery exception to the exclusionary rule rendered the derivative evidence admissible.\\n\\n Second, Alston contends that all of his statements were involuntary. The district\\n\\ncourt held that Alston’s first statements were voluntary, as Captain Aleem had not yet made\\n\\nany promises or otherwise said anything coercive, and we find no error in that holding. As\\n\\nnoted above, the district court held that the statements admitting possession of the gun were\\n\\ninvoluntary and so excluded those statements; they are not at issue before us.\\n\\n Third, Alston maintains that Captain Aleem impermissibly prolonged their\\n\\ninteraction by exceeding the scope of the stop, in violation of Rodriguez v. United States,\\n\\n135 S. Ct. 1609 (2015). This argument fails because Alston’s admission to possessing the\\n\\nfirst bag of marijuana gave Captain Aleem the “reasonable suspicion . . . demanded to\\n\\njustify detaining” Alston and investigating further. Id. at 1615.\\n\\n\\n\\n IV.\\n\\n Strangely, neither Alston nor the Government directly addresses the inevitable\\n\\ndiscovery doctrine. We find it necessary to consider the issue because it provides the sole\\n\\nbasis for the district court’s denial of Alston’s motion to suppress the gun. Cf. United\\n\\nStates v. Uzenski, 434 F.3d 690, 707 (4th Cir. 2006) (considering an issue that “neither\\n\\n\\n\\n 7\\n\\fparty directly addresse[d],” but which was necessary to reach in determining whether the\\n\\ndistrict court properly denied a suppression motion).\\n\\n Although the district court held that Captain Aleem discovered the gun as a result\\n\\nof Alston’s involuntary statements, the court refused to suppress it. Evidence discovered\\n\\nby illegal means, like the gun here, is not admissible if obtained “by exploitation of that\\n\\nillegality,” but it is admissible if discovered “by means sufficiently distinguishable to be\\n\\npurged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488 (1963) (quoting\\n\\nJOHN MACARTHUR MAGUIRE, EVIDENCE OF GUILT 221 (1959)).\\n\\n Such derivative evidence is admissible pursuant to the inevitable discovery doctrine\\n\\nonly “[i]f the prosecution can establish by a preponderance of the evidence that the\\n\\ninformation ultimately or inevitably would have been discovered by lawful means.” Nix\\n\\nv. Williams, 467 U.S. 431, 444 (1984). “A finding of inevitable discovery necessarily rests\\n\\non facts that did not occur,” but “by definition the occurrence of these facts must have been\\n\\nlikely, indeed ‘inevitable,’ absent the government’s misconduct.” United States v. Allen,\\n\\n159 F.3d 832, 840 (4th Cir. 1998).\\n\\n Inevitable discovery demands that the prosecution prove by a preponderance of the\\n\\nevidence: first, that police legally could have uncovered the evidence; and second, that\\n\\npolice would have done so. See id. (“We have no doubt that [the officer] could have used\\n\\nthe dog, but whether she would have presents an entirely different question.”); see also,\\n\\ne.g., United States v. Pelletier, 700 F.3d 1109, 1116 (7th Cir. 2012); United States v. Heath,\\n\\n455 F.3d 52, 55 (2d Cir. 2006); United States v. Almeida, 434 F.3d 25, 29 (1st Cir. 2006).\\n\\nWe address each requirement in turn.\\n\\n 8\\n\\f A.\\n\\n To rely on the inevitable discovery doctrine, the Government first must prove that\\n\\npolice could have used “lawful means” to discover the illegally obtained evidence. Nix,\\n\\n467 U.S. at 444. “‘Lawful means’ include an inevitable search falling within an exception\\n\\nto the warrant requirement . . . that would have inevitably uncovered the evidence in\\n\\nquestion.” United States v. Bullette, 854 F.3d 261, 265 (4th Cir. 2017).\\n\\n One such exception to the warrant requirement is the automobile exception, which\\n\\nthe district court invoked. The automobile exception allows police to search a vehicle if\\n\\nthey have probable cause to believe it contains contraband. Maryland v. Dyson, 527 U.S.\\n\\n465, 467 (1999) (per curiam); United States v. Kelly, 592 F.3d 586, 589 (4th Cir. 2010).\\n\\nAn officer’s detection of marijuana creates such probable cause. See United States v.\\n\\nPalmer, 820 F.3d 640, 650 (4th Cir. 2016). When police have probable cause, the\\n\\nautomobile exception permits “the search of every part of the vehicle . . . that may conceal\\n\\nthe object of the search.” United States v. Ross, 456 U.S. 798, 825 (1982).\\n\\n The district court expressly held that the automobile exception gave Captain Aleem\\n\\nauthority he could have exercised to lawfully search the car. The court reasoned that\\n\\nAlston’s traffic violation justified Captain Aleem’s initial stop, and Alston’s attempt to\\n\\nevade Aleem while reaching deep beneath the seat created adequate suspicion for further\\n\\ninvestigative detention. Then, by admitting to possessing marijuana and showing it to\\n\\nCaptain Aleem — which Alston did voluntarily, before Aleem made any promises —\\n\\nAlston gave Aleem “probable cause to search the car for further marijuana.” Finally, if\\n\\nCaptain Aleem had searched the car based on that probable cause, he inevitably would have\\n\\n 9\\n\\ffound the gun. We agree with the district court that these facts establish that Captain Aleem\\n\\ncould have uncovered the gun by lawful means. 1\\n\\n B.\\n\\n We turn to whether it was inevitable that Captain Aleem would have conducted a\\n\\nsearch for the gun, based on the information Aleem had before Alston made the statements\\n\\nthat the district court found involuntary.\\n\\n Although the court held that Captain Aleem developed the necessary probable cause\\n\\nand therefore could have searched Alston’s car, and that “the firearm would have been\\n\\nfound had he performed that search,” the court never expressly held that Captain Aleem\\n\\nwould have conducted the search. We must answer this question because, as noted above,\\n\\ndiscovery is not inevitable unless the Government proves that police not only could have\\n\\nlawfully obtained the evidence but also would have done so. See Nix, 467 U.S. at 444;\\n\\nAllen, 159 F.3d at 840.\\n\\n The inevitable discovery exception “involves no speculative elements but focuses\\n\\non demonstrated historical facts.” Nix, 467 U.S. at 444 n.5. Although a finding that police\\n\\ninevitably would have conducted the lawful search “necessarily rests on facts that did not\\n\\n\\n\\n 1\\n The only authority Alston offers in response to this holding is United States v.\\nGraham, 686 F. App’x 166 (4th Cir. 2017). In addition to being unpublished and so lacking\\nin precedential value, see Local Rule 36(b); United States v. Cortez, 930 F.3d 350, 362 n.2\\n(4th Cir. 2019), Graham is inapposite here. There, we rejected the Government’s post hoc\\nattempt to leverage plain-view evidence of an open container violation as probable cause\\nto justify a warrantless vehicle search, chiefly because the record did not demonstrate that\\nthe searching officer was even aware of that evidence at the time of the search. Graham,\\n686 F. App’x at 173–74. Here, by contrast, it is undisputed that Alston showed Captain\\nAleem the marijuana well before any search.\\n 10\\n\\foccur,” such a finding nonetheless requires adequate “evidentiary support.” Allen, 159\\n\\nF.3d at 840. Thus, a question too close to decide on the evidentiary record may require\\n\\nremand. Cf. Murray v. United States, 487 U.S. 533, 543 (1988) (Scalia, J.) (vacating and\\n\\nremanding an application of the related independent source doctrine where the district court\\n\\n“did not . . . explicitly find that the agents would have sought a warrant” and the inferences\\n\\ndrawn from the record were not “clear enough to justify the conclusion” that the doctrine\\n\\napplied).\\n\\n But this is not such a case. Here, the record demonstrates that even absent Alston’s\\n\\nadmissions, Captain Aleem inevitably would have searched the car and found the gun.\\n\\nAleem repeatedly testified that his highest priority in conducting the traffic stop was to find\\n\\nthe gun he believed to be in the car and to get it off the street. As soon as he saw Alston\\n\\nreaching deep beneath the passenger seat while attempting to evade him, Captain Aleem\\n\\ngrew suspicious that Alston was “reaching for a weapon.” After Alston produced the\\n\\nmarijuana and before Alston admitted to possessing a gun, Aleem announced that he\\n\\n“need[ed] to get the heater.” He explained that “getting the heater off the street [was] more\\n\\npressing than taking [Alston] to jail.” Once Captain Aleem suspected that there was a gun\\n\\nin the car, nearly every interaction he had with Alston was directed to finding that gun.\\n\\nConcluding that discovery was inevitable here requires no tenuous “string of conjecture.”\\n\\nSee United States v. Thomas, 955 F.2d 207, 209–10 (4th Cir. 1992). We need not stack\\n\\nany shaky inferences about what Alston and Captain Aleem would have done in order to\\n\\n\\n\\n\\n 11\\n\\freach this conclusion. See Allen, 159 F.3d at 840–43. In this case, the evidence that the\\n\\nsearch was inevitable jumps off the pages of the record. 2\\n\\n The record makes clear that before Alston made any involuntary admissions,\\n\\nCaptain Aleem believed that Alston possessed a gun, had the probable cause necessary to\\n\\nsearch the car, and intended to find the gun. The record thus establishes that Captain Aleem\\n\\nnot only could have searched the car but also would have done so. Accordingly, the district\\n\\ncourt did not err in admitting the gun.\\n\\n\\n\\n V.\\n\\n For the foregoing reasons, the judgment of the district court is\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 2\\n Alston emphasizes that Captain Aleem promised not to arrest him, and we accept\\nthe district court’s findings that Aleem’s promises were sincere. In another case, there well\\nmight be irreconcilable tension between an officer’s determination to obtain a gun and his\\nrepeated assurances that he would not arrest the suspect. In this case, however, there is\\nnot; we need not decide whether Captain Aleem, despite his sincere promises, would have\\narrested Alston because Deputy Gryder and the task force officers assuredly would have;\\nindeed they did so. Independently of Aleem, Deputy Gryder learned that Alston was in a\\ntraffic stop. Deputy Gryder informed — not asked — Captain Aleem that the task force\\nwould arrest Alston; Gryder explained that Alston was “on both state and federal probation\\nand due to the nature of the [offense], that [the task force] would be taking over” and “arrest\\n[Alston] instead of allowing him to leave.” Captain Aleem repeatedly testified that “once\\n[he] got the call” from Gryder, “[e]verything was frozen in time,” and that task force\\nofficers “took charge of everything.” The task force’s pursuit of Alston “is a critical\\nintervening circumstance that is wholly independent” of Aleem’s promises not to arrest\\nAlston. Utah v. Strieff, 136 S. Ct. 2056, 2063 (2016). The record indicates, and Alston\\ndoes not dispute, that Gryder and the task force would and in fact did arrest Alston.\\n 12\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4449954/\", \"author_raw\": \"DIANA GRIBBON MOTZ, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"MOTZ"},"judge2":{"kind":"string","value":"KING"},"judge3":{"kind":"string","value":"DIAZ"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"MOTZ\": \", Circuit\", \"KING\": \", Circuit\", \"DIAZ\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4672701/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Jurother Alston, Jr.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-10-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4524\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nJUROTHER LEE ALSTON, JR.,\n\n Defendant - Appellant.\n\n\nAppeal from the United States District Court for the Middle District of North Carolina, at\nGreensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:17-cr-00446-NCT-1)\n\n\nArgued: September 20, 2019 Decided: October 24, 2019\n\n\nBefore MOTZ, KING, and DIAZ, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Motz wrote the opinion, in which Judge King and\nJudge Diaz joined.\n\n\nARGUED: Leza Lee Driscoll, LAW OFFICE OF LEZA LEE DRISCOLL, PLLC,\nRaleigh, North Carolina, for Appellant. Terry Michael Meinecke, OFFICE OF THE\nUNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF:\nMatthew G.T. Martin, United States Attorney, OFFICE OF THE UNITED STATES\nATTORNEY, Greensboro, North Carolina, for Appellee.\n\fDIANA GRIBBON MOTZ, Circuit Judge:\n\n Jurother Lee Alston, Jr., entered a conditional guilty plea to possession of a firearm\n\nin furtherance of a drug crime, reserving the right to appeal the district court’s order\n\ndenying his motion to suppress. Alston now appeals that order. For the reasons that follow,\n\nwe affirm.\n\n\n\n I.\n\n We recount the facts related to the suppression motion in the light most favorable\n\nto the Government. See United States v. Norman, 935 F.3d 232, 235 (4th Cir. 2019).\n\n On December 11, 2017, Captain Raheem Aleem of the Durham County Sheriff’s\n\nOffice saw Alston run a red light. Driving behind Alston, Captain Aleem activated his blue\n\nemergency lights, but Alston failed to stop. Aleem watched Alston reach deep under the\n\npassenger seat of his car — so deep that he briefly disappeared from Aleem’s view.\n\nCaptain Aleem suspected that Alston was reaching for a gun. Looking back at Aleem and\n\ncontinuing to reach down, Alston slowly drove into a parked car and came to a stop.\n\n Captain Aleem, concerned that Alston might try to flee, pulled up next to Alston’s\n\ncar. When asked why he ran a red light, Alston explained that he was distracted. Aleem\n\nnext asked why Alston was reaching deep under his seat, and Alston replied that he had\n\ndropped his cell phone. Captain Aleem was skeptical; he heard a woman’s voice in an\n\nongoing phone call with Alston over the car’s speakers and noticed Alston holding his\n\nphone in his left hand despite reaching under the seat with his right.\n\n\n\n 2\n\f Aleem responded, “Bro, you mighty nervous, you got anything else in the vehicle\n\nthat you shouldn’t have?” Alston replied, “All I got is this little bag of weed.” He held up\n\na small bag of marijuana and, at Aleem’s request, tossed it into the officer’s vehicle.\n\n Captain Aleem then asked Alston for his driver’s license, which Alston admitted\n\nwas suspended. Aleem asked if Alston “could call someone else to drive the vehicle,” and\n\nAlston called his mother to do so. Captain Aleem parked and approached Alston. Noticing\n\nthat Alston remained very nervous, Aleem assured him that he did not intend to take him\n\nto jail and “just want[ed] [him] to be honest.” The two made small talk until Alston’s\n\nmother arrived about five minutes later.\n\n Alston’s mother joined Captain Aleem outside Alston’s car, while Alston remained\n\nseated inside. Aleem told Alston that besides the small bag of marijuana, he “still needed\n\nto find out whatever else [Alston] had in the vehicle.” He added, “I’ve been straightforward\n\nwith you, and I need for you to be honest and straightforward with me.” Alston then handed\n\nover a black bag containing marijuana, a digital scale, and small plastic bags. He told\n\nAleem it was “all he had.”\n\n Captain Aleem thanked Alston but continued to suspect that Alston had been\n\nreaching for a gun and sought to have him turn it over. Aleem told Alston and his mother,\n\n“I’m going to need to get the heater” (a slang term for a firearm). Alston replied, “[A]re\n\nyou going to take me to jail?” Captain Aleem assured him, “I need you to be honest with\n\nme and I will not take you to jail today.” Alston paused, looked at his mother and Aleem,\n\nand admitted, “It is underneath the passenger seat.” Aleem then asked Alston to exit the\n\nvehicle.\n\n 3\n\f Captain Aleem searched Alston’s person and found nothing. He then searched the\n\npassenger side of the vehicle and retrieved a loaded Glock firearm from under the seat.\n\nAleem called dispatch to check the gun’s serial number and learned that the gun was stolen.\n\nHe returned to Alston and reiterated that he did not intend to take Alston to jail.\n\n As he was talking to Alston, however, Captain Aleem received a call from Durham\n\nCounty Deputy James Gryder, a member of a joint task force with the Federal Bureau of\n\nInvestigation. Based on an independent tip, the task force was separately investigating\n\nwhether Alston, a convicted felon, illegally possessed a firearm, and a confidential source\n\nhad alerted Gryder that Alston was in a traffic stop. Deputy Gryder asked Aleem if he was\n\nwith Alston and if Alston had a gun. Captain Aleem confirmed that he was with Alston\n\nand that Alston did have a gun. Deputy Gryder told Aleem to detain Alston until task force\n\nofficers arrived, and Aleem did so. Captain Aleem informed Alston’s mother that he did\n\nnot intend to take Alston to jail, but that he did not know what would happen when the\n\nother officers got there.\n\n Deputy Gryder and other task force officers soon arrived at the scene. Captain\n\nAleem told Gryder that he had promised Alston and his mother that he would not arrest\n\nAlston, but Gryder responded that Alston was “on both state and federal probation” and\n\nthat the task force “would be taking over.” Task force officers then arrested Alston.\n\n\n\n II.\n\n A grand jury indicted Alston on counts of possession of marijuana with intent to\n\ndistribute, possession of a firearm in furtherance of that crime, possession of a firearm by\n\n 4\n\fa felon, and possession of a stolen firearm. Alston moved to suppress all evidence obtained\n\nin the stop.\n\n The district court granted Alston’s motion in part and denied it in part. The court\n\nfound Captain Aleem to be “a very credible witness” and “a very sincere person” and\n\ncredited his testimony. The court determined that the initial stop was permissible because\n\nAlston had run a red light, “disappeared out of sight as if he were reaching for something\n\nor to hide something,” attempted to evade Aleem until hitting a parked car, and gave a\n\ndubious account of dropping his phone. Reviewing Captain Aleem’s words and conduct\n\nat the start of the stop, the court found that he had not been coercive during that time.\n\nAccordingly, the court held that Alston’s confession about the first bag of marijuana was\n\nvoluntary and denied the suppression motion for evidence obtained through that point in\n\nthe stop.\n\n Given Captain Aleem’s assurances that he did not intend to arrest Alston, however,\n\nthe district court found that Alston’s subsequent admissions were involuntary. The court\n\nemphasized that Aleem, a community liaison officer and former school resource officer\n\nwho preferred alternative programs to jailing offenders, was sincere. But the court\n\nconcluded that a reasonable person in Alston’s position would understand Captain Aleem’s\n\nstatements to mean that law enforcement — not only Aleem, but also any other officers —\n\nwould not arrest him if he confessed. These assurances, the court concluded, overbore\n\nAlston’s will, and the court suppressed his statements about the black bag and the gun.\n\n But the district court refused to exclude the gun itself. The court found that Alston’s\n\nadmission about and presentation of the first bag of marijuana gave Captain Aleem\n\n 5\n\fprobable cause to search the car. The court held that even if Alston had not admitted to\n\npossession of the gun, it “would have inevitably been found because there was probable\n\ncause to search.” The court did not, however, expressly find that the police would have\n\nconducted the search, only that there was probable cause to do so.\n\n Alston entered a conditional guilty plea to the sole charge of possession of a firearm\n\nin furtherance of a drug crime, reserving his right to appeal the suppression ruling. The\n\ndistrict court sentenced Alston to sixty months’ imprisonment and five years’ supervised\n\nrelease.\n\n On appeal, Alston challenges the district court’s denial of his motion to suppress\n\n“all derivative evidence resulting from his statements.” Opening Br. at 17. We review the\n\ndistrict court’s legal conclusions de novo and its factual findings for clear error, construing\n\nthe evidence in the light most favorable to the Government. United States v. McGee, 736\n\nF.3d 263, 269 (4th Cir. 2013).\n\n\n\n III.\n\n Alston expressly poses three arguments. All are meritless.\n\n First, he claims that his entire interaction with Captain Aleem amounted to custodial\n\ninterrogation and that because Aleem failed to read him his rights, under Miranda v.\n\nArizona, 384 U.S. 436 (1966), the district court should have excluded all evidence obtained\n\nfrom the stop, including the gun. Of course, the exclusionary rule bars admission of the\n\nnontestimonial physical fruits of statements obtained in violation of Miranda when those\n\nstatements are involuntary, and statements obtained in violation of Miranda are\n\n 6\n\fpresumptively involuntary. See United States v. Nichols, 438 F.3d 437, 442 (4th Cir. 2006).\n\nThe district court agreed with Alston that most of his statements were involuntary and so\n\nexcluded them. The court admitted the derivative evidence, including the gun, not because\n\nit was the fruit of voluntary statements, but because the court found that the inevitable\n\ndiscovery exception to the exclusionary rule rendered the derivative evidence admissible.\n\n Second, Alston contends that all of his statements were involuntary. The district\n\ncourt held that Alston’s first statements were voluntary, as Captain Aleem had not yet made\n\nany promises or otherwise said anything coercive, and we find no error in that holding. As\n\nnoted above, the district court held that the statements admitting possession of the gun were\n\ninvoluntary and so excluded those statements; they are not at issue before us.\n\n Third, Alston maintains that Captain Aleem impermissibly prolonged their\n\ninteraction by exceeding the scope of the stop, in violation of Rodriguez v. United States,\n\n135 S. Ct. 1609 (2015). This argument fails because Alston’s admission to possessing the\n\nfirst bag of marijuana gave Captain Aleem the “reasonable suspicion . . . demanded to\n\njustify detaining” Alston and investigating further. Id. at 1615.\n\n\n\n IV.\n\n Strangely, neither Alston nor the Government directly addresses the inevitable\n\ndiscovery doctrine. We find it necessary to consider the issue because it provides the sole\n\nbasis for the district court’s denial of Alston’s motion to suppress the gun. Cf. United\n\nStates v. Uzenski, 434 F.3d 690, 707 (4th Cir. 2006) (considering an issue that “neither\n\n\n\n 7\n\fparty directly addresse[d],” but which was necessary to reach in determining whether the\n\ndistrict court properly denied a suppression motion).\n\n Although the district court held that Captain Aleem discovered the gun as a result\n\nof Alston’s involuntary statements, the court refused to suppress it. Evidence discovered\n\nby illegal means, like the gun here, is not admissible if obtained “by exploitation of that\n\nillegality,” but it is admissible if discovered “by means sufficiently distinguishable to be\n\npurged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488 (1963) (quoting\n\nJOHN MACARTHUR MAGUIRE, EVIDENCE OF GUILT 221 (1959)).\n\n Such derivative evidence is admissible pursuant to the inevitable discovery doctrine\n\nonly “[i]f the prosecution can establish by a preponderance of the evidence that the\n\ninformation ultimately or inevitably would have been discovered by lawful means.” Nix\n\nv. Williams, 467 U.S. 431, 444 (1984). “A finding of inevitable discovery necessarily rests\n\non facts that did not occur,” but “by definition the occurrence of these facts must have been\n\nlikely, indeed ‘inevitable,’ absent the government’s misconduct.” United States v. Allen,\n\n159 F.3d 832, 840 (4th Cir. 1998).\n\n Inevitable discovery demands that the prosecution prove by a preponderance of the\n\nevidence: first, that police legally could have uncovered the evidence; and second, that\n\npolice would have done so. See id. (“We have no doubt that [the officer] could have used\n\nthe dog, but whether she would have presents an entirely different question.”); see also,\n\ne.g., United States v. Pelletier, 700 F.3d 1109, 1116 (7th Cir. 2012); United States v. Heath,\n\n455 F.3d 52, 55 (2d Cir. 2006); United States v. Almeida, 434 F.3d 25, 29 (1st Cir. 2006).\n\nWe address each requirement in turn.\n\n 8\n\f A.\n\n To rely on the inevitable discovery doctrine, the Government first must prove that\n\npolice could have used “lawful means” to discover the illegally obtained evidence. Nix,\n\n467 U.S. at 444. “‘Lawful means’ include an inevitable search falling within an exception\n\nto the warrant requirement . . . that would have inevitably uncovered the evidence in\n\nquestion.” United States v. Bullette, 854 F.3d 261, 265 (4th Cir. 2017).\n\n One such exception to the warrant requirement is the automobile exception, which\n\nthe district court invoked. The automobile exception allows police to search a vehicle if\n\nthey have probable cause to believe it contains contraband. Maryland v. Dyson, 527 U.S.\n\n465, 467 (1999) (per curiam); United States v. Kelly, 592 F.3d 586, 589 (4th Cir. 2010).\n\nAn officer’s detection of marijuana creates such probable cause. See United States v.\n\nPalmer, 820 F.3d 640, 650 (4th Cir. 2016). When police have probable cause, the\n\nautomobile exception permits “the search of every part of the vehicle . . . that may conceal\n\nthe object of the search.” United States v. Ross, 456 U.S. 798, 825 (1982).\n\n The district court expressly held that the automobile exception gave Captain Aleem\n\nauthority he could have exercised to lawfully search the car. The court reasoned that\n\nAlston’s traffic violation justified Captain Aleem’s initial stop, and Alston’s attempt to\n\nevade Aleem while reaching deep beneath the seat created adequate suspicion for further\n\ninvestigative detention. Then, by admitting to possessing marijuana and showing it to\n\nCaptain Aleem — which Alston did voluntarily, before Aleem made any promises —\n\nAlston gave Aleem “probable cause to search the car for further marijuana.” Finally, if\n\nCaptain Aleem had searched the car based on that probable cause, he inevitably would have\n\n 9\n\ffound the gun. We agree with the district court that these facts establish that Captain Aleem\n\ncould have uncovered the gun by lawful means. 1\n\n B.\n\n We turn to whether it was inevitable that Captain Aleem would have conducted a\n\nsearch for the gun, based on the information Aleem had before Alston made the statements\n\nthat the district court found involuntary.\n\n Although the court held that Captain Aleem developed the necessary probable cause\n\nand therefore could have searched Alston’s car, and that “the firearm would have been\n\nfound had he performed that search,” the court never expressly held that Captain Aleem\n\nwould have conducted the search. We must answer this question because, as noted above,\n\ndiscovery is not inevitable unless the Government proves that police not only could have\n\nlawfully obtained the evidence but also would have done so. See Nix, 467 U.S. at 444;\n\nAllen, 159 F.3d at 840.\n\n The inevitable discovery exception “involves no speculative elements but focuses\n\non demonstrated historical facts.” Nix, 467 U.S. at 444 n.5. Although a finding that police\n\ninevitably would have conducted the lawful search “necessarily rests on facts that did not\n\n\n\n 1\n The only authority Alston offers in response to this holding is United States v.\nGraham, 686 F. App’x 166 (4th Cir. 2017). In addition to being unpublished and so lacking\nin precedential value, see Local Rule 36(b); United States v. Cortez, 930 F.3d 350, 362 n.2\n(4th Cir. 2019), Graham is inapposite here. There, we rejected the Government’s post hoc\nattempt to leverage plain-view evidence of an open container violation as probable cause\nto justify a warrantless vehicle search, chiefly because the record did not demonstrate that\nthe searching officer was even aware of that evidence at the time of the search. Graham,\n686 F. App’x at 173–74. Here, by contrast, it is undisputed that Alston showed Captain\nAleem the marijuana well before any search.\n 10\n\foccur,” such a finding nonetheless requires adequate “evidentiary support.” Allen, 159\n\nF.3d at 840. Thus, a question too close to decide on the evidentiary record may require\n\nremand. Cf. Murray v. United States, 487 U.S. 533, 543 (1988) (Scalia, J.) (vacating and\n\nremanding an application of the related independent source doctrine where the district court\n\n“did not . . . explicitly find that the agents would have sought a warrant” and the inferences\n\ndrawn from the record were not “clear enough to justify the conclusion” that the doctrine\n\napplied).\n\n But this is not such a case. Here, the record demonstrates that even absent Alston’s\n\nadmissions, Captain Aleem inevitably would have searched the car and found the gun.\n\nAleem repeatedly testified that his highest priority in conducting the traffic stop was to find\n\nthe gun he believed to be in the car and to get it off the street. As soon as he saw Alston\n\nreaching deep beneath the passenger seat while attempting to evade him, Captain Aleem\n\ngrew suspicious that Alston was “reaching for a weapon.” After Alston produced the\n\nmarijuana and before Alston admitted to possessing a gun, Aleem announced that he\n\n“need[ed] to get the heater.” He explained that “getting the heater off the street [was] more\n\npressing than taking [Alston] to jail.” Once Captain Aleem suspected that there was a gun\n\nin the car, nearly every interaction he had with Alston was directed to finding that gun.\n\nConcluding that discovery was inevitable here requires no tenuous “string of conjecture.”\n\nSee United States v. Thomas, 955 F.2d 207, 209–10 (4th Cir. 1992). We need not stack\n\nany shaky inferences about what Alston and Captain Aleem would have done in order to\n\n\n\n\n 11\n\freach this conclusion. See Allen, 159 F.3d at 840–43. In this case, the evidence that the\n\nsearch was inevitable jumps off the pages of the record. 2\n\n The record makes clear that before Alston made any involuntary admissions,\n\nCaptain Aleem believed that Alston possessed a gun, had the probable cause necessary to\n\nsearch the car, and intended to find the gun. The record thus establishes that Captain Aleem\n\nnot only could have searched the car but also would have done so. Accordingly, the district\n\ncourt did not err in admitting the gun.\n\n\n\n V.\n\n For the foregoing reasons, the judgment of the district court is\n\n AFFIRMED.\n\n\n\n\n 2\n Alston emphasizes that Captain Aleem promised not to arrest him, and we accept\nthe district court’s findings that Aleem’s promises were sincere. In another case, there well\nmight be irreconcilable tension between an officer’s determination to obtain a gun and his\nrepeated assurances that he would not arrest the suspect. In this case, however, there is\nnot; we need not decide whether Captain Aleem, despite his sincere promises, would have\narrested Alston because Deputy Gryder and the task force officers assuredly would have;\nindeed they did so. Independently of Aleem, Deputy Gryder learned that Alston was in a\ntraffic stop. Deputy Gryder informed — not asked — Captain Aleem that the task force\nwould arrest Alston; Gryder explained that Alston was “on both state and federal probation\nand due to the nature of the [offense], that [the task force] would be taking over” and “arrest\n[Alston] instead of allowing him to leave.” Captain Aleem repeatedly testified that “once\n[he] got the call” from Gryder, “[e]verything was frozen in time,” and that task force\nofficers “took charge of everything.” The task force’s pursuit of Alston “is a critical\nintervening circumstance that is wholly independent” of Aleem’s promises not to arrest\nAlston. Utah v. Strieff, 136 S. Ct. 2056, 2063 (2016). The record indicates, and Alston\ndoes not dispute, that Gryder and the task force would and in fact did arrest Alston.\n 12\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Jurother Alston, Jr.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-10-24\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4524\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nJUROTHER LEE ALSTON, JR.,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the Middle District of North Carolina, at\\nGreensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:17-cr-00446-NCT-1)\\n\\n\\nArgued: September 20, 2019 Decided: October 24, 2019\\n\\n\\nBefore MOTZ, KING, and DIAZ, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Motz wrote the opinion, in which Judge King and\\nJudge Diaz joined.\\n\\n\\nARGUED: Leza Lee Driscoll, LAW OFFICE OF LEZA LEE DRISCOLL, PLLC,\\nRaleigh, North Carolina, for Appellant. Terry Michael Meinecke, OFFICE OF THE\\nUNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF:\\nMatthew G.T. Martin, United States Attorney, OFFICE OF THE UNITED STATES\\nATTORNEY, Greensboro, North Carolina, for Appellee.\\n\\fDIANA GRIBBON MOTZ, Circuit Judge:\\n\\n Jurother Lee Alston, Jr., entered a conditional guilty plea to possession of a firearm\\n\\nin furtherance of a drug crime, reserving the right to appeal the district court’s order\\n\\ndenying his motion to suppress. Alston now appeals that order. For the reasons that follow,\\n\\nwe affirm.\\n\\n\\n\\n I.\\n\\n We recount the facts related to the suppression motion in the light most favorable\\n\\nto the Government. See United States v. Norman, 935 F.3d 232, 235 (4th Cir. 2019).\\n\\n On December 11, 2017, Captain Raheem Aleem of the Durham County Sheriff’s\\n\\nOffice saw Alston run a red light. Driving behind Alston, Captain Aleem activated his blue\\n\\nemergency lights, but Alston failed to stop. Aleem watched Alston reach deep under the\\n\\npassenger seat of his car — so deep that he briefly disappeared from Aleem’s view.\\n\\nCaptain Aleem suspected that Alston was reaching for a gun. Looking back at Aleem and\\n\\ncontinuing to reach down, Alston slowly drove into a parked car and came to a stop.\\n\\n Captain Aleem, concerned that Alston might try to flee, pulled up next to Alston’s\\n\\ncar. When asked why he ran a red light, Alston explained that he was distracted. Aleem\\n\\nnext asked why Alston was reaching deep under his seat, and Alston replied that he had\\n\\ndropped his cell phone. Captain Aleem was skeptical; he heard a woman’s voice in an\\n\\nongoing phone call with Alston over the car’s speakers and noticed Alston holding his\\n\\nphone in his left hand despite reaching under the seat with his right.\\n\\n\\n\\n 2\\n\\f Aleem responded, “Bro, you mighty nervous, you got anything else in the vehicle\\n\\nthat you shouldn’t have?” Alston replied, “All I got is this little bag of weed.” He held up\\n\\na small bag of marijuana and, at Aleem’s request, tossed it into the officer’s vehicle.\\n\\n Captain Aleem then asked Alston for his driver’s license, which Alston admitted\\n\\nwas suspended. Aleem asked if Alston “could call someone else to drive the vehicle,” and\\n\\nAlston called his mother to do so. Captain Aleem parked and approached Alston. Noticing\\n\\nthat Alston remained very nervous, Aleem assured him that he did not intend to take him\\n\\nto jail and “just want[ed] [him] to be honest.” The two made small talk until Alston’s\\n\\nmother arrived about five minutes later.\\n\\n Alston’s mother joined Captain Aleem outside Alston’s car, while Alston remained\\n\\nseated inside. Aleem told Alston that besides the small bag of marijuana, he “still needed\\n\\nto find out whatever else [Alston] had in the vehicle.” He added, “I’ve been straightforward\\n\\nwith you, and I need for you to be honest and straightforward with me.” Alston then handed\\n\\nover a black bag containing marijuana, a digital scale, and small plastic bags. He told\\n\\nAleem it was “all he had.”\\n\\n Captain Aleem thanked Alston but continued to suspect that Alston had been\\n\\nreaching for a gun and sought to have him turn it over. Aleem told Alston and his mother,\\n\\n“I’m going to need to get the heater” (a slang term for a firearm). Alston replied, “[A]re\\n\\nyou going to take me to jail?” Captain Aleem assured him, “I need you to be honest with\\n\\nme and I will not take you to jail today.” Alston paused, looked at his mother and Aleem,\\n\\nand admitted, “It is underneath the passenger seat.” Aleem then asked Alston to exit the\\n\\nvehicle.\\n\\n 3\\n\\f Captain Aleem searched Alston’s person and found nothing. He then searched the\\n\\npassenger side of the vehicle and retrieved a loaded Glock firearm from under the seat.\\n\\nAleem called dispatch to check the gun’s serial number and learned that the gun was stolen.\\n\\nHe returned to Alston and reiterated that he did not intend to take Alston to jail.\\n\\n As he was talking to Alston, however, Captain Aleem received a call from Durham\\n\\nCounty Deputy James Gryder, a member of a joint task force with the Federal Bureau of\\n\\nInvestigation. Based on an independent tip, the task force was separately investigating\\n\\nwhether Alston, a convicted felon, illegally possessed a firearm, and a confidential source\\n\\nhad alerted Gryder that Alston was in a traffic stop. Deputy Gryder asked Aleem if he was\\n\\nwith Alston and if Alston had a gun. Captain Aleem confirmed that he was with Alston\\n\\nand that Alston did have a gun. Deputy Gryder told Aleem to detain Alston until task force\\n\\nofficers arrived, and Aleem did so. Captain Aleem informed Alston’s mother that he did\\n\\nnot intend to take Alston to jail, but that he did not know what would happen when the\\n\\nother officers got there.\\n\\n Deputy Gryder and other task force officers soon arrived at the scene. Captain\\n\\nAleem told Gryder that he had promised Alston and his mother that he would not arrest\\n\\nAlston, but Gryder responded that Alston was “on both state and federal probation” and\\n\\nthat the task force “would be taking over.” Task force officers then arrested Alston.\\n\\n\\n\\n II.\\n\\n A grand jury indicted Alston on counts of possession of marijuana with intent to\\n\\ndistribute, possession of a firearm in furtherance of that crime, possession of a firearm by\\n\\n 4\\n\\fa felon, and possession of a stolen firearm. Alston moved to suppress all evidence obtained\\n\\nin the stop.\\n\\n The district court granted Alston’s motion in part and denied it in part. The court\\n\\nfound Captain Aleem to be “a very credible witness” and “a very sincere person” and\\n\\ncredited his testimony. The court determined that the initial stop was permissible because\\n\\nAlston had run a red light, “disappeared out of sight as if he were reaching for something\\n\\nor to hide something,” attempted to evade Aleem until hitting a parked car, and gave a\\n\\ndubious account of dropping his phone. Reviewing Captain Aleem’s words and conduct\\n\\nat the start of the stop, the court found that he had not been coercive during that time.\\n\\nAccordingly, the court held that Alston’s confession about the first bag of marijuana was\\n\\nvoluntary and denied the suppression motion for evidence obtained through that point in\\n\\nthe stop.\\n\\n Given Captain Aleem’s assurances that he did not intend to arrest Alston, however,\\n\\nthe district court found that Alston’s subsequent admissions were involuntary. The court\\n\\nemphasized that Aleem, a community liaison officer and former school resource officer\\n\\nwho preferred alternative programs to jailing offenders, was sincere. But the court\\n\\nconcluded that a reasonable person in Alston’s position would understand Captain Aleem’s\\n\\nstatements to mean that law enforcement — not only Aleem, but also any other officers —\\n\\nwould not arrest him if he confessed. These assurances, the court concluded, overbore\\n\\nAlston’s will, and the court suppressed his statements about the black bag and the gun.\\n\\n But the district court refused to exclude the gun itself. The court found that Alston’s\\n\\nadmission about and presentation of the first bag of marijuana gave Captain Aleem\\n\\n 5\\n\\fprobable cause to search the car. The court held that even if Alston had not admitted to\\n\\npossession of the gun, it “would have inevitably been found because there was probable\\n\\ncause to search.” The court did not, however, expressly find that the police would have\\n\\nconducted the search, only that there was probable cause to do so.\\n\\n Alston entered a conditional guilty plea to the sole charge of possession of a firearm\\n\\nin furtherance of a drug crime, reserving his right to appeal the suppression ruling. The\\n\\ndistrict court sentenced Alston to sixty months’ imprisonment and five years’ supervised\\n\\nrelease.\\n\\n On appeal, Alston challenges the district court’s denial of his motion to suppress\\n\\n“all derivative evidence resulting from his statements.” Opening Br. at 17. We review the\\n\\ndistrict court’s legal conclusions de novo and its factual findings for clear error, construing\\n\\nthe evidence in the light most favorable to the Government. United States v. McGee, 736\\n\\nF.3d 263, 269 (4th Cir. 2013).\\n\\n\\n\\n III.\\n\\n Alston expressly poses three arguments. All are meritless.\\n\\n First, he claims that his entire interaction with Captain Aleem amounted to custodial\\n\\ninterrogation and that because Aleem failed to read him his rights, under Miranda v.\\n\\nArizona, 384 U.S. 436 (1966), the district court should have excluded all evidence obtained\\n\\nfrom the stop, including the gun. Of course, the exclusionary rule bars admission of the\\n\\nnontestimonial physical fruits of statements obtained in violation of Miranda when those\\n\\nstatements are involuntary, and statements obtained in violation of Miranda are\\n\\n 6\\n\\fpresumptively involuntary. See United States v. Nichols, 438 F.3d 437, 442 (4th Cir. 2006).\\n\\nThe district court agreed with Alston that most of his statements were involuntary and so\\n\\nexcluded them. The court admitted the derivative evidence, including the gun, not because\\n\\nit was the fruit of voluntary statements, but because the court found that the inevitable\\n\\ndiscovery exception to the exclusionary rule rendered the derivative evidence admissible.\\n\\n Second, Alston contends that all of his statements were involuntary. The district\\n\\ncourt held that Alston’s first statements were voluntary, as Captain Aleem had not yet made\\n\\nany promises or otherwise said anything coercive, and we find no error in that holding. As\\n\\nnoted above, the district court held that the statements admitting possession of the gun were\\n\\ninvoluntary and so excluded those statements; they are not at issue before us.\\n\\n Third, Alston maintains that Captain Aleem impermissibly prolonged their\\n\\ninteraction by exceeding the scope of the stop, in violation of Rodriguez v. United States,\\n\\n135 S. Ct. 1609 (2015). This argument fails because Alston’s admission to possessing the\\n\\nfirst bag of marijuana gave Captain Aleem the “reasonable suspicion . . . demanded to\\n\\njustify detaining” Alston and investigating further. Id. at 1615.\\n\\n\\n\\n IV.\\n\\n Strangely, neither Alston nor the Government directly addresses the inevitable\\n\\ndiscovery doctrine. We find it necessary to consider the issue because it provides the sole\\n\\nbasis for the district court’s denial of Alston’s motion to suppress the gun. Cf. United\\n\\nStates v. Uzenski, 434 F.3d 690, 707 (4th Cir. 2006) (considering an issue that “neither\\n\\n\\n\\n 7\\n\\fparty directly addresse[d],” but which was necessary to reach in determining whether the\\n\\ndistrict court properly denied a suppression motion).\\n\\n Although the district court held that Captain Aleem discovered the gun as a result\\n\\nof Alston’s involuntary statements, the court refused to suppress it. Evidence discovered\\n\\nby illegal means, like the gun here, is not admissible if obtained “by exploitation of that\\n\\nillegality,” but it is admissible if discovered “by means sufficiently distinguishable to be\\n\\npurged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488 (1963) (quoting\\n\\nJOHN MACARTHUR MAGUIRE, EVIDENCE OF GUILT 221 (1959)).\\n\\n Such derivative evidence is admissible pursuant to the inevitable discovery doctrine\\n\\nonly “[i]f the prosecution can establish by a preponderance of the evidence that the\\n\\ninformation ultimately or inevitably would have been discovered by lawful means.” Nix\\n\\nv. Williams, 467 U.S. 431, 444 (1984). “A finding of inevitable discovery necessarily rests\\n\\non facts that did not occur,” but “by definition the occurrence of these facts must have been\\n\\nlikely, indeed ‘inevitable,’ absent the government’s misconduct.” United States v. Allen,\\n\\n159 F.3d 832, 840 (4th Cir. 1998).\\n\\n Inevitable discovery demands that the prosecution prove by a preponderance of the\\n\\nevidence: first, that police legally could have uncovered the evidence; and second, that\\n\\npolice would have done so. See id. (“We have no doubt that [the officer] could have used\\n\\nthe dog, but whether she would have presents an entirely different question.”); see also,\\n\\ne.g., United States v. Pelletier, 700 F.3d 1109, 1116 (7th Cir. 2012); United States v. Heath,\\n\\n455 F.3d 52, 55 (2d Cir. 2006); United States v. Almeida, 434 F.3d 25, 29 (1st Cir. 2006).\\n\\nWe address each requirement in turn.\\n\\n 8\\n\\f A.\\n\\n To rely on the inevitable discovery doctrine, the Government first must prove that\\n\\npolice could have used “lawful means” to discover the illegally obtained evidence. Nix,\\n\\n467 U.S. at 444. “‘Lawful means’ include an inevitable search falling within an exception\\n\\nto the warrant requirement . . . that would have inevitably uncovered the evidence in\\n\\nquestion.” United States v. Bullette, 854 F.3d 261, 265 (4th Cir. 2017).\\n\\n One such exception to the warrant requirement is the automobile exception, which\\n\\nthe district court invoked. The automobile exception allows police to search a vehicle if\\n\\nthey have probable cause to believe it contains contraband. Maryland v. Dyson, 527 U.S.\\n\\n465, 467 (1999) (per curiam); United States v. Kelly, 592 F.3d 586, 589 (4th Cir. 2010).\\n\\nAn officer’s detection of marijuana creates such probable cause. See United States v.\\n\\nPalmer, 820 F.3d 640, 650 (4th Cir. 2016). When police have probable cause, the\\n\\nautomobile exception permits “the search of every part of the vehicle . . . that may conceal\\n\\nthe object of the search.” United States v. Ross, 456 U.S. 798, 825 (1982).\\n\\n The district court expressly held that the automobile exception gave Captain Aleem\\n\\nauthority he could have exercised to lawfully search the car. The court reasoned that\\n\\nAlston’s traffic violation justified Captain Aleem’s initial stop, and Alston’s attempt to\\n\\nevade Aleem while reaching deep beneath the seat created adequate suspicion for further\\n\\ninvestigative detention. Then, by admitting to possessing marijuana and showing it to\\n\\nCaptain Aleem — which Alston did voluntarily, before Aleem made any promises —\\n\\nAlston gave Aleem “probable cause to search the car for further marijuana.” Finally, if\\n\\nCaptain Aleem had searched the car based on that probable cause, he inevitably would have\\n\\n 9\\n\\ffound the gun. We agree with the district court that these facts establish that Captain Aleem\\n\\ncould have uncovered the gun by lawful means. 1\\n\\n B.\\n\\n We turn to whether it was inevitable that Captain Aleem would have conducted a\\n\\nsearch for the gun, based on the information Aleem had before Alston made the statements\\n\\nthat the district court found involuntary.\\n\\n Although the court held that Captain Aleem developed the necessary probable cause\\n\\nand therefore could have searched Alston’s car, and that “the firearm would have been\\n\\nfound had he performed that search,” the court never expressly held that Captain Aleem\\n\\nwould have conducted the search. We must answer this question because, as noted above,\\n\\ndiscovery is not inevitable unless the Government proves that police not only could have\\n\\nlawfully obtained the evidence but also would have done so. See Nix, 467 U.S. at 444;\\n\\nAllen, 159 F.3d at 840.\\n\\n The inevitable discovery exception “involves no speculative elements but focuses\\n\\non demonstrated historical facts.” Nix, 467 U.S. at 444 n.5. Although a finding that police\\n\\ninevitably would have conducted the lawful search “necessarily rests on facts that did not\\n\\n\\n\\n 1\\n The only authority Alston offers in response to this holding is United States v.\\nGraham, 686 F. App’x 166 (4th Cir. 2017). In addition to being unpublished and so lacking\\nin precedential value, see Local Rule 36(b); United States v. Cortez, 930 F.3d 350, 362 n.2\\n(4th Cir. 2019), Graham is inapposite here. There, we rejected the Government’s post hoc\\nattempt to leverage plain-view evidence of an open container violation as probable cause\\nto justify a warrantless vehicle search, chiefly because the record did not demonstrate that\\nthe searching officer was even aware of that evidence at the time of the search. Graham,\\n686 F. App’x at 173–74. Here, by contrast, it is undisputed that Alston showed Captain\\nAleem the marijuana well before any search.\\n 10\\n\\foccur,” such a finding nonetheless requires adequate “evidentiary support.” Allen, 159\\n\\nF.3d at 840. Thus, a question too close to decide on the evidentiary record may require\\n\\nremand. Cf. Murray v. United States, 487 U.S. 533, 543 (1988) (Scalia, J.) (vacating and\\n\\nremanding an application of the related independent source doctrine where the district court\\n\\n“did not . . . explicitly find that the agents would have sought a warrant” and the inferences\\n\\ndrawn from the record were not “clear enough to justify the conclusion” that the doctrine\\n\\napplied).\\n\\n But this is not such a case. Here, the record demonstrates that even absent Alston’s\\n\\nadmissions, Captain Aleem inevitably would have searched the car and found the gun.\\n\\nAleem repeatedly testified that his highest priority in conducting the traffic stop was to find\\n\\nthe gun he believed to be in the car and to get it off the street. As soon as he saw Alston\\n\\nreaching deep beneath the passenger seat while attempting to evade him, Captain Aleem\\n\\ngrew suspicious that Alston was “reaching for a weapon.” After Alston produced the\\n\\nmarijuana and before Alston admitted to possessing a gun, Aleem announced that he\\n\\n“need[ed] to get the heater.” He explained that “getting the heater off the street [was] more\\n\\npressing than taking [Alston] to jail.” Once Captain Aleem suspected that there was a gun\\n\\nin the car, nearly every interaction he had with Alston was directed to finding that gun.\\n\\nConcluding that discovery was inevitable here requires no tenuous “string of conjecture.”\\n\\nSee United States v. Thomas, 955 F.2d 207, 209–10 (4th Cir. 1992). We need not stack\\n\\nany shaky inferences about what Alston and Captain Aleem would have done in order to\\n\\n\\n\\n\\n 11\\n\\freach this conclusion. See Allen, 159 F.3d at 840–43. In this case, the evidence that the\\n\\nsearch was inevitable jumps off the pages of the record. 2\\n\\n The record makes clear that before Alston made any involuntary admissions,\\n\\nCaptain Aleem believed that Alston possessed a gun, had the probable cause necessary to\\n\\nsearch the car, and intended to find the gun. The record thus establishes that Captain Aleem\\n\\nnot only could have searched the car but also would have done so. Accordingly, the district\\n\\ncourt did not err in admitting the gun.\\n\\n\\n\\n V.\\n\\n For the foregoing reasons, the judgment of the district court is\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 2\\n Alston emphasizes that Captain Aleem promised not to arrest him, and we accept\\nthe district court’s findings that Aleem’s promises were sincere. In another case, there well\\nmight be irreconcilable tension between an officer’s determination to obtain a gun and his\\nrepeated assurances that he would not arrest the suspect. In this case, however, there is\\nnot; we need not decide whether Captain Aleem, despite his sincere promises, would have\\narrested Alston because Deputy Gryder and the task force officers assuredly would have;\\nindeed they did so. Independently of Aleem, Deputy Gryder learned that Alston was in a\\ntraffic stop. Deputy Gryder informed — not asked — Captain Aleem that the task force\\nwould arrest Alston; Gryder explained that Alston was “on both state and federal probation\\nand due to the nature of the [offense], that [the task force] would be taking over” and “arrest\\n[Alston] instead of allowing him to leave.” Captain Aleem repeatedly testified that “once\\n[he] got the call” from Gryder, “[e]verything was frozen in time,” and that task force\\nofficers “took charge of everything.” The task force’s pursuit of Alston “is a critical\\nintervening circumstance that is wholly independent” of Aleem’s promises not to arrest\\nAlston. Utah v. Strieff, 136 S. Ct. 2056, 2063 (2016). The record indicates, and Alston\\ndoes not dispute, that Gryder and the task force would and in fact did arrest Alston.\\n 12\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4571,"cells":{"id":{"kind":"number","value":4672706,"string":"4,672,706"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Angela Lawrence v. Andrew Saul"},"decision_date":{"kind":"string","value":"2019-10-24"},"docket_number":{"kind":"string","value":"18-1112"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before WYNN, DIAZ, and FLOYD, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"DIAZ, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1112\\n\\n\\nANGELA LAWRENCE,\\n\\n Plaintiff − Appellant,\\n\\n v.\\n\\nANDREW SAUL, Commissioner of Social Security,\\n\\n Defendant – Appellee.\\n\\n\\nAppeal from the United States District Court for the Middle District of North Carolina, at\\nGreensboro. Catherine C. Eagles, District Judge. (1:16-cv-01310-CCE-JLW)\\n\\n\\nArgued: September 18, 2019 Decided: October 24, 2019\\n\\n\\nBefore WYNN, DIAZ, and FLOYD, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Wynn and\\nJudge Floyd joined.\\n\\n\\nARGUED: Dana Wayne Duncan, DUNCAN DISABILITY LAW, SC, Nekoosa,\\nWisconsin, for Appellant. Kristina Carol Evans Cole, SOCIAL SECURITY\\nADMINISTRATION, Philadelphia, Pennsylvania, for Appellee. ON BRIEF: Matthew\\nG.T. Martin, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,\\nGreensboro, North Carolina; Nora Koch, Regional Chief Counsel, Taryn Jasner,\\nSupervisory Attorney, Office of the General Counsel, SOCIAL SECURITY\\nADMINISTRATION, Philadelphia, Pennsylvania, for Appellee.\\n\\fDIAZ, Circuit Judge:\\n\\n Angela Lawrence appeals the Social Security Administration’s denial of her\\n\\napplication for disability benefits. She argues that the administrative law judge failed to\\n\\nresolve an apparent conflict between the vocational expert’s testimony and the Dictionary\\n\\nof Occupational Titles (the “DOT”). 1 Specifically, Lawrence contends that her residual\\n\\nfunctional capacity 2—which limits her to “simple, routine, repetitive tasks”—may prevent\\n\\nher from performing jobs requiring a General Educational Development reasoning level of\\n\\ntwo (“Level 2”), contrary to the vocational expert’s testimony. She asks that her claim be\\n\\nremanded to the administrative law judge to resolve this apparent conflict. Because we\\n\\nfind no conflict between the language describing Lawrence’s residual functional capacity\\n\\nand the DOT’s definition of Level 2 reasoning, we affirm.\\n\\n\\n\\n I.\\n\\n On January 16, 2013, Lawrence applied for disability benefits, claiming that various\\n\\nphysical and mental impairments rendered her unable to work in any job. The Social\\n\\nSecurity Administration denied her application initially and upon reconsideration. It\\n\\n\\n\\n\\n 1\\n The DOT lists occupations existing in the economy and explains some of their\\nphysical and mental requirements. U.S. Dep’t of Labor, Dictionary of Occupational Titles\\n(4th ed. 1991).\\n 2\\n Residual functional capacity refers to a claimant’s capabilities despite her\\nimpairments. 20 C.F.R. § 404.1545(a).\\n\\n\\n 2\\n\\fdetermined that, while her condition kept her from doing her past work at MetLife\\n\\nInsurance Company, 3 it did not prevent her from performing less demanding jobs.\\n\\n At Lawrence’s request, an administrative law judge then held a hearing regarding\\n\\nher claim. The judge followed the required five-step analysis for adjudicating these\\n\\nclaims. 4 At step four, he assessed Lawrence’s residual functional capacity, finding in\\n\\nrelevant part that she could perform jobs limited to “simple, routine repetitive tasks of\\n\\nunskilled work.” Accordingly, he determined that Lawrence was unable to work at her\\n\\nformer employer in any capacity.\\n\\n Step five requires the Commissioner to prove, by a preponderance of evidence, that\\n\\na claimant can do other work that exists in significant numbers in the national economy.\\n\\nThomas, 916 F.3d at 313. To assess Lawrence’s ability to do such work, the administrative\\n\\nlaw judge consulted a vocational expert.\\n\\n\\n\\n\\n 3\\n Lawrence worked in MetLife’s claims department from 1993 to 2012. In her last\\nthree years there, she managed over two hundred people, set policy and guidelines for\\nclaims adjustors, traveled extensively, engaged in public speaking, and hired and fired\\nemployees. She stopped working in early 2012 when her speech and vision became blurred\\nduring a conference call, after which she was diagnosed with a number of impairments.\\n 4\\n The five steps require the administrative law judge to consider whether the\\nclaimant (1) is unemployed, (2) has sufficiently severe and long-lasting impairments, (3)\\nhas an impairment that meets or equals the requirements of a listed impairment for a purely\\nmedical finding of disability and, if not, (4) whether she can perform her past work given\\nher residual functional capacity and, if not, (5) whether she can perform other work that\\nexists in significant numbers in the national economy. 20 C.F.R. § 404.1520(a)(4); see\\nMascio v. Colvin, 780 F.3d 632, 634–35 (4th Cir. 2015) (describing the five steps in greater\\ndetail). The burden lies with the claimant at the first four steps and with the Commissioner\\nof Social Security (the “Commissioner”) at step five. Thomas v. Berryhill, 916 F.3d 307,\\n310 (4th Cir. 2019).\\n\\n 3\\n\\f The judge and the vocational expert had the following exchange at the hearing\\n\\n(excerpted as relevant):\\n\\n Judge: Assume we have a hypothetical person whose age range\\n is from 48 to 50 . . . [who] would be limited to simple, routine,\\n repetitive tasks, unskilled work. . . . Are there any jobs [that\\n this person could perform in the national economy]?\\n\\n Vocational expert: Yes, sir. Folder, . . . . Classifier, . . . . [and]\\n Router.\\n\\nThe DOT lists each of these jobs as requiring Level 2 reasoning. See DOT, No. 369.687-\\n\\n018, 1991 WL 673072 (Folder); DOT, No. 361.687-014, 1991 WL 672991 (Classifier);\\n\\nDOT, No. 222.587-038, 1991 WL 672123 (Router). Level 2 reasoning requires the\\n\\nindividual to “[a]pply commonsense understanding to carry out detailed but uninvolved\\n\\nwritten or oral instructions” and “[d]eal with problems involving a few concrete variables\\n\\nin or from standardized situations.” 5 DOT, App. C, 1991 WL 688702.\\n\\n Then, as required by agency policy, the administrative law judge asked whether the\\n\\nvocational expert’s testimony was consistent with the DOT. See Thomas, 916 F.3d at 313.\\n\\nThe vocational expert said it was, with one exception irrelevant to this appeal. Lawrence’s\\n\\ncounsel then cross-examined the vocational expert about several potential inconsistencies.\\n\\nBut neither the administrative law judge nor Lawrence’s attorney asked whether there was\\n\\na conflict between Lawrence’s residual functional capacity and an ability to perform Level\\n\\n2 jobs.\\n\\n\\n\\n\\n 5\\n The DOT’s reasoning development scale has six levels in ascending order of\\ncomplexity. DOT, App. C, 1991 WL 688702.\\n\\n 4\\n\\f Relying on the vocational expert’s testimony, the administrative law judge ruled\\n\\nthat Lawrence’s claim failed at step five because she could perform work that exists in\\n\\nsignificant supply in the national economy. The judge also found that the vocational\\n\\nexpert’s testimony was consistent with the DOT (with the one irrelevant exception).\\n\\nLawrence lost her administrative appeal and sued in the district court, which granted the\\n\\nCommissioner’s motion for judgment on the pleadings. This appeal followed.\\n\\n\\n\\n II.\\n\\n The question presented is whether there is an apparent conflict between Lawrence’s\\n\\nresidual functional capacity and the DOT’s definition of Level 2 reasoning. We review\\n\\nthis question de novo. See Thomas, 916 F.3d at 311. 6\\n\\n An administrative law judge in a disability-benefit case has a duty to identify and\\n\\nresolve any apparent conflicts between the DOT and a vocational expert’s testimony. Id.\\n\\nat 313 (citing SSR 00-4P, 2000 WL 1898704 at *2 (Dec. 4, 2000)). “To that end, the\\n\\n[administrative law judge] must ask the [vocational expert] whether his or her testimony\\n\\nconflicts with the DOT.” Id. Even if the vocational expert answers “no,” the judge has a\\n\\n\\n\\n 6\\n In addition to arguing that there is no apparent conflict, the Commissioner contends\\nthat we should deny Lawrence’s appeal for two other reasons. First, he maintains that\\nLawrence waived her apparent-conflict argument by not raising it with sufficient\\nspecificity in her objections to the magistrate judge’s report recommending that the district\\ncourt grant the Commissioner’s motion for judgment on the pleadings. Second, he asks\\nthe court to affirm on harmless-error grounds because the record clearly demonstrates that\\nLawrence can work as a folder, a classifier, or a router. We decline to consider these issues\\nbecause we find that the administrative law judge did not err.\\n\\n 5\\n\\fduty to independently identify and resolve any apparent conflicts before relying on the\\n\\nexpert’s testimony. Id.\\n\\n To assess whether an apparent conflict exists, we compare the DOT’s “express\\n\\nlanguage” with the vocational expert’s testimony. Id. (quoting Pearson v. Colvin, 810 F.3d\\n\\n204, 209 (4th Cir. 2015)). In Thomas v. Berryhill, this court found an apparent conflict\\n\\nbetween the claimant’s residual functional capacity, which limited her to jobs involving\\n\\n“short, simple instructions,” and Level 2’s concept of “detailed but uninvolved\\n\\ninstructions.” 916 F.3d at 313–14. Lawrence asserts that there is no meaningful difference\\n\\nbetween Thomas’s residual functional capacity and hers, which limits her to “simple,\\n\\nroutine, repetitive tasks.” We disagree.\\n\\n Even assuming that “tasks” and “instructions” are synonymous, 7 the key difference\\n\\nis that Thomas was limited to “short” instructions. “Short” is inconsistent with “detailed”\\n\\nbecause detail and length are highly correlated. Generally, the longer the instructions, the\\n\\nmore detail they can include.\\n\\n In contrast, the administrative law judge found that Lawrence could perform jobs\\n\\nlimited to “simple, routine repetitive tasks of unskilled work.” There is no comparable\\n\\ninconsistency between Lawrence’s residual functional capacity (as determined by the\\n\\nadministrative law judge) and Level 2’s notions of “detailed but uninvolved . . .\\n\\ninstructions” and tasks with “a few [] variables.” DOT, App. C, 1991 WL 688702.\\n\\n\\n 7\\n Indeed, in some instances, “tasks” and “instructions” may, in fact, be synonymous.\\nBut we leave that issue for another day, as Lawrence’s appeal does not depend on its\\nresolution.\\n\\n 6\\n\\f To begin with, detailed instructions are, in the main, less correlated with complexity\\n\\nthan with length. Instructions often include many steps, each of which is straightforward.\\n\\nDriving directions are a good example: they may prescribe many turns, but the turns are\\n\\ngenerally easy to make, and the route rarely changes, making the directions simple, routine,\\n\\nand repetitive. Further, there is no conflict between “simple” and “uninvolved”\\n\\ninstructions, as both connote instructions that “are not complicated or intricate.” Moore v.\\n\\nAstrue, 623 F.3d 599, 604 (8th Cir. 2010) (citing Webster’s Third New Int’l Dictionary\\n\\n1191, 2499 (2002)). Finally, “routine” and “repetitive” tasks may involve a few variables,\\n\\njust as driving directions may vary if a road is closed.\\n\\n Thus, while there was an apparent conflict in Thomas, there is none here. 8\\n\\n\\n\\n III.\\n\\n For the foregoing reasons, we affirm the judgment of the district court.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 8\\n In finding no apparent conflict between “simple, routine, repetitive” and Level 2\\nreasoning, we join every other circuit to consider the issue. See Hernandez v. Berryhill,\\n707 F. App’x 456, 458 (9th Cir. 2017) (per curiam) (finding no conflict between “simple,\\nrepetitive tasks” and Level 2); Hurtado v. Comm’r of Soc. Sec., 425 F. App’x 793, 795–96\\n(11th Cir. 2011) (per curiam) (“simple, routine tasks”); Moore, 623 F.3d at 604 (“simple,\\nroutine and repetitive work activity”); Stokes v. Astrue, 274 F. App’x 675, 684 (10th Cir.\\n2008) (unpublished) (“simple, repetitive and routine work”); Money v. Barnhart, 91 F.\\nApp’x 210, 215 (3d Cir. 2004) (unpublished) (“simple, routine and repetitive” work); see\\nalso Sawyer v. Colvin, 512 F. App’x 603, 610–11 (7th Cir. 2013) (unpublished) (finding\\nno conflict between “simple tasks” and Level 3 reasoning).\\n 7\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4449959/\", \"author_raw\": \"DIAZ, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WYNN"},"judge2":{"kind":"string","value":"DIAZ"},"judge3":{"kind":"string","value":"FLOYD"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"WYNN\": \", Circuit\", \"DIAZ\": \", Circuit\", \"FLOYD\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4672706/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Angela Lawrence v. Andrew Saul\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-10-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1112\n\n\nANGELA LAWRENCE,\n\n Plaintiff − Appellant,\n\n v.\n\nANDREW SAUL, Commissioner of Social Security,\n\n Defendant – Appellee.\n\n\nAppeal from the United States District Court for the Middle District of North Carolina, at\nGreensboro. Catherine C. Eagles, District Judge. (1:16-cv-01310-CCE-JLW)\n\n\nArgued: September 18, 2019 Decided: October 24, 2019\n\n\nBefore WYNN, DIAZ, and FLOYD, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Wynn and\nJudge Floyd joined.\n\n\nARGUED: Dana Wayne Duncan, DUNCAN DISABILITY LAW, SC, Nekoosa,\nWisconsin, for Appellant. Kristina Carol Evans Cole, SOCIAL SECURITY\nADMINISTRATION, Philadelphia, Pennsylvania, for Appellee. ON BRIEF: Matthew\nG.T. Martin, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,\nGreensboro, North Carolina; Nora Koch, Regional Chief Counsel, Taryn Jasner,\nSupervisory Attorney, Office of the General Counsel, SOCIAL SECURITY\nADMINISTRATION, Philadelphia, Pennsylvania, for Appellee.\n\fDIAZ, Circuit Judge:\n\n Angela Lawrence appeals the Social Security Administration’s denial of her\n\napplication for disability benefits. She argues that the administrative law judge failed to\n\nresolve an apparent conflict between the vocational expert’s testimony and the Dictionary\n\nof Occupational Titles (the “DOT”). 1 Specifically, Lawrence contends that her residual\n\nfunctional capacity 2—which limits her to “simple, routine, repetitive tasks”—may prevent\n\nher from performing jobs requiring a General Educational Development reasoning level of\n\ntwo (“Level 2”), contrary to the vocational expert’s testimony. She asks that her claim be\n\nremanded to the administrative law judge to resolve this apparent conflict. Because we\n\nfind no conflict between the language describing Lawrence’s residual functional capacity\n\nand the DOT’s definition of Level 2 reasoning, we affirm.\n\n\n\n I.\n\n On January 16, 2013, Lawrence applied for disability benefits, claiming that various\n\nphysical and mental impairments rendered her unable to work in any job. The Social\n\nSecurity Administration denied her application initially and upon reconsideration. It\n\n\n\n\n 1\n The DOT lists occupations existing in the economy and explains some of their\nphysical and mental requirements. U.S. Dep’t of Labor, Dictionary of Occupational Titles\n(4th ed. 1991).\n 2\n Residual functional capacity refers to a claimant’s capabilities despite her\nimpairments. 20 C.F.R. § 404.1545(a).\n\n\n 2\n\fdetermined that, while her condition kept her from doing her past work at MetLife\n\nInsurance Company, 3 it did not prevent her from performing less demanding jobs.\n\n At Lawrence’s request, an administrative law judge then held a hearing regarding\n\nher claim. The judge followed the required five-step analysis for adjudicating these\n\nclaims. 4 At step four, he assessed Lawrence’s residual functional capacity, finding in\n\nrelevant part that she could perform jobs limited to “simple, routine repetitive tasks of\n\nunskilled work.” Accordingly, he determined that Lawrence was unable to work at her\n\nformer employer in any capacity.\n\n Step five requires the Commissioner to prove, by a preponderance of evidence, that\n\na claimant can do other work that exists in significant numbers in the national economy.\n\nThomas, 916 F.3d at 313. To assess Lawrence’s ability to do such work, the administrative\n\nlaw judge consulted a vocational expert.\n\n\n\n\n 3\n Lawrence worked in MetLife’s claims department from 1993 to 2012. In her last\nthree years there, she managed over two hundred people, set policy and guidelines for\nclaims adjustors, traveled extensively, engaged in public speaking, and hired and fired\nemployees. She stopped working in early 2012 when her speech and vision became blurred\nduring a conference call, after which she was diagnosed with a number of impairments.\n 4\n The five steps require the administrative law judge to consider whether the\nclaimant (1) is unemployed, (2) has sufficiently severe and long-lasting impairments, (3)\nhas an impairment that meets or equals the requirements of a listed impairment for a purely\nmedical finding of disability and, if not, (4) whether she can perform her past work given\nher residual functional capacity and, if not, (5) whether she can perform other work that\nexists in significant numbers in the national economy. 20 C.F.R. § 404.1520(a)(4); see\nMascio v. Colvin, 780 F.3d 632, 634–35 (4th Cir. 2015) (describing the five steps in greater\ndetail). The burden lies with the claimant at the first four steps and with the Commissioner\nof Social Security (the “Commissioner”) at step five. Thomas v. Berryhill, 916 F.3d 307,\n310 (4th Cir. 2019).\n\n 3\n\f The judge and the vocational expert had the following exchange at the hearing\n\n(excerpted as relevant):\n\n Judge: Assume we have a hypothetical person whose age range\n is from 48 to 50 . . . [who] would be limited to simple, routine,\n repetitive tasks, unskilled work. . . . Are there any jobs [that\n this person could perform in the national economy]?\n\n Vocational expert: Yes, sir. Folder, . . . . Classifier, . . . . [and]\n Router.\n\nThe DOT lists each of these jobs as requiring Level 2 reasoning. See DOT, No. 369.687-\n\n018, 1991 WL 673072 (Folder); DOT, No. 361.687-014, 1991 WL 672991 (Classifier);\n\nDOT, No. 222.587-038, 1991 WL 672123 (Router). Level 2 reasoning requires the\n\nindividual to “[a]pply commonsense understanding to carry out detailed but uninvolved\n\nwritten or oral instructions” and “[d]eal with problems involving a few concrete variables\n\nin or from standardized situations.” 5 DOT, App. C, 1991 WL 688702.\n\n Then, as required by agency policy, the administrative law judge asked whether the\n\nvocational expert’s testimony was consistent with the DOT. See Thomas, 916 F.3d at 313.\n\nThe vocational expert said it was, with one exception irrelevant to this appeal. Lawrence’s\n\ncounsel then cross-examined the vocational expert about several potential inconsistencies.\n\nBut neither the administrative law judge nor Lawrence’s attorney asked whether there was\n\na conflict between Lawrence’s residual functional capacity and an ability to perform Level\n\n2 jobs.\n\n\n\n\n 5\n The DOT’s reasoning development scale has six levels in ascending order of\ncomplexity. DOT, App. C, 1991 WL 688702.\n\n 4\n\f Relying on the vocational expert’s testimony, the administrative law judge ruled\n\nthat Lawrence’s claim failed at step five because she could perform work that exists in\n\nsignificant supply in the national economy. The judge also found that the vocational\n\nexpert’s testimony was consistent with the DOT (with the one irrelevant exception).\n\nLawrence lost her administrative appeal and sued in the district court, which granted the\n\nCommissioner’s motion for judgment on the pleadings. This appeal followed.\n\n\n\n II.\n\n The question presented is whether there is an apparent conflict between Lawrence’s\n\nresidual functional capacity and the DOT’s definition of Level 2 reasoning. We review\n\nthis question de novo. See Thomas, 916 F.3d at 311. 6\n\n An administrative law judge in a disability-benefit case has a duty to identify and\n\nresolve any apparent conflicts between the DOT and a vocational expert’s testimony. Id.\n\nat 313 (citing SSR 00-4P, 2000 WL 1898704 at *2 (Dec. 4, 2000)). “To that end, the\n\n[administrative law judge] must ask the [vocational expert] whether his or her testimony\n\nconflicts with the DOT.” Id. Even if the vocational expert answers “no,” the judge has a\n\n\n\n 6\n In addition to arguing that there is no apparent conflict, the Commissioner contends\nthat we should deny Lawrence’s appeal for two other reasons. First, he maintains that\nLawrence waived her apparent-conflict argument by not raising it with sufficient\nspecificity in her objections to the magistrate judge’s report recommending that the district\ncourt grant the Commissioner’s motion for judgment on the pleadings. Second, he asks\nthe court to affirm on harmless-error grounds because the record clearly demonstrates that\nLawrence can work as a folder, a classifier, or a router. We decline to consider these issues\nbecause we find that the administrative law judge did not err.\n\n 5\n\fduty to independently identify and resolve any apparent conflicts before relying on the\n\nexpert’s testimony. Id.\n\n To assess whether an apparent conflict exists, we compare the DOT’s “express\n\nlanguage” with the vocational expert’s testimony. Id. (quoting Pearson v. Colvin, 810 F.3d\n\n204, 209 (4th Cir. 2015)). In Thomas v. Berryhill, this court found an apparent conflict\n\nbetween the claimant’s residual functional capacity, which limited her to jobs involving\n\n“short, simple instructions,” and Level 2’s concept of “detailed but uninvolved\n\ninstructions.” 916 F.3d at 313–14. Lawrence asserts that there is no meaningful difference\n\nbetween Thomas’s residual functional capacity and hers, which limits her to “simple,\n\nroutine, repetitive tasks.” We disagree.\n\n Even assuming that “tasks” and “instructions” are synonymous, 7 the key difference\n\nis that Thomas was limited to “short” instructions. “Short” is inconsistent with “detailed”\n\nbecause detail and length are highly correlated. Generally, the longer the instructions, the\n\nmore detail they can include.\n\n In contrast, the administrative law judge found that Lawrence could perform jobs\n\nlimited to “simple, routine repetitive tasks of unskilled work.” There is no comparable\n\ninconsistency between Lawrence’s residual functional capacity (as determined by the\n\nadministrative law judge) and Level 2’s notions of “detailed but uninvolved . . .\n\ninstructions” and tasks with “a few [] variables.” DOT, App. C, 1991 WL 688702.\n\n\n 7\n Indeed, in some instances, “tasks” and “instructions” may, in fact, be synonymous.\nBut we leave that issue for another day, as Lawrence’s appeal does not depend on its\nresolution.\n\n 6\n\f To begin with, detailed instructions are, in the main, less correlated with complexity\n\nthan with length. Instructions often include many steps, each of which is straightforward.\n\nDriving directions are a good example: they may prescribe many turns, but the turns are\n\ngenerally easy to make, and the route rarely changes, making the directions simple, routine,\n\nand repetitive. Further, there is no conflict between “simple” and “uninvolved”\n\ninstructions, as both connote instructions that “are not complicated or intricate.” Moore v.\n\nAstrue, 623 F.3d 599, 604 (8th Cir. 2010) (citing Webster’s Third New Int’l Dictionary\n\n1191, 2499 (2002)). Finally, “routine” and “repetitive” tasks may involve a few variables,\n\njust as driving directions may vary if a road is closed.\n\n Thus, while there was an apparent conflict in Thomas, there is none here. 8\n\n\n\n III.\n\n For the foregoing reasons, we affirm the judgment of the district court.\n\n AFFIRMED\n\n\n\n\n 8\n In finding no apparent conflict between “simple, routine, repetitive” and Level 2\nreasoning, we join every other circuit to consider the issue. See Hernandez v. Berryhill,\n707 F. App’x 456, 458 (9th Cir. 2017) (per curiam) (finding no conflict between “simple,\nrepetitive tasks” and Level 2); Hurtado v. Comm’r of Soc. Sec., 425 F. App’x 793, 795–96\n(11th Cir. 2011) (per curiam) (“simple, routine tasks”); Moore, 623 F.3d at 604 (“simple,\nroutine and repetitive work activity”); Stokes v. Astrue, 274 F. App’x 675, 684 (10th Cir.\n2008) (unpublished) (“simple, repetitive and routine work”); Money v. Barnhart, 91 F.\nApp’x 210, 215 (3d Cir. 2004) (unpublished) (“simple, routine and repetitive” work); see\nalso Sawyer v. Colvin, 512 F. App’x 603, 610–11 (7th Cir. 2013) (unpublished) (finding\nno conflict between “simple tasks” and Level 3 reasoning).\n 7\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Angela Lawrence v. Andrew Saul\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-10-24\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1112\\n\\n\\nANGELA LAWRENCE,\\n\\n Plaintiff − Appellant,\\n\\n v.\\n\\nANDREW SAUL, Commissioner of Social Security,\\n\\n Defendant – Appellee.\\n\\n\\nAppeal from the United States District Court for the Middle District of North Carolina, at\\nGreensboro. Catherine C. Eagles, District Judge. (1:16-cv-01310-CCE-JLW)\\n\\n\\nArgued: September 18, 2019 Decided: October 24, 2019\\n\\n\\nBefore WYNN, DIAZ, and FLOYD, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Wynn and\\nJudge Floyd joined.\\n\\n\\nARGUED: Dana Wayne Duncan, DUNCAN DISABILITY LAW, SC, Nekoosa,\\nWisconsin, for Appellant. Kristina Carol Evans Cole, SOCIAL SECURITY\\nADMINISTRATION, Philadelphia, Pennsylvania, for Appellee. ON BRIEF: Matthew\\nG.T. Martin, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,\\nGreensboro, North Carolina; Nora Koch, Regional Chief Counsel, Taryn Jasner,\\nSupervisory Attorney, Office of the General Counsel, SOCIAL SECURITY\\nADMINISTRATION, Philadelphia, Pennsylvania, for Appellee.\\n\\fDIAZ, Circuit Judge:\\n\\n Angela Lawrence appeals the Social Security Administration’s denial of her\\n\\napplication for disability benefits. She argues that the administrative law judge failed to\\n\\nresolve an apparent conflict between the vocational expert’s testimony and the Dictionary\\n\\nof Occupational Titles (the “DOT”). 1 Specifically, Lawrence contends that her residual\\n\\nfunctional capacity 2—which limits her to “simple, routine, repetitive tasks”—may prevent\\n\\nher from performing jobs requiring a General Educational Development reasoning level of\\n\\ntwo (“Level 2”), contrary to the vocational expert’s testimony. She asks that her claim be\\n\\nremanded to the administrative law judge to resolve this apparent conflict. Because we\\n\\nfind no conflict between the language describing Lawrence’s residual functional capacity\\n\\nand the DOT’s definition of Level 2 reasoning, we affirm.\\n\\n\\n\\n I.\\n\\n On January 16, 2013, Lawrence applied for disability benefits, claiming that various\\n\\nphysical and mental impairments rendered her unable to work in any job. The Social\\n\\nSecurity Administration denied her application initially and upon reconsideration. It\\n\\n\\n\\n\\n 1\\n The DOT lists occupations existing in the economy and explains some of their\\nphysical and mental requirements. U.S. Dep’t of Labor, Dictionary of Occupational Titles\\n(4th ed. 1991).\\n 2\\n Residual functional capacity refers to a claimant’s capabilities despite her\\nimpairments. 20 C.F.R. § 404.1545(a).\\n\\n\\n 2\\n\\fdetermined that, while her condition kept her from doing her past work at MetLife\\n\\nInsurance Company, 3 it did not prevent her from performing less demanding jobs.\\n\\n At Lawrence’s request, an administrative law judge then held a hearing regarding\\n\\nher claim. The judge followed the required five-step analysis for adjudicating these\\n\\nclaims. 4 At step four, he assessed Lawrence’s residual functional capacity, finding in\\n\\nrelevant part that she could perform jobs limited to “simple, routine repetitive tasks of\\n\\nunskilled work.” Accordingly, he determined that Lawrence was unable to work at her\\n\\nformer employer in any capacity.\\n\\n Step five requires the Commissioner to prove, by a preponderance of evidence, that\\n\\na claimant can do other work that exists in significant numbers in the national economy.\\n\\nThomas, 916 F.3d at 313. To assess Lawrence’s ability to do such work, the administrative\\n\\nlaw judge consulted a vocational expert.\\n\\n\\n\\n\\n 3\\n Lawrence worked in MetLife’s claims department from 1993 to 2012. In her last\\nthree years there, she managed over two hundred people, set policy and guidelines for\\nclaims adjustors, traveled extensively, engaged in public speaking, and hired and fired\\nemployees. She stopped working in early 2012 when her speech and vision became blurred\\nduring a conference call, after which she was diagnosed with a number of impairments.\\n 4\\n The five steps require the administrative law judge to consider whether the\\nclaimant (1) is unemployed, (2) has sufficiently severe and long-lasting impairments, (3)\\nhas an impairment that meets or equals the requirements of a listed impairment for a purely\\nmedical finding of disability and, if not, (4) whether she can perform her past work given\\nher residual functional capacity and, if not, (5) whether she can perform other work that\\nexists in significant numbers in the national economy. 20 C.F.R. § 404.1520(a)(4); see\\nMascio v. Colvin, 780 F.3d 632, 634–35 (4th Cir. 2015) (describing the five steps in greater\\ndetail). The burden lies with the claimant at the first four steps and with the Commissioner\\nof Social Security (the “Commissioner”) at step five. Thomas v. Berryhill, 916 F.3d 307,\\n310 (4th Cir. 2019).\\n\\n 3\\n\\f The judge and the vocational expert had the following exchange at the hearing\\n\\n(excerpted as relevant):\\n\\n Judge: Assume we have a hypothetical person whose age range\\n is from 48 to 50 . . . [who] would be limited to simple, routine,\\n repetitive tasks, unskilled work. . . . Are there any jobs [that\\n this person could perform in the national economy]?\\n\\n Vocational expert: Yes, sir. Folder, . . . . Classifier, . . . . [and]\\n Router.\\n\\nThe DOT lists each of these jobs as requiring Level 2 reasoning. See DOT, No. 369.687-\\n\\n018, 1991 WL 673072 (Folder); DOT, No. 361.687-014, 1991 WL 672991 (Classifier);\\n\\nDOT, No. 222.587-038, 1991 WL 672123 (Router). Level 2 reasoning requires the\\n\\nindividual to “[a]pply commonsense understanding to carry out detailed but uninvolved\\n\\nwritten or oral instructions” and “[d]eal with problems involving a few concrete variables\\n\\nin or from standardized situations.” 5 DOT, App. C, 1991 WL 688702.\\n\\n Then, as required by agency policy, the administrative law judge asked whether the\\n\\nvocational expert’s testimony was consistent with the DOT. See Thomas, 916 F.3d at 313.\\n\\nThe vocational expert said it was, with one exception irrelevant to this appeal. Lawrence’s\\n\\ncounsel then cross-examined the vocational expert about several potential inconsistencies.\\n\\nBut neither the administrative law judge nor Lawrence’s attorney asked whether there was\\n\\na conflict between Lawrence’s residual functional capacity and an ability to perform Level\\n\\n2 jobs.\\n\\n\\n\\n\\n 5\\n The DOT’s reasoning development scale has six levels in ascending order of\\ncomplexity. DOT, App. C, 1991 WL 688702.\\n\\n 4\\n\\f Relying on the vocational expert’s testimony, the administrative law judge ruled\\n\\nthat Lawrence’s claim failed at step five because she could perform work that exists in\\n\\nsignificant supply in the national economy. The judge also found that the vocational\\n\\nexpert’s testimony was consistent with the DOT (with the one irrelevant exception).\\n\\nLawrence lost her administrative appeal and sued in the district court, which granted the\\n\\nCommissioner’s motion for judgment on the pleadings. This appeal followed.\\n\\n\\n\\n II.\\n\\n The question presented is whether there is an apparent conflict between Lawrence’s\\n\\nresidual functional capacity and the DOT’s definition of Level 2 reasoning. We review\\n\\nthis question de novo. See Thomas, 916 F.3d at 311. 6\\n\\n An administrative law judge in a disability-benefit case has a duty to identify and\\n\\nresolve any apparent conflicts between the DOT and a vocational expert’s testimony. Id.\\n\\nat 313 (citing SSR 00-4P, 2000 WL 1898704 at *2 (Dec. 4, 2000)). “To that end, the\\n\\n[administrative law judge] must ask the [vocational expert] whether his or her testimony\\n\\nconflicts with the DOT.” Id. Even if the vocational expert answers “no,” the judge has a\\n\\n\\n\\n 6\\n In addition to arguing that there is no apparent conflict, the Commissioner contends\\nthat we should deny Lawrence’s appeal for two other reasons. First, he maintains that\\nLawrence waived her apparent-conflict argument by not raising it with sufficient\\nspecificity in her objections to the magistrate judge’s report recommending that the district\\ncourt grant the Commissioner’s motion for judgment on the pleadings. Second, he asks\\nthe court to affirm on harmless-error grounds because the record clearly demonstrates that\\nLawrence can work as a folder, a classifier, or a router. We decline to consider these issues\\nbecause we find that the administrative law judge did not err.\\n\\n 5\\n\\fduty to independently identify and resolve any apparent conflicts before relying on the\\n\\nexpert’s testimony. Id.\\n\\n To assess whether an apparent conflict exists, we compare the DOT’s “express\\n\\nlanguage” with the vocational expert’s testimony. Id. (quoting Pearson v. Colvin, 810 F.3d\\n\\n204, 209 (4th Cir. 2015)). In Thomas v. Berryhill, this court found an apparent conflict\\n\\nbetween the claimant’s residual functional capacity, which limited her to jobs involving\\n\\n“short, simple instructions,” and Level 2’s concept of “detailed but uninvolved\\n\\ninstructions.” 916 F.3d at 313–14. Lawrence asserts that there is no meaningful difference\\n\\nbetween Thomas’s residual functional capacity and hers, which limits her to “simple,\\n\\nroutine, repetitive tasks.” We disagree.\\n\\n Even assuming that “tasks” and “instructions” are synonymous, 7 the key difference\\n\\nis that Thomas was limited to “short” instructions. “Short” is inconsistent with “detailed”\\n\\nbecause detail and length are highly correlated. Generally, the longer the instructions, the\\n\\nmore detail they can include.\\n\\n In contrast, the administrative law judge found that Lawrence could perform jobs\\n\\nlimited to “simple, routine repetitive tasks of unskilled work.” There is no comparable\\n\\ninconsistency between Lawrence’s residual functional capacity (as determined by the\\n\\nadministrative law judge) and Level 2’s notions of “detailed but uninvolved . . .\\n\\ninstructions” and tasks with “a few [] variables.” DOT, App. C, 1991 WL 688702.\\n\\n\\n 7\\n Indeed, in some instances, “tasks” and “instructions” may, in fact, be synonymous.\\nBut we leave that issue for another day, as Lawrence’s appeal does not depend on its\\nresolution.\\n\\n 6\\n\\f To begin with, detailed instructions are, in the main, less correlated with complexity\\n\\nthan with length. Instructions often include many steps, each of which is straightforward.\\n\\nDriving directions are a good example: they may prescribe many turns, but the turns are\\n\\ngenerally easy to make, and the route rarely changes, making the directions simple, routine,\\n\\nand repetitive. Further, there is no conflict between “simple” and “uninvolved”\\n\\ninstructions, as both connote instructions that “are not complicated or intricate.” Moore v.\\n\\nAstrue, 623 F.3d 599, 604 (8th Cir. 2010) (citing Webster’s Third New Int’l Dictionary\\n\\n1191, 2499 (2002)). Finally, “routine” and “repetitive” tasks may involve a few variables,\\n\\njust as driving directions may vary if a road is closed.\\n\\n Thus, while there was an apparent conflict in Thomas, there is none here. 8\\n\\n\\n\\n III.\\n\\n For the foregoing reasons, we affirm the judgment of the district court.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 8\\n In finding no apparent conflict between “simple, routine, repetitive” and Level 2\\nreasoning, we join every other circuit to consider the issue. See Hernandez v. Berryhill,\\n707 F. App’x 456, 458 (9th Cir. 2017) (per curiam) (finding no conflict between “simple,\\nrepetitive tasks” and Level 2); Hurtado v. Comm’r of Soc. Sec., 425 F. App’x 793, 795–96\\n(11th Cir. 2011) (per curiam) (“simple, routine tasks”); Moore, 623 F.3d at 604 (“simple,\\nroutine and repetitive work activity”); Stokes v. Astrue, 274 F. App’x 675, 684 (10th Cir.\\n2008) (unpublished) (“simple, repetitive and routine work”); Money v. Barnhart, 91 F.\\nApp’x 210, 215 (3d Cir. 2004) (unpublished) (“simple, routine and repetitive” work); see\\nalso Sawyer v. Colvin, 512 F. App’x 603, 610–11 (7th Cir. 2013) (unpublished) (finding\\nno conflict between “simple tasks” and Level 3 reasoning).\\n 7\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4572,"cells":{"id":{"kind":"number","value":4673077,"string":"4,673,077"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Javion Scott"},"decision_date":{"kind":"string","value":"2019-10-25"},"docket_number":{"kind":"string","value":"18-4440"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before KING and KEENAN, Circuit Judges, and Joseph R. GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation.\", \"parties\": \"\", \"opinions\": [{\"author\": \"KING, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4440\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff – Appellee,\\n\\n v.\\n\\nJAVION SCOTT,\\n\\n Defendant – Appellant.\\n\\n\\nAppeal from the United States District Court for the Eastern District of North Carolina, at\\nRaleigh. Malcolm J. Howard, Senior District Judge. (5:17-cr-00136-H-1)\\n\\n\\nArgued: September 18, 2019 Decided: October 25, 2019\\n\\n\\nBefore KING and KEENAN, Circuit Judges, and Joseph R. GOODWIN, United States\\nDistrict Judge for the Southern District of West Virginia, sitting by designation.\\n\\n\\nAffirmed by published opinion. Judge King wrote the opinion, in which Judge Keenan\\nand Judge Goodwin joined.\\n\\n\\nARGUED: Jaclyn Lee DiLauro, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\\nRaleigh, North Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE\\nUNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G.\\nAlan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States\\nAttorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE\\nUNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.\\n\\fKING, Circuit Judge:\\n\\n Defendant Javion Scott pleaded guilty in the Eastern District of North Carolina to\\n\\npossession of a firearm after having been convicted of a felony, in contravention of 18\\n\\nU.S.C. § 922(g)(1). As part of a conditional guilty plea, Scott reserved his right to appeal\\n\\nthe denial of his motion to suppress the firearm evidence underlying his conviction. On\\n\\nappeal, he maintains that the firearm evidence was seized during an unconstitutional\\n\\nwarrantless search of his apartment.\\n\\n At the time of the contested search, Scott was a North Carolina post-release\\n\\nsupervisee. As part of his supervision, Scott was subject to a statutory search condition\\n\\n(the “statutory condition”) that authorized warrantless searches of his residence by a\\n\\nprobation officer. He was also subject to a search condition contained in his supervision\\n\\nagreement (the “agreement condition”) that authorized warrantless searches of his\\n\\nresidence by his assigned probation officer. Scott claims that the agreement condition —\\n\\nrather than the statutory condition — must control, and that his Fourth Amendment rights\\n\\nwere violated because his assigned probation officer did not attend the search of his\\n\\napartment. He also contends that, regardless of which condition controls, his Fourth\\n\\nAmendment rights were contravened because the search was conducted for purposes not\\n\\nreasonably related to his post-release supervision and without any individualized suspicion\\n\\nof criminal activity. As explained below, we reject Scott’s contentions and affirm the\\n\\ndistrict court’s denial of his motion to suppress.\\n\\n\\n\\n\\n 2\\n\\f I.\\n\\n A.\\n\\n In June 2010, Scott was convicted in the Superior Court of Cumberland County,\\n\\nNorth Carolina, of violating North Carolina General Statute section 14-27.5(A), which\\n\\nresulted in an adjudication of guilt on a second-degree sexual offense. The state court\\n\\nsentenced Scott to a term of imprisonment ranging from 60 to 81 months. Upon his release,\\n\\nScott was placed on state post-release supervision, which the North Carolina Post-Release\\n\\nSupervision and Parole Commission (the “Commission”) administered.\\n\\n North Carolina General Statute section 15A-1368.4 governed Scott’s post-release\\n\\nsupervision. That statute lists a bevy of requirements, some mandatory and others\\n\\ndiscretionary. For example, section 15A-1368.4(b) — entitled “Required Condition” —\\n\\nmandates that the Commission impose an express condition forbidding supervisees from\\n\\ncommitting additional crimes while on supervision. Section 15A-1368.4(c), on the other\\n\\nhand, lists several discretionary conditions that the Commission “may impose” on any\\n\\nsupervisee.\\n\\n Scott’s adjudication of guilt subjected him to more required conditions than the\\n\\naverage post-release supervisee. Section 15A-1368.4(b1) — entitled “Additional Required\\n\\nConditions for Sex Offenders and Persons Convicted of Offenses Involving Physical,\\n\\nMental, or Sexual Abuse of a Minor” — lists eight additional controlling conditions that\\n\\napply to individuals, like Scott, who were convicted of certain sexual offenses. Scott’s\\n\\n\\n\\n\\n 3\\n\\fappeal involves one of those additional controlling conditions — the statutory condition.\\n\\nThe statutory condition provides that a supervisee shall\\n\\n [s]ubmit at reasonable times to warrantless searches by a post-release\\n supervision officer of the supervisee’s person and of the supervisee’s vehicle\\n and premises while the supervisee is present, for purposes reasonably related\\n to the post-release supervision, but the supervisee may not be required to\\n submit to any other search that would otherwise be unlawful. For purposes\\n of this subdivision, warrantless searches of the supervisee’s computer or\\n other electronic mechanism which may contain electronic data shall be\\n considered reasonably related to the post-release supervision.\\n\\nN.C. Gen. Stat. § 15A-1368.4(b1)(8) (emphasis added).\\n\\n In drafting Scott’s supervision agreement, however, the Commission failed to recite\\n\\nthe statutory condition verbatim. Instead, the Commission came up with the agreement\\n\\ncondition, which required that Scott “[s]ubmit at reasonable times to searches of my person,\\n\\npremises, or any vehicle under my control by my supervising officer for purposes\\n\\nreasonably related to my supervision.” See J.A. 38 (emphasis added). 1\\n\\n B.\\n\\n In November 2016, Courtney Thomas, a probation and parole officer with the North\\n\\nCarolina Department of Public Safety (“NCDPS”), took over supervision of Scott from\\n\\nanother NCDPS officer. 2 When Thomas began supervising Scott, he was classified as a\\n\\n\\n\\n 1\\n Citations herein to “J.A.__” refer to the contents of the Joint Appendix filed by the\\nparties in this appeal.\\n 2\\n In reviewing the denial of a motion to suppress, we “defer to the district court’s\\nfactual findings and do not set them aside unless [they are] clearly erroneous.” United\\nStates v. Stevenson, 396 F.3d 538, 541 (4th Cir. 2005). We thus accept the facts related in\\nthe magistrate judge’s Memorandum and Recommendation, which the district court\\n\\n 4\\n\\fvalidated gang member due to his refusal to remove or cover gang-related tattoos. And\\n\\nThomas knew that Scott had previously violated his curfew and had been disrespectful to\\n\\nNCDPS officers. Although Thomas had no such issues with Scott, his failure to obtain\\n\\nemployment or enroll in continuing education classes bothered her. Thomas became\\n\\nconcerned when she later observed Scott wearing “flashy” things — a necklace, mouth\\n\\ngrill, watch, and “expensive looking” shoes — because she did not understand how Scott\\n\\ncould afford those luxuries without a job. See J.A. 300.\\n\\n At some point during Thomas’s supervision of Scott, NCDPS asked Thomas to\\n\\nidentify a few supervisees to be searched as part of Operation Spring Sweep, a multi-\\n\\nagency operation involving federal and state law enforcement agencies. The Sweep had\\n\\ntwo main purposes — to locate and arrest individuals with outstanding warrants or who\\n\\nhad absconded from NCDPS, and to conduct warrantless searches of supervisees subject\\n\\nto search conditions. Thomas decided that Scott should be searched as part of the Sweep\\n\\nbecause of her suspicions regarding his extravagant jewelry and because NCDPS policy\\n\\nmandated a search of Scott within the succeeding forty-five days. 3\\n\\n On March 29, 2017 — the second day of Operation Spring Sweep — a search team\\n\\narrived at Scott’s apartment in Fayetteville at approximately 7:20 a.m. NCDPS officer\\n\\n\\n\\n\\nadopted by its Order denying Scott’s motion. We recite the facts in the light most favorable\\nto the government. See United States v. Palmer, 820 F.3d 640, 644 (4th Cir. 2016).\\n 3\\n NCDPS policy requires a search of supervisees with actively validated gang\\naffiliations at least every 180 days. And supervisees convicted of certain sexual offenses\\nmust also be searched at least every 180 days. Scott fell into both categories.\\n\\n 5\\n\\fBecky Staley led the search team. She was accompanied by three other NCDPS officers,\\n\\nATF special agent Thomas Wishon, an additional ATF special agent, a deputy sheriff from\\n\\nthe Cumberland County Sheriff’s Office, a K-9 unit from the State Department of\\n\\nCorrections, an officer from the Fayetteville Police Department, and a trooper from the\\n\\nNorth Carolina Highway Patrol. Thomas did not attend the search, though she did attempt\\n\\nto delegate her authority to conduct warrantless searches of Scott to Staley.\\n\\n Upon arriving at the apartment building, the four NCDPS officers led the search\\n\\nteam up the stairs to Scott’s apartment. One of the NCDPS officers knocked on Scott’s\\n\\ndoor and announced the presence of the search team. The other three NCDPS officers\\n\\nstood directly outside the door on a landing at the top of the stairs. Wishon and his ATF\\n\\ncolleague stood on the staircase descending from the landing; the remaining officers stood\\n\\nbehind them. After the knock on the door, Staley heard noises coming from inside the\\n\\napartment. She then heard the occupants say that they were getting dressed. But several\\n\\nminutes passed without anyone opening the door. The NCDPS officer who had knocked\\n\\non Scott’s door then knocked again. This time, an unclothed Scott opened the apartment\\n\\ndoor. Scott’s girlfriend joined him at the door, wearing only her underwear. Staley advised\\n\\nScott that the officers were there to conduct a warrantless search of his apartment. Scott\\n\\npermitted the officers to enter his apartment, though he would have been arrested had he\\n\\ndenied them entry.\\n\\n The NCDPS officers entered the apartment first, handcuffing Scott and his girlfriend\\n\\nafter allowing Scott to use the restroom. ATF agent Wishon and the remaining law\\n\\nenforcement officers entered the apartment only after being told to do so by one of the\\n\\n 6\\n\\fNCDPS officers. Thereafter, the NCDPS and other officers began searching the apartment.\\n\\nSoon after the search began, Wishon noticed that a door leading out onto the apartment’s\\n\\nbalcony was slightly ajar. As Wishon stepped onto the balcony and looked over the railing,\\n\\nhe noticed two objects resembling firearms on the ground below. Upon further\\n\\ninvestigation, Wishon confirmed that the two objects he saw were indeed handguns. He\\n\\nalso located — within the immediate vicinity of the two firearms — a high-capacity\\n\\nmagazine, ammunition, and a purse that contained identification belonging to Scott’s\\n\\ngirlfriend.\\n\\n Shortly thereafter, Wishon discovered that one of the handguns had been reported\\n\\nstolen. Because Wishon found the firearms near the identification card of Scott’s\\n\\ngirlfriend, he decided to question her. After waiving her Miranda rights, Scott’s girlfriend\\n\\nadmitted to Wishon that she had purchased the stolen handgun from unknown men in\\n\\nFayetteville and that she had purchased the other handgun from a cousin. She told Wishon\\n\\nthat she obtained the firearms because of ongoing threats against Scott’s family and that\\n\\nshe kept them on a chair in the bedroom she shared with Scott. She also admitted that Scott\\n\\nhad previously pulled the slide back on the stolen handgun to “check it.” See J.A. 305.\\n\\n As Wishon conducted his investigation into the two firearms, the other members of\\n\\nthe search team continued to search Scott’s apartment. The officers located several items\\n\\nduring the search, including marijuana. Pursuant to the statutory condition, officers also\\n\\nsearched Scott’s cell phone after he provided the phone’s access code. The search of the\\n\\nphone revealed a photograph of Scott holding a handgun. But the handgun in the\\n\\nphotograph did not match either of the firearms Wishon had located and seized from the\\n\\n 7\\n\\fground outside the apartment. While searching for the handgun in the photograph, officers\\n\\ndiscovered that a Black Kia Optima located outside the apartment was registered to Scott.\\n\\nA search of the Kia revealed more marijuana and a third firearm that appeared to be the\\n\\nsame make and model as the handgun in the photograph on Scott’s cell phone. Federal law\\n\\nenforcement officers subsequently arrested Scott.\\n\\n C.\\n\\n On April 24, 2017, a grand jury in the Eastern District of North Carolina indicted\\n\\nScott for possession of a firearm after having been convicted of a felony, in contravention\\n\\nof 18 U.S.C. § 922(g)(1). Scott moved to suppress the evidence seized during the\\n\\nwarrantless search of his apartment (along with the evidence found in his automobile and\\n\\non his cell phone), asserting that the search team did not comply with the requirements of\\n\\nthe agreement condition because Thomas — his assigned probation officer — did not\\n\\nattend the search. Scott also contended that the warrantless search violated the\\n\\nrequirements of the statutory condition because the search was not reasonably related to\\n\\nhis supervision and because the search team lacked any individualized suspicion that he\\n\\nhad engaged in criminal activity.\\n\\n Approximately three months after Scott filed his motion to suppress, the magistrate\\n\\njudge conducted a suppression hearing in Greenville. At the hearing, the magistrate judge\\n\\nheard evidence from Thomas, Staley, Wishon, and Scott’s mother. Thomas, Staley, and\\n\\nWishon described the search of Scott’s apartment, explaining how Thomas had selected\\n\\nScott for the search and how Staley and Wishon had conducted their aspects of the search.\\n\\nIn seeking to justify Scott’s possession of the firearms, Scott’s mother testified about his\\n\\n 8\\n\\ftumultuous tenure in prison. And to undercut Thomas’s testimony regarding her suspicions\\n\\nabout Scott’s jewelry, Scott’s mother stated that the “flashy” jewelry likely belonged to\\n\\nScott’s deceased brother.\\n\\n The magistrate judge questioned the lawyers about the discrepancy between the\\n\\nlanguage of the statutory condition and that of the agreement condition. Scott’s lawyer\\n\\nasserted that the Commission’s decision to deviate from the specific terms of the statutory\\n\\ncondition in writing the agreement condition amounted to a controlling interpretation of\\n\\nthe ambiguous post-release supervision statute. The government disagreed, contending\\n\\nthat the statutory condition controlled.\\n\\n After considering the evidence and the arguments, the magistrate judge submitted\\n\\nher Memorandum and Recommendation to the district court, recommending that the\\n\\nmotion to suppress be denied. See United States v. Scott, No. 5:17-cr-00136 (E.D.N.C.\\n\\nDec. 20, 2017), ECF No. 43. The magistrate judge agreed with the government that the\\n\\nstatutory condition — not the agreement condition — controlled. The magistrate judge\\n\\nthen concluded that the search did not violate Scott’s Fourth Amendment rights because it\\n\\ncomplied with the statutory condition, in that it was conducted by NCDPS officers for\\n\\npurposes reasonably related to Scott’s post-release supervision. By its Order, the district\\n\\ncourt adopted the magistrate judge’s Memorandum and Recommendation, overruling\\n\\nScott’s objections. See United States v. Scott, No. 5:17-cr-00136 (E.D.N.C. Feb. 13, 2018),\\n\\nECF No. 53.\\n\\n Scott thereafter pleaded guilty to the single-count indictment, expressly reserving\\n\\nhis right to appeal the denial of his motion to suppress. The district court sentenced Scott\\n\\n 9\\n\\fto seventy-eight months in prison. Scott timely noted this appeal, and we possess\\n\\njurisdiction pursuant to 28 U.S.C. § 1291.\\n\\n\\n\\n II.\\n\\n In assessing a district court’s denial of a motion to suppress evidence, “we review\\n\\nthe court’s factual findings for clear error and its legal determinations de novo.” United\\n\\nStates v. Abramski, 706 F.3d 307, 313-14 (4th Cir. 2013).\\n\\n\\n\\n III.\\n\\n A.\\n\\n Scott first challenges the warrantless search of his apartment on the ground that\\n\\nThomas, his assigned probation officer, was not present during the search. In so doing,\\n\\nScott points to the agreement condition, which states that Scott must submit to warrantless\\n\\nsearches by his supervision officer — a deviation from the language of the statutory\\n\\ncondition, which only requires that a supervision officer conduct the search.\\n\\n Scott claims that by changing the wording of the statute in his supervision\\n\\nagreement, the Commission interpreted an ambiguous statute, and that its interpretation is\\n\\nentitled to deference under the Supreme Court’s decision in Chevron, U.S.A., Inc. v.\\n\\nNatural Resources Defense Council, Inc., 467 U.S. 837 (1984). But it is far from clear that\\n\\nthe Chevron deference principles can ever apply to state agency interpretations of state law.\\n\\nSee id. at 843-44 (“If Congress has explicitly left a gap for the agency to fill, there is an\\n\\nexpress delegation of authority to the agency to elucidate a specific provision of the statute\\n\\n 10\\n\\fby regulation.” (emphasis added)). Moreover, assuming Chevron applies in the state\\n\\ncontext, the Commission’s interpretation of the statutory condition would not be entitled\\n\\nto any deference, in that it does not bear any of the hallmarks of formal rulemaking or\\n\\nadjudication necessary to trigger Chevron deference. See United States v. Mead Corp.,\\n\\n533 U.S. 218, 226-27 (2001).\\n\\n Scott next contends that the agreement condition modified the statutory condition\\n\\nas it applied to him. Because, however, Scott’s post-release supervision stemmed from a\\n\\nsexual offense conviction, the statutory condition was mandated under state law, and the\\n\\nCommission was powerless to modify the statutory condition. See N.C. Gen. Stat. § 15A-\\n\\n1368.4(b1) (listing the statutory condition under the heading “Additional Required\\n\\nConditions for Sex Offenders and Persons Convicted of Offenses Involving Physical,\\n\\nMental, or Sexual Abuse of a Minor” and noting that the conditions specified in that\\n\\nprovision are “controlling conditions”). That the Commission had no authority to modify\\n\\nthe required statutory condition is further bolstered by the General Assembly’s decision to\\n\\ninclude in the post-release supervision statute a section entitled “Discretionary Conditions”\\n\\n— that the Commission “may impose.” See id. § 15A-1368.4(c).\\n\\n Finally, Scott urges that the district court should have at least read the language of\\n\\nthe statutory condition in concert with the language of the agreement condition. But the\\n\\ncourt could not have read the clear language of the statutory condition in concert with the\\n\\nlanguage in a supervision agreement drafted by the Commission. See Crespo v. Holder,\\n\\n631 F.3d 130, 133 (4th Cir. 2011) (“It is well established that when the statute’s language\\n\\nis plain, the sole function of the courts — at least where the disposition required by the text\\n\\n 11\\n\\fis not absurd — is to enforce it according to its terms.” (internal quotation marks omitted)).\\n\\nThe statutory condition specifically provides that warrantless searches of supervisees may\\n\\nbe undertaken by any post-release supervision officer. That ends our inquiry. Scott’s\\n\\nreliance on the agreement condition is therefore rejected.\\n\\n B.\\n\\n Scott next challenges the warrantless search of his apartment on the ground that it\\n\\ndid not comply with the statutory condition, as he contends that the search was not\\n\\nconducted for purposes reasonably related to his post-release supervision. Specifically,\\n\\nScott recognizes that the statutory condition is generally constitutional under the Supreme\\n\\nCourt’s decision in Griffin v. Wisconsin, 483 U.S. 868 (1987), but he asserts that the search\\n\\nof his apartment contravened the Fourth Amendment because it did not adhere to the\\n\\nstatutory condition.\\n\\n The Griffin Court approved the warrantless search of a probationer’s home\\n\\nconducted in accordance with a Wisconsin regulation authorizing such a search, reasoning\\n\\nthat the search was justified under the “special needs” doctrine. See 483 U.S. at 873-74\\n\\n(“A State’s operation of a probation system, like its operation of a school, government\\n\\noffice or prison, . . . presents ‘special needs’ beyond normal law enforcement that may\\n\\njustify departures from the usual warrant and probable-cause requirements.”). As the Court\\n\\nexplained, the warrantless search in Griffin “was ‘reasonable’ within the meaning of the\\n\\nFourth Amendment because it was conducted pursuant to a valid regulation governing\\n\\nprobationers.” Id. at 880. We subsequently relied on the Griffin decision to uphold a North\\n\\nCarolina probationer supervision statute that is nearly identical to the statutory condition\\n\\n 12\\n\\fat issue in this appeal, as well as a search conducted in conformity with the probation\\n\\nstatute. See United States v. Midgette, 478 F.3d 616, 622-24 (4th Cir. 2007). 4\\n\\n Scott’s contention that the warrantless search of his apartment breached the statutory\\n\\ncondition focuses on the statutory condition’s requirement that a supervision search be\\n\\nconducted “for purposes reasonably related to the post-release supervision.” See N.C. Gen.\\n\\nStat. § 15A-1368.4(b1)(8). As an initial matter, we must discern the meaning of the term\\n\\n“reasonably related,” as used in the statutory condition. In interpreting that term, “we must\\n\\ntake [the statute] as it has been interpreted by . . . state courts.” See Griffin, 483 U.S. at\\n\\n875. “Whether or not we would choose to interpret a similarly worded federal [provision]\\n\\nin [a similar] fashion, we are bound by the state court’s interpretation, which is relevant to\\n\\n[the] constitutional analysis only insofar as it fixes the meaning of the [statute].” Id.\\n\\n The state courts in North Carolina have not provided us with a comprehensive\\n\\ndefinition of “reasonably related,” as used in the statutory condition. Nevertheless, the\\n\\nCourt of Appeals of North Carolina recently discussed the General Assembly’s decision to\\n\\namend the probationer supervision statute, which contains nearly identical language to the\\n\\nstatutory condition. See State v. Powell, 800 S.E.2d 745 (N.C. Ct. App. 2017). The General\\n\\nAssembly, in amending the probation statute, replaced the term “reasonably related” with\\n\\n\\n 4\\n Although the Supreme Court’s Griffin decision and our Midgette opinion involved\\nprobationers rather than post-release supervisees, such as Scott, the “special needs”\\ndoctrine does not turn on any such distinction. Rather, the doctrine requires a\\ndetermination of whether the statute “assure[s] that the searches conducted pursuant to it\\nare justified by the State’s special needs.” See Midgette, 478 F.3d at 624.\\n\\n\\n\\n 13\\n\\f“directly related.” Id. at 751. In evaluating the effect of that amendment, the court of\\n\\nappeals observed that “‘[r]easonable’ is defined, in pertinent part, as ‘being or remaining\\n\\nwithin the bounds of reason.’” Id. (quoting Webster’s Third New International Dictionary\\n\\n1892 (1966)). Because the term “reasonably related” remains in the statutory condition,\\n\\nwe accord the Powell definition some weight in evaluating Scott’s contentions.\\n\\n Bearing that definition in mind, we proceed to assess Scott’s contention that the\\n\\nwarrantless search of his apartment was not reasonably related to his supervision. Scott\\n\\nasserts, inter alia, that the search had nothing to do with his supervision because it occurred\\n\\nas part of Operation Spring Sweep, which he says the U.S. Marshals Service organized for\\n\\ngeneralized law enforcement purposes. As evidence of that theory, Scott points to the large\\n\\nnumber of law enforcement agencies involved. He also identifies press releases in which\\n\\nlocal law enforcement officials thank the Marshals Service for spearheading the operation.\\n\\nBut pursuant to our precedent, the involvement of the Marshals Service and other law\\n\\nenforcement agencies does not render the warrantless search invalid.\\n\\n In Midgette, Judge Niemeyer explained that “[w]hile North Carolina’s probation\\n\\nlaw authorizes only probation officers to conduct warrantless searches, that authorization\\n\\ndoes not preclude the probation officer from obtaining help from the police department for\\n\\nthe purpose of physically conducting the search.” See 478 F.3d at 625-26. He further\\n\\nconcluded — after examining two North Carolina state court decisions — that a\\n\\nprobationer search would be valid even if a police officer had suggested the search, “so\\n\\nlong as the search is authorized and directed by the probation officer.” See id. at 626.\\n\\n\\n\\n 14\\n\\f Here, NCDPS initiated and supervised the warrantless search of Scott’s apartment.\\n\\nAlthough the Marshals Service organized Operation Spring Sweep, Thomas selected Scott\\n\\nfor a search after her NCDPS supervisor asked her to choose a few supervisees to be\\n\\nsearched as part of the Sweep. And a team of four NCDPS officers led the search team\\n\\ninto Scott’s apartment. Only after the NCDPS officers made initial contact with Scott did\\n\\nthey request that the rest of the search team — comprised of police officers and federal\\n\\nagents — enter Scott’s apartment to assist with the physical search of the premises.\\n\\nAdditionally, NCDPS officer Staley, the team leader, actually supervised the search of\\n\\nScott’s apartment. Because Thomas decided that Scott’s apartment should be searched and\\n\\nNCDPS officers initiated and supervised the search, Midgette compels the conclusion that\\n\\nthe participation of law enforcement officers in the search did not render it invalid.\\n\\n Scott also contends that the search was not reasonably related to his supervision\\n\\nbecause Thomas’s proffered reasons for deciding to search Scott’s apartment “do not hold\\n\\nup.” See Br. of Appellant 20. But Thomas’s two reasons for selecting Scott for a search\\n\\nare reasonably related to his post-release supervision. First, Thomas decided to search\\n\\nScott because she had suspicions regarding how he had obtained his “flashy” jewelry\\n\\nwithout a job. Though Scott’s mother later testified that the jewelry came from Scott’s\\n\\ndead brother, the record does not indicate that Thomas had any such knowledge when she\\n\\nselected Scott for a search. And a search of Scott’s apartment could certainly shed light on\\n\\nthe source of the jewelry and Scott’s employment status. The search based on the\\n\\nsuspicions surrounding the jewelry thus supported the purposes of two conditions of Scott’s\\n\\n\\n\\n 15\\n\\fsupervision — the requirement that he maintain employment and the requirement that he\\n\\nrefrain from engaging in new criminal conduct.\\n\\n Second, Thomas selected Scott for a search because he was about forty-five days\\n\\naway from the deadline for a mandatory search pursuant to NCDPS policy. That policy\\n\\nrequires that NCDPS conduct searches of validated gang members and those on\\n\\nsupervision for certain sexual offenses every 180 days. Scott asserts that he should not\\n\\nhave been subject to the 180-day search policy because he repeatedly told Thomas that he\\n\\nno longer associated with a gang. But Scott remained a validated gang member subject to\\n\\nthe 180-day policy because he declined to remove or cover his gang tattoos. And even if\\n\\nhe had not been a validated gang member, he would have been subject to the 180-day\\n\\npolicy because his supervision stemmed from an adjudication of guilt on a sexual offense.\\n\\nAdditionally, although Scott suggests that the search occurred too soon before the 180-day\\n\\nmark to be reasonably related to his supervision, NCDPS officers have discretion to decide\\n\\nprecisely when to conduct the mandatory search within each 180-day period. Because\\n\\nroutine searches of gang members and sexual offenders are required for those high-risk\\n\\nsupervisees, Thomas’s decision to search Scott’s apartment under the 180-day policy was\\n\\nreasonably related to his supervision.\\n\\n At bottom, the record supports the district court’s determination that the warrantless\\n\\nsearch of Scott’s apartment was not for the purpose of furthering general law enforcement\\n\\ngoals. Rather, NCDPS officers undertook the search to ensure Scott’s continued\\n\\ncompliance with the terms of his supervision agreement.\\n\\n\\n\\n 16\\n\\f C.\\n\\n Finally, we briefly address Scott’s attack on the warrantless search of his apartment\\n\\nfor lack of individualized suspicion of criminal activity. In the circumstances of this case\\n\\n— where the search complied with the statutory condition because it was reasonably related\\n\\nto Scott’s post-release supervision — our Midgette decision makes clear that no such\\n\\nindividualized suspicion is required. See 478 F.3d at 624 (observing that Midgette’s\\n\\nargument that the North Carolina probation statute was unconstitutional because it did not\\n\\nrequire reasonable suspicion “misunderstands Griffin’s ‘special needs’ rationale, which did\\n\\nnot make individualized suspicion the sine qua non of a valid probation scheme”). Because\\n\\nthe search of Scott’s apartment complied with the statutory condition, we conclude — in\\n\\naccordance with the Griffin decision — that no Fourth Amendment violation occurred. 5\\n\\n\\n\\n IV.\\n\\n Pursuant to the foregoing, we affirm the district court’s denial of Scott’s motion to\\n\\nsuppress.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 5\\n Having concluded that the search of Scott’s apartment did not violate the Fourth\\nAmendment under the framework established by the Supreme Court in Griffin, we decline\\nScott’s invitation to evaluate the constitutionality of the search under the framework\\nestablished by the Court in United States v. Knights, 534 U.S. 112 (2001) (applying\\ntraditional Fourth Amendment balancing test where warrantless search of probationer did\\nnot qualify as Griffin-type “special needs” search).\\n\\n 17\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4450330/\", \"author_raw\": \"KING, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"KING"},"judge2":{"kind":"string","value":"KEENAN"},"judge3":{"kind":"string","value":"JOSEPH R GOODWIN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"KING\": \", Circuit\", \"KEENAN\": \", Circuit\", \"R GOODWIN\": \", United States District\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4673077/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Javion Scott\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-10-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4440\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n\n v.\n\nJAVION SCOTT,\n\n Defendant – Appellant.\n\n\nAppeal from the United States District Court for the Eastern District of North Carolina, at\nRaleigh. Malcolm J. Howard, Senior District Judge. (5:17-cr-00136-H-1)\n\n\nArgued: September 18, 2019 Decided: October 25, 2019\n\n\nBefore KING and KEENAN, Circuit Judges, and Joseph R. GOODWIN, United States\nDistrict Judge for the Southern District of West Virginia, sitting by designation.\n\n\nAffirmed by published opinion. Judge King wrote the opinion, in which Judge Keenan\nand Judge Goodwin joined.\n\n\nARGUED: Jaclyn Lee DiLauro, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\nRaleigh, North Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE\nUNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G.\nAlan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\nDEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States\nAttorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE\nUNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.\n\fKING, Circuit Judge:\n\n Defendant Javion Scott pleaded guilty in the Eastern District of North Carolina to\n\npossession of a firearm after having been convicted of a felony, in contravention of 18\n\nU.S.C. § 922(g)(1). As part of a conditional guilty plea, Scott reserved his right to appeal\n\nthe denial of his motion to suppress the firearm evidence underlying his conviction. On\n\nappeal, he maintains that the firearm evidence was seized during an unconstitutional\n\nwarrantless search of his apartment.\n\n At the time of the contested search, Scott was a North Carolina post-release\n\nsupervisee. As part of his supervision, Scott was subject to a statutory search condition\n\n(the “statutory condition”) that authorized warrantless searches of his residence by a\n\nprobation officer. He was also subject to a search condition contained in his supervision\n\nagreement (the “agreement condition”) that authorized warrantless searches of his\n\nresidence by his assigned probation officer. Scott claims that the agreement condition —\n\nrather than the statutory condition — must control, and that his Fourth Amendment rights\n\nwere violated because his assigned probation officer did not attend the search of his\n\napartment. He also contends that, regardless of which condition controls, his Fourth\n\nAmendment rights were contravened because the search was conducted for purposes not\n\nreasonably related to his post-release supervision and without any individualized suspicion\n\nof criminal activity. As explained below, we reject Scott’s contentions and affirm the\n\ndistrict court’s denial of his motion to suppress.\n\n\n\n\n 2\n\f I.\n\n A.\n\n In June 2010, Scott was convicted in the Superior Court of Cumberland County,\n\nNorth Carolina, of violating North Carolina General Statute section 14-27.5(A), which\n\nresulted in an adjudication of guilt on a second-degree sexual offense. The state court\n\nsentenced Scott to a term of imprisonment ranging from 60 to 81 months. Upon his release,\n\nScott was placed on state post-release supervision, which the North Carolina Post-Release\n\nSupervision and Parole Commission (the “Commission”) administered.\n\n North Carolina General Statute section 15A-1368.4 governed Scott’s post-release\n\nsupervision. That statute lists a bevy of requirements, some mandatory and others\n\ndiscretionary. For example, section 15A-1368.4(b) — entitled “Required Condition” —\n\nmandates that the Commission impose an express condition forbidding supervisees from\n\ncommitting additional crimes while on supervision. Section 15A-1368.4(c), on the other\n\nhand, lists several discretionary conditions that the Commission “may impose” on any\n\nsupervisee.\n\n Scott’s adjudication of guilt subjected him to more required conditions than the\n\naverage post-release supervisee. Section 15A-1368.4(b1) — entitled “Additional Required\n\nConditions for Sex Offenders and Persons Convicted of Offenses Involving Physical,\n\nMental, or Sexual Abuse of a Minor” — lists eight additional controlling conditions that\n\napply to individuals, like Scott, who were convicted of certain sexual offenses. Scott’s\n\n\n\n\n 3\n\fappeal involves one of those additional controlling conditions — the statutory condition.\n\nThe statutory condition provides that a supervisee shall\n\n [s]ubmit at reasonable times to warrantless searches by a post-release\n supervision officer of the supervisee’s person and of the supervisee’s vehicle\n and premises while the supervisee is present, for purposes reasonably related\n to the post-release supervision, but the supervisee may not be required to\n submit to any other search that would otherwise be unlawful. For purposes\n of this subdivision, warrantless searches of the supervisee’s computer or\n other electronic mechanism which may contain electronic data shall be\n considered reasonably related to the post-release supervision.\n\nN.C. Gen. Stat. § 15A-1368.4(b1)(8) (emphasis added).\n\n In drafting Scott’s supervision agreement, however, the Commission failed to recite\n\nthe statutory condition verbatim. Instead, the Commission came up with the agreement\n\ncondition, which required that Scott “[s]ubmit at reasonable times to searches of my person,\n\npremises, or any vehicle under my control by my supervising officer for purposes\n\nreasonably related to my supervision.” See J.A. 38 (emphasis added). 1\n\n B.\n\n In November 2016, Courtney Thomas, a probation and parole officer with the North\n\nCarolina Department of Public Safety (“NCDPS”), took over supervision of Scott from\n\nanother NCDPS officer. 2 When Thomas began supervising Scott, he was classified as a\n\n\n\n 1\n Citations herein to “J.A.__” refer to the contents of the Joint Appendix filed by the\nparties in this appeal.\n 2\n In reviewing the denial of a motion to suppress, we “defer to the district court’s\nfactual findings and do not set them aside unless [they are] clearly erroneous.” United\nStates v. Stevenson, 396 F.3d 538, 541 (4th Cir. 2005). We thus accept the facts related in\nthe magistrate judge’s Memorandum and Recommendation, which the district court\n\n 4\n\fvalidated gang member due to his refusal to remove or cover gang-related tattoos. And\n\nThomas knew that Scott had previously violated his curfew and had been disrespectful to\n\nNCDPS officers. Although Thomas had no such issues with Scott, his failure to obtain\n\nemployment or enroll in continuing education classes bothered her. Thomas became\n\nconcerned when she later observed Scott wearing “flashy” things — a necklace, mouth\n\ngrill, watch, and “expensive looking” shoes — because she did not understand how Scott\n\ncould afford those luxuries without a job. See J.A. 300.\n\n At some point during Thomas’s supervision of Scott, NCDPS asked Thomas to\n\nidentify a few supervisees to be searched as part of Operation Spring Sweep, a multi-\n\nagency operation involving federal and state law enforcement agencies. The Sweep had\n\ntwo main purposes — to locate and arrest individuals with outstanding warrants or who\n\nhad absconded from NCDPS, and to conduct warrantless searches of supervisees subject\n\nto search conditions. Thomas decided that Scott should be searched as part of the Sweep\n\nbecause of her suspicions regarding his extravagant jewelry and because NCDPS policy\n\nmandated a search of Scott within the succeeding forty-five days. 3\n\n On March 29, 2017 — the second day of Operation Spring Sweep — a search team\n\narrived at Scott’s apartment in Fayetteville at approximately 7:20 a.m. NCDPS officer\n\n\n\n\nadopted by its Order denying Scott’s motion. We recite the facts in the light most favorable\nto the government. See United States v. Palmer, 820 F.3d 640, 644 (4th Cir. 2016).\n 3\n NCDPS policy requires a search of supervisees with actively validated gang\naffiliations at least every 180 days. And supervisees convicted of certain sexual offenses\nmust also be searched at least every 180 days. Scott fell into both categories.\n\n 5\n\fBecky Staley led the search team. She was accompanied by three other NCDPS officers,\n\nATF special agent Thomas Wishon, an additional ATF special agent, a deputy sheriff from\n\nthe Cumberland County Sheriff’s Office, a K-9 unit from the State Department of\n\nCorrections, an officer from the Fayetteville Police Department, and a trooper from the\n\nNorth Carolina Highway Patrol. Thomas did not attend the search, though she did attempt\n\nto delegate her authority to conduct warrantless searches of Scott to Staley.\n\n Upon arriving at the apartment building, the four NCDPS officers led the search\n\nteam up the stairs to Scott’s apartment. One of the NCDPS officers knocked on Scott’s\n\ndoor and announced the presence of the search team. The other three NCDPS officers\n\nstood directly outside the door on a landing at the top of the stairs. Wishon and his ATF\n\ncolleague stood on the staircase descending from the landing; the remaining officers stood\n\nbehind them. After the knock on the door, Staley heard noises coming from inside the\n\napartment. She then heard the occupants say that they were getting dressed. But several\n\nminutes passed without anyone opening the door. The NCDPS officer who had knocked\n\non Scott’s door then knocked again. This time, an unclothed Scott opened the apartment\n\ndoor. Scott’s girlfriend joined him at the door, wearing only her underwear. Staley advised\n\nScott that the officers were there to conduct a warrantless search of his apartment. Scott\n\npermitted the officers to enter his apartment, though he would have been arrested had he\n\ndenied them entry.\n\n The NCDPS officers entered the apartment first, handcuffing Scott and his girlfriend\n\nafter allowing Scott to use the restroom. ATF agent Wishon and the remaining law\n\nenforcement officers entered the apartment only after being told to do so by one of the\n\n 6\n\fNCDPS officers. Thereafter, the NCDPS and other officers began searching the apartment.\n\nSoon after the search began, Wishon noticed that a door leading out onto the apartment’s\n\nbalcony was slightly ajar. As Wishon stepped onto the balcony and looked over the railing,\n\nhe noticed two objects resembling firearms on the ground below. Upon further\n\ninvestigation, Wishon confirmed that the two objects he saw were indeed handguns. He\n\nalso located — within the immediate vicinity of the two firearms — a high-capacity\n\nmagazine, ammunition, and a purse that contained identification belonging to Scott’s\n\ngirlfriend.\n\n Shortly thereafter, Wishon discovered that one of the handguns had been reported\n\nstolen. Because Wishon found the firearms near the identification card of Scott’s\n\ngirlfriend, he decided to question her. After waiving her Miranda rights, Scott’s girlfriend\n\nadmitted to Wishon that she had purchased the stolen handgun from unknown men in\n\nFayetteville and that she had purchased the other handgun from a cousin. She told Wishon\n\nthat she obtained the firearms because of ongoing threats against Scott’s family and that\n\nshe kept them on a chair in the bedroom she shared with Scott. She also admitted that Scott\n\nhad previously pulled the slide back on the stolen handgun to “check it.” See J.A. 305.\n\n As Wishon conducted his investigation into the two firearms, the other members of\n\nthe search team continued to search Scott’s apartment. The officers located several items\n\nduring the search, including marijuana. Pursuant to the statutory condition, officers also\n\nsearched Scott’s cell phone after he provided the phone’s access code. The search of the\n\nphone revealed a photograph of Scott holding a handgun. But the handgun in the\n\nphotograph did not match either of the firearms Wishon had located and seized from the\n\n 7\n\fground outside the apartment. While searching for the handgun in the photograph, officers\n\ndiscovered that a Black Kia Optima located outside the apartment was registered to Scott.\n\nA search of the Kia revealed more marijuana and a third firearm that appeared to be the\n\nsame make and model as the handgun in the photograph on Scott’s cell phone. Federal law\n\nenforcement officers subsequently arrested Scott.\n\n C.\n\n On April 24, 2017, a grand jury in the Eastern District of North Carolina indicted\n\nScott for possession of a firearm after having been convicted of a felony, in contravention\n\nof 18 U.S.C. § 922(g)(1). Scott moved to suppress the evidence seized during the\n\nwarrantless search of his apartment (along with the evidence found in his automobile and\n\non his cell phone), asserting that the search team did not comply with the requirements of\n\nthe agreement condition because Thomas — his assigned probation officer — did not\n\nattend the search. Scott also contended that the warrantless search violated the\n\nrequirements of the statutory condition because the search was not reasonably related to\n\nhis supervision and because the search team lacked any individualized suspicion that he\n\nhad engaged in criminal activity.\n\n Approximately three months after Scott filed his motion to suppress, the magistrate\n\njudge conducted a suppression hearing in Greenville. At the hearing, the magistrate judge\n\nheard evidence from Thomas, Staley, Wishon, and Scott’s mother. Thomas, Staley, and\n\nWishon described the search of Scott’s apartment, explaining how Thomas had selected\n\nScott for the search and how Staley and Wishon had conducted their aspects of the search.\n\nIn seeking to justify Scott’s possession of the firearms, Scott’s mother testified about his\n\n 8\n\ftumultuous tenure in prison. And to undercut Thomas’s testimony regarding her suspicions\n\nabout Scott’s jewelry, Scott’s mother stated that the “flashy” jewelry likely belonged to\n\nScott’s deceased brother.\n\n The magistrate judge questioned the lawyers about the discrepancy between the\n\nlanguage of the statutory condition and that of the agreement condition. Scott’s lawyer\n\nasserted that the Commission’s decision to deviate from the specific terms of the statutory\n\ncondition in writing the agreement condition amounted to a controlling interpretation of\n\nthe ambiguous post-release supervision statute. The government disagreed, contending\n\nthat the statutory condition controlled.\n\n After considering the evidence and the arguments, the magistrate judge submitted\n\nher Memorandum and Recommendation to the district court, recommending that the\n\nmotion to suppress be denied. See United States v. Scott, No. 5:17-cr-00136 (E.D.N.C.\n\nDec. 20, 2017), ECF No. 43. The magistrate judge agreed with the government that the\n\nstatutory condition — not the agreement condition — controlled. The magistrate judge\n\nthen concluded that the search did not violate Scott’s Fourth Amendment rights because it\n\ncomplied with the statutory condition, in that it was conducted by NCDPS officers for\n\npurposes reasonably related to Scott’s post-release supervision. By its Order, the district\n\ncourt adopted the magistrate judge’s Memorandum and Recommendation, overruling\n\nScott’s objections. See United States v. Scott, No. 5:17-cr-00136 (E.D.N.C. Feb. 13, 2018),\n\nECF No. 53.\n\n Scott thereafter pleaded guilty to the single-count indictment, expressly reserving\n\nhis right to appeal the denial of his motion to suppress. The district court sentenced Scott\n\n 9\n\fto seventy-eight months in prison. Scott timely noted this appeal, and we possess\n\njurisdiction pursuant to 28 U.S.C. § 1291.\n\n\n\n II.\n\n In assessing a district court’s denial of a motion to suppress evidence, “we review\n\nthe court’s factual findings for clear error and its legal determinations de novo.” United\n\nStates v. Abramski, 706 F.3d 307, 313-14 (4th Cir. 2013).\n\n\n\n III.\n\n A.\n\n Scott first challenges the warrantless search of his apartment on the ground that\n\nThomas, his assigned probation officer, was not present during the search. In so doing,\n\nScott points to the agreement condition, which states that Scott must submit to warrantless\n\nsearches by his supervision officer — a deviation from the language of the statutory\n\ncondition, which only requires that a supervision officer conduct the search.\n\n Scott claims that by changing the wording of the statute in his supervision\n\nagreement, the Commission interpreted an ambiguous statute, and that its interpretation is\n\nentitled to deference under the Supreme Court’s decision in Chevron, U.S.A., Inc. v.\n\nNatural Resources Defense Council, Inc., 467 U.S. 837 (1984). But it is far from clear that\n\nthe Chevron deference principles can ever apply to state agency interpretations of state law.\n\nSee id. at 843-44 (“If Congress has explicitly left a gap for the agency to fill, there is an\n\nexpress delegation of authority to the agency to elucidate a specific provision of the statute\n\n 10\n\fby regulation.” (emphasis added)). Moreover, assuming Chevron applies in the state\n\ncontext, the Commission’s interpretation of the statutory condition would not be entitled\n\nto any deference, in that it does not bear any of the hallmarks of formal rulemaking or\n\nadjudication necessary to trigger Chevron deference. See United States v. Mead Corp.,\n\n533 U.S. 218, 226-27 (2001).\n\n Scott next contends that the agreement condition modified the statutory condition\n\nas it applied to him. Because, however, Scott’s post-release supervision stemmed from a\n\nsexual offense conviction, the statutory condition was mandated under state law, and the\n\nCommission was powerless to modify the statutory condition. See N.C. Gen. Stat. § 15A-\n\n1368.4(b1) (listing the statutory condition under the heading “Additional Required\n\nConditions for Sex Offenders and Persons Convicted of Offenses Involving Physical,\n\nMental, or Sexual Abuse of a Minor” and noting that the conditions specified in that\n\nprovision are “controlling conditions”). That the Commission had no authority to modify\n\nthe required statutory condition is further bolstered by the General Assembly’s decision to\n\ninclude in the post-release supervision statute a section entitled “Discretionary Conditions”\n\n— that the Commission “may impose.” See id. § 15A-1368.4(c).\n\n Finally, Scott urges that the district court should have at least read the language of\n\nthe statutory condition in concert with the language of the agreement condition. But the\n\ncourt could not have read the clear language of the statutory condition in concert with the\n\nlanguage in a supervision agreement drafted by the Commission. See Crespo v. Holder,\n\n631 F.3d 130, 133 (4th Cir. 2011) (“It is well established that when the statute’s language\n\nis plain, the sole function of the courts — at least where the disposition required by the text\n\n 11\n\fis not absurd — is to enforce it according to its terms.” (internal quotation marks omitted)).\n\nThe statutory condition specifically provides that warrantless searches of supervisees may\n\nbe undertaken by any post-release supervision officer. That ends our inquiry. Scott’s\n\nreliance on the agreement condition is therefore rejected.\n\n B.\n\n Scott next challenges the warrantless search of his apartment on the ground that it\n\ndid not comply with the statutory condition, as he contends that the search was not\n\nconducted for purposes reasonably related to his post-release supervision. Specifically,\n\nScott recognizes that the statutory condition is generally constitutional under the Supreme\n\nCourt’s decision in Griffin v. Wisconsin, 483 U.S. 868 (1987), but he asserts that the search\n\nof his apartment contravened the Fourth Amendment because it did not adhere to the\n\nstatutory condition.\n\n The Griffin Court approved the warrantless search of a probationer’s home\n\nconducted in accordance with a Wisconsin regulation authorizing such a search, reasoning\n\nthat the search was justified under the “special needs” doctrine. See 483 U.S. at 873-74\n\n(“A State’s operation of a probation system, like its operation of a school, government\n\noffice or prison, . . . presents ‘special needs’ beyond normal law enforcement that may\n\njustify departures from the usual warrant and probable-cause requirements.”). As the Court\n\nexplained, the warrantless search in Griffin “was ‘reasonable’ within the meaning of the\n\nFourth Amendment because it was conducted pursuant to a valid regulation governing\n\nprobationers.” Id. at 880. We subsequently relied on the Griffin decision to uphold a North\n\nCarolina probationer supervision statute that is nearly identical to the statutory condition\n\n 12\n\fat issue in this appeal, as well as a search conducted in conformity with the probation\n\nstatute. See United States v. Midgette, 478 F.3d 616, 622-24 (4th Cir. 2007). 4\n\n Scott’s contention that the warrantless search of his apartment breached the statutory\n\ncondition focuses on the statutory condition’s requirement that a supervision search be\n\nconducted “for purposes reasonably related to the post-release supervision.” See N.C. Gen.\n\nStat. § 15A-1368.4(b1)(8). As an initial matter, we must discern the meaning of the term\n\n“reasonably related,” as used in the statutory condition. In interpreting that term, “we must\n\ntake [the statute] as it has been interpreted by . . . state courts.” See Griffin, 483 U.S. at\n\n875. “Whether or not we would choose to interpret a similarly worded federal [provision]\n\nin [a similar] fashion, we are bound by the state court’s interpretation, which is relevant to\n\n[the] constitutional analysis only insofar as it fixes the meaning of the [statute].” Id.\n\n The state courts in North Carolina have not provided us with a comprehensive\n\ndefinition of “reasonably related,” as used in the statutory condition. Nevertheless, the\n\nCourt of Appeals of North Carolina recently discussed the General Assembly’s decision to\n\namend the probationer supervision statute, which contains nearly identical language to the\n\nstatutory condition. See State v. Powell, 800 S.E.2d 745 (N.C. Ct. App. 2017). The General\n\nAssembly, in amending the probation statute, replaced the term “reasonably related” with\n\n\n 4\n Although the Supreme Court’s Griffin decision and our Midgette opinion involved\nprobationers rather than post-release supervisees, such as Scott, the “special needs”\ndoctrine does not turn on any such distinction. Rather, the doctrine requires a\ndetermination of whether the statute “assure[s] that the searches conducted pursuant to it\nare justified by the State’s special needs.” See Midgette, 478 F.3d at 624.\n\n\n\n 13\n\f“directly related.” Id. at 751. In evaluating the effect of that amendment, the court of\n\nappeals observed that “‘[r]easonable’ is defined, in pertinent part, as ‘being or remaining\n\nwithin the bounds of reason.’” Id. (quoting Webster’s Third New International Dictionary\n\n1892 (1966)). Because the term “reasonably related” remains in the statutory condition,\n\nwe accord the Powell definition some weight in evaluating Scott’s contentions.\n\n Bearing that definition in mind, we proceed to assess Scott’s contention that the\n\nwarrantless search of his apartment was not reasonably related to his supervision. Scott\n\nasserts, inter alia, that the search had nothing to do with his supervision because it occurred\n\nas part of Operation Spring Sweep, which he says the U.S. Marshals Service organized for\n\ngeneralized law enforcement purposes. As evidence of that theory, Scott points to the large\n\nnumber of law enforcement agencies involved. He also identifies press releases in which\n\nlocal law enforcement officials thank the Marshals Service for spearheading the operation.\n\nBut pursuant to our precedent, the involvement of the Marshals Service and other law\n\nenforcement agencies does not render the warrantless search invalid.\n\n In Midgette, Judge Niemeyer explained that “[w]hile North Carolina’s probation\n\nlaw authorizes only probation officers to conduct warrantless searches, that authorization\n\ndoes not preclude the probation officer from obtaining help from the police department for\n\nthe purpose of physically conducting the search.” See 478 F.3d at 625-26. He further\n\nconcluded — after examining two North Carolina state court decisions — that a\n\nprobationer search would be valid even if a police officer had suggested the search, “so\n\nlong as the search is authorized and directed by the probation officer.” See id. at 626.\n\n\n\n 14\n\f Here, NCDPS initiated and supervised the warrantless search of Scott’s apartment.\n\nAlthough the Marshals Service organized Operation Spring Sweep, Thomas selected Scott\n\nfor a search after her NCDPS supervisor asked her to choose a few supervisees to be\n\nsearched as part of the Sweep. And a team of four NCDPS officers led the search team\n\ninto Scott’s apartment. Only after the NCDPS officers made initial contact with Scott did\n\nthey request that the rest of the search team — comprised of police officers and federal\n\nagents — enter Scott’s apartment to assist with the physical search of the premises.\n\nAdditionally, NCDPS officer Staley, the team leader, actually supervised the search of\n\nScott’s apartment. Because Thomas decided that Scott’s apartment should be searched and\n\nNCDPS officers initiated and supervised the search, Midgette compels the conclusion that\n\nthe participation of law enforcement officers in the search did not render it invalid.\n\n Scott also contends that the search was not reasonably related to his supervision\n\nbecause Thomas’s proffered reasons for deciding to search Scott’s apartment “do not hold\n\nup.” See Br. of Appellant 20. But Thomas’s two reasons for selecting Scott for a search\n\nare reasonably related to his post-release supervision. First, Thomas decided to search\n\nScott because she had suspicions regarding how he had obtained his “flashy” jewelry\n\nwithout a job. Though Scott’s mother later testified that the jewelry came from Scott’s\n\ndead brother, the record does not indicate that Thomas had any such knowledge when she\n\nselected Scott for a search. And a search of Scott’s apartment could certainly shed light on\n\nthe source of the jewelry and Scott’s employment status. The search based on the\n\nsuspicions surrounding the jewelry thus supported the purposes of two conditions of Scott’s\n\n\n\n 15\n\fsupervision — the requirement that he maintain employment and the requirement that he\n\nrefrain from engaging in new criminal conduct.\n\n Second, Thomas selected Scott for a search because he was about forty-five days\n\naway from the deadline for a mandatory search pursuant to NCDPS policy. That policy\n\nrequires that NCDPS conduct searches of validated gang members and those on\n\nsupervision for certain sexual offenses every 180 days. Scott asserts that he should not\n\nhave been subject to the 180-day search policy because he repeatedly told Thomas that he\n\nno longer associated with a gang. But Scott remained a validated gang member subject to\n\nthe 180-day policy because he declined to remove or cover his gang tattoos. And even if\n\nhe had not been a validated gang member, he would have been subject to the 180-day\n\npolicy because his supervision stemmed from an adjudication of guilt on a sexual offense.\n\nAdditionally, although Scott suggests that the search occurred too soon before the 180-day\n\nmark to be reasonably related to his supervision, NCDPS officers have discretion to decide\n\nprecisely when to conduct the mandatory search within each 180-day period. Because\n\nroutine searches of gang members and sexual offenders are required for those high-risk\n\nsupervisees, Thomas’s decision to search Scott’s apartment under the 180-day policy was\n\nreasonably related to his supervision.\n\n At bottom, the record supports the district court’s determination that the warrantless\n\nsearch of Scott’s apartment was not for the purpose of furthering general law enforcement\n\ngoals. Rather, NCDPS officers undertook the search to ensure Scott’s continued\n\ncompliance with the terms of his supervision agreement.\n\n\n\n 16\n\f C.\n\n Finally, we briefly address Scott’s attack on the warrantless search of his apartment\n\nfor lack of individualized suspicion of criminal activity. In the circumstances of this case\n\n— where the search complied with the statutory condition because it was reasonably related\n\nto Scott’s post-release supervision — our Midgette decision makes clear that no such\n\nindividualized suspicion is required. See 478 F.3d at 624 (observing that Midgette’s\n\nargument that the North Carolina probation statute was unconstitutional because it did not\n\nrequire reasonable suspicion “misunderstands Griffin’s ‘special needs’ rationale, which did\n\nnot make individualized suspicion the sine qua non of a valid probation scheme”). Because\n\nthe search of Scott’s apartment complied with the statutory condition, we conclude — in\n\naccordance with the Griffin decision — that no Fourth Amendment violation occurred. 5\n\n\n\n IV.\n\n Pursuant to the foregoing, we affirm the district court’s denial of Scott’s motion to\n\nsuppress.\n\n AFFIRMED\n\n\n\n\n 5\n Having concluded that the search of Scott’s apartment did not violate the Fourth\nAmendment under the framework established by the Supreme Court in Griffin, we decline\nScott’s invitation to evaluate the constitutionality of the search under the framework\nestablished by the Court in United States v. Knights, 534 U.S. 112 (2001) (applying\ntraditional Fourth Amendment balancing test where warrantless search of probationer did\nnot qualify as Griffin-type “special needs” search).\n\n 17\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Javion Scott\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-10-25\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4440\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff – Appellee,\\n\\n v.\\n\\nJAVION SCOTT,\\n\\n Defendant – Appellant.\\n\\n\\nAppeal from the United States District Court for the Eastern District of North Carolina, at\\nRaleigh. Malcolm J. Howard, Senior District Judge. (5:17-cr-00136-H-1)\\n\\n\\nArgued: September 18, 2019 Decided: October 25, 2019\\n\\n\\nBefore KING and KEENAN, Circuit Judges, and Joseph R. GOODWIN, United States\\nDistrict Judge for the Southern District of West Virginia, sitting by designation.\\n\\n\\nAffirmed by published opinion. Judge King wrote the opinion, in which Judge Keenan\\nand Judge Goodwin joined.\\n\\n\\nARGUED: Jaclyn Lee DiLauro, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\\nRaleigh, North Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE\\nUNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G.\\nAlan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States\\nAttorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE\\nUNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.\\n\\fKING, Circuit Judge:\\n\\n Defendant Javion Scott pleaded guilty in the Eastern District of North Carolina to\\n\\npossession of a firearm after having been convicted of a felony, in contravention of 18\\n\\nU.S.C. § 922(g)(1). As part of a conditional guilty plea, Scott reserved his right to appeal\\n\\nthe denial of his motion to suppress the firearm evidence underlying his conviction. On\\n\\nappeal, he maintains that the firearm evidence was seized during an unconstitutional\\n\\nwarrantless search of his apartment.\\n\\n At the time of the contested search, Scott was a North Carolina post-release\\n\\nsupervisee. As part of his supervision, Scott was subject to a statutory search condition\\n\\n(the “statutory condition”) that authorized warrantless searches of his residence by a\\n\\nprobation officer. He was also subject to a search condition contained in his supervision\\n\\nagreement (the “agreement condition”) that authorized warrantless searches of his\\n\\nresidence by his assigned probation officer. Scott claims that the agreement condition —\\n\\nrather than the statutory condition — must control, and that his Fourth Amendment rights\\n\\nwere violated because his assigned probation officer did not attend the search of his\\n\\napartment. He also contends that, regardless of which condition controls, his Fourth\\n\\nAmendment rights were contravened because the search was conducted for purposes not\\n\\nreasonably related to his post-release supervision and without any individualized suspicion\\n\\nof criminal activity. As explained below, we reject Scott’s contentions and affirm the\\n\\ndistrict court’s denial of his motion to suppress.\\n\\n\\n\\n\\n 2\\n\\f I.\\n\\n A.\\n\\n In June 2010, Scott was convicted in the Superior Court of Cumberland County,\\n\\nNorth Carolina, of violating North Carolina General Statute section 14-27.5(A), which\\n\\nresulted in an adjudication of guilt on a second-degree sexual offense. The state court\\n\\nsentenced Scott to a term of imprisonment ranging from 60 to 81 months. Upon his release,\\n\\nScott was placed on state post-release supervision, which the North Carolina Post-Release\\n\\nSupervision and Parole Commission (the “Commission”) administered.\\n\\n North Carolina General Statute section 15A-1368.4 governed Scott’s post-release\\n\\nsupervision. That statute lists a bevy of requirements, some mandatory and others\\n\\ndiscretionary. For example, section 15A-1368.4(b) — entitled “Required Condition” —\\n\\nmandates that the Commission impose an express condition forbidding supervisees from\\n\\ncommitting additional crimes while on supervision. Section 15A-1368.4(c), on the other\\n\\nhand, lists several discretionary conditions that the Commission “may impose” on any\\n\\nsupervisee.\\n\\n Scott’s adjudication of guilt subjected him to more required conditions than the\\n\\naverage post-release supervisee. Section 15A-1368.4(b1) — entitled “Additional Required\\n\\nConditions for Sex Offenders and Persons Convicted of Offenses Involving Physical,\\n\\nMental, or Sexual Abuse of a Minor” — lists eight additional controlling conditions that\\n\\napply to individuals, like Scott, who were convicted of certain sexual offenses. Scott’s\\n\\n\\n\\n\\n 3\\n\\fappeal involves one of those additional controlling conditions — the statutory condition.\\n\\nThe statutory condition provides that a supervisee shall\\n\\n [s]ubmit at reasonable times to warrantless searches by a post-release\\n supervision officer of the supervisee’s person and of the supervisee’s vehicle\\n and premises while the supervisee is present, for purposes reasonably related\\n to the post-release supervision, but the supervisee may not be required to\\n submit to any other search that would otherwise be unlawful. For purposes\\n of this subdivision, warrantless searches of the supervisee’s computer or\\n other electronic mechanism which may contain electronic data shall be\\n considered reasonably related to the post-release supervision.\\n\\nN.C. Gen. Stat. § 15A-1368.4(b1)(8) (emphasis added).\\n\\n In drafting Scott’s supervision agreement, however, the Commission failed to recite\\n\\nthe statutory condition verbatim. Instead, the Commission came up with the agreement\\n\\ncondition, which required that Scott “[s]ubmit at reasonable times to searches of my person,\\n\\npremises, or any vehicle under my control by my supervising officer for purposes\\n\\nreasonably related to my supervision.” See J.A. 38 (emphasis added). 1\\n\\n B.\\n\\n In November 2016, Courtney Thomas, a probation and parole officer with the North\\n\\nCarolina Department of Public Safety (“NCDPS”), took over supervision of Scott from\\n\\nanother NCDPS officer. 2 When Thomas began supervising Scott, he was classified as a\\n\\n\\n\\n 1\\n Citations herein to “J.A.__” refer to the contents of the Joint Appendix filed by the\\nparties in this appeal.\\n 2\\n In reviewing the denial of a motion to suppress, we “defer to the district court’s\\nfactual findings and do not set them aside unless [they are] clearly erroneous.” United\\nStates v. Stevenson, 396 F.3d 538, 541 (4th Cir. 2005). We thus accept the facts related in\\nthe magistrate judge’s Memorandum and Recommendation, which the district court\\n\\n 4\\n\\fvalidated gang member due to his refusal to remove or cover gang-related tattoos. And\\n\\nThomas knew that Scott had previously violated his curfew and had been disrespectful to\\n\\nNCDPS officers. Although Thomas had no such issues with Scott, his failure to obtain\\n\\nemployment or enroll in continuing education classes bothered her. Thomas became\\n\\nconcerned when she later observed Scott wearing “flashy” things — a necklace, mouth\\n\\ngrill, watch, and “expensive looking” shoes — because she did not understand how Scott\\n\\ncould afford those luxuries without a job. See J.A. 300.\\n\\n At some point during Thomas’s supervision of Scott, NCDPS asked Thomas to\\n\\nidentify a few supervisees to be searched as part of Operation Spring Sweep, a multi-\\n\\nagency operation involving federal and state law enforcement agencies. The Sweep had\\n\\ntwo main purposes — to locate and arrest individuals with outstanding warrants or who\\n\\nhad absconded from NCDPS, and to conduct warrantless searches of supervisees subject\\n\\nto search conditions. Thomas decided that Scott should be searched as part of the Sweep\\n\\nbecause of her suspicions regarding his extravagant jewelry and because NCDPS policy\\n\\nmandated a search of Scott within the succeeding forty-five days. 3\\n\\n On March 29, 2017 — the second day of Operation Spring Sweep — a search team\\n\\narrived at Scott’s apartment in Fayetteville at approximately 7:20 a.m. NCDPS officer\\n\\n\\n\\n\\nadopted by its Order denying Scott’s motion. We recite the facts in the light most favorable\\nto the government. See United States v. Palmer, 820 F.3d 640, 644 (4th Cir. 2016).\\n 3\\n NCDPS policy requires a search of supervisees with actively validated gang\\naffiliations at least every 180 days. And supervisees convicted of certain sexual offenses\\nmust also be searched at least every 180 days. Scott fell into both categories.\\n\\n 5\\n\\fBecky Staley led the search team. She was accompanied by three other NCDPS officers,\\n\\nATF special agent Thomas Wishon, an additional ATF special agent, a deputy sheriff from\\n\\nthe Cumberland County Sheriff’s Office, a K-9 unit from the State Department of\\n\\nCorrections, an officer from the Fayetteville Police Department, and a trooper from the\\n\\nNorth Carolina Highway Patrol. Thomas did not attend the search, though she did attempt\\n\\nto delegate her authority to conduct warrantless searches of Scott to Staley.\\n\\n Upon arriving at the apartment building, the four NCDPS officers led the search\\n\\nteam up the stairs to Scott’s apartment. One of the NCDPS officers knocked on Scott’s\\n\\ndoor and announced the presence of the search team. The other three NCDPS officers\\n\\nstood directly outside the door on a landing at the top of the stairs. Wishon and his ATF\\n\\ncolleague stood on the staircase descending from the landing; the remaining officers stood\\n\\nbehind them. After the knock on the door, Staley heard noises coming from inside the\\n\\napartment. She then heard the occupants say that they were getting dressed. But several\\n\\nminutes passed without anyone opening the door. The NCDPS officer who had knocked\\n\\non Scott’s door then knocked again. This time, an unclothed Scott opened the apartment\\n\\ndoor. Scott’s girlfriend joined him at the door, wearing only her underwear. Staley advised\\n\\nScott that the officers were there to conduct a warrantless search of his apartment. Scott\\n\\npermitted the officers to enter his apartment, though he would have been arrested had he\\n\\ndenied them entry.\\n\\n The NCDPS officers entered the apartment first, handcuffing Scott and his girlfriend\\n\\nafter allowing Scott to use the restroom. ATF agent Wishon and the remaining law\\n\\nenforcement officers entered the apartment only after being told to do so by one of the\\n\\n 6\\n\\fNCDPS officers. Thereafter, the NCDPS and other officers began searching the apartment.\\n\\nSoon after the search began, Wishon noticed that a door leading out onto the apartment’s\\n\\nbalcony was slightly ajar. As Wishon stepped onto the balcony and looked over the railing,\\n\\nhe noticed two objects resembling firearms on the ground below. Upon further\\n\\ninvestigation, Wishon confirmed that the two objects he saw were indeed handguns. He\\n\\nalso located — within the immediate vicinity of the two firearms — a high-capacity\\n\\nmagazine, ammunition, and a purse that contained identification belonging to Scott’s\\n\\ngirlfriend.\\n\\n Shortly thereafter, Wishon discovered that one of the handguns had been reported\\n\\nstolen. Because Wishon found the firearms near the identification card of Scott’s\\n\\ngirlfriend, he decided to question her. After waiving her Miranda rights, Scott’s girlfriend\\n\\nadmitted to Wishon that she had purchased the stolen handgun from unknown men in\\n\\nFayetteville and that she had purchased the other handgun from a cousin. She told Wishon\\n\\nthat she obtained the firearms because of ongoing threats against Scott’s family and that\\n\\nshe kept them on a chair in the bedroom she shared with Scott. She also admitted that Scott\\n\\nhad previously pulled the slide back on the stolen handgun to “check it.” See J.A. 305.\\n\\n As Wishon conducted his investigation into the two firearms, the other members of\\n\\nthe search team continued to search Scott’s apartment. The officers located several items\\n\\nduring the search, including marijuana. Pursuant to the statutory condition, officers also\\n\\nsearched Scott’s cell phone after he provided the phone’s access code. The search of the\\n\\nphone revealed a photograph of Scott holding a handgun. But the handgun in the\\n\\nphotograph did not match either of the firearms Wishon had located and seized from the\\n\\n 7\\n\\fground outside the apartment. While searching for the handgun in the photograph, officers\\n\\ndiscovered that a Black Kia Optima located outside the apartment was registered to Scott.\\n\\nA search of the Kia revealed more marijuana and a third firearm that appeared to be the\\n\\nsame make and model as the handgun in the photograph on Scott’s cell phone. Federal law\\n\\nenforcement officers subsequently arrested Scott.\\n\\n C.\\n\\n On April 24, 2017, a grand jury in the Eastern District of North Carolina indicted\\n\\nScott for possession of a firearm after having been convicted of a felony, in contravention\\n\\nof 18 U.S.C. § 922(g)(1). Scott moved to suppress the evidence seized during the\\n\\nwarrantless search of his apartment (along with the evidence found in his automobile and\\n\\non his cell phone), asserting that the search team did not comply with the requirements of\\n\\nthe agreement condition because Thomas — his assigned probation officer — did not\\n\\nattend the search. Scott also contended that the warrantless search violated the\\n\\nrequirements of the statutory condition because the search was not reasonably related to\\n\\nhis supervision and because the search team lacked any individualized suspicion that he\\n\\nhad engaged in criminal activity.\\n\\n Approximately three months after Scott filed his motion to suppress, the magistrate\\n\\njudge conducted a suppression hearing in Greenville. At the hearing, the magistrate judge\\n\\nheard evidence from Thomas, Staley, Wishon, and Scott’s mother. Thomas, Staley, and\\n\\nWishon described the search of Scott’s apartment, explaining how Thomas had selected\\n\\nScott for the search and how Staley and Wishon had conducted their aspects of the search.\\n\\nIn seeking to justify Scott’s possession of the firearms, Scott’s mother testified about his\\n\\n 8\\n\\ftumultuous tenure in prison. And to undercut Thomas’s testimony regarding her suspicions\\n\\nabout Scott’s jewelry, Scott’s mother stated that the “flashy” jewelry likely belonged to\\n\\nScott’s deceased brother.\\n\\n The magistrate judge questioned the lawyers about the discrepancy between the\\n\\nlanguage of the statutory condition and that of the agreement condition. Scott’s lawyer\\n\\nasserted that the Commission’s decision to deviate from the specific terms of the statutory\\n\\ncondition in writing the agreement condition amounted to a controlling interpretation of\\n\\nthe ambiguous post-release supervision statute. The government disagreed, contending\\n\\nthat the statutory condition controlled.\\n\\n After considering the evidence and the arguments, the magistrate judge submitted\\n\\nher Memorandum and Recommendation to the district court, recommending that the\\n\\nmotion to suppress be denied. See United States v. Scott, No. 5:17-cr-00136 (E.D.N.C.\\n\\nDec. 20, 2017), ECF No. 43. The magistrate judge agreed with the government that the\\n\\nstatutory condition — not the agreement condition — controlled. The magistrate judge\\n\\nthen concluded that the search did not violate Scott’s Fourth Amendment rights because it\\n\\ncomplied with the statutory condition, in that it was conducted by NCDPS officers for\\n\\npurposes reasonably related to Scott’s post-release supervision. By its Order, the district\\n\\ncourt adopted the magistrate judge’s Memorandum and Recommendation, overruling\\n\\nScott’s objections. See United States v. Scott, No. 5:17-cr-00136 (E.D.N.C. Feb. 13, 2018),\\n\\nECF No. 53.\\n\\n Scott thereafter pleaded guilty to the single-count indictment, expressly reserving\\n\\nhis right to appeal the denial of his motion to suppress. The district court sentenced Scott\\n\\n 9\\n\\fto seventy-eight months in prison. Scott timely noted this appeal, and we possess\\n\\njurisdiction pursuant to 28 U.S.C. § 1291.\\n\\n\\n\\n II.\\n\\n In assessing a district court’s denial of a motion to suppress evidence, “we review\\n\\nthe court’s factual findings for clear error and its legal determinations de novo.” United\\n\\nStates v. Abramski, 706 F.3d 307, 313-14 (4th Cir. 2013).\\n\\n\\n\\n III.\\n\\n A.\\n\\n Scott first challenges the warrantless search of his apartment on the ground that\\n\\nThomas, his assigned probation officer, was not present during the search. In so doing,\\n\\nScott points to the agreement condition, which states that Scott must submit to warrantless\\n\\nsearches by his supervision officer — a deviation from the language of the statutory\\n\\ncondition, which only requires that a supervision officer conduct the search.\\n\\n Scott claims that by changing the wording of the statute in his supervision\\n\\nagreement, the Commission interpreted an ambiguous statute, and that its interpretation is\\n\\nentitled to deference under the Supreme Court’s decision in Chevron, U.S.A., Inc. v.\\n\\nNatural Resources Defense Council, Inc., 467 U.S. 837 (1984). But it is far from clear that\\n\\nthe Chevron deference principles can ever apply to state agency interpretations of state law.\\n\\nSee id. at 843-44 (“If Congress has explicitly left a gap for the agency to fill, there is an\\n\\nexpress delegation of authority to the agency to elucidate a specific provision of the statute\\n\\n 10\\n\\fby regulation.” (emphasis added)). Moreover, assuming Chevron applies in the state\\n\\ncontext, the Commission’s interpretation of the statutory condition would not be entitled\\n\\nto any deference, in that it does not bear any of the hallmarks of formal rulemaking or\\n\\nadjudication necessary to trigger Chevron deference. See United States v. Mead Corp.,\\n\\n533 U.S. 218, 226-27 (2001).\\n\\n Scott next contends that the agreement condition modified the statutory condition\\n\\nas it applied to him. Because, however, Scott’s post-release supervision stemmed from a\\n\\nsexual offense conviction, the statutory condition was mandated under state law, and the\\n\\nCommission was powerless to modify the statutory condition. See N.C. Gen. Stat. § 15A-\\n\\n1368.4(b1) (listing the statutory condition under the heading “Additional Required\\n\\nConditions for Sex Offenders and Persons Convicted of Offenses Involving Physical,\\n\\nMental, or Sexual Abuse of a Minor” and noting that the conditions specified in that\\n\\nprovision are “controlling conditions”). That the Commission had no authority to modify\\n\\nthe required statutory condition is further bolstered by the General Assembly’s decision to\\n\\ninclude in the post-release supervision statute a section entitled “Discretionary Conditions”\\n\\n— that the Commission “may impose.” See id. § 15A-1368.4(c).\\n\\n Finally, Scott urges that the district court should have at least read the language of\\n\\nthe statutory condition in concert with the language of the agreement condition. But the\\n\\ncourt could not have read the clear language of the statutory condition in concert with the\\n\\nlanguage in a supervision agreement drafted by the Commission. See Crespo v. Holder,\\n\\n631 F.3d 130, 133 (4th Cir. 2011) (“It is well established that when the statute’s language\\n\\nis plain, the sole function of the courts — at least where the disposition required by the text\\n\\n 11\\n\\fis not absurd — is to enforce it according to its terms.” (internal quotation marks omitted)).\\n\\nThe statutory condition specifically provides that warrantless searches of supervisees may\\n\\nbe undertaken by any post-release supervision officer. That ends our inquiry. Scott’s\\n\\nreliance on the agreement condition is therefore rejected.\\n\\n B.\\n\\n Scott next challenges the warrantless search of his apartment on the ground that it\\n\\ndid not comply with the statutory condition, as he contends that the search was not\\n\\nconducted for purposes reasonably related to his post-release supervision. Specifically,\\n\\nScott recognizes that the statutory condition is generally constitutional under the Supreme\\n\\nCourt’s decision in Griffin v. Wisconsin, 483 U.S. 868 (1987), but he asserts that the search\\n\\nof his apartment contravened the Fourth Amendment because it did not adhere to the\\n\\nstatutory condition.\\n\\n The Griffin Court approved the warrantless search of a probationer’s home\\n\\nconducted in accordance with a Wisconsin regulation authorizing such a search, reasoning\\n\\nthat the search was justified under the “special needs” doctrine. See 483 U.S. at 873-74\\n\\n(“A State’s operation of a probation system, like its operation of a school, government\\n\\noffice or prison, . . . presents ‘special needs’ beyond normal law enforcement that may\\n\\njustify departures from the usual warrant and probable-cause requirements.”). As the Court\\n\\nexplained, the warrantless search in Griffin “was ‘reasonable’ within the meaning of the\\n\\nFourth Amendment because it was conducted pursuant to a valid regulation governing\\n\\nprobationers.” Id. at 880. We subsequently relied on the Griffin decision to uphold a North\\n\\nCarolina probationer supervision statute that is nearly identical to the statutory condition\\n\\n 12\\n\\fat issue in this appeal, as well as a search conducted in conformity with the probation\\n\\nstatute. See United States v. Midgette, 478 F.3d 616, 622-24 (4th Cir. 2007). 4\\n\\n Scott’s contention that the warrantless search of his apartment breached the statutory\\n\\ncondition focuses on the statutory condition’s requirement that a supervision search be\\n\\nconducted “for purposes reasonably related to the post-release supervision.” See N.C. Gen.\\n\\nStat. § 15A-1368.4(b1)(8). As an initial matter, we must discern the meaning of the term\\n\\n“reasonably related,” as used in the statutory condition. In interpreting that term, “we must\\n\\ntake [the statute] as it has been interpreted by . . . state courts.” See Griffin, 483 U.S. at\\n\\n875. “Whether or not we would choose to interpret a similarly worded federal [provision]\\n\\nin [a similar] fashion, we are bound by the state court’s interpretation, which is relevant to\\n\\n[the] constitutional analysis only insofar as it fixes the meaning of the [statute].” Id.\\n\\n The state courts in North Carolina have not provided us with a comprehensive\\n\\ndefinition of “reasonably related,” as used in the statutory condition. Nevertheless, the\\n\\nCourt of Appeals of North Carolina recently discussed the General Assembly’s decision to\\n\\namend the probationer supervision statute, which contains nearly identical language to the\\n\\nstatutory condition. See State v. Powell, 800 S.E.2d 745 (N.C. Ct. App. 2017). The General\\n\\nAssembly, in amending the probation statute, replaced the term “reasonably related” with\\n\\n\\n 4\\n Although the Supreme Court’s Griffin decision and our Midgette opinion involved\\nprobationers rather than post-release supervisees, such as Scott, the “special needs”\\ndoctrine does not turn on any such distinction. Rather, the doctrine requires a\\ndetermination of whether the statute “assure[s] that the searches conducted pursuant to it\\nare justified by the State’s special needs.” See Midgette, 478 F.3d at 624.\\n\\n\\n\\n 13\\n\\f“directly related.” Id. at 751. In evaluating the effect of that amendment, the court of\\n\\nappeals observed that “‘[r]easonable’ is defined, in pertinent part, as ‘being or remaining\\n\\nwithin the bounds of reason.’” Id. (quoting Webster’s Third New International Dictionary\\n\\n1892 (1966)). Because the term “reasonably related” remains in the statutory condition,\\n\\nwe accord the Powell definition some weight in evaluating Scott’s contentions.\\n\\n Bearing that definition in mind, we proceed to assess Scott’s contention that the\\n\\nwarrantless search of his apartment was not reasonably related to his supervision. Scott\\n\\nasserts, inter alia, that the search had nothing to do with his supervision because it occurred\\n\\nas part of Operation Spring Sweep, which he says the U.S. Marshals Service organized for\\n\\ngeneralized law enforcement purposes. As evidence of that theory, Scott points to the large\\n\\nnumber of law enforcement agencies involved. He also identifies press releases in which\\n\\nlocal law enforcement officials thank the Marshals Service for spearheading the operation.\\n\\nBut pursuant to our precedent, the involvement of the Marshals Service and other law\\n\\nenforcement agencies does not render the warrantless search invalid.\\n\\n In Midgette, Judge Niemeyer explained that “[w]hile North Carolina’s probation\\n\\nlaw authorizes only probation officers to conduct warrantless searches, that authorization\\n\\ndoes not preclude the probation officer from obtaining help from the police department for\\n\\nthe purpose of physically conducting the search.” See 478 F.3d at 625-26. He further\\n\\nconcluded — after examining two North Carolina state court decisions — that a\\n\\nprobationer search would be valid even if a police officer had suggested the search, “so\\n\\nlong as the search is authorized and directed by the probation officer.” See id. at 626.\\n\\n\\n\\n 14\\n\\f Here, NCDPS initiated and supervised the warrantless search of Scott’s apartment.\\n\\nAlthough the Marshals Service organized Operation Spring Sweep, Thomas selected Scott\\n\\nfor a search after her NCDPS supervisor asked her to choose a few supervisees to be\\n\\nsearched as part of the Sweep. And a team of four NCDPS officers led the search team\\n\\ninto Scott’s apartment. Only after the NCDPS officers made initial contact with Scott did\\n\\nthey request that the rest of the search team — comprised of police officers and federal\\n\\nagents — enter Scott’s apartment to assist with the physical search of the premises.\\n\\nAdditionally, NCDPS officer Staley, the team leader, actually supervised the search of\\n\\nScott’s apartment. Because Thomas decided that Scott’s apartment should be searched and\\n\\nNCDPS officers initiated and supervised the search, Midgette compels the conclusion that\\n\\nthe participation of law enforcement officers in the search did not render it invalid.\\n\\n Scott also contends that the search was not reasonably related to his supervision\\n\\nbecause Thomas’s proffered reasons for deciding to search Scott’s apartment “do not hold\\n\\nup.” See Br. of Appellant 20. But Thomas’s two reasons for selecting Scott for a search\\n\\nare reasonably related to his post-release supervision. First, Thomas decided to search\\n\\nScott because she had suspicions regarding how he had obtained his “flashy” jewelry\\n\\nwithout a job. Though Scott’s mother later testified that the jewelry came from Scott’s\\n\\ndead brother, the record does not indicate that Thomas had any such knowledge when she\\n\\nselected Scott for a search. And a search of Scott’s apartment could certainly shed light on\\n\\nthe source of the jewelry and Scott’s employment status. The search based on the\\n\\nsuspicions surrounding the jewelry thus supported the purposes of two conditions of Scott’s\\n\\n\\n\\n 15\\n\\fsupervision — the requirement that he maintain employment and the requirement that he\\n\\nrefrain from engaging in new criminal conduct.\\n\\n Second, Thomas selected Scott for a search because he was about forty-five days\\n\\naway from the deadline for a mandatory search pursuant to NCDPS policy. That policy\\n\\nrequires that NCDPS conduct searches of validated gang members and those on\\n\\nsupervision for certain sexual offenses every 180 days. Scott asserts that he should not\\n\\nhave been subject to the 180-day search policy because he repeatedly told Thomas that he\\n\\nno longer associated with a gang. But Scott remained a validated gang member subject to\\n\\nthe 180-day policy because he declined to remove or cover his gang tattoos. And even if\\n\\nhe had not been a validated gang member, he would have been subject to the 180-day\\n\\npolicy because his supervision stemmed from an adjudication of guilt on a sexual offense.\\n\\nAdditionally, although Scott suggests that the search occurred too soon before the 180-day\\n\\nmark to be reasonably related to his supervision, NCDPS officers have discretion to decide\\n\\nprecisely when to conduct the mandatory search within each 180-day period. Because\\n\\nroutine searches of gang members and sexual offenders are required for those high-risk\\n\\nsupervisees, Thomas’s decision to search Scott’s apartment under the 180-day policy was\\n\\nreasonably related to his supervision.\\n\\n At bottom, the record supports the district court’s determination that the warrantless\\n\\nsearch of Scott’s apartment was not for the purpose of furthering general law enforcement\\n\\ngoals. Rather, NCDPS officers undertook the search to ensure Scott’s continued\\n\\ncompliance with the terms of his supervision agreement.\\n\\n\\n\\n 16\\n\\f C.\\n\\n Finally, we briefly address Scott’s attack on the warrantless search of his apartment\\n\\nfor lack of individualized suspicion of criminal activity. In the circumstances of this case\\n\\n— where the search complied with the statutory condition because it was reasonably related\\n\\nto Scott’s post-release supervision — our Midgette decision makes clear that no such\\n\\nindividualized suspicion is required. See 478 F.3d at 624 (observing that Midgette’s\\n\\nargument that the North Carolina probation statute was unconstitutional because it did not\\n\\nrequire reasonable suspicion “misunderstands Griffin’s ‘special needs’ rationale, which did\\n\\nnot make individualized suspicion the sine qua non of a valid probation scheme”). Because\\n\\nthe search of Scott’s apartment complied with the statutory condition, we conclude — in\\n\\naccordance with the Griffin decision — that no Fourth Amendment violation occurred. 5\\n\\n\\n\\n IV.\\n\\n Pursuant to the foregoing, we affirm the district court’s denial of Scott’s motion to\\n\\nsuppress.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 5\\n Having concluded that the search of Scott’s apartment did not violate the Fourth\\nAmendment under the framework established by the Supreme Court in Griffin, we decline\\nScott’s invitation to evaluate the constitutionality of the search under the framework\\nestablished by the Court in United States v. Knights, 534 U.S. 112 (2001) (applying\\ntraditional Fourth Amendment balancing test where warrantless search of probationer did\\nnot qualify as Griffin-type “special needs” search).\\n\\n 17\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4573,"cells":{"id":{"kind":"number","value":4673893,"string":"4,673,893"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Planned Parenthood v. Joshua Baker"},"decision_date":{"kind":"string","value":"2019-10-29"},"docket_number":{"kind":"string","value":"18-2133"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before WILKINSON, WYNN, and RICHARDSON, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"WILKINSON, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-2133\\n\\n\\nPLANNED PARENTHOOD SOUTH ATLANTIC; JULIE EDWARDS, on her\\nbehalf and on behalf of all others similarly situated,\\n\\n Plaintiffs – Appellees,\\n\\nv.\\n\\nJOSHUA BAKER, in his official capacity as Director, South Carolina Department\\nof Health and Human Services,\\n\\n Defendant – Appellant.\\n\\n------------------------------\\n\\nACCESS REPRODUCTIVE CARE-SOUTHEAST; AMERICAN ACADEMY OF\\nPEDIATRICS; AMERICAN COLLEGE OF OBSTETRICIANS AND\\nGYNECOLOGISTS; AMERICAN COLLEGE OF PHYSICIANS; AMERICAN\\nMEDICAL ASSOCIATION; CENTER FOR REPRODUCTIVE RIGHTS; IPAS;\\nIN OUR OWN VOICE: NATIONAL BLACK WOMEN’S REPRODUCTIVE\\nJUSTICE AGENDA; NATIONAL ASIAN PACIFIC AMERICAN WOMEN’S\\nFORUM; NATIONAL HEALTH LAW PROGRAM; NATIONAL LATINA\\nINSTITUTE FOR REPRODUCTIVE HEALTH; SEXUALITY INFORMATION\\nAND EDUCATION COUNCIL OF THE UNITED STATES; SOCIETY FOR\\nADOLESCENT HEALTH AND MEDICINE; SOCIETY FOR MATERNAL\\nFETAL MEDICINE; WOMEN’S RIGHTS AND EMPOWERMENT NETWORK,\\n\\n Amici Supporting Appellee.\\n\\n\\n\\nAppeal from the United States District Court for the District of South Carolina, at\\nColumbia. Mary G. Lewis, District Judge. (3:18-cv-02078-MGL)\\n\\nArgued: September 20, 2019 Decided: October 29, 2019\\n\\n\\nBefore WILKINSON, WYNN, and RICHARDSON, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Wynn\\nand Judge Richardson joined. Judge Richardson wrote a concurring opinion.\\n\\n\\nARGUED: Kelly McPherson Jolley, JOLLEY LAW GROUP, LLC, Columbia, South\\nCarolina, for Appellant. Alice Joanna Clapman, PLANNED PARENTHOOD\\nFEDERATION OF AMERICA, Washington, D.C., for Appellees. ON BRIEF: Ariail B.\\nKirk, JOLLEY LAW GROUP, LLC, Columbia, South Carolina, for Appellant. M. Malissa\\nBurnette, Kathleen McDaniel, BURNETTE, SHUTT & MCDANIEL, PA, Columbia,\\nSouth Carolina, for Appellees. Jane Liu, Mariah Lindsay, NATIONAL ASIAN PACIFIC\\nAMERICAN WOMEN’S FORUM, Washington, D.C.; Julie Rikelman, Pilar Herrero,\\nAmy Myrick, Carolina Van Der Mensbrugghe, CENTER FOR REPRODUCTIVE\\nRIGHTS, New York , New York, for Amici Access Reproductive Care-Southeast, Center\\nfor Reproductive Rights, In Our Own Voice: National Black Women’s Reproductive\\nJustice Agenda, National Asian Pacific American Women’s Forum, National Latina\\nInstitute for Reproductive Health, and Women’s Rights and Empowerment Network.\\nJanice M. Mac Avoy, Andrew B. Cashmore, Alexandra Verdi, FRIED, FRANK, HARRIS,\\nSHRIVER & JACOBSON LLP, New York, New York, for Amici American College of\\nObstetricians and Gynecologists, American Medical Association, Society for Maternal\\nFetal Medicine, American Academy of Pediatrics, American College of Physicians, and\\nSociety for Adolescent Health and Medicine. Martha Jane Perkins, Sarah Jane Somers,\\nNATIONAL HEALTH LAW PROGRAM, Carrboro, North Carolina, for Amici National\\nHealth Law Program, IPAS, and Sexuality Information and Education Council of the\\nUnited States.\\n\\n\\n\\n\\n 2\\n\\nWILKINSON, Circuit Judge:\\n\\n This case raises a question of statutory construction. We ask whether, and on what\\n\\nbasis, the Medicaid Act’s free-choice-of-provider provision affords a private right of action\\n\\nto challenge a state’s exclusion of a healthcare provider from its Medicaid roster. The\\n\\ndistrict court here issued a preliminary injunction in favor of the individual plaintiff, a\\n\\nMedicaid recipient, in her suit challenging South Carolina’s decision to terminate Planned\\n\\nParenthood South Atlantic’s (PPSAT) provider agreement because it offers abortion\\n\\nservices. The plaintiff was likely to succeed on the merits of this claim, the district court\\n\\nheld, for two interrelated reasons: first, the Medicaid Act’s free-choice-of-provider\\n\\nprovision, 42 U.S.C. § 1396a(a)(23)(A), confers on “any individual” a private right to sue\\n\\nthat may be enforced under 42 U.S.C. § 1983; and second, South Carolina denied plaintiff\\n\\nthe right to select the willing, qualified family-planning provider of her choice.\\n\\n We now affirm. Based on the Supreme Court’s precedents, Congress’s intent to\\n\\ncreate an individual right enforceable under § 1983 in the free-choice-of-provider provision\\n\\nis unambiguous. In addition, a plain-language reading of the provision’s mandate—that\\n\\nstates “must” furnish Medicaid recipients the right to choose among providers “qualified\\n\\nto perform the service or services required”—bars states from excluding providers for\\n\\nreasons unrelated to professional competency. See 42 U.S.C. § 1396a(a)(23)(A), (p)(1).\\n\\nFinding the remaining preliminary injunction factors satisfied, we shall uphold the trial\\n\\ncourt’s judgment.\\n\\n\\n\\n\\n 3\\n\\n I.\\n\\n A.\\n\\n Medicaid is the nation’s public health insurance program for those of limited means.\\n\\nThe original beneficiaries of this program were low-income children and their parents, the\\n\\nindigent elderly, the blind, and the disabled. Schweiker v. Gray Panthers, 453 U.S. 34, 37\\n\\n(1981). Since 1965, Congress has periodically expanded the program, adding, for instance,\\n\\npregnant women with family incomes up to 133% of the federal poverty level as a distinct\\n\\nbeneficiary class. See 42 U.S.C. § 1396a(a)(10)(A)(i), (l); Medicare Catastrophic Coverage\\n\\nAct of 1988, Pub. L. No. 100-360, § 302, 102 Stat. 683, 750; Omnibus Budget\\n\\nReconciliation Act of 1989, Pub. L. No. 101-239, § 6401, 103 Stat. 2106, 2258.\\n\\n A joint federal-state effort ensures that the healthcare needs of these beneficiaries\\n\\nare met. In broad strokes, the Medicaid Act “offers the States a bargain: Congress provides\\n\\nfederal funds in exchange for the States’ agreement to spend them in accordance with\\n\\ncongressionally imposed conditions.” Armstrong v. Exceptional Child Ctr., 135 S. Ct.\\n\\n1378, 1382 (2015). The Act, to that end, charges the federal government with crafting\\n\\nbaseline eligibility requirements for recipients and providers, determining covered medical\\n\\nservices, and establishing reimbursement standards to the states. See 42 U.S.C. § 1396 et\\n\\nseq.; NFIB v. Sebelius, 567 U.S. 519, 541-42 (2012). Cooperating states then implement\\n\\nthe program, agreeing to abide by federal conditions in return for federal matching funds\\n\\nthat are used for expenses such as provider reimbursements. See Armstrong, 135 S. Ct. at\\n\\n1382. Such funds are substantial; federal coffers finance anywhere from fifty to eighty-\\n\\n\\n\\n 4\\n\\nthree percent of state expenses, 42 U.S.C. § 1396d(b), an aggregate figure that accounts for\\n\\nover ten percent of most states’ total revenue, NFIB, 567 U.S. at 542.\\n\\n Congress designed the Medicaid program to ensure that states dispense federal\\n\\nfunds in compliance with federal rules. At the outset, states must propose and submit\\n\\nMedicaid plans for the approval of the Centers for Medicare and Medicaid Services.\\n\\nDouglas v. Indep. Living Ctr. of S. Cal., Inc., 565 U.S. 606, 610 (2012). State departures\\n\\nfrom federal requirements provide grounds for the Secretary of Health and Human Services\\n\\n(HHS) to withhold Medicaid funding, either in whole or in part. See 42 U.S.C. § 1396c; 42\\n\\nC.F.R. § 430.12(c). If federal requirements are met, however, states have “substantial\\n\\ndiscretion to choose the proper mix of amount, scope, and duration limitations on coverage,\\n\\nas long as care and services are provided in ‘the best interests of the recipients.’” Alexander\\n\\nv. Choate, 469 U.S. 287, 303 (1985) (quoting 42 U.S.C. § 1396a(a)(19)).\\n\\n At issue here is the Medicaid Act’s free-choice-of-provider provision, 42 U.S.C.\\n\\n§ 1396a(a)(23), which states:\\n\\n A State plan for medical assistance must— provide that any individual eligible\\n for medical assistance . . . may obtain such assistance from any institution,\\n agency, community pharmacy, or person, qualified to perform the service or\\n services required . . . who undertakes to provide him such services . . . .\\n\\n42 U.S.C. § 1396a(a)(23)(A). That provision guarantees patients access to qualified and\\n\\nwilling providers. A state plan must generally allow Medicaid recipients to obtain care\\n\\nfrom any provider who is “qualified to perform the service or services required” and “who\\n\\nundertakes to provide . . . such services.”\\n\\n In its mechanics, the free-choice-of-provider provision comports with the Medicaid\\n\\n\\n 5\\n\\nAct’s dual emphasis on federal standard-setting and state flexibility. While Medicaid\\n\\nbeneficiaries may generally seek medical services from willing providers of their choice,\\n\\nstates retain discretionary authority to determine whether entities are medically “qualified\\n\\nto perform the service or services required.” States may also exclude providers from their\\n\\nplans “for any reason for which the [federal] Secretary of [Health and Human Services]\\n\\ncould exclude the individual or entity,” 42 U.S.C. § 1396a(p)(1), or on certain state-law\\n\\ngrounds, see 42 C.F.R. § 431.51(c)(2).\\n\\n B.\\n\\n This dispute arose following South Carolina’s termination of two Planned\\n\\nParenthood centers as Medicaid providers. PPSAT operates two healthcare centers in South\\n\\nCarolina, one in Charleston and the other in Columbia. These centers provide a range of\\n\\nfamily planning and preventative care services, including physical exams, cancer\\n\\nscreenings, contraceptive counseling, and pregnancy testing. For four decades, PPSAT has\\n\\nbeen a South Carolina Medicaid provider that receives reimbursements for care provided\\n\\nto Medicaid beneficiaries. In recent years, PPSAT’s South Carolina centers have treated\\n\\nhundreds of patients insured through Medicaid annually.\\n\\n Among those patients is the individual plaintiff in this case, who suffers from\\n\\ndiabetes and its resulting complications. J.A. 75-78. Because doctors have advised that\\n\\nthese complications would make it quite dangerous for her to carry a pregnancy to term,\\n\\nthe plaintiff considers it imperative that she have access to safe, effective birth control.\\n\\nAfter the plaintiff had difficulty finding a doctor who accepted Medicaid patients and was\\n\\nwilling to provide her preferred form of birth control, she turned to PPSAT’s Columbia\\n\\n 6\\n\\ncenter. At her PPSAT appointment, the doctors inserted an intrauterine device to prevent\\n\\npregnancy and informed her that her blood pressure was elevated. As a result, she sought\\n\\nfollow-up care from her endocrinologist to control her blood pressure. Because the plaintiff\\n\\nwas impressed with the care she received at PPSAT, she planned to switch her\\n\\ngynecological and reproductive health care there.\\n\\n In July 2018, South Carolina’s Department of Health and Human Services\\n\\n(SCDHHS) terminated PPSAT’s Medicaid provider agreement. SCDHHS did not contend\\n\\nthat PPSAT was providing subpar service to its Medicaid patients, or to any other patients.\\n\\nInstead, PPSAT was terminated solely because it performed abortions outside of the\\n\\nMedicaid program. 1\\n\\n According to SCDHHS, PPSAT’s termination was part of a plan by Governor Henry\\n\\nMcMaster designed to prevent the state from indirectly subsidizing abortion services. In\\n\\n1995, the South Carolina legislature passed a law preventing state funds appropriated for\\n\\nfamily planning services from being used to fund abortions. S.C. Code Ann. § 43-5-1185\\n\\n(1995). After taking office in 2017, Governor McMaster issued two executive orders\\n\\ndesigned to further this objective. The first, Executive Order 2017-15, directed state\\n\\nagencies “to take any and all necessary actions . . . to the extent permitted by law, to cease\\n\\nproviding State or local funds . . . to any physician or professional medical practice\\n\\n\\n\\n 1\\n South Carolina does not provide Medicaid reimbursements for abortion services\\nexcept in cases where it is required to do so by federal law. Such cases involve rape, incest,\\nor the need to protect the mother’s life. See Consolidated Appropriations Act, 2018, Pub.\\nL. No. 115-141, div. H, tit. V, §§ 506-507, 132 Stat. 348, 763-64 (Hyde Amendment).\\n\\n 7\\n\\naffiliated with an abortion clinic . . . .” J.A. 56-58. The second, Executive Order 2018-21,\\n\\ndirected SCDHHS to “deem abortion clinics . . . and any affiliated physicians or\\n\\nprofessional medical practices . . . that are enrolled in the Medicaid program as unqualified\\n\\nto provide family planning services and, therefore, to immediately terminate them . . . .”\\n\\nJ.A. 70-71. SCDHHS responded quickly. On the day the second order was issued,\\n\\nSCDHHS Officer of Health Programs Amanda Williams notified PPSAT by letter that\\n\\n“[t]he Governor’s actions result in Planned Parenthood no longer being qualified to provide\\n\\nservices to Medicaid beneficiaries” and that PPSAT’s enrollment agreement with South\\n\\nCarolina was terminated effective immediately. J.A. 73. As a result, PPSAT’s two South\\n\\nCarolina centers began to turn away Medicaid patients. J.A. 13-14.\\n\\n C.\\n\\n On July 27, 2018, PPSAT and the individual plaintiff (collectively, “plaintiffs”)\\n\\nfiled suit in federal district court in South Carolina against Joshua Baker, in his official\\n\\ncapacity as Director of SCDHHS. The individual plaintiff brought suit on her own behalf\\n\\nand that of a purported class of South Carolina Medicaid beneficiaries who received, or\\n\\nwould like to receive, healthcare services at PPSAT. Plaintiffs brought this action under 42\\n\\nU.S.C. § 1983, seeking injunctive and declaratory relief on the grounds that SCDHHS\\n\\nviolated their rights under the Medicaid Act and the Fourteenth Amendment. On July 30,\\n\\nplaintiffs filed for preliminary injunctive relief solely on the basis of their Medicaid Act\\n\\nclaims. The district court held hearings on plaintiffs’ motion on August 23. In their\\n\\ncomplaint and at the hearing, plaintiffs argued that the Medicaid Act’s free-choice-of-\\n\\nprovider provision confers on recipients a private right, enforceable under 42 U.S.C.\\n 8\\n\\n§ 1983, to use the qualified and willing provider of their choice, and that South Carolina\\n\\nviolated this right when it terminated PPSAT for reasons unrelated to its professional\\n\\ncompetence to provide medical services.\\n\\n The district court agreed with the plaintiffs and granted a preliminary injunction on\\n\\nAugust 28, 2018. Because the district court held that injunctive relief was appropriate based\\n\\non the individual plaintiff’s Medicaid Act claim alone, it did not analyze PPSAT’s\\n\\nMedicaid Act claim. First, it held that the individual plaintiff’s Medicaid Act claim was\\n\\nlikely to succeed on the merits. It agreed that the free-choice-of-provider provision confers\\n\\na private right, enforceable under 42 U.S.C. § 1983, on Medicaid-eligible patients,\\n\\nguaranteeing their right to choose any willing provider “qualified to perform” the relevant\\n\\nservice. Critically, the court held that “qualified” should be given its ordinary meaning—\\n\\nprofessionally competent. Relatedly, the district court rejected South Carolina’s contention\\n\\nthat § 1396a(p)(l) of the Medicaid Act gives a state plenary authority to exclude providers\\n\\nfrom its program “for any reason whatsoever as long as the reason is bolstered by State\\n\\nlaw.” Planned Parenthood S. Atl. v. Baker, 326 F. Supp. 3d 39, 47-48 (D.S.C. 2018). To\\n\\nthe contrary, it held that the state’s authority to exclude providers is limited by the free-\\n\\nchoice-of-provider provision.\\n\\n Finally, the district court found that the other conditions necessary for a preliminary\\n\\ninjunction—irreparable harm, balancing of the equities, and the public interest—were\\n\\nsatisfied. In weighing the equities, the district court rejected South Carolina’s argument\\n\\nthat the state would be forced to subsidize abortions if it were enjoined from terminating\\n\\nPPSAT’s provider agreement. Baker, 326 F. Supp. 3d at 49-50. First, because South\\n\\n 9\\n\\nCarolina’s Medicaid program does not cover abortions except in the narrow circumstances\\n\\nrequired by federal law, there was no direct subsidization of non-covered abortions. See id.\\n\\nat 47. Second, because “PPSAT is reimbursed for Medicaid services on a fee-for-service\\n\\nbasis,” id. at 49, at rates that do not cover its costs, PPSAT’s participation in Medicaid did\\n\\nnot generate excess funds that could be used to indirectly subsidize abortions. See id. at 47,\\n\\n49-50. Accordingly, the district court granted a preliminary injunction preventing South\\n\\nCarolina from terminating PPSAT’s Medicaid enrollment agreement.\\n\\n South Carolina timely appealed.\\n\\n II.\\n\\n The free-choice-of-provider provision lies at the heart of this appeal. As noted\\n\\nabove, the provision states that:\\n\\n A State plan for medical assistance must— provide that any individual\\n eligible for medical assistance (including drugs) may obtain such assistance\\n from any institution, agency, community pharmacy, or person, qualified to\\n perform the service or services required (including an organization which\\n provides such services, or arranges for their availability, on a prepayment\\n basis), who undertakes to provide him such services . . . .\\n\\n42 U.S.C. § 1396a(a)(23)(A) (emphases added).\\n\\n It is difficult to imagine a clearer or more affirmative directive. The provision\\n\\napplies to “any individual” eligible for Medicaid; grants these individuals the right to obtain\\n\\nmedical treatment from “any institution” willing and “qualified to perform the service or\\n\\nservices required”; and provides that state plans “must” comply. 2\\n\\n\\n 2\\n Violation of a Medicaid recipient’s statutory right under the free-choice-of-\\nprovider provision visits “concrete” harm that is “real” and “tangible,” because the\\n(Continued)\\n 10\\n\\n Congress could have made an exception for providers offering abortion services.\\n\\nBut it did not do so. Because we “presume that a legislature says in a statute what it means\\n\\nand means in a statute what it says there,” Connecticut Nat’l Bank v. Germain, 503 U.S.\\n\\n249, 253-54 (1992), this court cannot write into a statute an exception that Congress did\\n\\nnot create. Accordingly, we take the free-choice-of-provider provision to mean that a\\n\\nMedicaid recipient has the right to challenge a state’s exclusion of a provider from its\\n\\nMedicaid plan on grounds unrelated to that provider’s willingness and professional\\n\\ncompetency to furnish the required medical service.\\n\\n III.\\n\\n A.\\n\\n It is important at the outset to place this case in proper context. As a matter of black\\n\\nletter law, inferring a private right of action is a matter of statutory interpretation. If\\n\\nCongress is silent or ambiguous, courts may not find a cause of action “no matter how\\n\\ndesirable that might be as a policy matter.” Alexander v. Sandoval, 532 U.S. 275, 286-87\\n\\n(2001).\\n\\n But it was not always this way, and a brief overview of this history is useful\\n\\nbackground to the present lawsuit. We begin with J.I. Case Co. v. Borak, 377 U.S. 426\\n\\n(1964), where the Supreme Court stated that federal courts were partners of Congress,\\n\\nmaking it “the duty of the courts to be alert to provide such remedies as are necessary to\\n\\n\\n\\nrecipient can no longer receive care at his or her provider of choice. See Spokeo, Inc. v.\\nRobins, 136 S. Ct. 1540, 1548-49 (2016). This is the exact harm that Congress intended the\\nprovision to prevent. See id.\\n\\n 11\\n\\nmake effective the congressional purpose” expressed by a statute. Id. at 433. During the\\n\\nBorak era, the “exercise of judicial power” was not “justified in terms of statutory\\n\\nconstruction,” but rather as a means of crafting “substantive social policy.” Bivens v. Six\\n\\nUnknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 402, 402 n.4 (1971)\\n\\n(Harlan, J., concurring in judgment).\\n\\n Some years later, Justice Powell derided Borak’s approach in an oft-quoted dissent.\\n\\nCannon v. Univ. of Chicago, 441 U.S. 677, 742 (1979) (Powell, J., dissenting). In Powell’s\\n\\nview, freely implying private rights of action posed two related constitutional problems.\\n\\nFirst, to infer from silence the right to file suit in federal court interferes with Congress’s\\n\\nArticle III power to set “the jurisdiction of the lower federal courts.” Id. at 730. Second, an\\n\\nexpansive approach to implied private rights of action “cannot be squared with the doctrine\\n\\nof the separation of powers.” Id. This is because a court’s “substitut[ion of] its own views\\n\\nas to the desirability of private enforcement,” id. at 740, dispatches Congress’s Article I\\n\\n“policymaking authority” to the Third Branch of government, id. at 743. “When Congress\\n\\nchooses not to provide a private civil remedy, federal courts should not assume the\\n\\nlegislative role of creating such a remedy and thereby enlarge their jurisdiction.” Id. at 730-\\n\\n31. Therefore, “[a]bsent the most compelling evidence of affirmative congressional intent,\\n\\na federal court should not infer a private cause of action.” Id. at 731.\\n\\n Justice Powell’s dissent primed the Court for a doctrinal about-face. The Court\\n\\nincrementally swore “off the habit of venturing beyond Congress’s intent,” Sandoval, 532\\n\\nU.S. at 286-87 (tracing this doctrinal evolution), instead limiting its focus to the specific\\n\\nstatutory text at issue. In Sandoval, the Court summed up the result of this doctrinal\\n\\n 12\\n\\nprogression: “The judicial task is to interpret the statute Congress has passed to determine\\n\\nwhether it displays an intent to create not just a private right but also a private remedy.” Id.\\n\\nat 286.\\n\\n But there was a loose end remaining—what to do with implied rights of action\\n\\nbrought under § 1983. Some litigants argued that § 1983 provided plaintiffs with a separate\\n\\ncause of action if they fell “within the general zone of interest” of a federal statute. Gonzaga\\n\\nUniv. v. Doe, 536 U.S. 273, 282-83 (2002) (citing Blessing v. Freestone, 520 U.S. 329,\\n\\n340-41 (1997)). The Court swiftly corrected this misunderstanding in Gonzaga, instructing\\n\\nthat § 1983 creates a cause of action to enforce a federal statute only when the underlying\\n\\nstatute itself unambiguously “confers an individual right” on the plaintiff. Id. at 284-85. If\\n\\nso, the § 1983 remedy follows as a matter of course; litigants need not separately\\n\\ndemonstrate Congress’s intent to create a private remedy. Id.\\n\\n B.\\n\\n With this background as guidance, we review the district court’s entry of a\\n\\npreliminary injunction for “abuse of discretion, accepting the court’s findings of fact absent\\n\\nclear error, but reviewing its conclusions of law de novo.” Child Evangelism Fellowship of\\n\\nMd., Inc. v. Montgomery Cty. Pub. Sch., 373 F.3d 589, 593 (4th Cir. 2004). To that end,\\n\\nthe individual plaintiff “must establish that [s]he is likely to succeed on the merits, that\\n\\n[s]he is likely to suffer irreparable harm in the absence of preliminary relief, that the\\n\\nbalance of equities tips in h[er] favor, and that an injunction is in the public interest.” Winter\\n\\nv. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). We are mindful at once that a\\n\\npreliminary injunction is an “extraordinary remedy,” id. at 22, but its issuance “is\\n\\n 13\\n\\ncommitted to the sound discretion of the trial court,” Centro Tepeyac v. Montgomery Cty.,\\n\\n722 F.3d 184, 188 (4th Cir. 2013) (en banc) (quoting Quince Orchard Valley Citizens Ass’n\\n\\nv. Hodel, 872 F.2d 75, 78 (4th Cir. 1989)).\\n\\n IV.\\n\\n First we consider the threshold question whether the Medicaid Act’s free-choice-of-\\n\\nprovider provision creates a private right enforceable under § 1983. Section 1983 creates a\\n\\nfederal remedy against anyone who, under color of state law, deprives a person “of any\\n\\nrights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983.\\n\\nOf course, it “does not provide an avenue for relief every time a state actor violates a federal\\n\\nlaw.” City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 119 (2005). Rather a plaintiff\\n\\nseeking redress “must assert the violation of a federal right, not merely a violation of\\n\\nfederal law.” Blessing, 520 U.S. at 340.\\n\\n Three factors guide us in determining whether a statute creates a private right\\n\\nenforceable under § 1983. Id. at 340-41. “First, Congress must have intended that the\\n\\nprovision in question benefit the plaintiff.” Id. at 340. “Second, the plaintiff must\\n\\ndemonstrate that the right assertedly protected by the statute is not so ‘vague and\\n\\namorphous’ that its enforcement would strain judicial competence.” Id. at 340-41. “Third,\\n\\nthe statute must unambiguously impose a binding obligation on the States” by speaking “in\\n\\nmandatory, rather than precatory, terms.” Id. at 341. If these three factors are satisfied,\\n\\nthere is “a rebuttable presumption that the right is enforceable under § 1983,” id., which\\n\\nmay be defeated by showing that Congress expressly or implicitly foreclosed a § 1983\\n\\nremedy, City of Rancho Palos Verdes, 544 U.S. at 120.\\n\\n 14\\n\\n Applying these principles, we agree with the district court—and five of our six sister\\n\\ncircuits to have addressed this issue—that the free-choice-of-provider provision confers a\\n\\nprivate right, enforceable under § 1983, on Medicaid recipients. See Planned Parenthood\\n\\nof Kan. & Mid-Mo. v. Andersen, 882 F.3d 1205, 1224 (10th Cir. 2018); Planned\\n\\nParenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445, 457 (5th Cir. 2017); Planned\\n\\nParenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 965-66 (9th Cir. 2013); Planned\\n\\nParenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962, 968, 972-\\n\\n74 (7th Cir. 2012); Harris v. Olszewski, 442 F.3d 456, 461 (6th Cir. 2006). But see Does v.\\n\\nGillespie, 867 F.3d 1034, 1037, 1041, 1046 (8th Cir. 2017).\\n\\n Taking the first Blessing factor, the free-choice-of-provider provision\\n\\n“unambiguously gives Medicaid-eligible patients an individual right” to their choice of\\n\\nprovider qualified to perform a medical service. Planned Parenthood of Ind., 699 F.3d at\\n\\n974. The provision has an “unmistakable focus,” Gonzaga, 536 U.S. at 284, on its intended\\n\\nclass of beneficiaries: “any individual eligible for medical assistance” under the Medicaid\\n\\nAct, 42 U.S.C. § 1396a(a)(23)(A). See Doe v. Kidd, 501 F.3d 348, 356 (4th Cir. 2007)\\n\\n(finding that 42 U.S.C. § 1396a(a)(8), which refers to “all individuals wishing to make\\n\\napplication for medical assistance,” confers an individual right).\\n\\n Congress’s use of the phrase “any individual” is a prime example of the kind of\\n\\n“rights-creating” language required to confer a personal right on a discrete class of\\n\\npersons—here, Medicaid beneficiaries. See, e.g., Sandoval, 532 U.S. at 288 (providing an\\n\\nexample of rights-creating language: “No person . . . shall . . . be subjected to\\n\\ndiscrimination . . . .”). Put differently, by adopting as its benchmark whether the “needs of\\n\\n 15\\n\\nany particular person have been satisfied,” Gonzaga, 536 U.S. at 288, Congress left no\\n\\ndoubt that it intended to guarantee each Medicaid recipient’s free choice of provider.\\n\\n As for the second Blessing factor, the free-choice-of-provider provision is not so\\n\\n“vague and amorphous,” Blessing, 520 U.S. at 340-41, that its enforcement would strain\\n\\njudicial competence. The provision protects the right of a Medicaid recipient to seek care\\n\\nfrom his or her provider of choice, subject to two criteria: (1) the provider must be\\n\\n“qualified to perform the service or services required,” and (2) the provider must\\n\\n“undertake[] to provide [the recipient] such services.” 42 U.S.C. § 1396a(a)(23)(A). These\\n\\ncriteria are objective. The second is “a simple factual question no different from those\\n\\ncourts decide every day.” Betlach, 727 F.3d at 967. And the first, which “may require more\\n\\nfactual development or expert input,” still falls squarely “within the range of judicial\\n\\ncompetence.” Id.\\n\\n In an attempt to create ambiguity, South Carolina focuses on the word “qualified”\\n\\nin isolation, Appellant’s Reply Brief at 9-10, ignoring the reality that the term is “tethered\\n\\nto an objective benchmark: ‘qualified to perform the service or services required.’”\\n\\nBetlach, 727 F.3d at 967-68 (quoting 42 U.S.C. § 1396a(a)(23)(A)). That omission makes\\n\\nall the difference. Courts can “readily determine” whether a provider is qualified to perform\\n\\na service by “drawing on evidence such as descriptions of the service required; state\\n\\nlicensing requirements; the provider’s credentials, licenses, and experience; and expert\\n\\ntestimony regarding the appropriate credentials for providing the service.” Id. at 968. This\\n\\n\\n\\n\\n 16\\n\\nfactual determination “is no different from the sorts of qualification or expertise\\n\\nassessments that courts routinely make in various contexts.” Id. 3\\n\\n Finally, the free-choice-of-provider provision “unambiguously impose[s] a binding\\n\\nobligation on the States.” Blessing, 520 U.S. at 341. Under the provision, states “must\\n\\nprovide” a Medicaid recipient with his or her choice of provider qualified to perform the\\n\\nservice at issue. 42 U.S.C. § 1396a(a)(23)(A). Thus the provision is “couched in\\n\\nmandatory, rather than precatory, terms.” Blessing, 520 U.S. at 341; see also Kidd, 501\\n\\nF.3d at 356 (holding, as mandatory, a Medicaid provision requiring that state plans “must”\\n\\nprovide for reasonably prompt medical assistance).\\n\\n Since the three Blessing factors are satisfied, the individual plaintiff benefits from a\\n\\nrebuttable presumption that the free-choice-of-provider provision is enforceable under\\n\\n§ 1983. Blessing, 520 U.S. at 341. That presumption has not been overcome. As an initial\\n\\nmatter, nowhere in the Medicaid Act did Congress declare an express intent to “specifically\\n\\nforeclose[] a remedy under § 1983.” Id. (internal quotations omitted).\\n\\n Nor can such an intent be implied: the Medicaid Act does not contain a\\n\\n“comprehensive enforcement scheme . . . incompatible with individual enforcement under\\n\\n§ 1983.” Id. Because South Carolina assumed that the free-choice-of-provider requirement\\n\\ndid not confer an individual right, it did not expressly press a rebuttal argument before this\\n\\n\\n 3\\n A distinct note of caution is in order. To say that the term “qualified” is susceptible\\nto federal judicial measurement for purposes of the second prong of Blessing is not the\\nsame thing as saying that states lack discretion in defining professional qualifications under\\n42 U.S.C. § 1396a(p)(1), or that they are not due deference in their termination decisions.\\nSee infra Section VI.B. In this case, PPSAT’s qualifications are simply not in dispute.\\n\\n 17\\n\\ncourt. Even if it had, we conclude that the Medicaid Act’s enforcement scheme is not\\n\\nsufficiently “comprehensive” to foreclose a private right of action enforceable under\\n\\n§ 1983. Three alternative remedies are provided for in the Act: (1) the Secretary of HHS’s\\n\\nauthority to review state Medicaid plans for noncompliance and curtail or cut off Medicaid\\n\\nfunding as a matter of discretion, 42 U.S.C. §§ 1316(a), 1396c; 42 C.F.R. § 430.12; (2) a\\n\\nstate administrative process for providers to challenge termination decisions, 42 U.S.C.\\n\\n§ 1396a(a)(4); 42 C.F.R. § 1002.213; and (3) a state administrative process for Medicaid\\n\\nrecipients to challenge a claim denial, 42 U.S.C. § 1396a(a)(3).\\n\\n These remedies, taken together, are quite different from the “unusually elaborate\\n\\nenforcement provisions” that the Supreme Court has taken as evidence that Congress\\n\\nintended to preclude individual enforcement under § 1983. Middlesex Cty. Sewerage Auth.\\n\\nv. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 13-14 (1981). The relevant pollution control\\n\\nstatute at issue in Middlesex County is illustrative. That statute authorized governmental\\n\\nofficials to respond to violations of the act with compliance orders and civil suits; permitted\\n\\nthe imposition of penalties up to $10,000 per day; and made criminal penalties available.\\n\\nId. at 13. Separately, the act also conferred on “any interested person” the right to seek\\n\\njudicial review of relevant acts by federal officials, such as the issuance of an effluent\\n\\npermit. Id. at 13-14. By prescribing the particular remedies available to public and private\\n\\nactors, Congress demonstrated its intent to foreclose forms of relief otherwise available to\\n\\nplaintiffs bringing § 1983 claims. See id. at 14-15.\\n\\n Nothing comparable to this detailed enforcement scheme exists in the Medicaid Act.\\n\\nTo state the obvious, individuals are not ordinarily plaintiffs in provider suits, and an\\n\\n 18\\n\\nindividual’s administrative remedy to challenge, for example, a denial of Medicaid\\n\\ncoverage for a particular “service” does not also provide a forum for contesting the\\n\\ndisqualification of a preferred provider. This much is clear to South Carolina, so it seems\\n\\nto latch onto the Secretary’s ability to cut Medicaid funds as itself indicative of a\\n\\ncomprehensive administrative enforcement scheme. See Appellant’s Opening Brief at 26-\\n\\n27. But a remedy is not comprehensive solely because it is drastic, and to view a wholesale\\n\\ncutoff of funding to the states as vindicating the interests of individual Medicaid\\n\\nbeneficiaries in their choice of provider would be illogical.\\n\\n The illogic of this argument aside, the Supreme Court has already held that the\\n\\nMedicaid Act’s administrative scheme is not sufficiently comprehensive to foreclose a\\n\\nprivate right of action enforceable under § 1983. Wilder v. Virginia Hosp. Ass’n, 496 U.S.\\n\\n498, 521-22 (1990); see also Kidd, 501 F.3d at 356 (holding that the Medicaid Act neither\\n\\nexplicitly nor implicitly “forbid[s] recourse to § 1983”). The Court’s decision in Gonzaga\\n\\ncut back on Wilder’s treatment of implied rights of action in the § 1983 context;\\n\\nspecifically, Gonzaga clarified that Congress must create an “unambiguously conferred\\n\\nright” rather than merely confer a “benefit” on a plaintiff to establish a cause of action\\n\\nenforceable under § 1983. Gonzaga, 536 U.S. at 282. But Wilder’s reasoning as to the\\n\\ncomprehensiveness of the Medicaid Act’s enforcement scheme has not been overturned.\\n\\nSee Andersen, 882 F.3d at 1229, 1229 n.16 (recognizing the same).\\n\\n In sum, the Medicaid Act’s enforcement scheme is not sufficiently “comprehensive”\\n\\nbecause, inter alia, it does not provide a private remedy—either judicial or administrative—\\n\\n\\n\\n 19\\n\\nfor patients seeking to vindicate their rights under the free-choice-of-provider provision. 4\\n\\nSee City of Rancho Palos Verdes, 544 U.S. at 121 (“[I]n all of the cases in which we have\\n\\nheld that § 1983 is available for violation of a federal statute, we have emphasized that the\\n\\nstatute at issue . . . did not provide a private judicial remedy (or, in most of the cases, even\\n\\na private administrative remedy) for the rights violated.”). The reason Congress did not\\n\\nspecify a method of private enforcement is plain: Section 1983 was to be the remedy for\\n\\npatients seeking to enforce their rights under the free-choice-of-provider provision.\\n\\nPermitting private enforcement of this type of suit, Congress realized, “in no way\\n\\ninterferes” with the Secretary of HHS’s authority to audit and sanction noncompliant state\\n\\nMedicaid plans. Planned Parenthood of Ind., 699 F.3d at 975.\\n\\n Thus, the Medicaid Act provides no comprehensive enforcement scheme sufficient\\n\\nto overcome the presumption that the free-choice-of-provider provision is enforceable\\n\\nunder § 1983. Blessing, 520 U.S. at 341. The plain, direct language of that provision\\n\\nunmistakably confers on a discrete class of individual Medicaid beneficiaries the right to\\n\\nseek medical assistance from any qualified medical provider who is willing to provide the\\n\\nrequired medical service. If that language does not suffice to confer a private right,\\n\\n\\n\\n 4\\n South Carolina’s contention that the individual plaintiff had a state administrative\\nremedy she was required to exhaust before bringing a § 1983 suit is misguided. “[A]s a\\ngeneral rule, a plaintiff bringing a suit pursuant to 42 U.S.C. § 1983 does not have to\\nexhaust state administrative remedies before filing suit in federal court.” Talbot v. Lucy\\nCorr Nursing Home, 118 F.3d 215, 218 (4th Cir. 1997) (citing Patsy v. Bd. of Regents of\\nState of Fla., 457 U.S. 496, 512 (1982)). At any rate, we agree with the district court that\\neven if the individual plaintiff had a state administrative remedy available to her, it would,\\ngiven the circumstances here, be futile. Baker, 326 F. Supp. 3d at 46-47.\\n\\n 20\\n\\nenforceable under § 1983, upon the plaintiff here, it is difficult to see what language would\\n\\nbe adequate. To hold in South Carolina’s favor here would simply be to remove § 1983 as\\n\\na vehicle for private rights enforcement and essentially to require Congress to set forth a\\n\\ncause of action enforceable purely on its own terms. We do not believe that the Court has\\n\\nchanneled the expression of congressional intent in such a fashion, nor do we believe that\\n\\nwe are free to do so. See Blessing, 520 U.S. at 340-41. Because South Carolina has not\\n\\nrebutted the presumption that a private right of action exists, we join the Fifth, Sixth,\\n\\nSeventh, Ninth, and Tenth Circuits in finding that the free-choice-of-provider provision\\n\\ncreates a private right enforceable under § 1983. See Andersen, 882 F.3d at 1224; Gee, 862\\n\\nF.3d at 457; Betlach, 727 F.3d at 965-66; Planned Parenthood of Ind., 699 F.3d at 968,\\n\\n972-74; Harris, 442 F.3d at 461. But see Gillespie, 867 F.3d at 1041, 1046.\\n\\n V.\\n\\n We are mindful of two principal, and principled, objections to according the plaintiff\\n\\nher requested relief. First, we should not freely infer private rights of action that are\\n\\nenforceable under § 1983. Second, because Spending Clause legislation is in the nature of\\n\\na contract, we should not construe it so as to ambush states with terms that the states did\\n\\nnot foresee or bargain for. These are doctrines of importance and great force, but both\\n\\npresuppose some level of textual ambiguity. Because that ambiguity is absent here, we\\n\\nbegin and end our search for Congress’s intent with the plain text of the free-choice-of-\\n\\nprovider provision.\\n\\n First, courts are most definitely not at liberty to imply private rights of action willy-\\n\\nnilly. Congress’s intent to make a private right enforceable under § 1983 must be\\n\\n 21\\n\\n“unmistakably clear.” Gonzaga, 536 U.S. at 286 (internal citations omitted). This\\n\\nrequirement ensures that courts enforce private rights under § 1983 only when Congress\\n\\nhas so intended. Here, Congress unambiguously intended to create a private right—in favor\\n\\nof “any individual” receiving Medicaid assistance—in the free-choice-of-provider\\n\\nprovision. Medicaid recipients, it is clear, are not merely within the provision’s “general\\n\\nzone of interest.” See id. at 283.\\n\\n We do not reach this conclusion lightly, but only after closely examining Congress’s\\n\\nintent underlying the “specific statutory provision” at issue. Blessing, 520 U.S. at 342-43.\\n\\nSouth Carolina reaches beyond the plain and narrow text of the free-choice-of-provider\\n\\nprovision—to eighty-two other provisions in the Medicaid Act—to conclude that the\\n\\nprovision is no more than a “plan requirement,” rather than an individual right. Appellant’s\\n\\nOpening Brief at 23. However, Congress foreclosed any argument that an individual plan\\n\\nrequirement in the Medicaid Act cannot be enforceable through an implied private right of\\n\\naction. 42 U.S.C. § 1320a–2 (A provision “is not to be deemed unenforceable because of\\n\\nits inclusion in a section of [the Act] . . . specifying the required contents of a State plan.\\n\\nThis section is not intended to limit or expand the grounds for determining the availability\\n\\nof private actions to enforce State plan requirements . . . .”). Quite apart from that clause,\\n\\nhowever, ignoring Congress’s clearly expressed intent to create a private right of action\\n\\nhere is no less a usurpation of Congress’s “policymaking authority,” see Cannon, 441 U.S.\\n\\nat 743 (Powell, J., dissenting), than reading a cause of action into a statute where Congress\\n\\ndid not create one, see Borak, 377 U.S. at 433.\\n\\n\\n\\n 22\\n\\n Second, courts must be especially cautious in finding that a provision in Spending\\n\\nClause legislation, such as the Medicaid Act, creates a private right enforceable under\\n\\n§ 1983. Spending Clause legislation, as noted, has been likened to a contract: “[I]n return\\n\\nfor federal funds, the States agree to comply with federally imposed conditions. The\\n\\nlegitimacy of Congress’ power to legislate under the spending power thus rests on whether\\n\\nthe State voluntarily and knowingly accepts the terms of the ‘contract.’” Pennhurst State\\n\\nSch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). Since a state cannot voluntarily and\\n\\nknowingly accept conditions unknown to it, “if Congress intends to impose a condition on\\n\\nthe grant of federal moneys, it must do so unambiguously.” Id.\\n\\n So much is true here. The terms of the Medicaid agreement are clear; in return for\\n\\nsubstantial federal funds, states are required to comply with the unambiguous terms of the\\n\\nfree-choice-of-provider provision. And for the reasons described above, this obligation is\\n\\nenforceable by recipients, the intended beneficiaries of the provision. When, as here, the\\n\\nprivate cause of action is “unambiguously conferred” on a third party, see Armstrong, 135\\n\\nS. Ct. at 1388 (plurality), courts cannot deprive the sovereign signatories to a “contract”\\n\\nsuch as the Medicaid Act of the benefit of their bargain.\\n\\n Nor may courts relieve them of the agreement’s consequences. Here, South Carolina\\n\\nwould like to avoid the obligations imposed by this fair bargain. In essence, the state argues\\n\\nthat some Supreme Court decisions might suggest a move away from inferring private\\n\\nrights of action in Spending Clause legislation. See, e.g., Appellant’s Opening Brief at 29-\\n\\n30 (“The [Gonzaga] Court noted that ‘[m]ore recent decisions have rejected attempts to\\n\\ninfer enforceable rights from Spending Clause statutes.’”) (quoting Gonzaga, 536 U.S. at\\n\\n 23\\n\\n281). South Carolina may or may not be correct in its doctrinal forecast, but for now its\\n\\nargument remains speculative and conjectural. As the Seventh Circuit noted:\\n\\n [N]othing in Armstrong, Gonzaga, or any other case we have found supports\\n the idea that plaintiffs are now flatly forbidden in section 1983 actions to rely\\n on a statute passed pursuant to Congress’s Spending Clause powers. There\\n would have been no need, had that been the Court’s intent, to send lower\\n courts off on a search for “unambiguously conferred rights.” A simple “no”\\n would have sufficed.\\n\\nBT Bourbonnais Care, LLC v. Norwood, 866 F.3d 815, 820-21 (7th Cir. 2017). We agree.\\n\\nAt bottom, the Court’s cases require us to find an “unambiguously conferred” right,\\n\\nArmstrong, 135 S. Ct. at 1387-88 (plurality), which is exactly what we have done here. In\\n\\nthe end, the concerns identified above are not controlling in this case, because the free-\\n\\nchoice-of-provider provision unambiguously creates a private right in favor of the\\n\\nindividual plaintiff.\\n\\n VI.\\n\\n Having decided that Congress unambiguously intended to create a private right of\\n\\naction in the free-choice-of-provider provision, we turn now to consider the scope of the\\n\\nright it confers on Medicaid recipients. A reasoned textual analysis in this case requires\\n\\nonly two steps. First, “[a]s always, we start with the specific statutory language in dispute.”\\n\\nMurphy v. Smith, 138 S. Ct. 784, 787 (2018). In the free-choice-of-provider provision,\\n\\n“qualified to perform the service or services required” means what it says: professionally\\n\\nfit to perform the medical services the patient requires. Second, we look to § 1396a(p)(1),\\n\\nwhich describes a state’s authority to exclude providers from its Medicaid plan. In the end,\\n\\nwe find that the free-choice-of-provider provision in § 1396a(a)(23)(A) and the state’s\\n\\n\\n 24\\n\\ndiscretionary authority under § 1396a(p)(1) work in tandem to accomplish Congress’s\\n\\noverall objectives in this cooperative federalism scheme.\\n\\n A.\\n\\n First principles guide us in deciding what it means for a provider to be “qualified to\\n\\nperform the service or services required” under the free-choice-of-provider provision.\\n\\n“Unless otherwise defined, statutory terms are generally interpreted in accordance with\\n\\ntheir ordinary meaning.” BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006). Because the\\n\\nMedicaid Act does not define the term “qualified,” we consider its plain meaning—namely,\\n\\n“having an officially recognized qualification to practice as a member of a particular\\n\\nprofession; fit, competent.” Oxford English Dictionary (3d ed. 2007); see also Black’s Law\\n\\nDictionary 1360 (9th ed. 2009) (defining “qualified” as “[p]ossessing the necessary\\n\\nqualifications; capable or competent”).\\n\\n Every circuit to have considered this issue is in accord with that straightforward\\n\\ndefinition. See, e.g., Andersen, 882 F.3d at 1230; Gee, 862 F.3d at 459-60; Betlach, 727\\n\\nF.3d at 967-68; Planned Parenthood of Ind., 699 F.3d at 978. But see Gillespie, 867 F.3d\\n\\nat 1046 (declining to reach this question after concluding that the free-choice-of-provider\\n\\nprovision does not provide patients with a private right of action enforceable under § 1983).\\n\\n South Carolina does not contest the fact that PPSAT is professionally qualified to\\n\\ndeliver the services that the individual plaintiff seeks. Nowhere in its submissions to this\\n\\ncourt does the state seek to raise doubts that PPSAT satisfies the ordinary definition of\\n\\n“qualified” as being professionally capable or competent. Instead, the state seeks to\\n\\npersuade us that “qualified” means something other than what it says or that the structure\\n\\n 25\\n\\nof the statute as a whole entrusts the word to the states to define its meaning.\\n\\n The term, however, is in a federal statute and we are obliged to give it the meaning\\n\\nthat Congress intended, so long as that meaning is clear to its state partners in this\\n\\ncooperative program. There is no question that the ordinary meaning of the term\\n\\n“qualified” is the one Congress intended. Were there any doubt as to its intent, Congress\\n\\nprovided more specificity in the terms surrounding “qualified.” The free-choice-of-\\n\\nprovider provision guarantees Medicaid recipients the right to “obtain [medical] assistance\\n\\nfrom any institution, agency . . . or person[] qualified to perform the service or services\\n\\nrequired.” 42 U.S.C. § 1396a(a)(23)(A) (emphasis added). The plain import of this\\n\\nlanguage is to tie the word “qualified” to the performance of a service—and not just any\\n\\nservice, but a medical service. Tellingly, the statute does not differentiate among different\\n\\ntypes of medical services, laying bare what can be the only reasonable interpretation of\\n\\n“qualified” in this context: capable of “carry[ing] out a particular activity—‘perform[ing]\\n\\nthe [medical] service’ that a given Medicaid recipient requires.’” Betlach, 727 F.3d at 969.\\n\\nIt follows that the types of “qualifications” that are intended relate to a provider’s\\n\\ncompetency to perform a particular medical service, and not to any conceivable state\\n\\ninterest as applied to the Medicaid program.\\n\\n Reading “qualified to perform” in the free-choice-of-provider provision to mean\\n\\nprofessionally competent accords with the way Congress ordinarily uses the phrase. See\\n\\nMount Lemmon Fire Dist. v. Guido, 139 S. Ct. 22, 26 (2018) (finding it “instructive” that\\n\\na phrase “occurs dozens of times throughout the U.S. Code, typically carrying [its ordinary\\n\\nmeaning]”). Consider, for example, 8 U.S.C. § 1188(c)(3), which directs the Secretary of\\n\\n 26\\n\\nLabor to find that “there are not sufficient workers in the United States who are able,\\n\\nwilling, and qualified to perform the labor or service needed” before admitting temporary\\n\\nH-2A workers. This provision, like many others in the U.S. Code, specifies some service\\n\\nor function as the object of the phrase “qualified to perform.” See, e.g., 49 U.S.C. § 5329(e)\\n\\n(awarding states funding to carry out a federal public transportation safety program if,\\n\\namong other things, members of the state agency “responsible for rail fixed guideway\\n\\npublic transportation safety oversight” are “qualified to perform such functions through\\n\\nappropriate training”); 37 U.S.C. § 301b(b)(3) (defining “covered officers” as including\\n\\nthose “qualified to perform operational flying duty”). To read the phrase as denoting\\n\\nanything other than fitness to perform the activity identified would be highly unusual.\\n\\n In short, Congress’s handiwork here makes good sense. As a matter of ordinary\\n\\nEnglish, one’s preferred dry cleaner is not made unqualified to perform cleaning services\\n\\nbecause he disfavors bicycles or because he did not vote in the last state election, even\\n\\nthough the state may prefer otherwise. Yet that is precisely the sort of result produced by\\n\\nSouth Carolina’s reading of “qualified,” which would allow the state to exclude providers\\n\\nbased on any conceivable state interest. PPSAT, as South Carolina all but admits, is\\n\\nperfectly competent to perform the family-planning services required by plaintiff and is\\n\\nlicensed to do so. The state nevertheless suggests that it may disqualify a competent\\n\\nprovider under state law so long as there is “good reason.” See Appellant’s Opening Brief\\n\\nat 24. Today that reason is PPSAT’s provisioning of abortion services, but we cannot glean\\n\\nany principled limit to the state’s exclusion authority under South Carolina’s interpretation.\\n\\n And there’s the rub. If credited, South Carolina’s submission that the term\\n\\n 27\\n\\n“qualified” means whatever the state says would strip the free-choice-of-provider provision\\n\\nof all meaning and shortchange the federal side of the bargain. South Carolina argues the\\n\\nprovision would still have some meaning by ensuring that recipients could see any provider\\n\\nthat meets the state’s qualifications. But we do not believe that Congress could have\\n\\nintended to confer a right so empty in terms so strong. “If the states are free to set any\\n\\nqualifications they want—no matter how unrelated to the provider’s fitness to treat\\n\\nMedicaid patients—then the free-choice-of-provider requirement could be easily\\n\\nundermined by simply labeling any exclusionary rule as a ‘qualification.’” Planned\\n\\nParenthood of Ind., 699 F.3d at 978.\\n\\n South Carolina nonetheless contends that the Medicaid Act’s silence as to the\\n\\nmeaning of “qualified” is grounds for interpreting it to allow states expansive exclusionary\\n\\npowers. See Appellant’s Reply Brief at 10 (“Congress leaving the term ‘qualified’\\n\\nundefined purposely creates a vague or amorphous provision with the idea being that doing\\n\\nso allows the states to tailor their State Plan.”). That, however, is not how we ordinarily\\n\\ninterpret undefined statutory terms, let alone a term pegged to a phrase as clear as “to\\n\\nperform the [medical] service or services required.” 42 U.S.C. § 1396a(a)(23)(A).\\n\\n The state next seeks refuge in the canon against surplusage. If “qualified” means\\n\\nprofessionally competent, South Carolina argues, then its inclusion in the free-choice-of-\\n\\nprovider provision is “pointless and redundant” because state licensing schemes already\\n\\nexclude incompetent providers from the Medicaid pool. See Appellant’s Reply Brief at 13.\\n\\nBut this view ignores the language of the free-choice-of-provider provision. We do not\\n\\nlightly impute to Congress an intent to use terms that “have no operation at all.” Marbury\\n\\n 28\\n\\nv. Madison, 5 U.S. (1 Cranch) 137, 174 (1803). And as noted above, South Carolina’s\\n\\nreading works precisely this result by allowing states—at their discretion—to nullify the\\n\\nfree-choice-of-provider provision entirely. Granted, South Carolina agrees that a state’s\\n\\npolicies cannot eliminate “all recipient choice,” which the state interprets to require only\\n\\nthat at least two “qualified” providers remain available. See Appellant’s Opening Brief at\\n\\n36-37. But that cannot be right. The free-choice-of-provider provision “does not simply\\n\\nbar the states from ending all choice of providers, it guarantees to every Medicaid\\n\\nbeneficiary the right to choose any qualified provider.” Planned Parenthood of Ind., 699\\n\\nF.3d at 979. In order to do that, a state must be restricted in its ability to terminate providers\\n\\nfor reasons unrelated to professional competency.\\n\\n The case law also does not support South Carolina’s position. On this front, the state\\n\\nargues that the Court’s decision in O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773\\n\\n(1980), interpreted the free-choice-of-provider provision to apply only to providers that\\n\\n“continue[] to be qualified” in the Medicaid program as a matter of state law. Appellant’s\\n\\nOpening Brief at 35 (quoting O’Bannon, 447 U.S. at 785). Not so. O’Bannon spoke to the\\n\\nnarrow question whether residents of a nursing home had a right to a pre-termination\\n\\nhearing before the state could close a home that all parties agreed was professionally\\n\\n“unqualified” to render patient care. See 447 U.S. at 775-76; see also id. at 776 n.3\\n\\n(cataloguing the home’s noncompliance with statutes governing, among other topics,\\n\\nnursing services, physical environment, and medical records). In point of fact, the patients\\n\\nthere did not bring a substantive claim seeking to vindicate their rights under the free-\\n\\nchoice-of-provider provision, but rather sued for violation of their procedural due process\\n\\n 29\\n\\nrights. Id. at 775. Along with three of the four circuits to have addressed this issue, we\\n\\ncannot read O’Bannon to resolve the very different claim raised by plaintiff in the instant\\n\\ncase. See Andersen, 882 F.3d at 1231-32; Gee, 862 F.3d at 460-61; Planned Parenthood of\\n\\nInd., 699 F.3d at 977. But see Gillespie, 867 F.3d at 1047 (Shepherd, J., concurring).\\n\\n B.\\n\\n Although the free-choice-of-provider provision imposes limits on a state’s\\n\\nqualification authority, states retain discretionary authority with regards to healthcare\\n\\nproviders. Section 1396a(p)(1) speaks to this balance, providing:\\n\\n In addition to any other authority, a State may exclude any individual or\\n entity for purposes of participating under the State plan under this subchapter\\n for any reason for which the Secretary [of Health and Human Services]\\n could exclude the individual or entity from participation in a program under\\n subchapter XVIII under section 1320a–7, 1320a–7a, or 1395cc(b)(2) of this\\n title.\\n\\n This provision confirms that states may and do set standards that relate to providers’\\n\\nability to practice in a professionally competent manner. Take the cross-references to start.\\n\\nThey identify various forms of misconduct including patient abuse, failure to furnish\\n\\nmedically necessary services, fraud, license revocation, excessive charges, and failure to\\n\\ndisclose necessary information to state regulators. 42 U.S.C. § 1320a–7. In short, federal\\n\\nregulations confirm the authority vested in states to “set[] reasonable standards relating to\\n\\nthe qualifications of providers” on analogous state-law grounds. See 42 C.F.R.\\n\\n§ 431.51(c)(2).\\n\\n Putting all this together, § 1396a(p)(1) and the free-choice-of-provider provision\\n\\noperate in pleasant conjunction. The free-choice-of-provider provision confers an\\n\\n\\n 30\\n\\nindividual right on Medicaid recipients to select the willing and competent provider of their\\n\\nchoice. Section 1396a(p)(1) clarifies that states retain discretionary authority to disqualify\\n\\nproviders as professionally incompetent for nonmedical reasons such as fraud and for any\\n\\nnumber of unprofessional behaviors. But the emphasis in § 1396a(p)(1) upon professional\\n\\nmalfeasance in no way deprives states of the latitude they possess, under the free-choice-\\n\\nof-provider provision itself, to judge a provider’s medical qualifications. Indeed, the\\n\\nlanguage that begins the free-choice-of-provider provision—“A State plan for medical\\n\\nassistance must— provide,” 42 U.S.C. § 1396a(a)(23)(A)—presupposes the existence of\\n\\ndiscretionary authority in the states as it relates to provider qualifications. Nevertheless,\\n\\nthe fact that the statute’s language and structure suggest the deference due states on the\\n\\nmatter of professional and medical qualifications in no way confers a blank check. Here, it\\n\\nbears repeating, no one disputes PPSAT’s medical qualifications to perform the family-\\n\\nplanning services required, nor is any professional wrongdoing on the part of PPSAT even\\n\\nalleged. So it follows that South Carolina cannot arbitrarily disqualify PPSAT upon the\\n\\ngeneralized assertion of inapposite state interests without running afoul of the free-choice-\\n\\nof-provider provision.\\n\\n South Carolina attempts to disrupt the congruence between these two provisions by\\n\\nreading the savings clause “for more than it’s worth.” Planned Parenthood of Ind., 699\\n\\nF.3d at 979. The state argues that the phrase “[i]n addition to any other authority” in\\n\\n§ 1396a(p)(1) means it can exclude a provider on any state-law grounds—and for any\\n\\nreason. See Appellant’s Opening Brief at 32 (“South Carolina’s authority, under Section\\n\\n1396a(p)(1), to determine whether a provider is qualified does not depend on the state\\n\\n 31\\n\\ninterest the disqualification seeks to protect.”).\\n\\n The district court rejected this interpretation, concluding that reading the savings\\n\\nclause this way would render the right conferred by the free-choice-of-provider provision\\n\\nmeaningless. Baker, 326 F. Supp. 3d at 47-48. We agree. If Congress had in fact harbored\\n\\nthe sweeping intent that South Carolina gleans from § 1396a(p)(1), there would be no\\n\\nreason to bother with the free-choice-of-provider provision, as any state-law ground could\\n\\nserve as the basis to eliminate a patient’s choice. To say that this would warp the law\\n\\nenacted by Congress is an understatement.\\n\\n Moreover, South Carolina’s interpretation also finds no support in the four corners\\n\\nof § 1396a(p)(1). For one thing, the phrase “[i]n addition to any other authority” serves a\\n\\nspecific purpose. It lists what “is a non-exclusive list of specific grounds upon which states\\n\\nmay bar providers from participating in Medicaid.” Planned Parenthood of Ind., 699 F.3d\\n\\nat 979. The grounds identified—spanning everything from financial fraud to medical\\n\\nmalpractice—relate generally to professional malfeasance. In contrast, the type of\\n\\n“qualification” the state argues for under § 1396a(p)(1) is different in kind. South\\n\\nCarolina’s exclusion of PPSAT from its Medicaid network has nothing to do with\\n\\nprofessional misconduct or for that matter with PPSAT’s ability to safely and\\n\\nprofessionally perform plaintiff’s required family-planning services. PPSAT, after all,\\n\\ncontinues to deliver these services to thousands of South Carolinians each year—to which\\n\\nthe state has no objection. See J.A. 91.\\n\\n What we are left with, ironically, is the state’s attempt to eliminate almost the\\n\\nentirety of § 1396a(p)(1). For if the phrase “[i]n addition to any other authority” authorizes\\n\\n 32\\n\\nany and all state interests to serve as a basis for termination, there would be no need to list\\n\\nthe specific grounds identified in § 1396a(p)(1). Congress sometimes employs the broad\\n\\nversion of the phrase. See, e.g., 7 U.S.C. § 2279(c)(4)(B) (“The authority to carry out this\\n\\nsection shall be in addition to any other authority provided in this or any other Act.”)\\n\\n(emphasis added). But it did not do so here, and the foregoing discussion makes clear that\\n\\nthis was not through inadvertence.\\n\\n Consider also the cases cited by the state to support its broad reading of the savings\\n\\nclause. In Guzman v. Shewry, 552 F.3d 941 (9th Cir. 2009), the Ninth Circuit did not hold\\n\\nthat § 1396a(p)(1) grants states plenary exclusion authority over healthcare providers.\\n\\nRather, that court expressly recognized that states may exclude providers “for reasons\\n\\nbearing on the individual’s or entity’s professional competence, professional performance,\\n\\nor financial integrity.” Id. at 949 (citing 42 U.S.C. § 1320a-7(b)(5)). In any event, the\\n\\nprovider in Guzman was deemed “unqualified” based on a state law guarding against\\n\\nprofessional malfeasance—as were the providers in all cases interpreting § 1396a(p)(1)\\n\\nthat South Carolina cites. See id. at 946-47 (fraud or abuse); First Med. Health Plan v.\\n\\nVega-Ramos, 479 F.3d 46, 49-50 (1st Cir. 2007) (financial self-dealing); Triant v. Perales,\\n\\n491 N.Y.S.2d 486, 488 (App. Div. 1985) (shoddy record-keeping).\\n\\n In the end, to read § 1396a(p)(1) as imposing such severe limits on the scope of the\\n\\nright conferred by the free-choice-of-provider provision would eviscerate the Medicaid\\n\\nAct’s cooperative scheme and turn the congressional judgment on its head. Congress,\\n\\naware of the deep national divide on a topic so sensitive as abortion, sought to strike a\\n\\nbalance in the Medicaid Act. Starting in 1976, Congress has prohibited federal funds from\\n\\n 33\\n\\nbeing used to finance abortions, excepting instances of rape, incest, or to save the life of\\n\\nthe mother. Harris v. McRae, 448 U.S. 297, 302 (1980) (describing the Hyde Amendment).\\n\\nOn the other hand, Congress provided extra protections for beneficiaries’ freedom of\\n\\nchoice among family-planning providers, something it accomplished while amending the\\n\\nfree-choice-of-provider provision to accommodate Medicaid managed care plans. 5 The\\n\\nSecretary, to wit, may waive the free-choice-of-provider provision when a state implements\\n\\na Medicaid managed care plan. But with an important caveat: An individual’s right to seek\\n\\nout non-abortion services from a qualified family-planning provider of her choice cannot\\n\\nbe waived. 42 U.S.C. §§ 1396a(a)(23)(B), 1396d(a)(4)(C); see also Betlach, 727 F.3d at\\n\\n972 (“Even if a state otherwise exercises its option to implement a managed-care system,\\n\\n§ 1396a(a)(23)(B) makes clear that as to family planning services, state Medicaid plans\\n\\nmust afford recipients the full range of free choice of provider.”). This implicit bargain\\n\\nagreed to by the political branches is one that we are bound to respect.\\n\\n VII.\\n\\n Because the individual plaintiff has a private right of action to challenge South\\n\\nCarolina’s denial of her right to the qualified and willing family-planning provider of her\\n\\nchoice, we agree with the district court that she has demonstrated a substantial likelihood\\n\\nof success on her free-choice-of-provider claim. We also hold that the district court did not\\n\\n\\n\\n 5\\n Medicaid managed care plans allow a state to contract with a limited selection of\\nhealthcare providers. Through this arrangement, states can lower their Medicaid expenses\\nand streamline their delivery of health care. There is no contention that any waiver of the\\nfree-choice-of-provider provision took place here.\\n\\n 34\\n\\nabuse its discretion in enjoining South Carolina from terminating PPSAT’s provider\\n\\nagreement.\\n\\n It is clear that the plaintiff would suffer irreparable harm in the absence of a\\n\\npreliminary injunction. Denial of her statutory right to select a qualified provider visits a\\n\\ntangible harm: diminished access to high-quality health care suited to the individual\\n\\nplaintiff’s needs. See Appellees’ Brief at 39. That PPSAT may be one of many providers\\n\\navailable to the individual plaintiff through South Carolina’s Medicaid network is not\\n\\ndispositive; the free-choice-of-provider provision, as we have noted, guarantees a patient’s\\n\\naccess to her preferred provider, save on matters of professional integrity and competency.\\n\\nSouth Carolina has a legitimate interest in ensuring that state dollars do not subsidize\\n\\nabortion. But we are not prepared to disrupt the district court’s finding that the state’s\\n\\nreimbursement of PPSAT on a fee-for-service basis guards against the indirect\\n\\nsubsidization of abortion. Finally, an injunction would serve the public interest by\\n\\npreserving the individual plaintiff’s statutory right under the free-choice-of-provider\\n\\nprovision and ensuring “affordable access to competent health care by some of South\\n\\nCarolina’s neediest citizens,” Baker, 326 F. Supp. 3d at 50, whose health challenges are\\n\\nevery bit as real as those of citizens of greater means.\\n\\n We do not doubt that South Carolina’s termination of PPSAT’s provider agreement\\n\\nwas intended “to further [its] own legitimate interests in protecting prenatal life.” Planned\\n\\nParenthood of Se. Pa. v. Casey, 505 U.S. 833, 853 (1992). Reasonable people can disagree\\n\\nwith how Congress chose to balance state flexibility on the one hand, and enforcement of\\n\\nfederal entitlements on the other. But in all events federal courts are ill-suited to second-\\n\\n 35\\n\\nguess this act of political judgment in the Medicaid Act. An injury so concrete and a right\\n\\nso clear is something that the courts must respect, else we forsake natural and\\n\\nstraightforward readings of statutory text in favor of spinning ever-finer webs of\\n\\ncircumvention that lead to our desired outcomes. To subscribe to this portentous course is\\n\\nto abandon the very source of our authority and the mandate that alone makes the Third\\n\\nBranch a distinctive organ of our government. The judgment of the district court is\\n\\naffirmed.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 36\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4451146/\", \"author_raw\": \"WILKINSON, Circuit Judge:\"}, {\"author\": \"RICHARDSON, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"RICHARDSON, Circuit Judge, concurring:\\n\\n I join in affirming the grant of the preliminary injunction. The Majority correctly\\n\\nrecognizes that applying existing Supreme Court precedents requires that we find\\n\\n§ 1396a(a)(23) to unambiguously create a right privately enforceable under § 1983 to\\n\\nchallenge a State’s determination of whether a Medicaid provider is “qualified.” Six\\n\\nCircuits now recognize that § 1396a(a)(23) creates this enforceable right. 1 One Circuit\\n\\ndoes not. 2\\n\\n As lower court judges, we are bound to do our level best to apply the law as it is,\\n\\nnot how it may become. We have done so here. But when binding precedents present us\\n\\nwith a bit of “a mess of the issue,” Gee v. Planned Parenthood of Gulf Coast, Inc., 139 S.\\n\\nCt. 408, 409 (2018) (Thomas, J., dissenting from denial of certiorari), our job becomes\\n\\nparticularly challenging.\\n\\n\\n\\n\\n 1\\n See Planned Parenthood S. Atlantic & Julie Edwards v. Baker, No. 18-2133 (4th\\nCir. 2019); Planned Parenthood of Kan. & Mid-Mo. v. Andersen, 882 F.3d 1205 (10th Cir.\\n2018), cert. denied, 139 S. Ct. 638 (2018); Planned Parenthood of Gulf Coast, Inc. v. Gee,\\n862 F.3d 445 (5th Cir. 2017), cert. denied, 139 S. Ct. 408 (2018); Planned Parenthood\\nAriz. Inc. v. Betlach, 727 F.3d 960 (9th Cir. 2013), cert. denied, 571 U.S. 1198 (2014);\\nPlanned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962\\n(7th Cir. 2012), cert. denied, 569 U.S. 1004 (2013); Harris v. Olszewski, 442 F.3d 456 (6th\\nCir. 2006).\\n 2\\n See Does v. Gillespie, 867 F.3d 1034 (8th Cir. 2017). And in the last two years,\\nother judges have raised questions about recognizing the right of action. See Planned\\nParenthood of Greater Tex. Family Planning and Preventive Health Servs., Inc. v. Smith,\\n913 F.3d 551, 569–73 (5th Cir. 2019) (Jones, J., concurring); Gee, 862 F.3d at 473–86\\n(Owen, J., dissenting); Andersen, 882 F.3d at 1238–49 (Bacharach, J., concurring in part\\nand dissenting in part).\\n\\n 37\\n\\n The challenge here derives from a broader question lurking in the background.\\n\\nWhat is the proper framework for determining whether a given statute creates a right that\\n\\nis privately enforceable under § 1983? And specifically, has Wilder v. Virginia Hospital\\n\\nAss’n, 496 U.S. 498 (1990), a case relied on in other Circuits’ decisions and in our own,\\n\\nbeen repudiated (or even effectively overruled)? There are indications that it has. See\\n\\nArmstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1386 n.* (2015). But we do\\n\\nnot lightly conclude that the Supreme Court has overruled its prior cases—that job is for\\n\\nthe Supreme Court alone. See Hohn v. United States, 524 U.S. 236, 252–53 (1998) (“Our\\n\\ndecisions remain binding precedent until we see fit to reconsider them, regardless of\\n\\nwhether subsequent cases have raised doubts about their continuing vitality.”).\\n\\n Like this case, Wilder involved a question of whether a subsection of § 1396a(a) of\\n\\nthe Medicaid Act created a private right of action under § 1983. The particular provision\\n\\nat issue required a State’s plan for medical assistance to “provide . . . for payment” of\\n\\ncertain medical services “through the use of rates (determined in accordance with methods\\n\\nand standards developed by the State . . .) which the State finds, and makes assurances\\n\\nsatisfactory to the Secretary, are reasonable and adequate to meet the costs which must be\\n\\nincurred by efficiently and economically operated facilities. . . .” 496 U.S. at 502–03\\n\\n(quoting 42 U.S.C. § 1396a(a)(13)(A)) (alterations and emphasis in original). 3\\n\\n\\n\\n\\n 3\\n In 1997, Congress replaced the provision at issue in Wilder. See Long Term Care\\nPharmacy All. v. Ferguson, 362 F.3d 50, 58 (1st Cir. 2004).\\n\\n 38\\n\\n The Wilder Court found that service providers had an enforceable right under § 1983\\n\\nto reimbursement at “reasonable and adequate” rates. 496 U.S. at 512. It reached this\\n\\nconclusion after looking to three “factors.” First, the Court had “little doubt that health\\n\\ncare providers are the intended beneficiaries” of the provision. Id. at 510. Then the Court\\n\\nobserved that the statutory language imposed a binding obligation on States that participate\\n\\nin the Medicaid program because the relevant statutory provision was “cast in mandatory\\n\\nrather than precatory terms,” given its use of the word “must.” Id. Finally, the Court found\\n\\nthat the provision’s obligation was not “too ‘vague and amorphous’ to be judicially\\n\\nenforceable,” applying what would become the second of the three “factors” to find clarity\\n\\nin the statutory directive for payment of “rates . . . which the State finds . . . are reasonable\\n\\nand adequate.” Id. at 503; see id. at 519. 4\\n\\n Seven years later in Blessing, the Supreme Court instructed courts to apply these\\n\\n“three principal factors” to determine whether a statutory provision creates an enforceable\\n\\nright under § 1983. Blessing v. Freestone, 520 U.S. 329, 338 (1997). The Court applied\\n\\n\\n\\n 4\\n In finding that this statutory right was “judicially enforceable,” the Court rejected\\nthe argument that the language in the Medicaid Act giving States the authority to set rates\\n“which the State finds . . . reasonable and adequate,” granted “a State flexibility to adopt\\nany rates it finds are reasonable and adequate.” Wilder, 496 U.S. at 503, 519 (emphasis\\nadded). Though acknowledging that the Act provided States “substantial discretion in\\nchoosing among reasonable methods of calculating rates,” the Court held that it was “well\\nwithin the competence of the Judiciary” to identify which rates were “outside that range\\nthat no State could ever find to be reasonable and adequate.” Id. at 519–20.\\n In this way, Wilder seems to foreclose the argument that § 1396a(a)(23) grants\\nSouth Carolina the flexibility to adopt qualifications based on its interests beyond\\nprofessional integrity and competency. See Majority Op. at 17, 27–29. And on this record,\\nSouth Carolina has not explained how its actions fall within its broad discretion to identify\\nprofessional qualifications.\\n 39\\n\\nthe multifactor test from Wilder to determine whether § 1983 established a private right of\\n\\naction under Title IV–D of the Social Security Act. See Blessing, 520 U.S. at 338, 340–\\n\\n41.\\n\\n When the Supreme Court again revisited privately enforcing a statutory right under\\n\\n§ 1983 in Gonzaga, it seemed to consider this multifactor test problematic, to say the least.\\n\\n“[C]onfusion” on how to apply the Blessing factors improperly “led some courts to\\n\\ninterpret Blessing as allowing plaintiffs to enforce a statute under § 1983 so long as the\\n\\nplaintiff falls within the general zone of interest that the statute is intended to protect.”\\n\\nGonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002); see id. (noting the “uncertainty”).\\n\\nGonzaga also questioned “how relations between the branches are served by having courts\\n\\napply a multifactor balancing test to pick and choose which federal requirements may be\\n\\nenforced by § 1983 and which may not.” Id. at 286 (emphasis added).\\n\\n The multifactor test is not the only aspect of Wilder that has been questioned. Wilder\\n\\nhad noted that its analysis was “a different inquiry than that involved in determining\\n\\nwhether a private right of action can be implied from a particular statute.” 496 U.S. at 508\\n\\nn.9. On this point, the Court in Gonzaga would later “reject the notion” that “Wilder\\n\\nappears to support” that “our implied private right of action cases have no bearing on the\\n\\nstandards for discerning whether a statute creates rights enforceable by § 1983.” 536 U.S.\\n\\nat 283. To the contrary, “our implied right of action cases should guide the determination\\n\\nof whether a statute confers rights enforceable under § 1983.” Id.\\n\\n So are Wilder, specifically, and the Blessing factors, generally, still good law? On\\n\\nthe one hand, we look to the three factors from Blessing. 520 U.S. at 338, 340–41. But on\\n\\n 40\\n\\nthe other hand, we must find a bright-line: nothing “short of an unambiguously conferred\\n\\nright.” Gonzaga, 536 U.S. at 283.\\n\\n But Gonzaga did not explicitly overrule Blessing’s three-factor approach. Nor did\\n\\nit plainly discard Wilder’s application of the factors. See Gonzaga, 536 U.S. at 289–90\\n\\n(distinguishing Wilder on its facts). More recently, the Court has more directly questioned\\n\\nWilder’s reasoning and validity. Armstrong, 135 S. Ct. at 1386 n.* (“Respondents do not\\n\\nclaim that Wilder establishes precedent for a private cause of action in this case. They do\\n\\nnot assert a § 1983 action, since our later opinions plainly repudiate the ready implication\\n\\nof a § 1983 action that Wilder exemplified.” (emphasis added)). Yet, at least in our Circuit,\\n\\nWilder and Blessing remain controlling. See, e.g., Doe v. Kidd, 501 F.3d 348, 356 (4th Cir.\\n\\n2007) (relying on Wilder and Blessing to find § 1396a(a)(8) confers an individual right).\\n\\n Despite the “confusion” and “uncertainty,” we must apply the law as we find it.\\n\\nToday, our opinion is “guide[d]” by the three factors from Blessing. Majority Op. at 14.\\n\\nFollowing their guide requires that we find a private right of action under § 1983 to\\n\\nchallenge a State’s determination of whether a Medicaid provider is “qualified” under 42\\n\\nU.S.C. § 1396a(a)(23). And so I do. But I do so with hope that clarity will be provided.\\n\\n\\n\\n\\n 41\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4451146/\", \"author_raw\": \"RICHARDSON, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"WILKINSON"},"judge2":{"kind":"string","value":"WYNN"},"judge3":{"kind":"string","value":"RICHARDSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"WILKINSON\": \", Circuit\", \"WYNN\": \", Circuit\", \"RICHARDSON\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4673893/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Planned Parenthood v. Joshua Baker\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-10-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-2133\n\n\nPLANNED PARENTHOOD SOUTH ATLANTIC; JULIE EDWARDS, on her\nbehalf and on behalf of all others similarly situated,\n\n Plaintiffs – Appellees,\n\nv.\n\nJOSHUA BAKER, in his official capacity as Director, South Carolina Department\nof Health and Human Services,\n\n Defendant – Appellant.\n\n------------------------------\n\nACCESS REPRODUCTIVE CARE-SOUTHEAST; AMERICAN ACADEMY OF\nPEDIATRICS; AMERICAN COLLEGE OF OBSTETRICIANS AND\nGYNECOLOGISTS; AMERICAN COLLEGE OF PHYSICIANS; AMERICAN\nMEDICAL ASSOCIATION; CENTER FOR REPRODUCTIVE RIGHTS; IPAS;\nIN OUR OWN VOICE: NATIONAL BLACK WOMEN’S REPRODUCTIVE\nJUSTICE AGENDA; NATIONAL ASIAN PACIFIC AMERICAN WOMEN’S\nFORUM; NATIONAL HEALTH LAW PROGRAM; NATIONAL LATINA\nINSTITUTE FOR REPRODUCTIVE HEALTH; SEXUALITY INFORMATION\nAND EDUCATION COUNCIL OF THE UNITED STATES; SOCIETY FOR\nADOLESCENT HEALTH AND MEDICINE; SOCIETY FOR MATERNAL\nFETAL MEDICINE; WOMEN’S RIGHTS AND EMPOWERMENT NETWORK,\n\n Amici Supporting Appellee.\n\n\n\nAppeal from the United States District Court for the District of South Carolina, at\nColumbia. Mary G. Lewis, District Judge. (3:18-cv-02078-MGL)\n\nArgued: September 20, 2019 Decided: October 29, 2019\n\n\nBefore WILKINSON, WYNN, and RICHARDSON, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Wynn\nand Judge Richardson joined. Judge Richardson wrote a concurring opinion.\n\n\nARGUED: Kelly McPherson Jolley, JOLLEY LAW GROUP, LLC, Columbia, South\nCarolina, for Appellant. Alice Joanna Clapman, PLANNED PARENTHOOD\nFEDERATION OF AMERICA, Washington, D.C., for Appellees. ON BRIEF: Ariail B.\nKirk, JOLLEY LAW GROUP, LLC, Columbia, South Carolina, for Appellant. M. Malissa\nBurnette, Kathleen McDaniel, BURNETTE, SHUTT & MCDANIEL, PA, Columbia,\nSouth Carolina, for Appellees. Jane Liu, Mariah Lindsay, NATIONAL ASIAN PACIFIC\nAMERICAN WOMEN’S FORUM, Washington, D.C.; Julie Rikelman, Pilar Herrero,\nAmy Myrick, Carolina Van Der Mensbrugghe, CENTER FOR REPRODUCTIVE\nRIGHTS, New York , New York, for Amici Access Reproductive Care-Southeast, Center\nfor Reproductive Rights, In Our Own Voice: National Black Women’s Reproductive\nJustice Agenda, National Asian Pacific American Women’s Forum, National Latina\nInstitute for Reproductive Health, and Women’s Rights and Empowerment Network.\nJanice M. Mac Avoy, Andrew B. Cashmore, Alexandra Verdi, FRIED, FRANK, HARRIS,\nSHRIVER & JACOBSON LLP, New York, New York, for Amici American College of\nObstetricians and Gynecologists, American Medical Association, Society for Maternal\nFetal Medicine, American Academy of Pediatrics, American College of Physicians, and\nSociety for Adolescent Health and Medicine. Martha Jane Perkins, Sarah Jane Somers,\nNATIONAL HEALTH LAW PROGRAM, Carrboro, North Carolina, for Amici National\nHealth Law Program, IPAS, and Sexuality Information and Education Council of the\nUnited States.\n\n\n\n\n 2\n\nWILKINSON, Circuit Judge:\n\n This case raises a question of statutory construction. We ask whether, and on what\n\nbasis, the Medicaid Act’s free-choice-of-provider provision affords a private right of action\n\nto challenge a state’s exclusion of a healthcare provider from its Medicaid roster. The\n\ndistrict court here issued a preliminary injunction in favor of the individual plaintiff, a\n\nMedicaid recipient, in her suit challenging South Carolina’s decision to terminate Planned\n\nParenthood South Atlantic’s (PPSAT) provider agreement because it offers abortion\n\nservices. The plaintiff was likely to succeed on the merits of this claim, the district court\n\nheld, for two interrelated reasons: first, the Medicaid Act’s free-choice-of-provider\n\nprovision, 42 U.S.C. § 1396a(a)(23)(A), confers on “any individual” a private right to sue\n\nthat may be enforced under 42 U.S.C. § 1983; and second, South Carolina denied plaintiff\n\nthe right to select the willing, qualified family-planning provider of her choice.\n\n We now affirm. Based on the Supreme Court’s precedents, Congress’s intent to\n\ncreate an individual right enforceable under § 1983 in the free-choice-of-provider provision\n\nis unambiguous. In addition, a plain-language reading of the provision’s mandate—that\n\nstates “must” furnish Medicaid recipients the right to choose among providers “qualified\n\nto perform the service or services required”—bars states from excluding providers for\n\nreasons unrelated to professional competency. See 42 U.S.C. § 1396a(a)(23)(A), (p)(1).\n\nFinding the remaining preliminary injunction factors satisfied, we shall uphold the trial\n\ncourt’s judgment.\n\n\n\n\n 3\n\n I.\n\n A.\n\n Medicaid is the nation’s public health insurance program for those of limited means.\n\nThe original beneficiaries of this program were low-income children and their parents, the\n\nindigent elderly, the blind, and the disabled. Schweiker v. Gray Panthers, 453 U.S. 34, 37\n\n(1981). Since 1965, Congress has periodically expanded the program, adding, for instance,\n\npregnant women with family incomes up to 133% of the federal poverty level as a distinct\n\nbeneficiary class. See 42 U.S.C. § 1396a(a)(10)(A)(i), (l); Medicare Catastrophic Coverage\n\nAct of 1988, Pub. L. No. 100-360, § 302, 102 Stat. 683, 750; Omnibus Budget\n\nReconciliation Act of 1989, Pub. L. No. 101-239, § 6401, 103 Stat. 2106, 2258.\n\n A joint federal-state effort ensures that the healthcare needs of these beneficiaries\n\nare met. In broad strokes, the Medicaid Act “offers the States a bargain: Congress provides\n\nfederal funds in exchange for the States’ agreement to spend them in accordance with\n\ncongressionally imposed conditions.” Armstrong v. Exceptional Child Ctr., 135 S. Ct.\n\n1378, 1382 (2015). The Act, to that end, charges the federal government with crafting\n\nbaseline eligibility requirements for recipients and providers, determining covered medical\n\nservices, and establishing reimbursement standards to the states. See 42 U.S.C. § 1396 et\n\nseq.; NFIB v. Sebelius, 567 U.S. 519, 541-42 (2012). Cooperating states then implement\n\nthe program, agreeing to abide by federal conditions in return for federal matching funds\n\nthat are used for expenses such as provider reimbursements. See Armstrong, 135 S. Ct. at\n\n1382. Such funds are substantial; federal coffers finance anywhere from fifty to eighty-\n\n\n\n 4\n\nthree percent of state expenses, 42 U.S.C. § 1396d(b), an aggregate figure that accounts for\n\nover ten percent of most states’ total revenue, NFIB, 567 U.S. at 542.\n\n Congress designed the Medicaid program to ensure that states dispense federal\n\nfunds in compliance with federal rules. At the outset, states must propose and submit\n\nMedicaid plans for the approval of the Centers for Medicare and Medicaid Services.\n\nDouglas v. Indep. Living Ctr. of S. Cal., Inc., 565 U.S. 606, 610 (2012). State departures\n\nfrom federal requirements provide grounds for the Secretary of Health and Human Services\n\n(HHS) to withhold Medicaid funding, either in whole or in part. See 42 U.S.C. § 1396c; 42\n\nC.F.R. § 430.12(c). If federal requirements are met, however, states have “substantial\n\ndiscretion to choose the proper mix of amount, scope, and duration limitations on coverage,\n\nas long as care and services are provided in ‘the best interests of the recipients.’” Alexander\n\nv. Choate, 469 U.S. 287, 303 (1985) (quoting 42 U.S.C. § 1396a(a)(19)).\n\n At issue here is the Medicaid Act’s free-choice-of-provider provision, 42 U.S.C.\n\n§ 1396a(a)(23), which states:\n\n A State plan for medical assistance must— provide that any individual eligible\n for medical assistance . . . may obtain such assistance from any institution,\n agency, community pharmacy, or person, qualified to perform the service or\n services required . . . who undertakes to provide him such services . . . .\n\n42 U.S.C. § 1396a(a)(23)(A). That provision guarantees patients access to qualified and\n\nwilling providers. A state plan must generally allow Medicaid recipients to obtain care\n\nfrom any provider who is “qualified to perform the service or services required” and “who\n\nundertakes to provide . . . such services.”\n\n In its mechanics, the free-choice-of-provider provision comports with the Medicaid\n\n\n 5\n\nAct’s dual emphasis on federal standard-setting and state flexibility. While Medicaid\n\nbeneficiaries may generally seek medical services from willing providers of their choice,\n\nstates retain discretionary authority to determine whether entities are medically “qualified\n\nto perform the service or services required.” States may also exclude providers from their\n\nplans “for any reason for which the [federal] Secretary of [Health and Human Services]\n\ncould exclude the individual or entity,” 42 U.S.C. § 1396a(p)(1), or on certain state-law\n\ngrounds, see 42 C.F.R. § 431.51(c)(2).\n\n B.\n\n This dispute arose following South Carolina’s termination of two Planned\n\nParenthood centers as Medicaid providers. PPSAT operates two healthcare centers in South\n\nCarolina, one in Charleston and the other in Columbia. These centers provide a range of\n\nfamily planning and preventative care services, including physical exams, cancer\n\nscreenings, contraceptive counseling, and pregnancy testing. For four decades, PPSAT has\n\nbeen a South Carolina Medicaid provider that receives reimbursements for care provided\n\nto Medicaid beneficiaries. In recent years, PPSAT’s South Carolina centers have treated\n\nhundreds of patients insured through Medicaid annually.\n\n Among those patients is the individual plaintiff in this case, who suffers from\n\ndiabetes and its resulting complications. J.A. 75-78. Because doctors have advised that\n\nthese complications would make it quite dangerous for her to carry a pregnancy to term,\n\nthe plaintiff considers it imperative that she have access to safe, effective birth control.\n\nAfter the plaintiff had difficulty finding a doctor who accepted Medicaid patients and was\n\nwilling to provide her preferred form of birth control, she turned to PPSAT’s Columbia\n\n 6\n\ncenter. At her PPSAT appointment, the doctors inserted an intrauterine device to prevent\n\npregnancy and informed her that her blood pressure was elevated. As a result, she sought\n\nfollow-up care from her endocrinologist to control her blood pressure. Because the plaintiff\n\nwas impressed with the care she received at PPSAT, she planned to switch her\n\ngynecological and reproductive health care there.\n\n In July 2018, South Carolina’s Department of Health and Human Services\n\n(SCDHHS) terminated PPSAT’s Medicaid provider agreement. SCDHHS did not contend\n\nthat PPSAT was providing subpar service to its Medicaid patients, or to any other patients.\n\nInstead, PPSAT was terminated solely because it performed abortions outside of the\n\nMedicaid program. 1\n\n According to SCDHHS, PPSAT’s termination was part of a plan by Governor Henry\n\nMcMaster designed to prevent the state from indirectly subsidizing abortion services. In\n\n1995, the South Carolina legislature passed a law preventing state funds appropriated for\n\nfamily planning services from being used to fund abortions. S.C. Code Ann. § 43-5-1185\n\n(1995). After taking office in 2017, Governor McMaster issued two executive orders\n\ndesigned to further this objective. The first, Executive Order 2017-15, directed state\n\nagencies “to take any and all necessary actions . . . to the extent permitted by law, to cease\n\nproviding State or local funds . . . to any physician or professional medical practice\n\n\n\n 1\n South Carolina does not provide Medicaid reimbursements for abortion services\nexcept in cases where it is required to do so by federal law. Such cases involve rape, incest,\nor the need to protect the mother’s life. See Consolidated Appropriations Act, 2018, Pub.\nL. No. 115-141, div. H, tit. V, §§ 506-507, 132 Stat. 348, 763-64 (Hyde Amendment).\n\n 7\n\naffiliated with an abortion clinic . . . .” J.A. 56-58. The second, Executive Order 2018-21,\n\ndirected SCDHHS to “deem abortion clinics . . . and any affiliated physicians or\n\nprofessional medical practices . . . that are enrolled in the Medicaid program as unqualified\n\nto provide family planning services and, therefore, to immediately terminate them . . . .”\n\nJ.A. 70-71. SCDHHS responded quickly. On the day the second order was issued,\n\nSCDHHS Officer of Health Programs Amanda Williams notified PPSAT by letter that\n\n“[t]he Governor’s actions result in Planned Parenthood no longer being qualified to provide\n\nservices to Medicaid beneficiaries” and that PPSAT’s enrollment agreement with South\n\nCarolina was terminated effective immediately. J.A. 73. As a result, PPSAT’s two South\n\nCarolina centers began to turn away Medicaid patients. J.A. 13-14.\n\n C.\n\n On July 27, 2018, PPSAT and the individual plaintiff (collectively, “plaintiffs”)\n\nfiled suit in federal district court in South Carolina against Joshua Baker, in his official\n\ncapacity as Director of SCDHHS. The individual plaintiff brought suit on her own behalf\n\nand that of a purported class of South Carolina Medicaid beneficiaries who received, or\n\nwould like to receive, healthcare services at PPSAT. Plaintiffs brought this action under 42\n\nU.S.C. § 1983, seeking injunctive and declaratory relief on the grounds that SCDHHS\n\nviolated their rights under the Medicaid Act and the Fourteenth Amendment. On July 30,\n\nplaintiffs filed for preliminary injunctive relief solely on the basis of their Medicaid Act\n\nclaims. The district court held hearings on plaintiffs’ motion on August 23. In their\n\ncomplaint and at the hearing, plaintiffs argued that the Medicaid Act’s free-choice-of-\n\nprovider provision confers on recipients a private right, enforceable under 42 U.S.C.\n 8\n\n§ 1983, to use the qualified and willing provider of their choice, and that South Carolina\n\nviolated this right when it terminated PPSAT for reasons unrelated to its professional\n\ncompetence to provide medical services.\n\n The district court agreed with the plaintiffs and granted a preliminary injunction on\n\nAugust 28, 2018. Because the district court held that injunctive relief was appropriate based\n\non the individual plaintiff’s Medicaid Act claim alone, it did not analyze PPSAT’s\n\nMedicaid Act claim. First, it held that the individual plaintiff’s Medicaid Act claim was\n\nlikely to succeed on the merits. It agreed that the free-choice-of-provider provision confers\n\na private right, enforceable under 42 U.S.C. § 1983, on Medicaid-eligible patients,\n\nguaranteeing their right to choose any willing provider “qualified to perform” the relevant\n\nservice. Critically, the court held that “qualified” should be given its ordinary meaning—\n\nprofessionally competent. Relatedly, the district court rejected South Carolina’s contention\n\nthat § 1396a(p)(l) of the Medicaid Act gives a state plenary authority to exclude providers\n\nfrom its program “for any reason whatsoever as long as the reason is bolstered by State\n\nlaw.” Planned Parenthood S. Atl. v. Baker, 326 F. Supp. 3d 39, 47-48 (D.S.C. 2018). To\n\nthe contrary, it held that the state’s authority to exclude providers is limited by the free-\n\nchoice-of-provider provision.\n\n Finally, the district court found that the other conditions necessary for a preliminary\n\ninjunction—irreparable harm, balancing of the equities, and the public interest—were\n\nsatisfied. In weighing the equities, the district court rejected South Carolina’s argument\n\nthat the state would be forced to subsidize abortions if it were enjoined from terminating\n\nPPSAT’s provider agreement. Baker, 326 F. Supp. 3d at 49-50. First, because South\n\n 9\n\nCarolina’s Medicaid program does not cover abortions except in the narrow circumstances\n\nrequired by federal law, there was no direct subsidization of non-covered abortions. See id.\n\nat 47. Second, because “PPSAT is reimbursed for Medicaid services on a fee-for-service\n\nbasis,” id. at 49, at rates that do not cover its costs, PPSAT’s participation in Medicaid did\n\nnot generate excess funds that could be used to indirectly subsidize abortions. See id. at 47,\n\n49-50. Accordingly, the district court granted a preliminary injunction preventing South\n\nCarolina from terminating PPSAT’s Medicaid enrollment agreement.\n\n South Carolina timely appealed.\n\n II.\n\n The free-choice-of-provider provision lies at the heart of this appeal. As noted\n\nabove, the provision states that:\n\n A State plan for medical assistance must— provide that any individual\n eligible for medical assistance (including drugs) may obtain such assistance\n from any institution, agency, community pharmacy, or person, qualified to\n perform the service or services required (including an organization which\n provides such services, or arranges for their availability, on a prepayment\n basis), who undertakes to provide him such services . . . .\n\n42 U.S.C. § 1396a(a)(23)(A) (emphases added).\n\n It is difficult to imagine a clearer or more affirmative directive. The provision\n\napplies to “any individual” eligible for Medicaid; grants these individuals the right to obtain\n\nmedical treatment from “any institution” willing and “qualified to perform the service or\n\nservices required”; and provides that state plans “must” comply. 2\n\n\n 2\n Violation of a Medicaid recipient’s statutory right under the free-choice-of-\nprovider provision visits “concrete” harm that is “real” and “tangible,” because the\n(Continued)\n 10\n\n Congress could have made an exception for providers offering abortion services.\n\nBut it did not do so. Because we “presume that a legislature says in a statute what it means\n\nand means in a statute what it says there,” Connecticut Nat’l Bank v. Germain, 503 U.S.\n\n249, 253-54 (1992), this court cannot write into a statute an exception that Congress did\n\nnot create. Accordingly, we take the free-choice-of-provider provision to mean that a\n\nMedicaid recipient has the right to challenge a state’s exclusion of a provider from its\n\nMedicaid plan on grounds unrelated to that provider’s willingness and professional\n\ncompetency to furnish the required medical service.\n\n III.\n\n A.\n\n It is important at the outset to place this case in proper context. As a matter of black\n\nletter law, inferring a private right of action is a matter of statutory interpretation. If\n\nCongress is silent or ambiguous, courts may not find a cause of action “no matter how\n\ndesirable that might be as a policy matter.” Alexander v. Sandoval, 532 U.S. 275, 286-87\n\n(2001).\n\n But it was not always this way, and a brief overview of this history is useful\n\nbackground to the present lawsuit. We begin with J.I. Case Co. v. Borak, 377 U.S. 426\n\n(1964), where the Supreme Court stated that federal courts were partners of Congress,\n\nmaking it “the duty of the courts to be alert to provide such remedies as are necessary to\n\n\n\nrecipient can no longer receive care at his or her provider of choice. See Spokeo, Inc. v.\nRobins, 136 S. Ct. 1540, 1548-49 (2016). This is the exact harm that Congress intended the\nprovision to prevent. See id.\n\n 11\n\nmake effective the congressional purpose” expressed by a statute. Id. at 433. During the\n\nBorak era, the “exercise of judicial power” was not “justified in terms of statutory\n\nconstruction,” but rather as a means of crafting “substantive social policy.” Bivens v. Six\n\nUnknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 402, 402 n.4 (1971)\n\n(Harlan, J., concurring in judgment).\n\n Some years later, Justice Powell derided Borak’s approach in an oft-quoted dissent.\n\nCannon v. Univ. of Chicago, 441 U.S. 677, 742 (1979) (Powell, J., dissenting). In Powell’s\n\nview, freely implying private rights of action posed two related constitutional problems.\n\nFirst, to infer from silence the right to file suit in federal court interferes with Congress’s\n\nArticle III power to set “the jurisdiction of the lower federal courts.” Id. at 730. Second, an\n\nexpansive approach to implied private rights of action “cannot be squared with the doctrine\n\nof the separation of powers.” Id. This is because a court’s “substitut[ion of] its own views\n\nas to the desirability of private enforcement,” id. at 740, dispatches Congress’s Article I\n\n“policymaking authority” to the Third Branch of government, id. at 743. “When Congress\n\nchooses not to provide a private civil remedy, federal courts should not assume the\n\nlegislative role of creating such a remedy and thereby enlarge their jurisdiction.” Id. at 730-\n\n31. Therefore, “[a]bsent the most compelling evidence of affirmative congressional intent,\n\na federal court should not infer a private cause of action.” Id. at 731.\n\n Justice Powell’s dissent primed the Court for a doctrinal about-face. The Court\n\nincrementally swore “off the habit of venturing beyond Congress’s intent,” Sandoval, 532\n\nU.S. at 286-87 (tracing this doctrinal evolution), instead limiting its focus to the specific\n\nstatutory text at issue. In Sandoval, the Court summed up the result of this doctrinal\n\n 12\n\nprogression: “The judicial task is to interpret the statute Congress has passed to determine\n\nwhether it displays an intent to create not just a private right but also a private remedy.” Id.\n\nat 286.\n\n But there was a loose end remaining—what to do with implied rights of action\n\nbrought under § 1983. Some litigants argued that § 1983 provided plaintiffs with a separate\n\ncause of action if they fell “within the general zone of interest” of a federal statute. Gonzaga\n\nUniv. v. Doe, 536 U.S. 273, 282-83 (2002) (citing Blessing v. Freestone, 520 U.S. 329,\n\n340-41 (1997)). The Court swiftly corrected this misunderstanding in Gonzaga, instructing\n\nthat § 1983 creates a cause of action to enforce a federal statute only when the underlying\n\nstatute itself unambiguously “confers an individual right” on the plaintiff. Id. at 284-85. If\n\nso, the § 1983 remedy follows as a matter of course; litigants need not separately\n\ndemonstrate Congress’s intent to create a private remedy. Id.\n\n B.\n\n With this background as guidance, we review the district court’s entry of a\n\npreliminary injunction for “abuse of discretion, accepting the court’s findings of fact absent\n\nclear error, but reviewing its conclusions of law de novo.” Child Evangelism Fellowship of\n\nMd., Inc. v. Montgomery Cty. Pub. Sch., 373 F.3d 589, 593 (4th Cir. 2004). To that end,\n\nthe individual plaintiff “must establish that [s]he is likely to succeed on the merits, that\n\n[s]he is likely to suffer irreparable harm in the absence of preliminary relief, that the\n\nbalance of equities tips in h[er] favor, and that an injunction is in the public interest.” Winter\n\nv. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). We are mindful at once that a\n\npreliminary injunction is an “extraordinary remedy,” id. at 22, but its issuance “is\n\n 13\n\ncommitted to the sound discretion of the trial court,” Centro Tepeyac v. Montgomery Cty.,\n\n722 F.3d 184, 188 (4th Cir. 2013) (en banc) (quoting Quince Orchard Valley Citizens Ass’n\n\nv. Hodel, 872 F.2d 75, 78 (4th Cir. 1989)).\n\n IV.\n\n First we consider the threshold question whether the Medicaid Act’s free-choice-of-\n\nprovider provision creates a private right enforceable under § 1983. Section 1983 creates a\n\nfederal remedy against anyone who, under color of state law, deprives a person “of any\n\nrights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983.\n\nOf course, it “does not provide an avenue for relief every time a state actor violates a federal\n\nlaw.” City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 119 (2005). Rather a plaintiff\n\nseeking redress “must assert the violation of a federal right, not merely a violation of\n\nfederal law.” Blessing, 520 U.S. at 340.\n\n Three factors guide us in determining whether a statute creates a private right\n\nenforceable under § 1983. Id. at 340-41. “First, Congress must have intended that the\n\nprovision in question benefit the plaintiff.” Id. at 340. “Second, the plaintiff must\n\ndemonstrate that the right assertedly protected by the statute is not so ‘vague and\n\namorphous’ that its enforcement would strain judicial competence.” Id. at 340-41. “Third,\n\nthe statute must unambiguously impose a binding obligation on the States” by speaking “in\n\nmandatory, rather than precatory, terms.” Id. at 341. If these three factors are satisfied,\n\nthere is “a rebuttable presumption that the right is enforceable under § 1983,” id., which\n\nmay be defeated by showing that Congress expressly or implicitly foreclosed a § 1983\n\nremedy, City of Rancho Palos Verdes, 544 U.S. at 120.\n\n 14\n\n Applying these principles, we agree with the district court—and five of our six sister\n\ncircuits to have addressed this issue—that the free-choice-of-provider provision confers a\n\nprivate right, enforceable under § 1983, on Medicaid recipients. See Planned Parenthood\n\nof Kan. & Mid-Mo. v. Andersen, 882 F.3d 1205, 1224 (10th Cir. 2018); Planned\n\nParenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445, 457 (5th Cir. 2017); Planned\n\nParenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 965-66 (9th Cir. 2013); Planned\n\nParenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962, 968, 972-\n\n74 (7th Cir. 2012); Harris v. Olszewski, 442 F.3d 456, 461 (6th Cir. 2006). But see Does v.\n\nGillespie, 867 F.3d 1034, 1037, 1041, 1046 (8th Cir. 2017).\n\n Taking the first Blessing factor, the free-choice-of-provider provision\n\n“unambiguously gives Medicaid-eligible patients an individual right” to their choice of\n\nprovider qualified to perform a medical service. Planned Parenthood of Ind., 699 F.3d at\n\n974. The provision has an “unmistakable focus,” Gonzaga, 536 U.S. at 284, on its intended\n\nclass of beneficiaries: “any individual eligible for medical assistance” under the Medicaid\n\nAct, 42 U.S.C. § 1396a(a)(23)(A). See Doe v. Kidd, 501 F.3d 348, 356 (4th Cir. 2007)\n\n(finding that 42 U.S.C. § 1396a(a)(8), which refers to “all individuals wishing to make\n\napplication for medical assistance,” confers an individual right).\n\n Congress’s use of the phrase “any individual” is a prime example of the kind of\n\n“rights-creating” language required to confer a personal right on a discrete class of\n\npersons—here, Medicaid beneficiaries. See, e.g., Sandoval, 532 U.S. at 288 (providing an\n\nexample of rights-creating language: “No person . . . shall . . . be subjected to\n\ndiscrimination . . . .”). Put differently, by adopting as its benchmark whether the “needs of\n\n 15\n\nany particular person have been satisfied,” Gonzaga, 536 U.S. at 288, Congress left no\n\ndoubt that it intended to guarantee each Medicaid recipient’s free choice of provider.\n\n As for the second Blessing factor, the free-choice-of-provider provision is not so\n\n“vague and amorphous,” Blessing, 520 U.S. at 340-41, that its enforcement would strain\n\njudicial competence. The provision protects the right of a Medicaid recipient to seek care\n\nfrom his or her provider of choice, subject to two criteria: (1) the provider must be\n\n“qualified to perform the service or services required,” and (2) the provider must\n\n“undertake[] to provide [the recipient] such services.” 42 U.S.C. § 1396a(a)(23)(A). These\n\ncriteria are objective. The second is “a simple factual question no different from those\n\ncourts decide every day.” Betlach, 727 F.3d at 967. And the first, which “may require more\n\nfactual development or expert input,” still falls squarely “within the range of judicial\n\ncompetence.” Id.\n\n In an attempt to create ambiguity, South Carolina focuses on the word “qualified”\n\nin isolation, Appellant’s Reply Brief at 9-10, ignoring the reality that the term is “tethered\n\nto an objective benchmark: ‘qualified to perform the service or services required.’”\n\nBetlach, 727 F.3d at 967-68 (quoting 42 U.S.C. § 1396a(a)(23)(A)). That omission makes\n\nall the difference. Courts can “readily determine” whether a provider is qualified to perform\n\na service by “drawing on evidence such as descriptions of the service required; state\n\nlicensing requirements; the provider’s credentials, licenses, and experience; and expert\n\ntestimony regarding the appropriate credentials for providing the service.” Id. at 968. This\n\n\n\n\n 16\n\nfactual determination “is no different from the sorts of qualification or expertise\n\nassessments that courts routinely make in various contexts.” Id. 3\n\n Finally, the free-choice-of-provider provision “unambiguously impose[s] a binding\n\nobligation on the States.” Blessing, 520 U.S. at 341. Under the provision, states “must\n\nprovide” a Medicaid recipient with his or her choice of provider qualified to perform the\n\nservice at issue. 42 U.S.C. § 1396a(a)(23)(A). Thus the provision is “couched in\n\nmandatory, rather than precatory, terms.” Blessing, 520 U.S. at 341; see also Kidd, 501\n\nF.3d at 356 (holding, as mandatory, a Medicaid provision requiring that state plans “must”\n\nprovide for reasonably prompt medical assistance).\n\n Since the three Blessing factors are satisfied, the individual plaintiff benefits from a\n\nrebuttable presumption that the free-choice-of-provider provision is enforceable under\n\n§ 1983. Blessing, 520 U.S. at 341. That presumption has not been overcome. As an initial\n\nmatter, nowhere in the Medicaid Act did Congress declare an express intent to “specifically\n\nforeclose[] a remedy under § 1983.” Id. (internal quotations omitted).\n\n Nor can such an intent be implied: the Medicaid Act does not contain a\n\n“comprehensive enforcement scheme . . . incompatible with individual enforcement under\n\n§ 1983.” Id. Because South Carolina assumed that the free-choice-of-provider requirement\n\ndid not confer an individual right, it did not expressly press a rebuttal argument before this\n\n\n 3\n A distinct note of caution is in order. To say that the term “qualified” is susceptible\nto federal judicial measurement for purposes of the second prong of Blessing is not the\nsame thing as saying that states lack discretion in defining professional qualifications under\n42 U.S.C. § 1396a(p)(1), or that they are not due deference in their termination decisions.\nSee infra Section VI.B. In this case, PPSAT’s qualifications are simply not in dispute.\n\n 17\n\ncourt. Even if it had, we conclude that the Medicaid Act’s enforcement scheme is not\n\nsufficiently “comprehensive” to foreclose a private right of action enforceable under\n\n§ 1983. Three alternative remedies are provided for in the Act: (1) the Secretary of HHS’s\n\nauthority to review state Medicaid plans for noncompliance and curtail or cut off Medicaid\n\nfunding as a matter of discretion, 42 U.S.C. §§ 1316(a), 1396c; 42 C.F.R. § 430.12; (2) a\n\nstate administrative process for providers to challenge termination decisions, 42 U.S.C.\n\n§ 1396a(a)(4); 42 C.F.R. § 1002.213; and (3) a state administrative process for Medicaid\n\nrecipients to challenge a claim denial, 42 U.S.C. § 1396a(a)(3).\n\n These remedies, taken together, are quite different from the “unusually elaborate\n\nenforcement provisions” that the Supreme Court has taken as evidence that Congress\n\nintended to preclude individual enforcement under § 1983. Middlesex Cty. Sewerage Auth.\n\nv. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 13-14 (1981). The relevant pollution control\n\nstatute at issue in Middlesex County is illustrative. That statute authorized governmental\n\nofficials to respond to violations of the act with compliance orders and civil suits; permitted\n\nthe imposition of penalties up to $10,000 per day; and made criminal penalties available.\n\nId. at 13. Separately, the act also conferred on “any interested person” the right to seek\n\njudicial review of relevant acts by federal officials, such as the issuance of an effluent\n\npermit. Id. at 13-14. By prescribing the particular remedies available to public and private\n\nactors, Congress demonstrated its intent to foreclose forms of relief otherwise available to\n\nplaintiffs bringing § 1983 claims. See id. at 14-15.\n\n Nothing comparable to this detailed enforcement scheme exists in the Medicaid Act.\n\nTo state the obvious, individuals are not ordinarily plaintiffs in provider suits, and an\n\n 18\n\nindividual’s administrative remedy to challenge, for example, a denial of Medicaid\n\ncoverage for a particular “service” does not also provide a forum for contesting the\n\ndisqualification of a preferred provider. This much is clear to South Carolina, so it seems\n\nto latch onto the Secretary’s ability to cut Medicaid funds as itself indicative of a\n\ncomprehensive administrative enforcement scheme. See Appellant’s Opening Brief at 26-\n\n27. But a remedy is not comprehensive solely because it is drastic, and to view a wholesale\n\ncutoff of funding to the states as vindicating the interests of individual Medicaid\n\nbeneficiaries in their choice of provider would be illogical.\n\n The illogic of this argument aside, the Supreme Court has already held that the\n\nMedicaid Act’s administrative scheme is not sufficiently comprehensive to foreclose a\n\nprivate right of action enforceable under § 1983. Wilder v. Virginia Hosp. Ass’n, 496 U.S.\n\n498, 521-22 (1990); see also Kidd, 501 F.3d at 356 (holding that the Medicaid Act neither\n\nexplicitly nor implicitly “forbid[s] recourse to § 1983”). The Court’s decision in Gonzaga\n\ncut back on Wilder’s treatment of implied rights of action in the § 1983 context;\n\nspecifically, Gonzaga clarified that Congress must create an “unambiguously conferred\n\nright” rather than merely confer a “benefit” on a plaintiff to establish a cause of action\n\nenforceable under § 1983. Gonzaga, 536 U.S. at 282. But Wilder’s reasoning as to the\n\ncomprehensiveness of the Medicaid Act’s enforcement scheme has not been overturned.\n\nSee Andersen, 882 F.3d at 1229, 1229 n.16 (recognizing the same).\n\n In sum, the Medicaid Act’s enforcement scheme is not sufficiently “comprehensive”\n\nbecause, inter alia, it does not provide a private remedy—either judicial or administrative—\n\n\n\n 19\n\nfor patients seeking to vindicate their rights under the free-choice-of-provider provision. 4\n\nSee City of Rancho Palos Verdes, 544 U.S. at 121 (“[I]n all of the cases in which we have\n\nheld that § 1983 is available for violation of a federal statute, we have emphasized that the\n\nstatute at issue . . . did not provide a private judicial remedy (or, in most of the cases, even\n\na private administrative remedy) for the rights violated.”). The reason Congress did not\n\nspecify a method of private enforcement is plain: Section 1983 was to be the remedy for\n\npatients seeking to enforce their rights under the free-choice-of-provider provision.\n\nPermitting private enforcement of this type of suit, Congress realized, “in no way\n\ninterferes” with the Secretary of HHS’s authority to audit and sanction noncompliant state\n\nMedicaid plans. Planned Parenthood of Ind., 699 F.3d at 975.\n\n Thus, the Medicaid Act provides no comprehensive enforcement scheme sufficient\n\nto overcome the presumption that the free-choice-of-provider provision is enforceable\n\nunder § 1983. Blessing, 520 U.S. at 341. The plain, direct language of that provision\n\nunmistakably confers on a discrete class of individual Medicaid beneficiaries the right to\n\nseek medical assistance from any qualified medical provider who is willing to provide the\n\nrequired medical service. If that language does not suffice to confer a private right,\n\n\n\n 4\n South Carolina’s contention that the individual plaintiff had a state administrative\nremedy she was required to exhaust before bringing a § 1983 suit is misguided. “[A]s a\ngeneral rule, a plaintiff bringing a suit pursuant to 42 U.S.C. § 1983 does not have to\nexhaust state administrative remedies before filing suit in federal court.” Talbot v. Lucy\nCorr Nursing Home, 118 F.3d 215, 218 (4th Cir. 1997) (citing Patsy v. Bd. of Regents of\nState of Fla., 457 U.S. 496, 512 (1982)). At any rate, we agree with the district court that\neven if the individual plaintiff had a state administrative remedy available to her, it would,\ngiven the circumstances here, be futile. Baker, 326 F. Supp. 3d at 46-47.\n\n 20\n\nenforceable under § 1983, upon the plaintiff here, it is difficult to see what language would\n\nbe adequate. To hold in South Carolina’s favor here would simply be to remove § 1983 as\n\na vehicle for private rights enforcement and essentially to require Congress to set forth a\n\ncause of action enforceable purely on its own terms. We do not believe that the Court has\n\nchanneled the expression of congressional intent in such a fashion, nor do we believe that\n\nwe are free to do so. See Blessing, 520 U.S. at 340-41. Because South Carolina has not\n\nrebutted the presumption that a private right of action exists, we join the Fifth, Sixth,\n\nSeventh, Ninth, and Tenth Circuits in finding that the free-choice-of-provider provision\n\ncreates a private right enforceable under § 1983. See Andersen, 882 F.3d at 1224; Gee, 862\n\nF.3d at 457; Betlach, 727 F.3d at 965-66; Planned Parenthood of Ind., 699 F.3d at 968,\n\n972-74; Harris, 442 F.3d at 461. But see Gillespie, 867 F.3d at 1041, 1046.\n\n V.\n\n We are mindful of two principal, and principled, objections to according the plaintiff\n\nher requested relief. First, we should not freely infer private rights of action that are\n\nenforceable under § 1983. Second, because Spending Clause legislation is in the nature of\n\na contract, we should not construe it so as to ambush states with terms that the states did\n\nnot foresee or bargain for. These are doctrines of importance and great force, but both\n\npresuppose some level of textual ambiguity. Because that ambiguity is absent here, we\n\nbegin and end our search for Congress’s intent with the plain text of the free-choice-of-\n\nprovider provision.\n\n First, courts are most definitely not at liberty to imply private rights of action willy-\n\nnilly. Congress’s intent to make a private right enforceable under § 1983 must be\n\n 21\n\n“unmistakably clear.” Gonzaga, 536 U.S. at 286 (internal citations omitted). This\n\nrequirement ensures that courts enforce private rights under § 1983 only when Congress\n\nhas so intended. Here, Congress unambiguously intended to create a private right—in favor\n\nof “any individual” receiving Medicaid assistance—in the free-choice-of-provider\n\nprovision. Medicaid recipients, it is clear, are not merely within the provision’s “general\n\nzone of interest.” See id. at 283.\n\n We do not reach this conclusion lightly, but only after closely examining Congress’s\n\nintent underlying the “specific statutory provision” at issue. Blessing, 520 U.S. at 342-43.\n\nSouth Carolina reaches beyond the plain and narrow text of the free-choice-of-provider\n\nprovision—to eighty-two other provisions in the Medicaid Act—to conclude that the\n\nprovision is no more than a “plan requirement,” rather than an individual right. Appellant’s\n\nOpening Brief at 23. However, Congress foreclosed any argument that an individual plan\n\nrequirement in the Medicaid Act cannot be enforceable through an implied private right of\n\naction. 42 U.S.C. § 1320a–2 (A provision “is not to be deemed unenforceable because of\n\nits inclusion in a section of [the Act] . . . specifying the required contents of a State plan.\n\nThis section is not intended to limit or expand the grounds for determining the availability\n\nof private actions to enforce State plan requirements . . . .”). Quite apart from that clause,\n\nhowever, ignoring Congress’s clearly expressed intent to create a private right of action\n\nhere is no less a usurpation of Congress’s “policymaking authority,” see Cannon, 441 U.S.\n\nat 743 (Powell, J., dissenting), than reading a cause of action into a statute where Congress\n\ndid not create one, see Borak, 377 U.S. at 433.\n\n\n\n 22\n\n Second, courts must be especially cautious in finding that a provision in Spending\n\nClause legislation, such as the Medicaid Act, creates a private right enforceable under\n\n§ 1983. Spending Clause legislation, as noted, has been likened to a contract: “[I]n return\n\nfor federal funds, the States agree to comply with federally imposed conditions. The\n\nlegitimacy of Congress’ power to legislate under the spending power thus rests on whether\n\nthe State voluntarily and knowingly accepts the terms of the ‘contract.’” Pennhurst State\n\nSch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). Since a state cannot voluntarily and\n\nknowingly accept conditions unknown to it, “if Congress intends to impose a condition on\n\nthe grant of federal moneys, it must do so unambiguously.” Id.\n\n So much is true here. The terms of the Medicaid agreement are clear; in return for\n\nsubstantial federal funds, states are required to comply with the unambiguous terms of the\n\nfree-choice-of-provider provision. And for the reasons described above, this obligation is\n\nenforceable by recipients, the intended beneficiaries of the provision. When, as here, the\n\nprivate cause of action is “unambiguously conferred” on a third party, see Armstrong, 135\n\nS. Ct. at 1388 (plurality), courts cannot deprive the sovereign signatories to a “contract”\n\nsuch as the Medicaid Act of the benefit of their bargain.\n\n Nor may courts relieve them of the agreement’s consequences. Here, South Carolina\n\nwould like to avoid the obligations imposed by this fair bargain. In essence, the state argues\n\nthat some Supreme Court decisions might suggest a move away from inferring private\n\nrights of action in Spending Clause legislation. See, e.g., Appellant’s Opening Brief at 29-\n\n30 (“The [Gonzaga] Court noted that ‘[m]ore recent decisions have rejected attempts to\n\ninfer enforceable rights from Spending Clause statutes.’”) (quoting Gonzaga, 536 U.S. at\n\n 23\n\n281). South Carolina may or may not be correct in its doctrinal forecast, but for now its\n\nargument remains speculative and conjectural. As the Seventh Circuit noted:\n\n [N]othing in Armstrong, Gonzaga, or any other case we have found supports\n the idea that plaintiffs are now flatly forbidden in section 1983 actions to rely\n on a statute passed pursuant to Congress’s Spending Clause powers. There\n would have been no need, had that been the Court’s intent, to send lower\n courts off on a search for “unambiguously conferred rights.” A simple “no”\n would have sufficed.\n\nBT Bourbonnais Care, LLC v. Norwood, 866 F.3d 815, 820-21 (7th Cir. 2017). We agree.\n\nAt bottom, the Court’s cases require us to find an “unambiguously conferred” right,\n\nArmstrong, 135 S. Ct. at 1387-88 (plurality), which is exactly what we have done here. In\n\nthe end, the concerns identified above are not controlling in this case, because the free-\n\nchoice-of-provider provision unambiguously creates a private right in favor of the\n\nindividual plaintiff.\n\n VI.\n\n Having decided that Congress unambiguously intended to create a private right of\n\naction in the free-choice-of-provider provision, we turn now to consider the scope of the\n\nright it confers on Medicaid recipients. A reasoned textual analysis in this case requires\n\nonly two steps. First, “[a]s always, we start with the specific statutory language in dispute.”\n\nMurphy v. Smith, 138 S. Ct. 784, 787 (2018). In the free-choice-of-provider provision,\n\n“qualified to perform the service or services required” means what it says: professionally\n\nfit to perform the medical services the patient requires. Second, we look to § 1396a(p)(1),\n\nwhich describes a state’s authority to exclude providers from its Medicaid plan. In the end,\n\nwe find that the free-choice-of-provider provision in § 1396a(a)(23)(A) and the state’s\n\n\n 24\n\ndiscretionary authority under § 1396a(p)(1) work in tandem to accomplish Congress’s\n\noverall objectives in this cooperative federalism scheme.\n\n A.\n\n First principles guide us in deciding what it means for a provider to be “qualified to\n\nperform the service or services required” under the free-choice-of-provider provision.\n\n“Unless otherwise defined, statutory terms are generally interpreted in accordance with\n\ntheir ordinary meaning.” BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006). Because the\n\nMedicaid Act does not define the term “qualified,” we consider its plain meaning—namely,\n\n“having an officially recognized qualification to practice as a member of a particular\n\nprofession; fit, competent.” Oxford English Dictionary (3d ed. 2007); see also Black’s Law\n\nDictionary 1360 (9th ed. 2009) (defining “qualified” as “[p]ossessing the necessary\n\nqualifications; capable or competent”).\n\n Every circuit to have considered this issue is in accord with that straightforward\n\ndefinition. See, e.g., Andersen, 882 F.3d at 1230; Gee, 862 F.3d at 459-60; Betlach, 727\n\nF.3d at 967-68; Planned Parenthood of Ind., 699 F.3d at 978. But see Gillespie, 867 F.3d\n\nat 1046 (declining to reach this question after concluding that the free-choice-of-provider\n\nprovision does not provide patients with a private right of action enforceable under § 1983).\n\n South Carolina does not contest the fact that PPSAT is professionally qualified to\n\ndeliver the services that the individual plaintiff seeks. Nowhere in its submissions to this\n\ncourt does the state seek to raise doubts that PPSAT satisfies the ordinary definition of\n\n“qualified” as being professionally capable or competent. Instead, the state seeks to\n\npersuade us that “qualified” means something other than what it says or that the structure\n\n 25\n\nof the statute as a whole entrusts the word to the states to define its meaning.\n\n The term, however, is in a federal statute and we are obliged to give it the meaning\n\nthat Congress intended, so long as that meaning is clear to its state partners in this\n\ncooperative program. There is no question that the ordinary meaning of the term\n\n“qualified” is the one Congress intended. Were there any doubt as to its intent, Congress\n\nprovided more specificity in the terms surrounding “qualified.” The free-choice-of-\n\nprovider provision guarantees Medicaid recipients the right to “obtain [medical] assistance\n\nfrom any institution, agency . . . or person[] qualified to perform the service or services\n\nrequired.” 42 U.S.C. § 1396a(a)(23)(A) (emphasis added). The plain import of this\n\nlanguage is to tie the word “qualified” to the performance of a service—and not just any\n\nservice, but a medical service. Tellingly, the statute does not differentiate among different\n\ntypes of medical services, laying bare what can be the only reasonable interpretation of\n\n“qualified” in this context: capable of “carry[ing] out a particular activity—‘perform[ing]\n\nthe [medical] service’ that a given Medicaid recipient requires.’” Betlach, 727 F.3d at 969.\n\nIt follows that the types of “qualifications” that are intended relate to a provider’s\n\ncompetency to perform a particular medical service, and not to any conceivable state\n\ninterest as applied to the Medicaid program.\n\n Reading “qualified to perform” in the free-choice-of-provider provision to mean\n\nprofessionally competent accords with the way Congress ordinarily uses the phrase. See\n\nMount Lemmon Fire Dist. v. Guido, 139 S. Ct. 22, 26 (2018) (finding it “instructive” that\n\na phrase “occurs dozens of times throughout the U.S. Code, typically carrying [its ordinary\n\nmeaning]”). Consider, for example, 8 U.S.C. § 1188(c)(3), which directs the Secretary of\n\n 26\n\nLabor to find that “there are not sufficient workers in the United States who are able,\n\nwilling, and qualified to perform the labor or service needed” before admitting temporary\n\nH-2A workers. This provision, like many others in the U.S. Code, specifies some service\n\nor function as the object of the phrase “qualified to perform.” See, e.g., 49 U.S.C. § 5329(e)\n\n(awarding states funding to carry out a federal public transportation safety program if,\n\namong other things, members of the state agency “responsible for rail fixed guideway\n\npublic transportation safety oversight” are “qualified to perform such functions through\n\nappropriate training”); 37 U.S.C. § 301b(b)(3) (defining “covered officers” as including\n\nthose “qualified to perform operational flying duty”). To read the phrase as denoting\n\nanything other than fitness to perform the activity identified would be highly unusual.\n\n In short, Congress’s handiwork here makes good sense. As a matter of ordinary\n\nEnglish, one’s preferred dry cleaner is not made unqualified to perform cleaning services\n\nbecause he disfavors bicycles or because he did not vote in the last state election, even\n\nthough the state may prefer otherwise. Yet that is precisely the sort of result produced by\n\nSouth Carolina’s reading of “qualified,” which would allow the state to exclude providers\n\nbased on any conceivable state interest. PPSAT, as South Carolina all but admits, is\n\nperfectly competent to perform the family-planning services required by plaintiff and is\n\nlicensed to do so. The state nevertheless suggests that it may disqualify a competent\n\nprovider under state law so long as there is “good reason.” See Appellant’s Opening Brief\n\nat 24. Today that reason is PPSAT’s provisioning of abortion services, but we cannot glean\n\nany principled limit to the state’s exclusion authority under South Carolina’s interpretation.\n\n And there’s the rub. If credited, South Carolina’s submission that the term\n\n 27\n\n“qualified” means whatever the state says would strip the free-choice-of-provider provision\n\nof all meaning and shortchange the federal side of the bargain. South Carolina argues the\n\nprovision would still have some meaning by ensuring that recipients could see any provider\n\nthat meets the state’s qualifications. But we do not believe that Congress could have\n\nintended to confer a right so empty in terms so strong. “If the states are free to set any\n\nqualifications they want—no matter how unrelated to the provider’s fitness to treat\n\nMedicaid patients—then the free-choice-of-provider requirement could be easily\n\nundermined by simply labeling any exclusionary rule as a ‘qualification.’” Planned\n\nParenthood of Ind., 699 F.3d at 978.\n\n South Carolina nonetheless contends that the Medicaid Act’s silence as to the\n\nmeaning of “qualified” is grounds for interpreting it to allow states expansive exclusionary\n\npowers. See Appellant’s Reply Brief at 10 (“Congress leaving the term ‘qualified’\n\nundefined purposely creates a vague or amorphous provision with the idea being that doing\n\nso allows the states to tailor their State Plan.”). That, however, is not how we ordinarily\n\ninterpret undefined statutory terms, let alone a term pegged to a phrase as clear as “to\n\nperform the [medical] service or services required.” 42 U.S.C. § 1396a(a)(23)(A).\n\n The state next seeks refuge in the canon against surplusage. If “qualified” means\n\nprofessionally competent, South Carolina argues, then its inclusion in the free-choice-of-\n\nprovider provision is “pointless and redundant” because state licensing schemes already\n\nexclude incompetent providers from the Medicaid pool. See Appellant’s Reply Brief at 13.\n\nBut this view ignores the language of the free-choice-of-provider provision. We do not\n\nlightly impute to Congress an intent to use terms that “have no operation at all.” Marbury\n\n 28\n\nv. Madison, 5 U.S. (1 Cranch) 137, 174 (1803). And as noted above, South Carolina’s\n\nreading works precisely this result by allowing states—at their discretion—to nullify the\n\nfree-choice-of-provider provision entirely. Granted, South Carolina agrees that a state’s\n\npolicies cannot eliminate “all recipient choice,” which the state interprets to require only\n\nthat at least two “qualified” providers remain available. See Appellant’s Opening Brief at\n\n36-37. But that cannot be right. The free-choice-of-provider provision “does not simply\n\nbar the states from ending all choice of providers, it guarantees to every Medicaid\n\nbeneficiary the right to choose any qualified provider.” Planned Parenthood of Ind., 699\n\nF.3d at 979. In order to do that, a state must be restricted in its ability to terminate providers\n\nfor reasons unrelated to professional competency.\n\n The case law also does not support South Carolina’s position. On this front, the state\n\nargues that the Court’s decision in O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773\n\n(1980), interpreted the free-choice-of-provider provision to apply only to providers that\n\n“continue[] to be qualified” in the Medicaid program as a matter of state law. Appellant’s\n\nOpening Brief at 35 (quoting O’Bannon, 447 U.S. at 785). Not so. O’Bannon spoke to the\n\nnarrow question whether residents of a nursing home had a right to a pre-termination\n\nhearing before the state could close a home that all parties agreed was professionally\n\n“unqualified” to render patient care. See 447 U.S. at 775-76; see also id. at 776 n.3\n\n(cataloguing the home’s noncompliance with statutes governing, among other topics,\n\nnursing services, physical environment, and medical records). In point of fact, the patients\n\nthere did not bring a substantive claim seeking to vindicate their rights under the free-\n\nchoice-of-provider provision, but rather sued for violation of their procedural due process\n\n 29\n\nrights. Id. at 775. Along with three of the four circuits to have addressed this issue, we\n\ncannot read O’Bannon to resolve the very different claim raised by plaintiff in the instant\n\ncase. See Andersen, 882 F.3d at 1231-32; Gee, 862 F.3d at 460-61; Planned Parenthood of\n\nInd., 699 F.3d at 977. But see Gillespie, 867 F.3d at 1047 (Shepherd, J., concurring).\n\n B.\n\n Although the free-choice-of-provider provision imposes limits on a state’s\n\nqualification authority, states retain discretionary authority with regards to healthcare\n\nproviders. Section 1396a(p)(1) speaks to this balance, providing:\n\n In addition to any other authority, a State may exclude any individual or\n entity for purposes of participating under the State plan under this subchapter\n for any reason for which the Secretary [of Health and Human Services]\n could exclude the individual or entity from participation in a program under\n subchapter XVIII under section 1320a–7, 1320a–7a, or 1395cc(b)(2) of this\n title.\n\n This provision confirms that states may and do set standards that relate to providers’\n\nability to practice in a professionally competent manner. Take the cross-references to start.\n\nThey identify various forms of misconduct including patient abuse, failure to furnish\n\nmedically necessary services, fraud, license revocation, excessive charges, and failure to\n\ndisclose necessary information to state regulators. 42 U.S.C. § 1320a–7. In short, federal\n\nregulations confirm the authority vested in states to “set[] reasonable standards relating to\n\nthe qualifications of providers” on analogous state-law grounds. See 42 C.F.R.\n\n§ 431.51(c)(2).\n\n Putting all this together, § 1396a(p)(1) and the free-choice-of-provider provision\n\noperate in pleasant conjunction. The free-choice-of-provider provision confers an\n\n\n 30\n\nindividual right on Medicaid recipients to select the willing and competent provider of their\n\nchoice. Section 1396a(p)(1) clarifies that states retain discretionary authority to disqualify\n\nproviders as professionally incompetent for nonmedical reasons such as fraud and for any\n\nnumber of unprofessional behaviors. But the emphasis in § 1396a(p)(1) upon professional\n\nmalfeasance in no way deprives states of the latitude they possess, under the free-choice-\n\nof-provider provision itself, to judge a provider’s medical qualifications. Indeed, the\n\nlanguage that begins the free-choice-of-provider provision—“A State plan for medical\n\nassistance must— provide,” 42 U.S.C. § 1396a(a)(23)(A)—presupposes the existence of\n\ndiscretionary authority in the states as it relates to provider qualifications. Nevertheless,\n\nthe fact that the statute’s language and structure suggest the deference due states on the\n\nmatter of professional and medical qualifications in no way confers a blank check. Here, it\n\nbears repeating, no one disputes PPSAT’s medical qualifications to perform the family-\n\nplanning services required, nor is any professional wrongdoing on the part of PPSAT even\n\nalleged. So it follows that South Carolina cannot arbitrarily disqualify PPSAT upon the\n\ngeneralized assertion of inapposite state interests without running afoul of the free-choice-\n\nof-provider provision.\n\n South Carolina attempts to disrupt the congruence between these two provisions by\n\nreading the savings clause “for more than it’s worth.” Planned Parenthood of Ind., 699\n\nF.3d at 979. The state argues that the phrase “[i]n addition to any other authority” in\n\n§ 1396a(p)(1) means it can exclude a provider on any state-law grounds—and for any\n\nreason. See Appellant’s Opening Brief at 32 (“South Carolina’s authority, under Section\n\n1396a(p)(1), to determine whether a provider is qualified does not depend on the state\n\n 31\n\ninterest the disqualification seeks to protect.”).\n\n The district court rejected this interpretation, concluding that reading the savings\n\nclause this way would render the right conferred by the free-choice-of-provider provision\n\nmeaningless. Baker, 326 F. Supp. 3d at 47-48. We agree. If Congress had in fact harbored\n\nthe sweeping intent that South Carolina gleans from § 1396a(p)(1), there would be no\n\nreason to bother with the free-choice-of-provider provision, as any state-law ground could\n\nserve as the basis to eliminate a patient’s choice. To say that this would warp the law\n\nenacted by Congress is an understatement.\n\n Moreover, South Carolina’s interpretation also finds no support in the four corners\n\nof § 1396a(p)(1). For one thing, the phrase “[i]n addition to any other authority” serves a\n\nspecific purpose. It lists what “is a non-exclusive list of specific grounds upon which states\n\nmay bar providers from participating in Medicaid.” Planned Parenthood of Ind., 699 F.3d\n\nat 979. The grounds identified—spanning everything from financial fraud to medical\n\nmalpractice—relate generally to professional malfeasance. In contrast, the type of\n\n“qualification” the state argues for under § 1396a(p)(1) is different in kind. South\n\nCarolina’s exclusion of PPSAT from its Medicaid network has nothing to do with\n\nprofessional misconduct or for that matter with PPSAT’s ability to safely and\n\nprofessionally perform plaintiff’s required family-planning services. PPSAT, after all,\n\ncontinues to deliver these services to thousands of South Carolinians each year—to which\n\nthe state has no objection. See J.A. 91.\n\n What we are left with, ironically, is the state’s attempt to eliminate almost the\n\nentirety of § 1396a(p)(1). For if the phrase “[i]n addition to any other authority” authorizes\n\n 32\n\nany and all state interests to serve as a basis for termination, there would be no need to list\n\nthe specific grounds identified in § 1396a(p)(1). Congress sometimes employs the broad\n\nversion of the phrase. See, e.g., 7 U.S.C. § 2279(c)(4)(B) (“The authority to carry out this\n\nsection shall be in addition to any other authority provided in this or any other Act.”)\n\n(emphasis added). But it did not do so here, and the foregoing discussion makes clear that\n\nthis was not through inadvertence.\n\n Consider also the cases cited by the state to support its broad reading of the savings\n\nclause. In Guzman v. Shewry, 552 F.3d 941 (9th Cir. 2009), the Ninth Circuit did not hold\n\nthat § 1396a(p)(1) grants states plenary exclusion authority over healthcare providers.\n\nRather, that court expressly recognized that states may exclude providers “for reasons\n\nbearing on the individual’s or entity’s professional competence, professional performance,\n\nor financial integrity.” Id. at 949 (citing 42 U.S.C. § 1320a-7(b)(5)). In any event, the\n\nprovider in Guzman was deemed “unqualified” based on a state law guarding against\n\nprofessional malfeasance—as were the providers in all cases interpreting § 1396a(p)(1)\n\nthat South Carolina cites. See id. at 946-47 (fraud or abuse); First Med. Health Plan v.\n\nVega-Ramos, 479 F.3d 46, 49-50 (1st Cir. 2007) (financial self-dealing); Triant v. Perales,\n\n491 N.Y.S.2d 486, 488 (App. Div. 1985) (shoddy record-keeping).\n\n In the end, to read § 1396a(p)(1) as imposing such severe limits on the scope of the\n\nright conferred by the free-choice-of-provider provision would eviscerate the Medicaid\n\nAct’s cooperative scheme and turn the congressional judgment on its head. Congress,\n\naware of the deep national divide on a topic so sensitive as abortion, sought to strike a\n\nbalance in the Medicaid Act. Starting in 1976, Congress has prohibited federal funds from\n\n 33\n\nbeing used to finance abortions, excepting instances of rape, incest, or to save the life of\n\nthe mother. Harris v. McRae, 448 U.S. 297, 302 (1980) (describing the Hyde Amendment).\n\nOn the other hand, Congress provided extra protections for beneficiaries’ freedom of\n\nchoice among family-planning providers, something it accomplished while amending the\n\nfree-choice-of-provider provision to accommodate Medicaid managed care plans. 5 The\n\nSecretary, to wit, may waive the free-choice-of-provider provision when a state implements\n\na Medicaid managed care plan. But with an important caveat: An individual’s right to seek\n\nout non-abortion services from a qualified family-planning provider of her choice cannot\n\nbe waived. 42 U.S.C. §§ 1396a(a)(23)(B), 1396d(a)(4)(C); see also Betlach, 727 F.3d at\n\n972 (“Even if a state otherwise exercises its option to implement a managed-care system,\n\n§ 1396a(a)(23)(B) makes clear that as to family planning services, state Medicaid plans\n\nmust afford recipients the full range of free choice of provider.”). This implicit bargain\n\nagreed to by the political branches is one that we are bound to respect.\n\n VII.\n\n Because the individual plaintiff has a private right of action to challenge South\n\nCarolina’s denial of her right to the qualified and willing family-planning provider of her\n\nchoice, we agree with the district court that she has demonstrated a substantial likelihood\n\nof success on her free-choice-of-provider claim. We also hold that the district court did not\n\n\n\n 5\n Medicaid managed care plans allow a state to contract with a limited selection of\nhealthcare providers. Through this arrangement, states can lower their Medicaid expenses\nand streamline their delivery of health care. There is no contention that any waiver of the\nfree-choice-of-provider provision took place here.\n\n 34\n\nabuse its discretion in enjoining South Carolina from terminating PPSAT’s provider\n\nagreement.\n\n It is clear that the plaintiff would suffer irreparable harm in the absence of a\n\npreliminary injunction. Denial of her statutory right to select a qualified provider visits a\n\ntangible harm: diminished access to high-quality health care suited to the individual\n\nplaintiff’s needs. See Appellees’ Brief at 39. That PPSAT may be one of many providers\n\navailable to the individual plaintiff through South Carolina’s Medicaid network is not\n\ndispositive; the free-choice-of-provider provision, as we have noted, guarantees a patient’s\n\naccess to her preferred provider, save on matters of professional integrity and competency.\n\nSouth Carolina has a legitimate interest in ensuring that state dollars do not subsidize\n\nabortion. But we are not prepared to disrupt the district court’s finding that the state’s\n\nreimbursement of PPSAT on a fee-for-service basis guards against the indirect\n\nsubsidization of abortion. Finally, an injunction would serve the public interest by\n\npreserving the individual plaintiff’s statutory right under the free-choice-of-provider\n\nprovision and ensuring “affordable access to competent health care by some of South\n\nCarolina’s neediest citizens,” Baker, 326 F. Supp. 3d at 50, whose health challenges are\n\nevery bit as real as those of citizens of greater means.\n\n We do not doubt that South Carolina’s termination of PPSAT’s provider agreement\n\nwas intended “to further [its] own legitimate interests in protecting prenatal life.” Planned\n\nParenthood of Se. Pa. v. Casey, 505 U.S. 833, 853 (1992). Reasonable people can disagree\n\nwith how Congress chose to balance state flexibility on the one hand, and enforcement of\n\nfederal entitlements on the other. But in all events federal courts are ill-suited to second-\n\n 35\n\nguess this act of political judgment in the Medicaid Act. An injury so concrete and a right\n\nso clear is something that the courts must respect, else we forsake natural and\n\nstraightforward readings of statutory text in favor of spinning ever-finer webs of\n\ncircumvention that lead to our desired outcomes. To subscribe to this portentous course is\n\nto abandon the very source of our authority and the mandate that alone makes the Third\n\nBranch a distinctive organ of our government. The judgment of the district court is\n\naffirmed.\n\n AFFIRMED\n\n\n\n\n 36\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Planned Parenthood v. Joshua Baker\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-10-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-2133\\n\\n\\nPLANNED PARENTHOOD SOUTH ATLANTIC; JULIE EDWARDS, on her\\nbehalf and on behalf of all others similarly situated,\\n\\n Plaintiffs – Appellees,\\n\\nv.\\n\\nJOSHUA BAKER, in his official capacity as Director, South Carolina Department\\nof Health and Human Services,\\n\\n Defendant – Appellant.\\n\\n------------------------------\\n\\nACCESS REPRODUCTIVE CARE-SOUTHEAST; AMERICAN ACADEMY OF\\nPEDIATRICS; AMERICAN COLLEGE OF OBSTETRICIANS AND\\nGYNECOLOGISTS; AMERICAN COLLEGE OF PHYSICIANS; AMERICAN\\nMEDICAL ASSOCIATION; CENTER FOR REPRODUCTIVE RIGHTS; IPAS;\\nIN OUR OWN VOICE: NATIONAL BLACK WOMEN’S REPRODUCTIVE\\nJUSTICE AGENDA; NATIONAL ASIAN PACIFIC AMERICAN WOMEN’S\\nFORUM; NATIONAL HEALTH LAW PROGRAM; NATIONAL LATINA\\nINSTITUTE FOR REPRODUCTIVE HEALTH; SEXUALITY INFORMATION\\nAND EDUCATION COUNCIL OF THE UNITED STATES; SOCIETY FOR\\nADOLESCENT HEALTH AND MEDICINE; SOCIETY FOR MATERNAL\\nFETAL MEDICINE; WOMEN’S RIGHTS AND EMPOWERMENT NETWORK,\\n\\n Amici Supporting Appellee.\\n\\n\\n\\nAppeal from the United States District Court for the District of South Carolina, at\\nColumbia. Mary G. Lewis, District Judge. (3:18-cv-02078-MGL)\\n\\nArgued: September 20, 2019 Decided: October 29, 2019\\n\\n\\nBefore WILKINSON, WYNN, and RICHARDSON, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Wynn\\nand Judge Richardson joined. Judge Richardson wrote a concurring opinion.\\n\\n\\nARGUED: Kelly McPherson Jolley, JOLLEY LAW GROUP, LLC, Columbia, South\\nCarolina, for Appellant. Alice Joanna Clapman, PLANNED PARENTHOOD\\nFEDERATION OF AMERICA, Washington, D.C., for Appellees. ON BRIEF: Ariail B.\\nKirk, JOLLEY LAW GROUP, LLC, Columbia, South Carolina, for Appellant. M. Malissa\\nBurnette, Kathleen McDaniel, BURNETTE, SHUTT & MCDANIEL, PA, Columbia,\\nSouth Carolina, for Appellees. Jane Liu, Mariah Lindsay, NATIONAL ASIAN PACIFIC\\nAMERICAN WOMEN’S FORUM, Washington, D.C.; Julie Rikelman, Pilar Herrero,\\nAmy Myrick, Carolina Van Der Mensbrugghe, CENTER FOR REPRODUCTIVE\\nRIGHTS, New York , New York, for Amici Access Reproductive Care-Southeast, Center\\nfor Reproductive Rights, In Our Own Voice: National Black Women’s Reproductive\\nJustice Agenda, National Asian Pacific American Women’s Forum, National Latina\\nInstitute for Reproductive Health, and Women’s Rights and Empowerment Network.\\nJanice M. Mac Avoy, Andrew B. Cashmore, Alexandra Verdi, FRIED, FRANK, HARRIS,\\nSHRIVER & JACOBSON LLP, New York, New York, for Amici American College of\\nObstetricians and Gynecologists, American Medical Association, Society for Maternal\\nFetal Medicine, American Academy of Pediatrics, American College of Physicians, and\\nSociety for Adolescent Health and Medicine. Martha Jane Perkins, Sarah Jane Somers,\\nNATIONAL HEALTH LAW PROGRAM, Carrboro, North Carolina, for Amici National\\nHealth Law Program, IPAS, and Sexuality Information and Education Council of the\\nUnited States.\\n\\n\\n\\n\\n 2\\n\\nWILKINSON, Circuit Judge:\\n\\n This case raises a question of statutory construction. We ask whether, and on what\\n\\nbasis, the Medicaid Act’s free-choice-of-provider provision affords a private right of action\\n\\nto challenge a state’s exclusion of a healthcare provider from its Medicaid roster. The\\n\\ndistrict court here issued a preliminary injunction in favor of the individual plaintiff, a\\n\\nMedicaid recipient, in her suit challenging South Carolina’s decision to terminate Planned\\n\\nParenthood South Atlantic’s (PPSAT) provider agreement because it offers abortion\\n\\nservices. The plaintiff was likely to succeed on the merits of this claim, the district court\\n\\nheld, for two interrelated reasons: first, the Medicaid Act’s free-choice-of-provider\\n\\nprovision, 42 U.S.C. § 1396a(a)(23)(A), confers on “any individual” a private right to sue\\n\\nthat may be enforced under 42 U.S.C. § 1983; and second, South Carolina denied plaintiff\\n\\nthe right to select the willing, qualified family-planning provider of her choice.\\n\\n We now affirm. Based on the Supreme Court’s precedents, Congress’s intent to\\n\\ncreate an individual right enforceable under § 1983 in the free-choice-of-provider provision\\n\\nis unambiguous. In addition, a plain-language reading of the provision’s mandate—that\\n\\nstates “must” furnish Medicaid recipients the right to choose among providers “qualified\\n\\nto perform the service or services required”—bars states from excluding providers for\\n\\nreasons unrelated to professional competency. See 42 U.S.C. § 1396a(a)(23)(A), (p)(1).\\n\\nFinding the remaining preliminary injunction factors satisfied, we shall uphold the trial\\n\\ncourt’s judgment.\\n\\n\\n\\n\\n 3\\n\\n I.\\n\\n A.\\n\\n Medicaid is the nation’s public health insurance program for those of limited means.\\n\\nThe original beneficiaries of this program were low-income children and their parents, the\\n\\nindigent elderly, the blind, and the disabled. Schweiker v. Gray Panthers, 453 U.S. 34, 37\\n\\n(1981). Since 1965, Congress has periodically expanded the program, adding, for instance,\\n\\npregnant women with family incomes up to 133% of the federal poverty level as a distinct\\n\\nbeneficiary class. See 42 U.S.C. § 1396a(a)(10)(A)(i), (l); Medicare Catastrophic Coverage\\n\\nAct of 1988, Pub. L. No. 100-360, § 302, 102 Stat. 683, 750; Omnibus Budget\\n\\nReconciliation Act of 1989, Pub. L. No. 101-239, § 6401, 103 Stat. 2106, 2258.\\n\\n A joint federal-state effort ensures that the healthcare needs of these beneficiaries\\n\\nare met. In broad strokes, the Medicaid Act “offers the States a bargain: Congress provides\\n\\nfederal funds in exchange for the States’ agreement to spend them in accordance with\\n\\ncongressionally imposed conditions.” Armstrong v. Exceptional Child Ctr., 135 S. Ct.\\n\\n1378, 1382 (2015). The Act, to that end, charges the federal government with crafting\\n\\nbaseline eligibility requirements for recipients and providers, determining covered medical\\n\\nservices, and establishing reimbursement standards to the states. See 42 U.S.C. § 1396 et\\n\\nseq.; NFIB v. Sebelius, 567 U.S. 519, 541-42 (2012). Cooperating states then implement\\n\\nthe program, agreeing to abide by federal conditions in return for federal matching funds\\n\\nthat are used for expenses such as provider reimbursements. See Armstrong, 135 S. Ct. at\\n\\n1382. Such funds are substantial; federal coffers finance anywhere from fifty to eighty-\\n\\n\\n\\n 4\\n\\nthree percent of state expenses, 42 U.S.C. § 1396d(b), an aggregate figure that accounts for\\n\\nover ten percent of most states’ total revenue, NFIB, 567 U.S. at 542.\\n\\n Congress designed the Medicaid program to ensure that states dispense federal\\n\\nfunds in compliance with federal rules. At the outset, states must propose and submit\\n\\nMedicaid plans for the approval of the Centers for Medicare and Medicaid Services.\\n\\nDouglas v. Indep. Living Ctr. of S. Cal., Inc., 565 U.S. 606, 610 (2012). State departures\\n\\nfrom federal requirements provide grounds for the Secretary of Health and Human Services\\n\\n(HHS) to withhold Medicaid funding, either in whole or in part. See 42 U.S.C. § 1396c; 42\\n\\nC.F.R. § 430.12(c). If federal requirements are met, however, states have “substantial\\n\\ndiscretion to choose the proper mix of amount, scope, and duration limitations on coverage,\\n\\nas long as care and services are provided in ‘the best interests of the recipients.’” Alexander\\n\\nv. Choate, 469 U.S. 287, 303 (1985) (quoting 42 U.S.C. § 1396a(a)(19)).\\n\\n At issue here is the Medicaid Act’s free-choice-of-provider provision, 42 U.S.C.\\n\\n§ 1396a(a)(23), which states:\\n\\n A State plan for medical assistance must— provide that any individual eligible\\n for medical assistance . . . may obtain such assistance from any institution,\\n agency, community pharmacy, or person, qualified to perform the service or\\n services required . . . who undertakes to provide him such services . . . .\\n\\n42 U.S.C. § 1396a(a)(23)(A). That provision guarantees patients access to qualified and\\n\\nwilling providers. A state plan must generally allow Medicaid recipients to obtain care\\n\\nfrom any provider who is “qualified to perform the service or services required” and “who\\n\\nundertakes to provide . . . such services.”\\n\\n In its mechanics, the free-choice-of-provider provision comports with the Medicaid\\n\\n\\n 5\\n\\nAct’s dual emphasis on federal standard-setting and state flexibility. While Medicaid\\n\\nbeneficiaries may generally seek medical services from willing providers of their choice,\\n\\nstates retain discretionary authority to determine whether entities are medically “qualified\\n\\nto perform the service or services required.” States may also exclude providers from their\\n\\nplans “for any reason for which the [federal] Secretary of [Health and Human Services]\\n\\ncould exclude the individual or entity,” 42 U.S.C. § 1396a(p)(1), or on certain state-law\\n\\ngrounds, see 42 C.F.R. § 431.51(c)(2).\\n\\n B.\\n\\n This dispute arose following South Carolina’s termination of two Planned\\n\\nParenthood centers as Medicaid providers. PPSAT operates two healthcare centers in South\\n\\nCarolina, one in Charleston and the other in Columbia. These centers provide a range of\\n\\nfamily planning and preventative care services, including physical exams, cancer\\n\\nscreenings, contraceptive counseling, and pregnancy testing. For four decades, PPSAT has\\n\\nbeen a South Carolina Medicaid provider that receives reimbursements for care provided\\n\\nto Medicaid beneficiaries. In recent years, PPSAT’s South Carolina centers have treated\\n\\nhundreds of patients insured through Medicaid annually.\\n\\n Among those patients is the individual plaintiff in this case, who suffers from\\n\\ndiabetes and its resulting complications. J.A. 75-78. Because doctors have advised that\\n\\nthese complications would make it quite dangerous for her to carry a pregnancy to term,\\n\\nthe plaintiff considers it imperative that she have access to safe, effective birth control.\\n\\nAfter the plaintiff had difficulty finding a doctor who accepted Medicaid patients and was\\n\\nwilling to provide her preferred form of birth control, she turned to PPSAT’s Columbia\\n\\n 6\\n\\ncenter. At her PPSAT appointment, the doctors inserted an intrauterine device to prevent\\n\\npregnancy and informed her that her blood pressure was elevated. As a result, she sought\\n\\nfollow-up care from her endocrinologist to control her blood pressure. Because the plaintiff\\n\\nwas impressed with the care she received at PPSAT, she planned to switch her\\n\\ngynecological and reproductive health care there.\\n\\n In July 2018, South Carolina’s Department of Health and Human Services\\n\\n(SCDHHS) terminated PPSAT’s Medicaid provider agreement. SCDHHS did not contend\\n\\nthat PPSAT was providing subpar service to its Medicaid patients, or to any other patients.\\n\\nInstead, PPSAT was terminated solely because it performed abortions outside of the\\n\\nMedicaid program. 1\\n\\n According to SCDHHS, PPSAT’s termination was part of a plan by Governor Henry\\n\\nMcMaster designed to prevent the state from indirectly subsidizing abortion services. In\\n\\n1995, the South Carolina legislature passed a law preventing state funds appropriated for\\n\\nfamily planning services from being used to fund abortions. S.C. Code Ann. § 43-5-1185\\n\\n(1995). After taking office in 2017, Governor McMaster issued two executive orders\\n\\ndesigned to further this objective. The first, Executive Order 2017-15, directed state\\n\\nagencies “to take any and all necessary actions . . . to the extent permitted by law, to cease\\n\\nproviding State or local funds . . . to any physician or professional medical practice\\n\\n\\n\\n 1\\n South Carolina does not provide Medicaid reimbursements for abortion services\\nexcept in cases where it is required to do so by federal law. Such cases involve rape, incest,\\nor the need to protect the mother’s life. See Consolidated Appropriations Act, 2018, Pub.\\nL. No. 115-141, div. H, tit. V, §§ 506-507, 132 Stat. 348, 763-64 (Hyde Amendment).\\n\\n 7\\n\\naffiliated with an abortion clinic . . . .” J.A. 56-58. The second, Executive Order 2018-21,\\n\\ndirected SCDHHS to “deem abortion clinics . . . and any affiliated physicians or\\n\\nprofessional medical practices . . . that are enrolled in the Medicaid program as unqualified\\n\\nto provide family planning services and, therefore, to immediately terminate them . . . .”\\n\\nJ.A. 70-71. SCDHHS responded quickly. On the day the second order was issued,\\n\\nSCDHHS Officer of Health Programs Amanda Williams notified PPSAT by letter that\\n\\n“[t]he Governor’s actions result in Planned Parenthood no longer being qualified to provide\\n\\nservices to Medicaid beneficiaries” and that PPSAT’s enrollment agreement with South\\n\\nCarolina was terminated effective immediately. J.A. 73. As a result, PPSAT’s two South\\n\\nCarolina centers began to turn away Medicaid patients. J.A. 13-14.\\n\\n C.\\n\\n On July 27, 2018, PPSAT and the individual plaintiff (collectively, “plaintiffs”)\\n\\nfiled suit in federal district court in South Carolina against Joshua Baker, in his official\\n\\ncapacity as Director of SCDHHS. The individual plaintiff brought suit on her own behalf\\n\\nand that of a purported class of South Carolina Medicaid beneficiaries who received, or\\n\\nwould like to receive, healthcare services at PPSAT. Plaintiffs brought this action under 42\\n\\nU.S.C. § 1983, seeking injunctive and declaratory relief on the grounds that SCDHHS\\n\\nviolated their rights under the Medicaid Act and the Fourteenth Amendment. On July 30,\\n\\nplaintiffs filed for preliminary injunctive relief solely on the basis of their Medicaid Act\\n\\nclaims. The district court held hearings on plaintiffs’ motion on August 23. In their\\n\\ncomplaint and at the hearing, plaintiffs argued that the Medicaid Act’s free-choice-of-\\n\\nprovider provision confers on recipients a private right, enforceable under 42 U.S.C.\\n 8\\n\\n§ 1983, to use the qualified and willing provider of their choice, and that South Carolina\\n\\nviolated this right when it terminated PPSAT for reasons unrelated to its professional\\n\\ncompetence to provide medical services.\\n\\n The district court agreed with the plaintiffs and granted a preliminary injunction on\\n\\nAugust 28, 2018. Because the district court held that injunctive relief was appropriate based\\n\\non the individual plaintiff’s Medicaid Act claim alone, it did not analyze PPSAT’s\\n\\nMedicaid Act claim. First, it held that the individual plaintiff’s Medicaid Act claim was\\n\\nlikely to succeed on the merits. It agreed that the free-choice-of-provider provision confers\\n\\na private right, enforceable under 42 U.S.C. § 1983, on Medicaid-eligible patients,\\n\\nguaranteeing their right to choose any willing provider “qualified to perform” the relevant\\n\\nservice. Critically, the court held that “qualified” should be given its ordinary meaning—\\n\\nprofessionally competent. Relatedly, the district court rejected South Carolina’s contention\\n\\nthat § 1396a(p)(l) of the Medicaid Act gives a state plenary authority to exclude providers\\n\\nfrom its program “for any reason whatsoever as long as the reason is bolstered by State\\n\\nlaw.” Planned Parenthood S. Atl. v. Baker, 326 F. Supp. 3d 39, 47-48 (D.S.C. 2018). To\\n\\nthe contrary, it held that the state’s authority to exclude providers is limited by the free-\\n\\nchoice-of-provider provision.\\n\\n Finally, the district court found that the other conditions necessary for a preliminary\\n\\ninjunction—irreparable harm, balancing of the equities, and the public interest—were\\n\\nsatisfied. In weighing the equities, the district court rejected South Carolina’s argument\\n\\nthat the state would be forced to subsidize abortions if it were enjoined from terminating\\n\\nPPSAT’s provider agreement. Baker, 326 F. Supp. 3d at 49-50. First, because South\\n\\n 9\\n\\nCarolina’s Medicaid program does not cover abortions except in the narrow circumstances\\n\\nrequired by federal law, there was no direct subsidization of non-covered abortions. See id.\\n\\nat 47. Second, because “PPSAT is reimbursed for Medicaid services on a fee-for-service\\n\\nbasis,” id. at 49, at rates that do not cover its costs, PPSAT’s participation in Medicaid did\\n\\nnot generate excess funds that could be used to indirectly subsidize abortions. See id. at 47,\\n\\n49-50. Accordingly, the district court granted a preliminary injunction preventing South\\n\\nCarolina from terminating PPSAT’s Medicaid enrollment agreement.\\n\\n South Carolina timely appealed.\\n\\n II.\\n\\n The free-choice-of-provider provision lies at the heart of this appeal. As noted\\n\\nabove, the provision states that:\\n\\n A State plan for medical assistance must— provide that any individual\\n eligible for medical assistance (including drugs) may obtain such assistance\\n from any institution, agency, community pharmacy, or person, qualified to\\n perform the service or services required (including an organization which\\n provides such services, or arranges for their availability, on a prepayment\\n basis), who undertakes to provide him such services . . . .\\n\\n42 U.S.C. § 1396a(a)(23)(A) (emphases added).\\n\\n It is difficult to imagine a clearer or more affirmative directive. The provision\\n\\napplies to “any individual” eligible for Medicaid; grants these individuals the right to obtain\\n\\nmedical treatment from “any institution” willing and “qualified to perform the service or\\n\\nservices required”; and provides that state plans “must” comply. 2\\n\\n\\n 2\\n Violation of a Medicaid recipient’s statutory right under the free-choice-of-\\nprovider provision visits “concrete” harm that is “real” and “tangible,” because the\\n(Continued)\\n 10\\n\\n Congress could have made an exception for providers offering abortion services.\\n\\nBut it did not do so. Because we “presume that a legislature says in a statute what it means\\n\\nand means in a statute what it says there,” Connecticut Nat’l Bank v. Germain, 503 U.S.\\n\\n249, 253-54 (1992), this court cannot write into a statute an exception that Congress did\\n\\nnot create. Accordingly, we take the free-choice-of-provider provision to mean that a\\n\\nMedicaid recipient has the right to challenge a state’s exclusion of a provider from its\\n\\nMedicaid plan on grounds unrelated to that provider’s willingness and professional\\n\\ncompetency to furnish the required medical service.\\n\\n III.\\n\\n A.\\n\\n It is important at the outset to place this case in proper context. As a matter of black\\n\\nletter law, inferring a private right of action is a matter of statutory interpretation. If\\n\\nCongress is silent or ambiguous, courts may not find a cause of action “no matter how\\n\\ndesirable that might be as a policy matter.” Alexander v. Sandoval, 532 U.S. 275, 286-87\\n\\n(2001).\\n\\n But it was not always this way, and a brief overview of this history is useful\\n\\nbackground to the present lawsuit. We begin with J.I. Case Co. v. Borak, 377 U.S. 426\\n\\n(1964), where the Supreme Court stated that federal courts were partners of Congress,\\n\\nmaking it “the duty of the courts to be alert to provide such remedies as are necessary to\\n\\n\\n\\nrecipient can no longer receive care at his or her provider of choice. See Spokeo, Inc. v.\\nRobins, 136 S. Ct. 1540, 1548-49 (2016). This is the exact harm that Congress intended the\\nprovision to prevent. See id.\\n\\n 11\\n\\nmake effective the congressional purpose” expressed by a statute. Id. at 433. During the\\n\\nBorak era, the “exercise of judicial power” was not “justified in terms of statutory\\n\\nconstruction,” but rather as a means of crafting “substantive social policy.” Bivens v. Six\\n\\nUnknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 402, 402 n.4 (1971)\\n\\n(Harlan, J., concurring in judgment).\\n\\n Some years later, Justice Powell derided Borak’s approach in an oft-quoted dissent.\\n\\nCannon v. Univ. of Chicago, 441 U.S. 677, 742 (1979) (Powell, J., dissenting). In Powell’s\\n\\nview, freely implying private rights of action posed two related constitutional problems.\\n\\nFirst, to infer from silence the right to file suit in federal court interferes with Congress’s\\n\\nArticle III power to set “the jurisdiction of the lower federal courts.” Id. at 730. Second, an\\n\\nexpansive approach to implied private rights of action “cannot be squared with the doctrine\\n\\nof the separation of powers.” Id. This is because a court’s “substitut[ion of] its own views\\n\\nas to the desirability of private enforcement,” id. at 740, dispatches Congress’s Article I\\n\\n“policymaking authority” to the Third Branch of government, id. at 743. “When Congress\\n\\nchooses not to provide a private civil remedy, federal courts should not assume the\\n\\nlegislative role of creating such a remedy and thereby enlarge their jurisdiction.” Id. at 730-\\n\\n31. Therefore, “[a]bsent the most compelling evidence of affirmative congressional intent,\\n\\na federal court should not infer a private cause of action.” Id. at 731.\\n\\n Justice Powell’s dissent primed the Court for a doctrinal about-face. The Court\\n\\nincrementally swore “off the habit of venturing beyond Congress’s intent,” Sandoval, 532\\n\\nU.S. at 286-87 (tracing this doctrinal evolution), instead limiting its focus to the specific\\n\\nstatutory text at issue. In Sandoval, the Court summed up the result of this doctrinal\\n\\n 12\\n\\nprogression: “The judicial task is to interpret the statute Congress has passed to determine\\n\\nwhether it displays an intent to create not just a private right but also a private remedy.” Id.\\n\\nat 286.\\n\\n But there was a loose end remaining—what to do with implied rights of action\\n\\nbrought under § 1983. Some litigants argued that § 1983 provided plaintiffs with a separate\\n\\ncause of action if they fell “within the general zone of interest” of a federal statute. Gonzaga\\n\\nUniv. v. Doe, 536 U.S. 273, 282-83 (2002) (citing Blessing v. Freestone, 520 U.S. 329,\\n\\n340-41 (1997)). The Court swiftly corrected this misunderstanding in Gonzaga, instructing\\n\\nthat § 1983 creates a cause of action to enforce a federal statute only when the underlying\\n\\nstatute itself unambiguously “confers an individual right” on the plaintiff. Id. at 284-85. If\\n\\nso, the § 1983 remedy follows as a matter of course; litigants need not separately\\n\\ndemonstrate Congress’s intent to create a private remedy. Id.\\n\\n B.\\n\\n With this background as guidance, we review the district court’s entry of a\\n\\npreliminary injunction for “abuse of discretion, accepting the court’s findings of fact absent\\n\\nclear error, but reviewing its conclusions of law de novo.” Child Evangelism Fellowship of\\n\\nMd., Inc. v. Montgomery Cty. Pub. Sch., 373 F.3d 589, 593 (4th Cir. 2004). To that end,\\n\\nthe individual plaintiff “must establish that [s]he is likely to succeed on the merits, that\\n\\n[s]he is likely to suffer irreparable harm in the absence of preliminary relief, that the\\n\\nbalance of equities tips in h[er] favor, and that an injunction is in the public interest.” Winter\\n\\nv. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). We are mindful at once that a\\n\\npreliminary injunction is an “extraordinary remedy,” id. at 22, but its issuance “is\\n\\n 13\\n\\ncommitted to the sound discretion of the trial court,” Centro Tepeyac v. Montgomery Cty.,\\n\\n722 F.3d 184, 188 (4th Cir. 2013) (en banc) (quoting Quince Orchard Valley Citizens Ass’n\\n\\nv. Hodel, 872 F.2d 75, 78 (4th Cir. 1989)).\\n\\n IV.\\n\\n First we consider the threshold question whether the Medicaid Act’s free-choice-of-\\n\\nprovider provision creates a private right enforceable under § 1983. Section 1983 creates a\\n\\nfederal remedy against anyone who, under color of state law, deprives a person “of any\\n\\nrights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983.\\n\\nOf course, it “does not provide an avenue for relief every time a state actor violates a federal\\n\\nlaw.” City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 119 (2005). Rather a plaintiff\\n\\nseeking redress “must assert the violation of a federal right, not merely a violation of\\n\\nfederal law.” Blessing, 520 U.S. at 340.\\n\\n Three factors guide us in determining whether a statute creates a private right\\n\\nenforceable under § 1983. Id. at 340-41. “First, Congress must have intended that the\\n\\nprovision in question benefit the plaintiff.” Id. at 340. “Second, the plaintiff must\\n\\ndemonstrate that the right assertedly protected by the statute is not so ‘vague and\\n\\namorphous’ that its enforcement would strain judicial competence.” Id. at 340-41. “Third,\\n\\nthe statute must unambiguously impose a binding obligation on the States” by speaking “in\\n\\nmandatory, rather than precatory, terms.” Id. at 341. If these three factors are satisfied,\\n\\nthere is “a rebuttable presumption that the right is enforceable under § 1983,” id., which\\n\\nmay be defeated by showing that Congress expressly or implicitly foreclosed a § 1983\\n\\nremedy, City of Rancho Palos Verdes, 544 U.S. at 120.\\n\\n 14\\n\\n Applying these principles, we agree with the district court—and five of our six sister\\n\\ncircuits to have addressed this issue—that the free-choice-of-provider provision confers a\\n\\nprivate right, enforceable under § 1983, on Medicaid recipients. See Planned Parenthood\\n\\nof Kan. & Mid-Mo. v. Andersen, 882 F.3d 1205, 1224 (10th Cir. 2018); Planned\\n\\nParenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445, 457 (5th Cir. 2017); Planned\\n\\nParenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 965-66 (9th Cir. 2013); Planned\\n\\nParenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962, 968, 972-\\n\\n74 (7th Cir. 2012); Harris v. Olszewski, 442 F.3d 456, 461 (6th Cir. 2006). But see Does v.\\n\\nGillespie, 867 F.3d 1034, 1037, 1041, 1046 (8th Cir. 2017).\\n\\n Taking the first Blessing factor, the free-choice-of-provider provision\\n\\n“unambiguously gives Medicaid-eligible patients an individual right” to their choice of\\n\\nprovider qualified to perform a medical service. Planned Parenthood of Ind., 699 F.3d at\\n\\n974. The provision has an “unmistakable focus,” Gonzaga, 536 U.S. at 284, on its intended\\n\\nclass of beneficiaries: “any individual eligible for medical assistance” under the Medicaid\\n\\nAct, 42 U.S.C. § 1396a(a)(23)(A). See Doe v. Kidd, 501 F.3d 348, 356 (4th Cir. 2007)\\n\\n(finding that 42 U.S.C. § 1396a(a)(8), which refers to “all individuals wishing to make\\n\\napplication for medical assistance,” confers an individual right).\\n\\n Congress’s use of the phrase “any individual” is a prime example of the kind of\\n\\n“rights-creating” language required to confer a personal right on a discrete class of\\n\\npersons—here, Medicaid beneficiaries. See, e.g., Sandoval, 532 U.S. at 288 (providing an\\n\\nexample of rights-creating language: “No person . . . shall . . . be subjected to\\n\\ndiscrimination . . . .”). Put differently, by adopting as its benchmark whether the “needs of\\n\\n 15\\n\\nany particular person have been satisfied,” Gonzaga, 536 U.S. at 288, Congress left no\\n\\ndoubt that it intended to guarantee each Medicaid recipient’s free choice of provider.\\n\\n As for the second Blessing factor, the free-choice-of-provider provision is not so\\n\\n“vague and amorphous,” Blessing, 520 U.S. at 340-41, that its enforcement would strain\\n\\njudicial competence. The provision protects the right of a Medicaid recipient to seek care\\n\\nfrom his or her provider of choice, subject to two criteria: (1) the provider must be\\n\\n“qualified to perform the service or services required,” and (2) the provider must\\n\\n“undertake[] to provide [the recipient] such services.” 42 U.S.C. § 1396a(a)(23)(A). These\\n\\ncriteria are objective. The second is “a simple factual question no different from those\\n\\ncourts decide every day.” Betlach, 727 F.3d at 967. And the first, which “may require more\\n\\nfactual development or expert input,” still falls squarely “within the range of judicial\\n\\ncompetence.” Id.\\n\\n In an attempt to create ambiguity, South Carolina focuses on the word “qualified”\\n\\nin isolation, Appellant’s Reply Brief at 9-10, ignoring the reality that the term is “tethered\\n\\nto an objective benchmark: ‘qualified to perform the service or services required.’”\\n\\nBetlach, 727 F.3d at 967-68 (quoting 42 U.S.C. § 1396a(a)(23)(A)). That omission makes\\n\\nall the difference. Courts can “readily determine” whether a provider is qualified to perform\\n\\na service by “drawing on evidence such as descriptions of the service required; state\\n\\nlicensing requirements; the provider’s credentials, licenses, and experience; and expert\\n\\ntestimony regarding the appropriate credentials for providing the service.” Id. at 968. This\\n\\n\\n\\n\\n 16\\n\\nfactual determination “is no different from the sorts of qualification or expertise\\n\\nassessments that courts routinely make in various contexts.” Id. 3\\n\\n Finally, the free-choice-of-provider provision “unambiguously impose[s] a binding\\n\\nobligation on the States.” Blessing, 520 U.S. at 341. Under the provision, states “must\\n\\nprovide” a Medicaid recipient with his or her choice of provider qualified to perform the\\n\\nservice at issue. 42 U.S.C. § 1396a(a)(23)(A). Thus the provision is “couched in\\n\\nmandatory, rather than precatory, terms.” Blessing, 520 U.S. at 341; see also Kidd, 501\\n\\nF.3d at 356 (holding, as mandatory, a Medicaid provision requiring that state plans “must”\\n\\nprovide for reasonably prompt medical assistance).\\n\\n Since the three Blessing factors are satisfied, the individual plaintiff benefits from a\\n\\nrebuttable presumption that the free-choice-of-provider provision is enforceable under\\n\\n§ 1983. Blessing, 520 U.S. at 341. That presumption has not been overcome. As an initial\\n\\nmatter, nowhere in the Medicaid Act did Congress declare an express intent to “specifically\\n\\nforeclose[] a remedy under § 1983.” Id. (internal quotations omitted).\\n\\n Nor can such an intent be implied: the Medicaid Act does not contain a\\n\\n“comprehensive enforcement scheme . . . incompatible with individual enforcement under\\n\\n§ 1983.” Id. Because South Carolina assumed that the free-choice-of-provider requirement\\n\\ndid not confer an individual right, it did not expressly press a rebuttal argument before this\\n\\n\\n 3\\n A distinct note of caution is in order. To say that the term “qualified” is susceptible\\nto federal judicial measurement for purposes of the second prong of Blessing is not the\\nsame thing as saying that states lack discretion in defining professional qualifications under\\n42 U.S.C. § 1396a(p)(1), or that they are not due deference in their termination decisions.\\nSee infra Section VI.B. In this case, PPSAT’s qualifications are simply not in dispute.\\n\\n 17\\n\\ncourt. Even if it had, we conclude that the Medicaid Act’s enforcement scheme is not\\n\\nsufficiently “comprehensive” to foreclose a private right of action enforceable under\\n\\n§ 1983. Three alternative remedies are provided for in the Act: (1) the Secretary of HHS’s\\n\\nauthority to review state Medicaid plans for noncompliance and curtail or cut off Medicaid\\n\\nfunding as a matter of discretion, 42 U.S.C. §§ 1316(a), 1396c; 42 C.F.R. § 430.12; (2) a\\n\\nstate administrative process for providers to challenge termination decisions, 42 U.S.C.\\n\\n§ 1396a(a)(4); 42 C.F.R. § 1002.213; and (3) a state administrative process for Medicaid\\n\\nrecipients to challenge a claim denial, 42 U.S.C. § 1396a(a)(3).\\n\\n These remedies, taken together, are quite different from the “unusually elaborate\\n\\nenforcement provisions” that the Supreme Court has taken as evidence that Congress\\n\\nintended to preclude individual enforcement under § 1983. Middlesex Cty. Sewerage Auth.\\n\\nv. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 13-14 (1981). The relevant pollution control\\n\\nstatute at issue in Middlesex County is illustrative. That statute authorized governmental\\n\\nofficials to respond to violations of the act with compliance orders and civil suits; permitted\\n\\nthe imposition of penalties up to $10,000 per day; and made criminal penalties available.\\n\\nId. at 13. Separately, the act also conferred on “any interested person” the right to seek\\n\\njudicial review of relevant acts by federal officials, such as the issuance of an effluent\\n\\npermit. Id. at 13-14. By prescribing the particular remedies available to public and private\\n\\nactors, Congress demonstrated its intent to foreclose forms of relief otherwise available to\\n\\nplaintiffs bringing § 1983 claims. See id. at 14-15.\\n\\n Nothing comparable to this detailed enforcement scheme exists in the Medicaid Act.\\n\\nTo state the obvious, individuals are not ordinarily plaintiffs in provider suits, and an\\n\\n 18\\n\\nindividual’s administrative remedy to challenge, for example, a denial of Medicaid\\n\\ncoverage for a particular “service” does not also provide a forum for contesting the\\n\\ndisqualification of a preferred provider. This much is clear to South Carolina, so it seems\\n\\nto latch onto the Secretary’s ability to cut Medicaid funds as itself indicative of a\\n\\ncomprehensive administrative enforcement scheme. See Appellant’s Opening Brief at 26-\\n\\n27. But a remedy is not comprehensive solely because it is drastic, and to view a wholesale\\n\\ncutoff of funding to the states as vindicating the interests of individual Medicaid\\n\\nbeneficiaries in their choice of provider would be illogical.\\n\\n The illogic of this argument aside, the Supreme Court has already held that the\\n\\nMedicaid Act’s administrative scheme is not sufficiently comprehensive to foreclose a\\n\\nprivate right of action enforceable under § 1983. Wilder v. Virginia Hosp. Ass’n, 496 U.S.\\n\\n498, 521-22 (1990); see also Kidd, 501 F.3d at 356 (holding that the Medicaid Act neither\\n\\nexplicitly nor implicitly “forbid[s] recourse to § 1983”). The Court’s decision in Gonzaga\\n\\ncut back on Wilder’s treatment of implied rights of action in the § 1983 context;\\n\\nspecifically, Gonzaga clarified that Congress must create an “unambiguously conferred\\n\\nright” rather than merely confer a “benefit” on a plaintiff to establish a cause of action\\n\\nenforceable under § 1983. Gonzaga, 536 U.S. at 282. But Wilder’s reasoning as to the\\n\\ncomprehensiveness of the Medicaid Act’s enforcement scheme has not been overturned.\\n\\nSee Andersen, 882 F.3d at 1229, 1229 n.16 (recognizing the same).\\n\\n In sum, the Medicaid Act’s enforcement scheme is not sufficiently “comprehensive”\\n\\nbecause, inter alia, it does not provide a private remedy—either judicial or administrative—\\n\\n\\n\\n 19\\n\\nfor patients seeking to vindicate their rights under the free-choice-of-provider provision. 4\\n\\nSee City of Rancho Palos Verdes, 544 U.S. at 121 (“[I]n all of the cases in which we have\\n\\nheld that § 1983 is available for violation of a federal statute, we have emphasized that the\\n\\nstatute at issue . . . did not provide a private judicial remedy (or, in most of the cases, even\\n\\na private administrative remedy) for the rights violated.”). The reason Congress did not\\n\\nspecify a method of private enforcement is plain: Section 1983 was to be the remedy for\\n\\npatients seeking to enforce their rights under the free-choice-of-provider provision.\\n\\nPermitting private enforcement of this type of suit, Congress realized, “in no way\\n\\ninterferes” with the Secretary of HHS’s authority to audit and sanction noncompliant state\\n\\nMedicaid plans. Planned Parenthood of Ind., 699 F.3d at 975.\\n\\n Thus, the Medicaid Act provides no comprehensive enforcement scheme sufficient\\n\\nto overcome the presumption that the free-choice-of-provider provision is enforceable\\n\\nunder § 1983. Blessing, 520 U.S. at 341. The plain, direct language of that provision\\n\\nunmistakably confers on a discrete class of individual Medicaid beneficiaries the right to\\n\\nseek medical assistance from any qualified medical provider who is willing to provide the\\n\\nrequired medical service. If that language does not suffice to confer a private right,\\n\\n\\n\\n 4\\n South Carolina’s contention that the individual plaintiff had a state administrative\\nremedy she was required to exhaust before bringing a § 1983 suit is misguided. “[A]s a\\ngeneral rule, a plaintiff bringing a suit pursuant to 42 U.S.C. § 1983 does not have to\\nexhaust state administrative remedies before filing suit in federal court.” Talbot v. Lucy\\nCorr Nursing Home, 118 F.3d 215, 218 (4th Cir. 1997) (citing Patsy v. Bd. of Regents of\\nState of Fla., 457 U.S. 496, 512 (1982)). At any rate, we agree with the district court that\\neven if the individual plaintiff had a state administrative remedy available to her, it would,\\ngiven the circumstances here, be futile. Baker, 326 F. Supp. 3d at 46-47.\\n\\n 20\\n\\nenforceable under § 1983, upon the plaintiff here, it is difficult to see what language would\\n\\nbe adequate. To hold in South Carolina’s favor here would simply be to remove § 1983 as\\n\\na vehicle for private rights enforcement and essentially to require Congress to set forth a\\n\\ncause of action enforceable purely on its own terms. We do not believe that the Court has\\n\\nchanneled the expression of congressional intent in such a fashion, nor do we believe that\\n\\nwe are free to do so. See Blessing, 520 U.S. at 340-41. Because South Carolina has not\\n\\nrebutted the presumption that a private right of action exists, we join the Fifth, Sixth,\\n\\nSeventh, Ninth, and Tenth Circuits in finding that the free-choice-of-provider provision\\n\\ncreates a private right enforceable under § 1983. See Andersen, 882 F.3d at 1224; Gee, 862\\n\\nF.3d at 457; Betlach, 727 F.3d at 965-66; Planned Parenthood of Ind., 699 F.3d at 968,\\n\\n972-74; Harris, 442 F.3d at 461. But see Gillespie, 867 F.3d at 1041, 1046.\\n\\n V.\\n\\n We are mindful of two principal, and principled, objections to according the plaintiff\\n\\nher requested relief. First, we should not freely infer private rights of action that are\\n\\nenforceable under § 1983. Second, because Spending Clause legislation is in the nature of\\n\\na contract, we should not construe it so as to ambush states with terms that the states did\\n\\nnot foresee or bargain for. These are doctrines of importance and great force, but both\\n\\npresuppose some level of textual ambiguity. Because that ambiguity is absent here, we\\n\\nbegin and end our search for Congress’s intent with the plain text of the free-choice-of-\\n\\nprovider provision.\\n\\n First, courts are most definitely not at liberty to imply private rights of action willy-\\n\\nnilly. Congress’s intent to make a private right enforceable under § 1983 must be\\n\\n 21\\n\\n“unmistakably clear.” Gonzaga, 536 U.S. at 286 (internal citations omitted). This\\n\\nrequirement ensures that courts enforce private rights under § 1983 only when Congress\\n\\nhas so intended. Here, Congress unambiguously intended to create a private right—in favor\\n\\nof “any individual” receiving Medicaid assistance—in the free-choice-of-provider\\n\\nprovision. Medicaid recipients, it is clear, are not merely within the provision’s “general\\n\\nzone of interest.” See id. at 283.\\n\\n We do not reach this conclusion lightly, but only after closely examining Congress’s\\n\\nintent underlying the “specific statutory provision” at issue. Blessing, 520 U.S. at 342-43.\\n\\nSouth Carolina reaches beyond the plain and narrow text of the free-choice-of-provider\\n\\nprovision—to eighty-two other provisions in the Medicaid Act—to conclude that the\\n\\nprovision is no more than a “plan requirement,” rather than an individual right. Appellant’s\\n\\nOpening Brief at 23. However, Congress foreclosed any argument that an individual plan\\n\\nrequirement in the Medicaid Act cannot be enforceable through an implied private right of\\n\\naction. 42 U.S.C. § 1320a–2 (A provision “is not to be deemed unenforceable because of\\n\\nits inclusion in a section of [the Act] . . . specifying the required contents of a State plan.\\n\\nThis section is not intended to limit or expand the grounds for determining the availability\\n\\nof private actions to enforce State plan requirements . . . .”). Quite apart from that clause,\\n\\nhowever, ignoring Congress’s clearly expressed intent to create a private right of action\\n\\nhere is no less a usurpation of Congress’s “policymaking authority,” see Cannon, 441 U.S.\\n\\nat 743 (Powell, J., dissenting), than reading a cause of action into a statute where Congress\\n\\ndid not create one, see Borak, 377 U.S. at 433.\\n\\n\\n\\n 22\\n\\n Second, courts must be especially cautious in finding that a provision in Spending\\n\\nClause legislation, such as the Medicaid Act, creates a private right enforceable under\\n\\n§ 1983. Spending Clause legislation, as noted, has been likened to a contract: “[I]n return\\n\\nfor federal funds, the States agree to comply with federally imposed conditions. The\\n\\nlegitimacy of Congress’ power to legislate under the spending power thus rests on whether\\n\\nthe State voluntarily and knowingly accepts the terms of the ‘contract.’” Pennhurst State\\n\\nSch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). Since a state cannot voluntarily and\\n\\nknowingly accept conditions unknown to it, “if Congress intends to impose a condition on\\n\\nthe grant of federal moneys, it must do so unambiguously.” Id.\\n\\n So much is true here. The terms of the Medicaid agreement are clear; in return for\\n\\nsubstantial federal funds, states are required to comply with the unambiguous terms of the\\n\\nfree-choice-of-provider provision. And for the reasons described above, this obligation is\\n\\nenforceable by recipients, the intended beneficiaries of the provision. When, as here, the\\n\\nprivate cause of action is “unambiguously conferred” on a third party, see Armstrong, 135\\n\\nS. Ct. at 1388 (plurality), courts cannot deprive the sovereign signatories to a “contract”\\n\\nsuch as the Medicaid Act of the benefit of their bargain.\\n\\n Nor may courts relieve them of the agreement’s consequences. Here, South Carolina\\n\\nwould like to avoid the obligations imposed by this fair bargain. In essence, the state argues\\n\\nthat some Supreme Court decisions might suggest a move away from inferring private\\n\\nrights of action in Spending Clause legislation. See, e.g., Appellant’s Opening Brief at 29-\\n\\n30 (“The [Gonzaga] Court noted that ‘[m]ore recent decisions have rejected attempts to\\n\\ninfer enforceable rights from Spending Clause statutes.’”) (quoting Gonzaga, 536 U.S. at\\n\\n 23\\n\\n281). South Carolina may or may not be correct in its doctrinal forecast, but for now its\\n\\nargument remains speculative and conjectural. As the Seventh Circuit noted:\\n\\n [N]othing in Armstrong, Gonzaga, or any other case we have found supports\\n the idea that plaintiffs are now flatly forbidden in section 1983 actions to rely\\n on a statute passed pursuant to Congress’s Spending Clause powers. There\\n would have been no need, had that been the Court’s intent, to send lower\\n courts off on a search for “unambiguously conferred rights.” A simple “no”\\n would have sufficed.\\n\\nBT Bourbonnais Care, LLC v. Norwood, 866 F.3d 815, 820-21 (7th Cir. 2017). We agree.\\n\\nAt bottom, the Court’s cases require us to find an “unambiguously conferred” right,\\n\\nArmstrong, 135 S. Ct. at 1387-88 (plurality), which is exactly what we have done here. In\\n\\nthe end, the concerns identified above are not controlling in this case, because the free-\\n\\nchoice-of-provider provision unambiguously creates a private right in favor of the\\n\\nindividual plaintiff.\\n\\n VI.\\n\\n Having decided that Congress unambiguously intended to create a private right of\\n\\naction in the free-choice-of-provider provision, we turn now to consider the scope of the\\n\\nright it confers on Medicaid recipients. A reasoned textual analysis in this case requires\\n\\nonly two steps. First, “[a]s always, we start with the specific statutory language in dispute.”\\n\\nMurphy v. Smith, 138 S. Ct. 784, 787 (2018). In the free-choice-of-provider provision,\\n\\n“qualified to perform the service or services required” means what it says: professionally\\n\\nfit to perform the medical services the patient requires. Second, we look to § 1396a(p)(1),\\n\\nwhich describes a state’s authority to exclude providers from its Medicaid plan. In the end,\\n\\nwe find that the free-choice-of-provider provision in § 1396a(a)(23)(A) and the state’s\\n\\n\\n 24\\n\\ndiscretionary authority under § 1396a(p)(1) work in tandem to accomplish Congress’s\\n\\noverall objectives in this cooperative federalism scheme.\\n\\n A.\\n\\n First principles guide us in deciding what it means for a provider to be “qualified to\\n\\nperform the service or services required” under the free-choice-of-provider provision.\\n\\n“Unless otherwise defined, statutory terms are generally interpreted in accordance with\\n\\ntheir ordinary meaning.” BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006). Because the\\n\\nMedicaid Act does not define the term “qualified,” we consider its plain meaning—namely,\\n\\n“having an officially recognized qualification to practice as a member of a particular\\n\\nprofession; fit, competent.” Oxford English Dictionary (3d ed. 2007); see also Black’s Law\\n\\nDictionary 1360 (9th ed. 2009) (defining “qualified” as “[p]ossessing the necessary\\n\\nqualifications; capable or competent”).\\n\\n Every circuit to have considered this issue is in accord with that straightforward\\n\\ndefinition. See, e.g., Andersen, 882 F.3d at 1230; Gee, 862 F.3d at 459-60; Betlach, 727\\n\\nF.3d at 967-68; Planned Parenthood of Ind., 699 F.3d at 978. But see Gillespie, 867 F.3d\\n\\nat 1046 (declining to reach this question after concluding that the free-choice-of-provider\\n\\nprovision does not provide patients with a private right of action enforceable under § 1983).\\n\\n South Carolina does not contest the fact that PPSAT is professionally qualified to\\n\\ndeliver the services that the individual plaintiff seeks. Nowhere in its submissions to this\\n\\ncourt does the state seek to raise doubts that PPSAT satisfies the ordinary definition of\\n\\n“qualified” as being professionally capable or competent. Instead, the state seeks to\\n\\npersuade us that “qualified” means something other than what it says or that the structure\\n\\n 25\\n\\nof the statute as a whole entrusts the word to the states to define its meaning.\\n\\n The term, however, is in a federal statute and we are obliged to give it the meaning\\n\\nthat Congress intended, so long as that meaning is clear to its state partners in this\\n\\ncooperative program. There is no question that the ordinary meaning of the term\\n\\n“qualified” is the one Congress intended. Were there any doubt as to its intent, Congress\\n\\nprovided more specificity in the terms surrounding “qualified.” The free-choice-of-\\n\\nprovider provision guarantees Medicaid recipients the right to “obtain [medical] assistance\\n\\nfrom any institution, agency . . . or person[] qualified to perform the service or services\\n\\nrequired.” 42 U.S.C. § 1396a(a)(23)(A) (emphasis added). The plain import of this\\n\\nlanguage is to tie the word “qualified” to the performance of a service—and not just any\\n\\nservice, but a medical service. Tellingly, the statute does not differentiate among different\\n\\ntypes of medical services, laying bare what can be the only reasonable interpretation of\\n\\n“qualified” in this context: capable of “carry[ing] out a particular activity—‘perform[ing]\\n\\nthe [medical] service’ that a given Medicaid recipient requires.’” Betlach, 727 F.3d at 969.\\n\\nIt follows that the types of “qualifications” that are intended relate to a provider’s\\n\\ncompetency to perform a particular medical service, and not to any conceivable state\\n\\ninterest as applied to the Medicaid program.\\n\\n Reading “qualified to perform” in the free-choice-of-provider provision to mean\\n\\nprofessionally competent accords with the way Congress ordinarily uses the phrase. See\\n\\nMount Lemmon Fire Dist. v. Guido, 139 S. Ct. 22, 26 (2018) (finding it “instructive” that\\n\\na phrase “occurs dozens of times throughout the U.S. Code, typically carrying [its ordinary\\n\\nmeaning]”). Consider, for example, 8 U.S.C. § 1188(c)(3), which directs the Secretary of\\n\\n 26\\n\\nLabor to find that “there are not sufficient workers in the United States who are able,\\n\\nwilling, and qualified to perform the labor or service needed” before admitting temporary\\n\\nH-2A workers. This provision, like many others in the U.S. Code, specifies some service\\n\\nor function as the object of the phrase “qualified to perform.” See, e.g., 49 U.S.C. § 5329(e)\\n\\n(awarding states funding to carry out a federal public transportation safety program if,\\n\\namong other things, members of the state agency “responsible for rail fixed guideway\\n\\npublic transportation safety oversight” are “qualified to perform such functions through\\n\\nappropriate training”); 37 U.S.C. § 301b(b)(3) (defining “covered officers” as including\\n\\nthose “qualified to perform operational flying duty”). To read the phrase as denoting\\n\\nanything other than fitness to perform the activity identified would be highly unusual.\\n\\n In short, Congress’s handiwork here makes good sense. As a matter of ordinary\\n\\nEnglish, one’s preferred dry cleaner is not made unqualified to perform cleaning services\\n\\nbecause he disfavors bicycles or because he did not vote in the last state election, even\\n\\nthough the state may prefer otherwise. Yet that is precisely the sort of result produced by\\n\\nSouth Carolina’s reading of “qualified,” which would allow the state to exclude providers\\n\\nbased on any conceivable state interest. PPSAT, as South Carolina all but admits, is\\n\\nperfectly competent to perform the family-planning services required by plaintiff and is\\n\\nlicensed to do so. The state nevertheless suggests that it may disqualify a competent\\n\\nprovider under state law so long as there is “good reason.” See Appellant’s Opening Brief\\n\\nat 24. Today that reason is PPSAT’s provisioning of abortion services, but we cannot glean\\n\\nany principled limit to the state’s exclusion authority under South Carolina’s interpretation.\\n\\n And there’s the rub. If credited, South Carolina’s submission that the term\\n\\n 27\\n\\n“qualified” means whatever the state says would strip the free-choice-of-provider provision\\n\\nof all meaning and shortchange the federal side of the bargain. South Carolina argues the\\n\\nprovision would still have some meaning by ensuring that recipients could see any provider\\n\\nthat meets the state’s qualifications. But we do not believe that Congress could have\\n\\nintended to confer a right so empty in terms so strong. “If the states are free to set any\\n\\nqualifications they want—no matter how unrelated to the provider’s fitness to treat\\n\\nMedicaid patients—then the free-choice-of-provider requirement could be easily\\n\\nundermined by simply labeling any exclusionary rule as a ‘qualification.’” Planned\\n\\nParenthood of Ind., 699 F.3d at 978.\\n\\n South Carolina nonetheless contends that the Medicaid Act’s silence as to the\\n\\nmeaning of “qualified” is grounds for interpreting it to allow states expansive exclusionary\\n\\npowers. See Appellant’s Reply Brief at 10 (“Congress leaving the term ‘qualified’\\n\\nundefined purposely creates a vague or amorphous provision with the idea being that doing\\n\\nso allows the states to tailor their State Plan.”). That, however, is not how we ordinarily\\n\\ninterpret undefined statutory terms, let alone a term pegged to a phrase as clear as “to\\n\\nperform the [medical] service or services required.” 42 U.S.C. § 1396a(a)(23)(A).\\n\\n The state next seeks refuge in the canon against surplusage. If “qualified” means\\n\\nprofessionally competent, South Carolina argues, then its inclusion in the free-choice-of-\\n\\nprovider provision is “pointless and redundant” because state licensing schemes already\\n\\nexclude incompetent providers from the Medicaid pool. See Appellant’s Reply Brief at 13.\\n\\nBut this view ignores the language of the free-choice-of-provider provision. We do not\\n\\nlightly impute to Congress an intent to use terms that “have no operation at all.” Marbury\\n\\n 28\\n\\nv. Madison, 5 U.S. (1 Cranch) 137, 174 (1803). And as noted above, South Carolina’s\\n\\nreading works precisely this result by allowing states—at their discretion—to nullify the\\n\\nfree-choice-of-provider provision entirely. Granted, South Carolina agrees that a state’s\\n\\npolicies cannot eliminate “all recipient choice,” which the state interprets to require only\\n\\nthat at least two “qualified” providers remain available. See Appellant’s Opening Brief at\\n\\n36-37. But that cannot be right. The free-choice-of-provider provision “does not simply\\n\\nbar the states from ending all choice of providers, it guarantees to every Medicaid\\n\\nbeneficiary the right to choose any qualified provider.” Planned Parenthood of Ind., 699\\n\\nF.3d at 979. In order to do that, a state must be restricted in its ability to terminate providers\\n\\nfor reasons unrelated to professional competency.\\n\\n The case law also does not support South Carolina’s position. On this front, the state\\n\\nargues that the Court’s decision in O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773\\n\\n(1980), interpreted the free-choice-of-provider provision to apply only to providers that\\n\\n“continue[] to be qualified” in the Medicaid program as a matter of state law. Appellant’s\\n\\nOpening Brief at 35 (quoting O’Bannon, 447 U.S. at 785). Not so. O’Bannon spoke to the\\n\\nnarrow question whether residents of a nursing home had a right to a pre-termination\\n\\nhearing before the state could close a home that all parties agreed was professionally\\n\\n“unqualified” to render patient care. See 447 U.S. at 775-76; see also id. at 776 n.3\\n\\n(cataloguing the home’s noncompliance with statutes governing, among other topics,\\n\\nnursing services, physical environment, and medical records). In point of fact, the patients\\n\\nthere did not bring a substantive claim seeking to vindicate their rights under the free-\\n\\nchoice-of-provider provision, but rather sued for violation of their procedural due process\\n\\n 29\\n\\nrights. Id. at 775. Along with three of the four circuits to have addressed this issue, we\\n\\ncannot read O’Bannon to resolve the very different claim raised by plaintiff in the instant\\n\\ncase. See Andersen, 882 F.3d at 1231-32; Gee, 862 F.3d at 460-61; Planned Parenthood of\\n\\nInd., 699 F.3d at 977. But see Gillespie, 867 F.3d at 1047 (Shepherd, J., concurring).\\n\\n B.\\n\\n Although the free-choice-of-provider provision imposes limits on a state’s\\n\\nqualification authority, states retain discretionary authority with regards to healthcare\\n\\nproviders. Section 1396a(p)(1) speaks to this balance, providing:\\n\\n In addition to any other authority, a State may exclude any individual or\\n entity for purposes of participating under the State plan under this subchapter\\n for any reason for which the Secretary [of Health and Human Services]\\n could exclude the individual or entity from participation in a program under\\n subchapter XVIII under section 1320a–7, 1320a–7a, or 1395cc(b)(2) of this\\n title.\\n\\n This provision confirms that states may and do set standards that relate to providers’\\n\\nability to practice in a professionally competent manner. Take the cross-references to start.\\n\\nThey identify various forms of misconduct including patient abuse, failure to furnish\\n\\nmedically necessary services, fraud, license revocation, excessive charges, and failure to\\n\\ndisclose necessary information to state regulators. 42 U.S.C. § 1320a–7. In short, federal\\n\\nregulations confirm the authority vested in states to “set[] reasonable standards relating to\\n\\nthe qualifications of providers” on analogous state-law grounds. See 42 C.F.R.\\n\\n§ 431.51(c)(2).\\n\\n Putting all this together, § 1396a(p)(1) and the free-choice-of-provider provision\\n\\noperate in pleasant conjunction. The free-choice-of-provider provision confers an\\n\\n\\n 30\\n\\nindividual right on Medicaid recipients to select the willing and competent provider of their\\n\\nchoice. Section 1396a(p)(1) clarifies that states retain discretionary authority to disqualify\\n\\nproviders as professionally incompetent for nonmedical reasons such as fraud and for any\\n\\nnumber of unprofessional behaviors. But the emphasis in § 1396a(p)(1) upon professional\\n\\nmalfeasance in no way deprives states of the latitude they possess, under the free-choice-\\n\\nof-provider provision itself, to judge a provider’s medical qualifications. Indeed, the\\n\\nlanguage that begins the free-choice-of-provider provision—“A State plan for medical\\n\\nassistance must— provide,” 42 U.S.C. § 1396a(a)(23)(A)—presupposes the existence of\\n\\ndiscretionary authority in the states as it relates to provider qualifications. Nevertheless,\\n\\nthe fact that the statute’s language and structure suggest the deference due states on the\\n\\nmatter of professional and medical qualifications in no way confers a blank check. Here, it\\n\\nbears repeating, no one disputes PPSAT’s medical qualifications to perform the family-\\n\\nplanning services required, nor is any professional wrongdoing on the part of PPSAT even\\n\\nalleged. So it follows that South Carolina cannot arbitrarily disqualify PPSAT upon the\\n\\ngeneralized assertion of inapposite state interests without running afoul of the free-choice-\\n\\nof-provider provision.\\n\\n South Carolina attempts to disrupt the congruence between these two provisions by\\n\\nreading the savings clause “for more than it’s worth.” Planned Parenthood of Ind., 699\\n\\nF.3d at 979. The state argues that the phrase “[i]n addition to any other authority” in\\n\\n§ 1396a(p)(1) means it can exclude a provider on any state-law grounds—and for any\\n\\nreason. See Appellant’s Opening Brief at 32 (“South Carolina’s authority, under Section\\n\\n1396a(p)(1), to determine whether a provider is qualified does not depend on the state\\n\\n 31\\n\\ninterest the disqualification seeks to protect.”).\\n\\n The district court rejected this interpretation, concluding that reading the savings\\n\\nclause this way would render the right conferred by the free-choice-of-provider provision\\n\\nmeaningless. Baker, 326 F. Supp. 3d at 47-48. We agree. If Congress had in fact harbored\\n\\nthe sweeping intent that South Carolina gleans from § 1396a(p)(1), there would be no\\n\\nreason to bother with the free-choice-of-provider provision, as any state-law ground could\\n\\nserve as the basis to eliminate a patient’s choice. To say that this would warp the law\\n\\nenacted by Congress is an understatement.\\n\\n Moreover, South Carolina’s interpretation also finds no support in the four corners\\n\\nof § 1396a(p)(1). For one thing, the phrase “[i]n addition to any other authority” serves a\\n\\nspecific purpose. It lists what “is a non-exclusive list of specific grounds upon which states\\n\\nmay bar providers from participating in Medicaid.” Planned Parenthood of Ind., 699 F.3d\\n\\nat 979. The grounds identified—spanning everything from financial fraud to medical\\n\\nmalpractice—relate generally to professional malfeasance. In contrast, the type of\\n\\n“qualification” the state argues for under § 1396a(p)(1) is different in kind. South\\n\\nCarolina’s exclusion of PPSAT from its Medicaid network has nothing to do with\\n\\nprofessional misconduct or for that matter with PPSAT’s ability to safely and\\n\\nprofessionally perform plaintiff’s required family-planning services. PPSAT, after all,\\n\\ncontinues to deliver these services to thousands of South Carolinians each year—to which\\n\\nthe state has no objection. See J.A. 91.\\n\\n What we are left with, ironically, is the state’s attempt to eliminate almost the\\n\\nentirety of § 1396a(p)(1). For if the phrase “[i]n addition to any other authority” authorizes\\n\\n 32\\n\\nany and all state interests to serve as a basis for termination, there would be no need to list\\n\\nthe specific grounds identified in § 1396a(p)(1). Congress sometimes employs the broad\\n\\nversion of the phrase. See, e.g., 7 U.S.C. § 2279(c)(4)(B) (“The authority to carry out this\\n\\nsection shall be in addition to any other authority provided in this or any other Act.”)\\n\\n(emphasis added). But it did not do so here, and the foregoing discussion makes clear that\\n\\nthis was not through inadvertence.\\n\\n Consider also the cases cited by the state to support its broad reading of the savings\\n\\nclause. In Guzman v. Shewry, 552 F.3d 941 (9th Cir. 2009), the Ninth Circuit did not hold\\n\\nthat § 1396a(p)(1) grants states plenary exclusion authority over healthcare providers.\\n\\nRather, that court expressly recognized that states may exclude providers “for reasons\\n\\nbearing on the individual’s or entity’s professional competence, professional performance,\\n\\nor financial integrity.” Id. at 949 (citing 42 U.S.C. § 1320a-7(b)(5)). In any event, the\\n\\nprovider in Guzman was deemed “unqualified” based on a state law guarding against\\n\\nprofessional malfeasance—as were the providers in all cases interpreting § 1396a(p)(1)\\n\\nthat South Carolina cites. See id. at 946-47 (fraud or abuse); First Med. Health Plan v.\\n\\nVega-Ramos, 479 F.3d 46, 49-50 (1st Cir. 2007) (financial self-dealing); Triant v. Perales,\\n\\n491 N.Y.S.2d 486, 488 (App. Div. 1985) (shoddy record-keeping).\\n\\n In the end, to read § 1396a(p)(1) as imposing such severe limits on the scope of the\\n\\nright conferred by the free-choice-of-provider provision would eviscerate the Medicaid\\n\\nAct’s cooperative scheme and turn the congressional judgment on its head. Congress,\\n\\naware of the deep national divide on a topic so sensitive as abortion, sought to strike a\\n\\nbalance in the Medicaid Act. Starting in 1976, Congress has prohibited federal funds from\\n\\n 33\\n\\nbeing used to finance abortions, excepting instances of rape, incest, or to save the life of\\n\\nthe mother. Harris v. McRae, 448 U.S. 297, 302 (1980) (describing the Hyde Amendment).\\n\\nOn the other hand, Congress provided extra protections for beneficiaries’ freedom of\\n\\nchoice among family-planning providers, something it accomplished while amending the\\n\\nfree-choice-of-provider provision to accommodate Medicaid managed care plans. 5 The\\n\\nSecretary, to wit, may waive the free-choice-of-provider provision when a state implements\\n\\na Medicaid managed care plan. But with an important caveat: An individual’s right to seek\\n\\nout non-abortion services from a qualified family-planning provider of her choice cannot\\n\\nbe waived. 42 U.S.C. §§ 1396a(a)(23)(B), 1396d(a)(4)(C); see also Betlach, 727 F.3d at\\n\\n972 (“Even if a state otherwise exercises its option to implement a managed-care system,\\n\\n§ 1396a(a)(23)(B) makes clear that as to family planning services, state Medicaid plans\\n\\nmust afford recipients the full range of free choice of provider.”). This implicit bargain\\n\\nagreed to by the political branches is one that we are bound to respect.\\n\\n VII.\\n\\n Because the individual plaintiff has a private right of action to challenge South\\n\\nCarolina’s denial of her right to the qualified and willing family-planning provider of her\\n\\nchoice, we agree with the district court that she has demonstrated a substantial likelihood\\n\\nof success on her free-choice-of-provider claim. We also hold that the district court did not\\n\\n\\n\\n 5\\n Medicaid managed care plans allow a state to contract with a limited selection of\\nhealthcare providers. Through this arrangement, states can lower their Medicaid expenses\\nand streamline their delivery of health care. There is no contention that any waiver of the\\nfree-choice-of-provider provision took place here.\\n\\n 34\\n\\nabuse its discretion in enjoining South Carolina from terminating PPSAT’s provider\\n\\nagreement.\\n\\n It is clear that the plaintiff would suffer irreparable harm in the absence of a\\n\\npreliminary injunction. Denial of her statutory right to select a qualified provider visits a\\n\\ntangible harm: diminished access to high-quality health care suited to the individual\\n\\nplaintiff’s needs. See Appellees’ Brief at 39. That PPSAT may be one of many providers\\n\\navailable to the individual plaintiff through South Carolina’s Medicaid network is not\\n\\ndispositive; the free-choice-of-provider provision, as we have noted, guarantees a patient’s\\n\\naccess to her preferred provider, save on matters of professional integrity and competency.\\n\\nSouth Carolina has a legitimate interest in ensuring that state dollars do not subsidize\\n\\nabortion. But we are not prepared to disrupt the district court’s finding that the state’s\\n\\nreimbursement of PPSAT on a fee-for-service basis guards against the indirect\\n\\nsubsidization of abortion. Finally, an injunction would serve the public interest by\\n\\npreserving the individual plaintiff’s statutory right under the free-choice-of-provider\\n\\nprovision and ensuring “affordable access to competent health care by some of South\\n\\nCarolina’s neediest citizens,” Baker, 326 F. Supp. 3d at 50, whose health challenges are\\n\\nevery bit as real as those of citizens of greater means.\\n\\n We do not doubt that South Carolina’s termination of PPSAT’s provider agreement\\n\\nwas intended “to further [its] own legitimate interests in protecting prenatal life.” Planned\\n\\nParenthood of Se. Pa. v. Casey, 505 U.S. 833, 853 (1992). Reasonable people can disagree\\n\\nwith how Congress chose to balance state flexibility on the one hand, and enforcement of\\n\\nfederal entitlements on the other. But in all events federal courts are ill-suited to second-\\n\\n 35\\n\\nguess this act of political judgment in the Medicaid Act. An injury so concrete and a right\\n\\nso clear is something that the courts must respect, else we forsake natural and\\n\\nstraightforward readings of statutory text in favor of spinning ever-finer webs of\\n\\ncircumvention that lead to our desired outcomes. To subscribe to this portentous course is\\n\\nto abandon the very source of our authority and the mandate that alone makes the Third\\n\\nBranch a distinctive organ of our government. The judgment of the district court is\\n\\naffirmed.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 36\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4574,"cells":{"id":{"kind":"number","value":4674316,"string":"4,674,316"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United Financial Casualty Co. v. Greg Ball"},"decision_date":{"kind":"string","value":"2019-10-30"},"docket_number":{"kind":"string","value":"18-1657"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"NIEMEYER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1657\\n\\n\\nUNITED FINANCIAL CASUALTY COMPANY,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nGREG ALLEN BALL,\\n\\n Defendant - Appellant,\\n\\n and\\n\\nMILTON HARDWARE, LLC; BUILDERS DISCOUNT, LLC; RODNEY\\nPERRY,\\n\\n Defendants.\\n\\n\\nAppeal from the United States District Court for the Southern District of West Virginia, at\\nHuntington. Robert C. Chambers, District Judge. (3:17-cv-02002)\\n\\n\\nArgued: September 18, 2019 Decided: October 30, 2019\\n\\n\\nBefore WILKINSON, NIEMEYER, and AGEE, Circuit Judges.\\n\\n\\nVacated and remanded by published opinion. Judge Niemeyer wrote the opinion, in which\\nJudge Wilkinson and Judge Agee joined.\\n\\n\\nARGUED: Stephen Brooks Farmer, FARMER, CLINE & CAMPBELL, PLLC,\\nCharleston, West Virginia, for Appellant. Susan Renee Snowden, JACKSON KELLY,\\n\\fPLLC, Martinsburg, West Virginia, for Appellee. ON BRIEF: Jennifer D. Roush,\\nFARMER, CLINE & CAMPBELL, PLLC, Charleston, West Virginia, for Appellant.\\n\\n\\n\\n\\n 2\\n\\fNIEMEYER, Circuit Judge:\\n\\n In this appeal, we determine whether the Worker’s Compensation exclusion or the\\n\\nEmployee Indemnification and Employer’s Liability exclusion in a standard commercial\\n\\nautomobile insurance policy excludes coverage for the liability of a third-party permissive\\n\\nuser of an insured vehicle who caused personal injuries to an employee of a named insured.\\n\\n While employees of Milton Hardware, LLC, including Milton Hardware’s owner,\\n\\nwere performing construction work at the home of Rodney Perry in Milton, West Virginia,\\n\\nMilton Hardware’s owner authorized Perry to move one of Milton Hardware’s trucks,\\n\\nwhich was blocking the driveway. In doing so, however, Perry accidentally struck a Milton\\n\\nHardware employee, Greg Ball, causing him serious injuries.\\n\\n When Ball requested indemnification from Milton Hardware’s insurer, United\\n\\nFinancial Casualty Company, United Financial denied coverage and commenced this\\n\\naction for a declaratory judgment that the policy it issued to Milton Hardware did not cover\\n\\nPerry’s liability for Ball’s injuries. The district court agreed. While the court recognized\\n\\nthat Perry was a permissive user of the truck and therefore an “insured,” as defined in\\n\\nUnited Financial’s policy, the court concluded that the Worker’s Compensation exclusion\\n\\nin the policy eliminated coverage because Ball was an employee of a named insured and\\n\\nthe policy excluded coverage for “[a]ny obligation for which an insured . . . may be held\\n\\nliable under workers’ compensation . . . law.” Because of this holding, the court did not\\n\\ndirectly address the Employee Indemnification and Employer’s Liability exclusion, on\\n\\nwhich United Financial had also relied to deny coverage.\\n\\n\\n\\n 3\\n\\f We conclude that because Ball’s negligence claim against Perry was a claim against\\n\\na third party, rather than a claim against his employer for workers’ compensation, the\\n\\nWorker’s Compensation exclusion did not apply. We also conclude that the policy’s\\n\\nbroader exclusion for Employee Indemnification and Employer’s Liability, which on its\\n\\nface would apply to exclude coverage for Perry’s liability to Ball, was inoperable because\\n\\nits limitation of coverage contravened West Virginia Code § 33-6-31, which requires motor\\n\\nvehicle insurance policies issued in the State to provide liability coverage to individuals\\n\\nusing an insured vehicle with the owner’s consent, except when the injured person can\\n\\nclaim workers’ compensation in connection with an accident for which his employer is\\n\\nliable. Because we conclude that neither the Worker’s Compensation exclusion nor the\\n\\nEmployee Indemnification and Employer’s Liability exclusion bar coverage to Perry as an\\n\\ninsured, we vacate the district court’s judgment and remand for further proceedings\\n\\nconsistent with this opinion.\\n\\n\\n I\\n\\n The accident that caused Greg Ball’s injuries occurred on October 25, 2016, at the\\n\\nhome of Rodney Perry, where Milton Hardware was performing construction work on\\n\\nPerry’s carport. At one point during the work, Milton Hardware’s owner directed Ball and\\n\\nanother employee to load debris into a Milton Hardware truck, but another Milton\\n\\nHardware truck was in the driveway blocking their ability to do so. Milton Hardware’s\\n\\nowner then gave Perry, the homeowner, permission to move that truck. As Perry was\\n\\nbacking up, he accidentally hit Ball, temporarily pinning him between the truck Perry was\\n\\n\\n 4\\n\\fdriving and another Milton Hardware truck. As a result, Ball sustained serious injuries that\\n\\nrequired hospitalization.\\n\\n At the time of the accident, Milton Hardware had a commercial automobile liability\\n\\ninsurance policy issued by United Financial, which provided liability coverage to Milton\\n\\nHardware and to any person using Milton Hardware’s vehicles with its permission. Based\\n\\non this provision, Ball demanded that United Financial indemnify him for the injuries that\\n\\nhe claimed were caused by Perry’s negligence. United Financial denied coverage and\\n\\ncommenced this action against the named insureds, Milton Hardware and Builders\\n\\nDiscount, LLC, as well as Perry and Ball, asserting that coverage for Perry’s liability to\\n\\nBall was barred by both the policy’s Worker’s Compensation exclusion and its Employee\\n\\nIndemnification and Employer’s Liability exclusion. Ball filed a crossclaim against Perry,\\n\\nseeking damages for his negligence, and a counterclaim against United Financial, asserting\\n\\nseveral claims. Specifically, he sought a declaratory judgment (1) that the Worker’s\\n\\nCompensation exclusion did not apply; (2) that the Employee Indemnification and\\n\\nEmployer’s Liability exclusion violated West Virginia Code § 33-6-31(a) and therefore did\\n\\nnot apply; (3) alternatively, that he was entitled to Uninsured Motorist coverage under the\\n\\npolicy; and (4) that he was entitled to Medical Payments coverage under another provision\\n\\nof the policy. In addition, Ball sought money damages from United Financial, alleging\\n\\nbreach of contract, breach of the covenants of good faith and fair dealing, unfair trade\\n\\npractices, and common law bad faith.\\n\\n On cross-motions for summary judgment, the district court granted United\\n\\nFinancial’s motion and denied Ball’s and Perry’s motions by order dated May 14, 2018.\\n\\n 5\\n\\fThe court concluded that because Ball “sustained his injuries while he was working within\\n\\nthe course of his employment with Milton Hardware,” his injuries fell within the scope of\\n\\nthe Worker’s Compensation exclusion and “that, as a result, he [was] barred from liability\\n\\ncoverage under the policy.” The court also rejected Ball’s argument that West Virginia\\n\\nCode § 33-6-31(a) required United Financial to extend liability coverage to Perry as a\\n\\npermissive user of an insured automobile, reasoning that the exception in § 33-6-31(h)\\n\\napplied to eliminate this requirement. See W. Va. Code § 33-6-31(h) (providing that\\n\\nsubsection (a) does “not apply to any policy of insurance to the extent that it covers the\\n\\nliability of an employer to his or her employees under any workers’ compensation law”).\\n\\nWhile the court acknowledged Ball’s argument that the exception in § 33-6-31(h) was\\n\\ninapplicable because his tort claim was against a third party and not his employer, the court\\n\\nadhered to its position because “it would be unreasonable” to “give Perry greater coverage”\\n\\nunder the policy than Milton Hardware would have received “had Ball brought his claims\\n\\ndirectly against his employer.” Giving the same reasons, the court also denied Ball\\n\\ncoverage under the policy’s Medical Payments provisions and its Uninsured Motorist\\n\\nprovisions. In its order granting summary judgment to United Financial, the court\\n\\ndismissed all of Ball’s counterclaims against United Financial, including his state law\\n\\nclaims for damages. Finally, the court declined to exercise supplemental jurisdiction over\\n\\nBall’s state law tort claim against Perry.\\n\\n From the district court’s judgment, Ball filed this appeal.\\n\\n\\n\\n\\n 6\\n\\f II\\n\\n At the core of the district court’s holding is its conclusion that Ball’s negligence\\n\\nclaim against Perry, who was a permissive user of a Milton Hardware truck, was not\\n\\ncovered by United Financial’s liability policy because of the policy’s Worker’s\\n\\nCompensation exclusion. The court reasoned that because Ball was a Milton Hardware\\n\\nemployee who was injured during the course of his employment, any coverage for his\\n\\ninjuries, regardless of who caused them, must be denied.\\n\\n Challenging the district court’s ruling, Ball notes that the coverage he seeks is not\\n\\nfor or in regard to any workers’ compensation claim or liability, but for third-party Perry’s\\n\\nliability to him for negligence under the common law. And because that claim is not for\\n\\nworkers’ compensation, he argues, the policy’s Worker’s Compensation exclusion is\\n\\ninapplicable.\\n\\n The United Financial policy at issue, which was issued to Milton Hardware and\\n\\nBuilders Discount, provided $1 million in liability coverage, including liability “because\\n\\nof an accident arising out of the ownership, maintenance or use of [an] insured auto.” The\\n\\ncoverage extended to the named insureds, Milton Hardware and Builders Discount, and\\n\\nalso to “[a]ny person while using, with [a named insured’s] permission, and within the\\n\\nscope of that permission, an insured auto [that a named insured] own[s].” In addition, the\\n\\npolicy specifies that “the coverage afforded applies separately to each insured who is\\n\\nseeking coverage or against whom a claim or lawsuit is brought.”\\n\\n The policy, however, contains several exclusions, including the Worker’s\\n\\nCompensation exclusion and the Employee Indemnification and Employer’s Liability\\n\\n 7\\n\\fexclusion. The Worker’s Compensation exclusion provides that the policy’s liability\\n\\ncoverage does not extend to “[a]ny obligation for which an insured or an insurer of that\\n\\ninsured, even if one does not exist, may be held liable under workers’ compensation . . . or\\n\\nany similar law.” As noted, the district court concluded that the accident in question\\n\\nimplicated workers’ compensation law and therefore relied on this exclusion in denying\\n\\ncoverage to Perry for his alleged liability to Ball, who was a Milton Hardware employee.\\n\\n The West Virginia Workers’ Compensation Act provides that an employer subject\\n\\nto the Act must compensate its employees — directly, through an insurance company, or\\n\\nthrough the State — for “personal injuries [sustained] in the course of and resulting from\\n\\ntheir covered employment” without regard to fault. W. Va. Code § 23-4-1(a). And the\\n\\nbenefits provided by the Act supplant common law remedies, making an employer in\\n\\ncompliance with the Act immune from common law liability to its employees for\\n\\nnegligently causing injuries. Id. § 23-2-6; see also Canterbury v. Valley Bell Dairy Co.,\\n\\n95 S.E.2d 73, 75 (W. Va. 1956); Smith v. Monsanto Co., 822 F. Supp. 327, 329–30 (S.D.\\n\\nW. Va. 1992). As the West Virginia Supreme Court of Appeals has explained, the workers’\\n\\ncompensation system was “designed to release both an employer and its employees from\\n\\ncommon-law rules of liability and damage, protect an employer from expensive and\\n\\nunpredictable litigation, and provide compensation for injuries to employees without the\\n\\nburdensome requirements of proving common-law negligence.” Erie Ins. Prop. &\\n\\nCasualty Co. v. Stage Show Pizza, JTS, Inc., 553 S.E.2d 257, 262 (W. Va. 2001).\\n\\n But the scope of the workers’ compensation immunity from common law suits is\\n\\nnot unlimited. If the employee’s work-related injury is caused entirely or in part by the\\n\\n 8\\n\\fnegligence of a third party, the employee is entitled to sue the third party under the common\\n\\nlaw, see W. Va. Code § 23-2A-1, and such suit is not a workers’ compensation claim, see\\n\\nJones v. Appalachian Elec. Power Co., 115 S.E.2d 129, 133 (W. Va. 1960) (noting that\\n\\n“an employee who [has] received compensation for an injury [under the Workers’\\n\\nCompensation Act] [is] not thereby estopped from maintaining an action for damages for\\n\\nthe same injury against a third person not his employer whose negligence caused his\\n\\ninjury”). But if the employee recovers from the third person, then the employer or other\\n\\nentity that paid workers’ compensation benefits on behalf of the employer is subrogated to\\n\\nthe employee’s claim to the extent of benefits paid. See W. Va. Code § 23-2A-1.\\n\\n In sum, while a claim that an injured employee asserts against his employer for\\n\\ninjuries arising in the course of and resulting from his employment is generally a workers’\\n\\ncompensation claim, a claim brought by that employee against a third party for the same\\n\\ninjuries is a common-law claim that does not arise under the Workers’ Compensation Act.\\n\\nThus, Perry’s liability for Ball’s injuries would not be, in the words of the Worker’s\\n\\nCompensation exclusion, an “obligation for which [Perry as an insured] . . . may be held\\n\\nliable under workers’ compensation . . . law.” Perry was not Ball’s employer; Ball was not\\n\\nPerry’s employee; and Ball’s claim against Perry therefore does not arise under workers’\\n\\ncompensation law.\\n\\n Accordingly, we conclude that the Worker’s Compensation exclusion in the policy\\n\\ndoes not eliminate United Financial’s duty to provide liability coverage to Perry\\n\\nwith respect to Ball’s negligence claim, and the district court erred in holding that\\n\\nthe Worker’s Compensation exclusion applied. See Miralles v. Snoderly, 602 S.E.2d 534,\\n\\n 9\\n\\f540–41 (W. Va. 2004) (recognizing that the workers’ compensation exclusion to\\n\\nuninsured/underinsured motorist coverage in an employer’s commercial automobile policy\\n\\ndid not apply because the employee’s “work-related injuries were caused by a third party”).\\n\\n\\n III\\n\\n United Financial also relied on the Employee Indemnification and Employer’s\\n\\nLiability exclusion to deny Perry liability coverage. That exclusion provides that liability\\n\\ncoverage does not extend to “[b]odily injury to . . . [a]n employee of any insured arising\\n\\nout of or within the course of . . . [t]hat employee’s employment by any insured” or to such\\n\\nemployee “[p]erforming duties related to the conduct of any insured’s business.”\\n\\n(Emphasis added). It also provides that “[t]his exclusion applies . . . [w]hether the insured\\n\\nmay be liable as an employer or in any other capacity.” (Emphasis added).\\n\\n While Ball appears to acknowledge that the broad language of this exclusion would,\\n\\non its face, bar coverage to Perry, he contends that the exclusion is inconsistent with West\\n\\nVirginia Code § 33-6-31(a) and therefore is trumped by that provision. That statute\\n\\nprovides in relevant part:\\n\\n No policy or contract of bodily injury liability insurance . . . covering liability\\n arising from the ownership, maintenance or use of any motor vehicle, may\\n be issued or delivered in this state to the owner of such vehicle . . . unless it\\n contains a provision insuring the named insured and any other person,\\n except a bailee for hire and any persons specifically excluded by any\\n restrictive endorsement attached to the policy, . . . using the motor vehicle\\n with the consent, expressed or implied, of the named insured . . . against\\n liability for death or bodily injury sustained or loss or damage occasioned\\n within the coverage of the policy or contract as a result of negligence in the\\n operation or use of such vehicle by the named insured or by such person.\\n\\n\\n\\n 10\\n\\fW. Va. Code § 33-6-31(a) (emphasis added); see also Burr v. Nationwide Mutual Ins. Co.,\\n\\n359 S.E.2d 626, 632 (W. Va 1987) (recognizing that with “the mandatory omnibus\\n\\nrequirements imposed by W. Va. Code, 33-6-31(a), . . . the legislature has demonstrated a\\n\\nclear intent to afford coverage to anyone using a vehicle with the owner’s permission as a\\n\\nmeans of giving greater protection to those who are involved in automobile accidents”).\\n\\n United Financial, however, seizes on the district court’s conclusion that West\\n\\nVirginia Code § 33-6-31(a) does not apply because of the workers’ compensation\\n\\nexception in subsection (h), which provides that the requirement imposed in subsection (a)\\n\\ndoes “not apply to any policy of insurance to the extent that it covers the liability of an\\n\\nemployer to his or her employees under any workers’ compensation law.” W. Va. Code\\n\\n§ 33-6-31(h); see also Henry v. Benyo, 506 S.E.2d 615, 620 (W. Va. 1998) (holding that\\n\\n“[t]he plain language of subsection (h) prohibits an employee from collecting from his/her\\n\\nemployer’s [motor vehicle insurance policy] if his/her injuries are already covered by\\n\\nworkers’ compensation and if the accident is a result of the employer’s or a coemployee’s\\n\\nactions (i.e., ‘the employer’s liability’)” (emphasis in original)). Yet because we have\\n\\nconcluded that Ball’s claim against Perry is not a workers’ compensation claim, but rather\\n\\na third-party common law tort claim, the exception in § 33-6-31(h) does not apply, and\\n\\n§ 33-6-31(a) continues to override the restrictions of the Employee Indemnification and\\n\\nEmployer’s Liability exclusion. See Henry, 506 S.E.2d at 620 (recognizing that where “an\\n\\nemployee’s work-related injuries are caused by a third-party, . . . subsection (h) does not\\n\\napply because the employer is not ‘liable’ for the accident” (emphasis added)).\\n\\n\\n\\n 11\\n\\f To be sure, the factual circumstances in Henry are somewhat distinguishable from\\n\\nthose at issue here. There, an employee was injured in the course of his employment when\\n\\nthe work vehicle he was operating collided with a third party’s vehicle. After the employee\\n\\ncollected workers’ compensation benefits, he sought damages from the potentially\\n\\nunderinsured third-party driver. The issue presented was whether the employee could\\n\\n“recover underinsured motorist benefits under his employer’s motor vehicle insurance\\n\\npolicy” to the extent a judgment against the third party exceeded the limits of that driver’s\\n\\ncoverage. Henry, 506 S.E.2d at 617. The court concluded that such coverage was not\\n\\nblocked by the exception in § 33-6-31(h) because “it [was] the third-party who\\n\\n[was] technically ‘at fault’ for the collision and resultant damages,” not the employer. Id.\\n\\nat 620–21 (emphasis added). Thus, despite the slightly different context in Henry, its\\n\\ncentral lesson remains applicable here — namely, that whether § 33-6-31(h) applies turns\\n\\non whether the driver who caused the employee’s work-related injuries was, on the one\\n\\nhand, a third party or, on the other, the employer or a coemployee.\\n\\n The district court, however, refused to accept Henry’s reasoning, concluding that\\n\\nbecause Perry, as an additional insured, stood in the same shoes as Milton Hardware, a\\n\\nnamed insured, Perry could enjoy no greater coverage than would Milton Hardware. As a\\n\\nresult, the court held that since Milton Hardware’s coverage was limited by § 33-6-31(h),\\n\\nso too was Perry’s. But this analysis failed to recognize that Milton Hardware was Ball’s\\n\\nemployer, whereas Perry was not, placing the two in different positions vis-à-vis the\\n\\napplication of § 33-6-31(h). Again, under that provision, motor vehicle insurance policies\\n\\nneed not “cover[] the liability of an employer to his or her employees under any workers’\\n\\n 12\\n\\fcompensation law,” W. Va. Code § 33-6-31(h) (emphasis added), meaning that “if the\\n\\nemployee’s injuries were caused by the employer [or] a coemployee, . . . the employee\\n\\ncannot collect workers’ compensation benefits and then seek an additional recovery from\\n\\nthe employer just because the employer has motor vehicle insurance that . . . also covers\\n\\nthe employee’s injuries,” Henry, 506 S.E.2d at 620. But because Ball’s common law tort\\n\\nclaim against Perry is a third-party claim, § 33-6-31(h) has no effect.\\n\\n At bottom, we conclude that while the language of the Employee Indemnification\\n\\nand Employer’s Liability exclusion, considered alone, is sufficiently broad to deny Perry\\n\\ncoverage for his liability to Ball, such a limitation of coverage for a permissive user of an\\n\\ninsured vehicle contravenes West Virginia Code § 33-6-31(a) and thus renders the\\n\\nexclusion unenforceable. See Universal Underwriters Ins. Co. v. Taylor, 408 S.E.2d 358,\\n\\n363 (W. Va. 1991) (recognizing “that any provision in an insurance policy which attempts\\n\\nto contravene W. Va. Code, 33-6-31(a) is of no effect” (cleaned up)); see also Burr,\\n\\n359 S.E.2d at 631. Accordingly, we hold that the Employee Indemnification and\\n\\nEmployer’s Liability exclusion cannot operate to deny Perry coverage under United\\n\\nFinancial’s policy for his liability to Ball.\\n\\n\\n IV\\n\\n Because we conclude that United Financial may not deny liability coverage to Perry\\n\\nby reason of either the Worker’s Compensation exclusion or the Employee Indemnification\\n\\n\\n\\n\\n 13\\n\\fand Employer’s Liability exclusion, we vacate the district court’s judgment and remand\\n\\nfor further proceedings as to any unresolved issues raised by the parties.\\n\\n VACATED AND REMANDED\\n\\n\\n\\n\\n 14\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4451569/\", \"author_raw\": \"NIEMEYER, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WILKINSON"},"judge2":{"kind":"string","value":"NIEMEYER"},"judge3":{"kind":"string","value":"AGEE"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"WILKINSON\": \", Circuit\", \"NIEMEYER\": \", Circuit\", \"AGEE\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4674316/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United Financial Casualty Co. v. Greg Ball\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-10-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1657\n\n\nUNITED FINANCIAL CASUALTY COMPANY,\n\n Plaintiff - Appellee,\n\n v.\n\nGREG ALLEN BALL,\n\n Defendant - Appellant,\n\n and\n\nMILTON HARDWARE, LLC; BUILDERS DISCOUNT, LLC; RODNEY\nPERRY,\n\n Defendants.\n\n\nAppeal from the United States District Court for the Southern District of West Virginia, at\nHuntington. Robert C. Chambers, District Judge. (3:17-cv-02002)\n\n\nArgued: September 18, 2019 Decided: October 30, 2019\n\n\nBefore WILKINSON, NIEMEYER, and AGEE, Circuit Judges.\n\n\nVacated and remanded by published opinion. Judge Niemeyer wrote the opinion, in which\nJudge Wilkinson and Judge Agee joined.\n\n\nARGUED: Stephen Brooks Farmer, FARMER, CLINE & CAMPBELL, PLLC,\nCharleston, West Virginia, for Appellant. Susan Renee Snowden, JACKSON KELLY,\n\fPLLC, Martinsburg, West Virginia, for Appellee. ON BRIEF: Jennifer D. Roush,\nFARMER, CLINE & CAMPBELL, PLLC, Charleston, West Virginia, for Appellant.\n\n\n\n\n 2\n\fNIEMEYER, Circuit Judge:\n\n In this appeal, we determine whether the Worker’s Compensation exclusion or the\n\nEmployee Indemnification and Employer’s Liability exclusion in a standard commercial\n\nautomobile insurance policy excludes coverage for the liability of a third-party permissive\n\nuser of an insured vehicle who caused personal injuries to an employee of a named insured.\n\n While employees of Milton Hardware, LLC, including Milton Hardware’s owner,\n\nwere performing construction work at the home of Rodney Perry in Milton, West Virginia,\n\nMilton Hardware’s owner authorized Perry to move one of Milton Hardware’s trucks,\n\nwhich was blocking the driveway. In doing so, however, Perry accidentally struck a Milton\n\nHardware employee, Greg Ball, causing him serious injuries.\n\n When Ball requested indemnification from Milton Hardware’s insurer, United\n\nFinancial Casualty Company, United Financial denied coverage and commenced this\n\naction for a declaratory judgment that the policy it issued to Milton Hardware did not cover\n\nPerry’s liability for Ball’s injuries. The district court agreed. While the court recognized\n\nthat Perry was a permissive user of the truck and therefore an “insured,” as defined in\n\nUnited Financial’s policy, the court concluded that the Worker’s Compensation exclusion\n\nin the policy eliminated coverage because Ball was an employee of a named insured and\n\nthe policy excluded coverage for “[a]ny obligation for which an insured . . . may be held\n\nliable under workers’ compensation . . . law.” Because of this holding, the court did not\n\ndirectly address the Employee Indemnification and Employer’s Liability exclusion, on\n\nwhich United Financial had also relied to deny coverage.\n\n\n\n 3\n\f We conclude that because Ball’s negligence claim against Perry was a claim against\n\na third party, rather than a claim against his employer for workers’ compensation, the\n\nWorker’s Compensation exclusion did not apply. We also conclude that the policy’s\n\nbroader exclusion for Employee Indemnification and Employer’s Liability, which on its\n\nface would apply to exclude coverage for Perry’s liability to Ball, was inoperable because\n\nits limitation of coverage contravened West Virginia Code § 33-6-31, which requires motor\n\nvehicle insurance policies issued in the State to provide liability coverage to individuals\n\nusing an insured vehicle with the owner’s consent, except when the injured person can\n\nclaim workers’ compensation in connection with an accident for which his employer is\n\nliable. Because we conclude that neither the Worker’s Compensation exclusion nor the\n\nEmployee Indemnification and Employer’s Liability exclusion bar coverage to Perry as an\n\ninsured, we vacate the district court’s judgment and remand for further proceedings\n\nconsistent with this opinion.\n\n\n I\n\n The accident that caused Greg Ball’s injuries occurred on October 25, 2016, at the\n\nhome of Rodney Perry, where Milton Hardware was performing construction work on\n\nPerry’s carport. At one point during the work, Milton Hardware’s owner directed Ball and\n\nanother employee to load debris into a Milton Hardware truck, but another Milton\n\nHardware truck was in the driveway blocking their ability to do so. Milton Hardware’s\n\nowner then gave Perry, the homeowner, permission to move that truck. As Perry was\n\nbacking up, he accidentally hit Ball, temporarily pinning him between the truck Perry was\n\n\n 4\n\fdriving and another Milton Hardware truck. As a result, Ball sustained serious injuries that\n\nrequired hospitalization.\n\n At the time of the accident, Milton Hardware had a commercial automobile liability\n\ninsurance policy issued by United Financial, which provided liability coverage to Milton\n\nHardware and to any person using Milton Hardware’s vehicles with its permission. Based\n\non this provision, Ball demanded that United Financial indemnify him for the injuries that\n\nhe claimed were caused by Perry’s negligence. United Financial denied coverage and\n\ncommenced this action against the named insureds, Milton Hardware and Builders\n\nDiscount, LLC, as well as Perry and Ball, asserting that coverage for Perry’s liability to\n\nBall was barred by both the policy’s Worker’s Compensation exclusion and its Employee\n\nIndemnification and Employer’s Liability exclusion. Ball filed a crossclaim against Perry,\n\nseeking damages for his negligence, and a counterclaim against United Financial, asserting\n\nseveral claims. Specifically, he sought a declaratory judgment (1) that the Worker’s\n\nCompensation exclusion did not apply; (2) that the Employee Indemnification and\n\nEmployer’s Liability exclusion violated West Virginia Code § 33-6-31(a) and therefore did\n\nnot apply; (3) alternatively, that he was entitled to Uninsured Motorist coverage under the\n\npolicy; and (4) that he was entitled to Medical Payments coverage under another provision\n\nof the policy. In addition, Ball sought money damages from United Financial, alleging\n\nbreach of contract, breach of the covenants of good faith and fair dealing, unfair trade\n\npractices, and common law bad faith.\n\n On cross-motions for summary judgment, the district court granted United\n\nFinancial’s motion and denied Ball’s and Perry’s motions by order dated May 14, 2018.\n\n 5\n\fThe court concluded that because Ball “sustained his injuries while he was working within\n\nthe course of his employment with Milton Hardware,” his injuries fell within the scope of\n\nthe Worker’s Compensation exclusion and “that, as a result, he [was] barred from liability\n\ncoverage under the policy.” The court also rejected Ball’s argument that West Virginia\n\nCode § 33-6-31(a) required United Financial to extend liability coverage to Perry as a\n\npermissive user of an insured automobile, reasoning that the exception in § 33-6-31(h)\n\napplied to eliminate this requirement. See W. Va. Code § 33-6-31(h) (providing that\n\nsubsection (a) does “not apply to any policy of insurance to the extent that it covers the\n\nliability of an employer to his or her employees under any workers’ compensation law”).\n\nWhile the court acknowledged Ball’s argument that the exception in § 33-6-31(h) was\n\ninapplicable because his tort claim was against a third party and not his employer, the court\n\nadhered to its position because “it would be unreasonable” to “give Perry greater coverage”\n\nunder the policy than Milton Hardware would have received “had Ball brought his claims\n\ndirectly against his employer.” Giving the same reasons, the court also denied Ball\n\ncoverage under the policy’s Medical Payments provisions and its Uninsured Motorist\n\nprovisions. In its order granting summary judgment to United Financial, the court\n\ndismissed all of Ball’s counterclaims against United Financial, including his state law\n\nclaims for damages. Finally, the court declined to exercise supplemental jurisdiction over\n\nBall’s state law tort claim against Perry.\n\n From the district court’s judgment, Ball filed this appeal.\n\n\n\n\n 6\n\f II\n\n At the core of the district court’s holding is its conclusion that Ball’s negligence\n\nclaim against Perry, who was a permissive user of a Milton Hardware truck, was not\n\ncovered by United Financial’s liability policy because of the policy’s Worker’s\n\nCompensation exclusion. The court reasoned that because Ball was a Milton Hardware\n\nemployee who was injured during the course of his employment, any coverage for his\n\ninjuries, regardless of who caused them, must be denied.\n\n Challenging the district court’s ruling, Ball notes that the coverage he seeks is not\n\nfor or in regard to any workers’ compensation claim or liability, but for third-party Perry’s\n\nliability to him for negligence under the common law. And because that claim is not for\n\nworkers’ compensation, he argues, the policy’s Worker’s Compensation exclusion is\n\ninapplicable.\n\n The United Financial policy at issue, which was issued to Milton Hardware and\n\nBuilders Discount, provided $1 million in liability coverage, including liability “because\n\nof an accident arising out of the ownership, maintenance or use of [an] insured auto.” The\n\ncoverage extended to the named insureds, Milton Hardware and Builders Discount, and\n\nalso to “[a]ny person while using, with [a named insured’s] permission, and within the\n\nscope of that permission, an insured auto [that a named insured] own[s].” In addition, the\n\npolicy specifies that “the coverage afforded applies separately to each insured who is\n\nseeking coverage or against whom a claim or lawsuit is brought.”\n\n The policy, however, contains several exclusions, including the Worker’s\n\nCompensation exclusion and the Employee Indemnification and Employer’s Liability\n\n 7\n\fexclusion. The Worker’s Compensation exclusion provides that the policy’s liability\n\ncoverage does not extend to “[a]ny obligation for which an insured or an insurer of that\n\ninsured, even if one does not exist, may be held liable under workers’ compensation . . . or\n\nany similar law.” As noted, the district court concluded that the accident in question\n\nimplicated workers’ compensation law and therefore relied on this exclusion in denying\n\ncoverage to Perry for his alleged liability to Ball, who was a Milton Hardware employee.\n\n The West Virginia Workers’ Compensation Act provides that an employer subject\n\nto the Act must compensate its employees — directly, through an insurance company, or\n\nthrough the State — for “personal injuries [sustained] in the course of and resulting from\n\ntheir covered employment” without regard to fault. W. Va. Code § 23-4-1(a). And the\n\nbenefits provided by the Act supplant common law remedies, making an employer in\n\ncompliance with the Act immune from common law liability to its employees for\n\nnegligently causing injuries. Id. § 23-2-6; see also Canterbury v. Valley Bell Dairy Co.,\n\n95 S.E.2d 73, 75 (W. Va. 1956); Smith v. Monsanto Co., 822 F. Supp. 327, 329–30 (S.D.\n\nW. Va. 1992). As the West Virginia Supreme Court of Appeals has explained, the workers’\n\ncompensation system was “designed to release both an employer and its employees from\n\ncommon-law rules of liability and damage, protect an employer from expensive and\n\nunpredictable litigation, and provide compensation for injuries to employees without the\n\nburdensome requirements of proving common-law negligence.” Erie Ins. Prop. &\n\nCasualty Co. v. Stage Show Pizza, JTS, Inc., 553 S.E.2d 257, 262 (W. Va. 2001).\n\n But the scope of the workers’ compensation immunity from common law suits is\n\nnot unlimited. If the employee’s work-related injury is caused entirely or in part by the\n\n 8\n\fnegligence of a third party, the employee is entitled to sue the third party under the common\n\nlaw, see W. Va. Code § 23-2A-1, and such suit is not a workers’ compensation claim, see\n\nJones v. Appalachian Elec. Power Co., 115 S.E.2d 129, 133 (W. Va. 1960) (noting that\n\n“an employee who [has] received compensation for an injury [under the Workers’\n\nCompensation Act] [is] not thereby estopped from maintaining an action for damages for\n\nthe same injury against a third person not his employer whose negligence caused his\n\ninjury”). But if the employee recovers from the third person, then the employer or other\n\nentity that paid workers’ compensation benefits on behalf of the employer is subrogated to\n\nthe employee’s claim to the extent of benefits paid. See W. Va. Code § 23-2A-1.\n\n In sum, while a claim that an injured employee asserts against his employer for\n\ninjuries arising in the course of and resulting from his employment is generally a workers’\n\ncompensation claim, a claim brought by that employee against a third party for the same\n\ninjuries is a common-law claim that does not arise under the Workers’ Compensation Act.\n\nThus, Perry’s liability for Ball’s injuries would not be, in the words of the Worker’s\n\nCompensation exclusion, an “obligation for which [Perry as an insured] . . . may be held\n\nliable under workers’ compensation . . . law.” Perry was not Ball’s employer; Ball was not\n\nPerry’s employee; and Ball’s claim against Perry therefore does not arise under workers’\n\ncompensation law.\n\n Accordingly, we conclude that the Worker’s Compensation exclusion in the policy\n\ndoes not eliminate United Financial’s duty to provide liability coverage to Perry\n\nwith respect to Ball’s negligence claim, and the district court erred in holding that\n\nthe Worker’s Compensation exclusion applied. See Miralles v. Snoderly, 602 S.E.2d 534,\n\n 9\n\f540–41 (W. Va. 2004) (recognizing that the workers’ compensation exclusion to\n\nuninsured/underinsured motorist coverage in an employer’s commercial automobile policy\n\ndid not apply because the employee’s “work-related injuries were caused by a third party”).\n\n\n III\n\n United Financial also relied on the Employee Indemnification and Employer’s\n\nLiability exclusion to deny Perry liability coverage. That exclusion provides that liability\n\ncoverage does not extend to “[b]odily injury to . . . [a]n employee of any insured arising\n\nout of or within the course of . . . [t]hat employee’s employment by any insured” or to such\n\nemployee “[p]erforming duties related to the conduct of any insured’s business.”\n\n(Emphasis added). It also provides that “[t]his exclusion applies . . . [w]hether the insured\n\nmay be liable as an employer or in any other capacity.” (Emphasis added).\n\n While Ball appears to acknowledge that the broad language of this exclusion would,\n\non its face, bar coverage to Perry, he contends that the exclusion is inconsistent with West\n\nVirginia Code § 33-6-31(a) and therefore is trumped by that provision. That statute\n\nprovides in relevant part:\n\n No policy or contract of bodily injury liability insurance . . . covering liability\n arising from the ownership, maintenance or use of any motor vehicle, may\n be issued or delivered in this state to the owner of such vehicle . . . unless it\n contains a provision insuring the named insured and any other person,\n except a bailee for hire and any persons specifically excluded by any\n restrictive endorsement attached to the policy, . . . using the motor vehicle\n with the consent, expressed or implied, of the named insured . . . against\n liability for death or bodily injury sustained or loss or damage occasioned\n within the coverage of the policy or contract as a result of negligence in the\n operation or use of such vehicle by the named insured or by such person.\n\n\n\n 10\n\fW. Va. Code § 33-6-31(a) (emphasis added); see also Burr v. Nationwide Mutual Ins. Co.,\n\n359 S.E.2d 626, 632 (W. Va 1987) (recognizing that with “the mandatory omnibus\n\nrequirements imposed by W. Va. Code, 33-6-31(a), . . . the legislature has demonstrated a\n\nclear intent to afford coverage to anyone using a vehicle with the owner’s permission as a\n\nmeans of giving greater protection to those who are involved in automobile accidents”).\n\n United Financial, however, seizes on the district court’s conclusion that West\n\nVirginia Code § 33-6-31(a) does not apply because of the workers’ compensation\n\nexception in subsection (h), which provides that the requirement imposed in subsection (a)\n\ndoes “not apply to any policy of insurance to the extent that it covers the liability of an\n\nemployer to his or her employees under any workers’ compensation law.” W. Va. Code\n\n§ 33-6-31(h); see also Henry v. Benyo, 506 S.E.2d 615, 620 (W. Va. 1998) (holding that\n\n“[t]he plain language of subsection (h) prohibits an employee from collecting from his/her\n\nemployer’s [motor vehicle insurance policy] if his/her injuries are already covered by\n\nworkers’ compensation and if the accident is a result of the employer’s or a coemployee’s\n\nactions (i.e., ‘the employer’s liability’)” (emphasis in original)). Yet because we have\n\nconcluded that Ball’s claim against Perry is not a workers’ compensation claim, but rather\n\na third-party common law tort claim, the exception in § 33-6-31(h) does not apply, and\n\n§ 33-6-31(a) continues to override the restrictions of the Employee Indemnification and\n\nEmployer’s Liability exclusion. See Henry, 506 S.E.2d at 620 (recognizing that where “an\n\nemployee’s work-related injuries are caused by a third-party, . . . subsection (h) does not\n\napply because the employer is not ‘liable’ for the accident” (emphasis added)).\n\n\n\n 11\n\f To be sure, the factual circumstances in Henry are somewhat distinguishable from\n\nthose at issue here. There, an employee was injured in the course of his employment when\n\nthe work vehicle he was operating collided with a third party’s vehicle. After the employee\n\ncollected workers’ compensation benefits, he sought damages from the potentially\n\nunderinsured third-party driver. The issue presented was whether the employee could\n\n“recover underinsured motorist benefits under his employer’s motor vehicle insurance\n\npolicy” to the extent a judgment against the third party exceeded the limits of that driver’s\n\ncoverage. Henry, 506 S.E.2d at 617. The court concluded that such coverage was not\n\nblocked by the exception in § 33-6-31(h) because “it [was] the third-party who\n\n[was] technically ‘at fault’ for the collision and resultant damages,” not the employer. Id.\n\nat 620–21 (emphasis added). Thus, despite the slightly different context in Henry, its\n\ncentral lesson remains applicable here — namely, that whether § 33-6-31(h) applies turns\n\non whether the driver who caused the employee’s work-related injuries was, on the one\n\nhand, a third party or, on the other, the employer or a coemployee.\n\n The district court, however, refused to accept Henry’s reasoning, concluding that\n\nbecause Perry, as an additional insured, stood in the same shoes as Milton Hardware, a\n\nnamed insured, Perry could enjoy no greater coverage than would Milton Hardware. As a\n\nresult, the court held that since Milton Hardware’s coverage was limited by § 33-6-31(h),\n\nso too was Perry’s. But this analysis failed to recognize that Milton Hardware was Ball’s\n\nemployer, whereas Perry was not, placing the two in different positions vis-à-vis the\n\napplication of § 33-6-31(h). Again, under that provision, motor vehicle insurance policies\n\nneed not “cover[] the liability of an employer to his or her employees under any workers’\n\n 12\n\fcompensation law,” W. Va. Code § 33-6-31(h) (emphasis added), meaning that “if the\n\nemployee’s injuries were caused by the employer [or] a coemployee, . . . the employee\n\ncannot collect workers’ compensation benefits and then seek an additional recovery from\n\nthe employer just because the employer has motor vehicle insurance that . . . also covers\n\nthe employee’s injuries,” Henry, 506 S.E.2d at 620. But because Ball’s common law tort\n\nclaim against Perry is a third-party claim, § 33-6-31(h) has no effect.\n\n At bottom, we conclude that while the language of the Employee Indemnification\n\nand Employer’s Liability exclusion, considered alone, is sufficiently broad to deny Perry\n\ncoverage for his liability to Ball, such a limitation of coverage for a permissive user of an\n\ninsured vehicle contravenes West Virginia Code § 33-6-31(a) and thus renders the\n\nexclusion unenforceable. See Universal Underwriters Ins. Co. v. Taylor, 408 S.E.2d 358,\n\n363 (W. Va. 1991) (recognizing “that any provision in an insurance policy which attempts\n\nto contravene W. Va. Code, 33-6-31(a) is of no effect” (cleaned up)); see also Burr,\n\n359 S.E.2d at 631. Accordingly, we hold that the Employee Indemnification and\n\nEmployer’s Liability exclusion cannot operate to deny Perry coverage under United\n\nFinancial’s policy for his liability to Ball.\n\n\n IV\n\n Because we conclude that United Financial may not deny liability coverage to Perry\n\nby reason of either the Worker’s Compensation exclusion or the Employee Indemnification\n\n\n\n\n 13\n\fand Employer’s Liability exclusion, we vacate the district court’s judgment and remand\n\nfor further proceedings as to any unresolved issues raised by the parties.\n\n VACATED AND REMANDED\n\n\n\n\n 14\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United Financial Casualty Co. v. Greg Ball\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-10-30\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1657\\n\\n\\nUNITED FINANCIAL CASUALTY COMPANY,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nGREG ALLEN BALL,\\n\\n Defendant - Appellant,\\n\\n and\\n\\nMILTON HARDWARE, LLC; BUILDERS DISCOUNT, LLC; RODNEY\\nPERRY,\\n\\n Defendants.\\n\\n\\nAppeal from the United States District Court for the Southern District of West Virginia, at\\nHuntington. Robert C. Chambers, District Judge. (3:17-cv-02002)\\n\\n\\nArgued: September 18, 2019 Decided: October 30, 2019\\n\\n\\nBefore WILKINSON, NIEMEYER, and AGEE, Circuit Judges.\\n\\n\\nVacated and remanded by published opinion. Judge Niemeyer wrote the opinion, in which\\nJudge Wilkinson and Judge Agee joined.\\n\\n\\nARGUED: Stephen Brooks Farmer, FARMER, CLINE & CAMPBELL, PLLC,\\nCharleston, West Virginia, for Appellant. Susan Renee Snowden, JACKSON KELLY,\\n\\fPLLC, Martinsburg, West Virginia, for Appellee. ON BRIEF: Jennifer D. Roush,\\nFARMER, CLINE & CAMPBELL, PLLC, Charleston, West Virginia, for Appellant.\\n\\n\\n\\n\\n 2\\n\\fNIEMEYER, Circuit Judge:\\n\\n In this appeal, we determine whether the Worker’s Compensation exclusion or the\\n\\nEmployee Indemnification and Employer’s Liability exclusion in a standard commercial\\n\\nautomobile insurance policy excludes coverage for the liability of a third-party permissive\\n\\nuser of an insured vehicle who caused personal injuries to an employee of a named insured.\\n\\n While employees of Milton Hardware, LLC, including Milton Hardware’s owner,\\n\\nwere performing construction work at the home of Rodney Perry in Milton, West Virginia,\\n\\nMilton Hardware’s owner authorized Perry to move one of Milton Hardware’s trucks,\\n\\nwhich was blocking the driveway. In doing so, however, Perry accidentally struck a Milton\\n\\nHardware employee, Greg Ball, causing him serious injuries.\\n\\n When Ball requested indemnification from Milton Hardware’s insurer, United\\n\\nFinancial Casualty Company, United Financial denied coverage and commenced this\\n\\naction for a declaratory judgment that the policy it issued to Milton Hardware did not cover\\n\\nPerry’s liability for Ball’s injuries. The district court agreed. While the court recognized\\n\\nthat Perry was a permissive user of the truck and therefore an “insured,” as defined in\\n\\nUnited Financial’s policy, the court concluded that the Worker’s Compensation exclusion\\n\\nin the policy eliminated coverage because Ball was an employee of a named insured and\\n\\nthe policy excluded coverage for “[a]ny obligation for which an insured . . . may be held\\n\\nliable under workers’ compensation . . . law.” Because of this holding, the court did not\\n\\ndirectly address the Employee Indemnification and Employer’s Liability exclusion, on\\n\\nwhich United Financial had also relied to deny coverage.\\n\\n\\n\\n 3\\n\\f We conclude that because Ball’s negligence claim against Perry was a claim against\\n\\na third party, rather than a claim against his employer for workers’ compensation, the\\n\\nWorker’s Compensation exclusion did not apply. We also conclude that the policy’s\\n\\nbroader exclusion for Employee Indemnification and Employer’s Liability, which on its\\n\\nface would apply to exclude coverage for Perry’s liability to Ball, was inoperable because\\n\\nits limitation of coverage contravened West Virginia Code § 33-6-31, which requires motor\\n\\nvehicle insurance policies issued in the State to provide liability coverage to individuals\\n\\nusing an insured vehicle with the owner’s consent, except when the injured person can\\n\\nclaim workers’ compensation in connection with an accident for which his employer is\\n\\nliable. Because we conclude that neither the Worker’s Compensation exclusion nor the\\n\\nEmployee Indemnification and Employer’s Liability exclusion bar coverage to Perry as an\\n\\ninsured, we vacate the district court’s judgment and remand for further proceedings\\n\\nconsistent with this opinion.\\n\\n\\n I\\n\\n The accident that caused Greg Ball’s injuries occurred on October 25, 2016, at the\\n\\nhome of Rodney Perry, where Milton Hardware was performing construction work on\\n\\nPerry’s carport. At one point during the work, Milton Hardware’s owner directed Ball and\\n\\nanother employee to load debris into a Milton Hardware truck, but another Milton\\n\\nHardware truck was in the driveway blocking their ability to do so. Milton Hardware’s\\n\\nowner then gave Perry, the homeowner, permission to move that truck. As Perry was\\n\\nbacking up, he accidentally hit Ball, temporarily pinning him between the truck Perry was\\n\\n\\n 4\\n\\fdriving and another Milton Hardware truck. As a result, Ball sustained serious injuries that\\n\\nrequired hospitalization.\\n\\n At the time of the accident, Milton Hardware had a commercial automobile liability\\n\\ninsurance policy issued by United Financial, which provided liability coverage to Milton\\n\\nHardware and to any person using Milton Hardware’s vehicles with its permission. Based\\n\\non this provision, Ball demanded that United Financial indemnify him for the injuries that\\n\\nhe claimed were caused by Perry’s negligence. United Financial denied coverage and\\n\\ncommenced this action against the named insureds, Milton Hardware and Builders\\n\\nDiscount, LLC, as well as Perry and Ball, asserting that coverage for Perry’s liability to\\n\\nBall was barred by both the policy’s Worker’s Compensation exclusion and its Employee\\n\\nIndemnification and Employer’s Liability exclusion. Ball filed a crossclaim against Perry,\\n\\nseeking damages for his negligence, and a counterclaim against United Financial, asserting\\n\\nseveral claims. Specifically, he sought a declaratory judgment (1) that the Worker’s\\n\\nCompensation exclusion did not apply; (2) that the Employee Indemnification and\\n\\nEmployer’s Liability exclusion violated West Virginia Code § 33-6-31(a) and therefore did\\n\\nnot apply; (3) alternatively, that he was entitled to Uninsured Motorist coverage under the\\n\\npolicy; and (4) that he was entitled to Medical Payments coverage under another provision\\n\\nof the policy. In addition, Ball sought money damages from United Financial, alleging\\n\\nbreach of contract, breach of the covenants of good faith and fair dealing, unfair trade\\n\\npractices, and common law bad faith.\\n\\n On cross-motions for summary judgment, the district court granted United\\n\\nFinancial’s motion and denied Ball’s and Perry’s motions by order dated May 14, 2018.\\n\\n 5\\n\\fThe court concluded that because Ball “sustained his injuries while he was working within\\n\\nthe course of his employment with Milton Hardware,” his injuries fell within the scope of\\n\\nthe Worker’s Compensation exclusion and “that, as a result, he [was] barred from liability\\n\\ncoverage under the policy.” The court also rejected Ball’s argument that West Virginia\\n\\nCode § 33-6-31(a) required United Financial to extend liability coverage to Perry as a\\n\\npermissive user of an insured automobile, reasoning that the exception in § 33-6-31(h)\\n\\napplied to eliminate this requirement. See W. Va. Code § 33-6-31(h) (providing that\\n\\nsubsection (a) does “not apply to any policy of insurance to the extent that it covers the\\n\\nliability of an employer to his or her employees under any workers’ compensation law”).\\n\\nWhile the court acknowledged Ball’s argument that the exception in § 33-6-31(h) was\\n\\ninapplicable because his tort claim was against a third party and not his employer, the court\\n\\nadhered to its position because “it would be unreasonable” to “give Perry greater coverage”\\n\\nunder the policy than Milton Hardware would have received “had Ball brought his claims\\n\\ndirectly against his employer.” Giving the same reasons, the court also denied Ball\\n\\ncoverage under the policy’s Medical Payments provisions and its Uninsured Motorist\\n\\nprovisions. In its order granting summary judgment to United Financial, the court\\n\\ndismissed all of Ball’s counterclaims against United Financial, including his state law\\n\\nclaims for damages. Finally, the court declined to exercise supplemental jurisdiction over\\n\\nBall’s state law tort claim against Perry.\\n\\n From the district court’s judgment, Ball filed this appeal.\\n\\n\\n\\n\\n 6\\n\\f II\\n\\n At the core of the district court’s holding is its conclusion that Ball’s negligence\\n\\nclaim against Perry, who was a permissive user of a Milton Hardware truck, was not\\n\\ncovered by United Financial’s liability policy because of the policy’s Worker’s\\n\\nCompensation exclusion. The court reasoned that because Ball was a Milton Hardware\\n\\nemployee who was injured during the course of his employment, any coverage for his\\n\\ninjuries, regardless of who caused them, must be denied.\\n\\n Challenging the district court’s ruling, Ball notes that the coverage he seeks is not\\n\\nfor or in regard to any workers’ compensation claim or liability, but for third-party Perry’s\\n\\nliability to him for negligence under the common law. And because that claim is not for\\n\\nworkers’ compensation, he argues, the policy’s Worker’s Compensation exclusion is\\n\\ninapplicable.\\n\\n The United Financial policy at issue, which was issued to Milton Hardware and\\n\\nBuilders Discount, provided $1 million in liability coverage, including liability “because\\n\\nof an accident arising out of the ownership, maintenance or use of [an] insured auto.” The\\n\\ncoverage extended to the named insureds, Milton Hardware and Builders Discount, and\\n\\nalso to “[a]ny person while using, with [a named insured’s] permission, and within the\\n\\nscope of that permission, an insured auto [that a named insured] own[s].” In addition, the\\n\\npolicy specifies that “the coverage afforded applies separately to each insured who is\\n\\nseeking coverage or against whom a claim or lawsuit is brought.”\\n\\n The policy, however, contains several exclusions, including the Worker’s\\n\\nCompensation exclusion and the Employee Indemnification and Employer’s Liability\\n\\n 7\\n\\fexclusion. The Worker’s Compensation exclusion provides that the policy’s liability\\n\\ncoverage does not extend to “[a]ny obligation for which an insured or an insurer of that\\n\\ninsured, even if one does not exist, may be held liable under workers’ compensation . . . or\\n\\nany similar law.” As noted, the district court concluded that the accident in question\\n\\nimplicated workers’ compensation law and therefore relied on this exclusion in denying\\n\\ncoverage to Perry for his alleged liability to Ball, who was a Milton Hardware employee.\\n\\n The West Virginia Workers’ Compensation Act provides that an employer subject\\n\\nto the Act must compensate its employees — directly, through an insurance company, or\\n\\nthrough the State — for “personal injuries [sustained] in the course of and resulting from\\n\\ntheir covered employment” without regard to fault. W. Va. Code § 23-4-1(a). And the\\n\\nbenefits provided by the Act supplant common law remedies, making an employer in\\n\\ncompliance with the Act immune from common law liability to its employees for\\n\\nnegligently causing injuries. Id. § 23-2-6; see also Canterbury v. Valley Bell Dairy Co.,\\n\\n95 S.E.2d 73, 75 (W. Va. 1956); Smith v. Monsanto Co., 822 F. Supp. 327, 329–30 (S.D.\\n\\nW. Va. 1992). As the West Virginia Supreme Court of Appeals has explained, the workers’\\n\\ncompensation system was “designed to release both an employer and its employees from\\n\\ncommon-law rules of liability and damage, protect an employer from expensive and\\n\\nunpredictable litigation, and provide compensation for injuries to employees without the\\n\\nburdensome requirements of proving common-law negligence.” Erie Ins. Prop. &\\n\\nCasualty Co. v. Stage Show Pizza, JTS, Inc., 553 S.E.2d 257, 262 (W. Va. 2001).\\n\\n But the scope of the workers’ compensation immunity from common law suits is\\n\\nnot unlimited. If the employee’s work-related injury is caused entirely or in part by the\\n\\n 8\\n\\fnegligence of a third party, the employee is entitled to sue the third party under the common\\n\\nlaw, see W. Va. Code § 23-2A-1, and such suit is not a workers’ compensation claim, see\\n\\nJones v. Appalachian Elec. Power Co., 115 S.E.2d 129, 133 (W. Va. 1960) (noting that\\n\\n“an employee who [has] received compensation for an injury [under the Workers’\\n\\nCompensation Act] [is] not thereby estopped from maintaining an action for damages for\\n\\nthe same injury against a third person not his employer whose negligence caused his\\n\\ninjury”). But if the employee recovers from the third person, then the employer or other\\n\\nentity that paid workers’ compensation benefits on behalf of the employer is subrogated to\\n\\nthe employee’s claim to the extent of benefits paid. See W. Va. Code § 23-2A-1.\\n\\n In sum, while a claim that an injured employee asserts against his employer for\\n\\ninjuries arising in the course of and resulting from his employment is generally a workers’\\n\\ncompensation claim, a claim brought by that employee against a third party for the same\\n\\ninjuries is a common-law claim that does not arise under the Workers’ Compensation Act.\\n\\nThus, Perry’s liability for Ball’s injuries would not be, in the words of the Worker’s\\n\\nCompensation exclusion, an “obligation for which [Perry as an insured] . . . may be held\\n\\nliable under workers’ compensation . . . law.” Perry was not Ball’s employer; Ball was not\\n\\nPerry’s employee; and Ball’s claim against Perry therefore does not arise under workers’\\n\\ncompensation law.\\n\\n Accordingly, we conclude that the Worker’s Compensation exclusion in the policy\\n\\ndoes not eliminate United Financial’s duty to provide liability coverage to Perry\\n\\nwith respect to Ball’s negligence claim, and the district court erred in holding that\\n\\nthe Worker’s Compensation exclusion applied. See Miralles v. Snoderly, 602 S.E.2d 534,\\n\\n 9\\n\\f540–41 (W. Va. 2004) (recognizing that the workers’ compensation exclusion to\\n\\nuninsured/underinsured motorist coverage in an employer’s commercial automobile policy\\n\\ndid not apply because the employee’s “work-related injuries were caused by a third party”).\\n\\n\\n III\\n\\n United Financial also relied on the Employee Indemnification and Employer’s\\n\\nLiability exclusion to deny Perry liability coverage. That exclusion provides that liability\\n\\ncoverage does not extend to “[b]odily injury to . . . [a]n employee of any insured arising\\n\\nout of or within the course of . . . [t]hat employee’s employment by any insured” or to such\\n\\nemployee “[p]erforming duties related to the conduct of any insured’s business.”\\n\\n(Emphasis added). It also provides that “[t]his exclusion applies . . . [w]hether the insured\\n\\nmay be liable as an employer or in any other capacity.” (Emphasis added).\\n\\n While Ball appears to acknowledge that the broad language of this exclusion would,\\n\\non its face, bar coverage to Perry, he contends that the exclusion is inconsistent with West\\n\\nVirginia Code § 33-6-31(a) and therefore is trumped by that provision. That statute\\n\\nprovides in relevant part:\\n\\n No policy or contract of bodily injury liability insurance . . . covering liability\\n arising from the ownership, maintenance or use of any motor vehicle, may\\n be issued or delivered in this state to the owner of such vehicle . . . unless it\\n contains a provision insuring the named insured and any other person,\\n except a bailee for hire and any persons specifically excluded by any\\n restrictive endorsement attached to the policy, . . . using the motor vehicle\\n with the consent, expressed or implied, of the named insured . . . against\\n liability for death or bodily injury sustained or loss or damage occasioned\\n within the coverage of the policy or contract as a result of negligence in the\\n operation or use of such vehicle by the named insured or by such person.\\n\\n\\n\\n 10\\n\\fW. Va. Code § 33-6-31(a) (emphasis added); see also Burr v. Nationwide Mutual Ins. Co.,\\n\\n359 S.E.2d 626, 632 (W. Va 1987) (recognizing that with “the mandatory omnibus\\n\\nrequirements imposed by W. Va. Code, 33-6-31(a), . . . the legislature has demonstrated a\\n\\nclear intent to afford coverage to anyone using a vehicle with the owner’s permission as a\\n\\nmeans of giving greater protection to those who are involved in automobile accidents”).\\n\\n United Financial, however, seizes on the district court’s conclusion that West\\n\\nVirginia Code § 33-6-31(a) does not apply because of the workers’ compensation\\n\\nexception in subsection (h), which provides that the requirement imposed in subsection (a)\\n\\ndoes “not apply to any policy of insurance to the extent that it covers the liability of an\\n\\nemployer to his or her employees under any workers’ compensation law.” W. Va. Code\\n\\n§ 33-6-31(h); see also Henry v. Benyo, 506 S.E.2d 615, 620 (W. Va. 1998) (holding that\\n\\n“[t]he plain language of subsection (h) prohibits an employee from collecting from his/her\\n\\nemployer’s [motor vehicle insurance policy] if his/her injuries are already covered by\\n\\nworkers’ compensation and if the accident is a result of the employer’s or a coemployee’s\\n\\nactions (i.e., ‘the employer’s liability’)” (emphasis in original)). Yet because we have\\n\\nconcluded that Ball’s claim against Perry is not a workers’ compensation claim, but rather\\n\\na third-party common law tort claim, the exception in § 33-6-31(h) does not apply, and\\n\\n§ 33-6-31(a) continues to override the restrictions of the Employee Indemnification and\\n\\nEmployer’s Liability exclusion. See Henry, 506 S.E.2d at 620 (recognizing that where “an\\n\\nemployee’s work-related injuries are caused by a third-party, . . . subsection (h) does not\\n\\napply because the employer is not ‘liable’ for the accident” (emphasis added)).\\n\\n\\n\\n 11\\n\\f To be sure, the factual circumstances in Henry are somewhat distinguishable from\\n\\nthose at issue here. There, an employee was injured in the course of his employment when\\n\\nthe work vehicle he was operating collided with a third party’s vehicle. After the employee\\n\\ncollected workers’ compensation benefits, he sought damages from the potentially\\n\\nunderinsured third-party driver. The issue presented was whether the employee could\\n\\n“recover underinsured motorist benefits under his employer’s motor vehicle insurance\\n\\npolicy” to the extent a judgment against the third party exceeded the limits of that driver’s\\n\\ncoverage. Henry, 506 S.E.2d at 617. The court concluded that such coverage was not\\n\\nblocked by the exception in § 33-6-31(h) because “it [was] the third-party who\\n\\n[was] technically ‘at fault’ for the collision and resultant damages,” not the employer. Id.\\n\\nat 620–21 (emphasis added). Thus, despite the slightly different context in Henry, its\\n\\ncentral lesson remains applicable here — namely, that whether § 33-6-31(h) applies turns\\n\\non whether the driver who caused the employee’s work-related injuries was, on the one\\n\\nhand, a third party or, on the other, the employer or a coemployee.\\n\\n The district court, however, refused to accept Henry’s reasoning, concluding that\\n\\nbecause Perry, as an additional insured, stood in the same shoes as Milton Hardware, a\\n\\nnamed insured, Perry could enjoy no greater coverage than would Milton Hardware. As a\\n\\nresult, the court held that since Milton Hardware’s coverage was limited by § 33-6-31(h),\\n\\nso too was Perry’s. But this analysis failed to recognize that Milton Hardware was Ball’s\\n\\nemployer, whereas Perry was not, placing the two in different positions vis-à-vis the\\n\\napplication of § 33-6-31(h). Again, under that provision, motor vehicle insurance policies\\n\\nneed not “cover[] the liability of an employer to his or her employees under any workers’\\n\\n 12\\n\\fcompensation law,” W. Va. Code § 33-6-31(h) (emphasis added), meaning that “if the\\n\\nemployee’s injuries were caused by the employer [or] a coemployee, . . . the employee\\n\\ncannot collect workers’ compensation benefits and then seek an additional recovery from\\n\\nthe employer just because the employer has motor vehicle insurance that . . . also covers\\n\\nthe employee’s injuries,” Henry, 506 S.E.2d at 620. But because Ball’s common law tort\\n\\nclaim against Perry is a third-party claim, § 33-6-31(h) has no effect.\\n\\n At bottom, we conclude that while the language of the Employee Indemnification\\n\\nand Employer’s Liability exclusion, considered alone, is sufficiently broad to deny Perry\\n\\ncoverage for his liability to Ball, such a limitation of coverage for a permissive user of an\\n\\ninsured vehicle contravenes West Virginia Code § 33-6-31(a) and thus renders the\\n\\nexclusion unenforceable. See Universal Underwriters Ins. Co. v. Taylor, 408 S.E.2d 358,\\n\\n363 (W. Va. 1991) (recognizing “that any provision in an insurance policy which attempts\\n\\nto contravene W. Va. Code, 33-6-31(a) is of no effect” (cleaned up)); see also Burr,\\n\\n359 S.E.2d at 631. Accordingly, we hold that the Employee Indemnification and\\n\\nEmployer’s Liability exclusion cannot operate to deny Perry coverage under United\\n\\nFinancial’s policy for his liability to Ball.\\n\\n\\n IV\\n\\n Because we conclude that United Financial may not deny liability coverage to Perry\\n\\nby reason of either the Worker’s Compensation exclusion or the Employee Indemnification\\n\\n\\n\\n\\n 13\\n\\fand Employer’s Liability exclusion, we vacate the district court’s judgment and remand\\n\\nfor further proceedings as to any unresolved issues raised by the parties.\\n\\n VACATED AND REMANDED\\n\\n\\n\\n\\n 14\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4575,"cells":{"id":{"kind":"number","value":4674863,"string":"4,674,863"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"In re: Search Warrant"},"decision_date":{"kind":"string","value":"2019-10-31"},"docket_number":{"kind":"string","value":"19-1730"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before GREGORY, Chief Judge, and KING and RUSHING, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"KING, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 19-1730\\n\\n\\nIn re: SEARCH WARRANT ISSUED JUNE 13, 2019\\n____________________________\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n v.\\n\\nUNDER SEAL,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the District of Maryland, at Baltimore.\\nLiam O’Grady, District Judge. (1:19-mj-02155-TCB-1)\\n\\n\\nArgued: September 10, 2019 Decided: October 31, 2019\\n\\n\\nBefore GREGORY, Chief Judge, and KING and RUSHING, Circuit Judges.\\n\\n\\nReversed and remanded by published opinion. Judge King wrote the opinion, in which\\nChief Judge Gregory and Judge Rushing joined. Judge Rushing wrote a separate\\nconcurring opinion.\\n\\n\\nARGUED: James Patrick Ulwick, KRAMON & GRAHAM, P.A., Baltimore, Maryland,\\nfor Appellant. Derek Edward Hines, OFFICE OF THE UNITED STATES ATTORNEY,\\nBaltimore, Maryland, for Appellee. ON BRIEF: Steven M. Klepper, Louis P. Malick,\\nKRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellant. Robert K. Hur,\\nUnited States Attorney, Aaron S.J. Zelinsky, Assistant United States Attorney, OFFICE\\nOF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.\\n\\nKING, Circuit Judge:\\n\\n The appellant in these proceedings is a Baltimore law firm (the “Law Firm”) that\\n\\nchallenges the government’s use of a so-called “Filter Team” — created ex parte by a\\n\\nmagistrate judge in the District of Maryland and comprised of federal agents and\\n\\nprosecutors — to inspect privileged attorney-client materials. Those materials were seized\\n\\nfrom the Law Firm in June 2019 during the execution of a search warrant issued by the\\n\\nmagistrate judge. The Law Firm requested that the district court enjoin the Filter Team’s\\n\\nreview of the seized materials, invoking the attorney-client privilege and the work-product\\n\\ndoctrine. When the court denied its request, the Law Firm pursued this appeal. As\\n\\nexplained below, we are satisfied that use of the Filter Team is improper for several\\n\\nreasons, including that, inter alia, the Team’s creation inappropriately assigned judicial\\n\\nfunctions to the executive branch, the Team was approved in ex parte proceedings prior to\\n\\nthe search and seizures, and the use of the Team contravenes foundational principles that\\n\\nprotect attorney-client relationships. We therefore reverse and remand.\\n\\n\\n\\n I.\\n\\n A.\\n\\n 1.\\n\\n For about three years, “Lawyer A,” a partner of the Law Firm, handled the\\n\\nrepresentation of “Client A” in an investigation conducted by federal authorities in\\n\\n\\n\\n\\n 2\\n\\nMaryland. 1 Client A — who is also a Maryland lawyer — was suspected of assisting drug\\n\\ndealers in illicit activities, including money laundering and obstruction of federal\\n\\ninvestigations. According to the government, its investigation of Client A was obstructed\\n\\nby Lawyer A, and the relationship between Lawyer A and Client A triggered an application\\n\\nof the crime-fraud exception to the attorney-client privilege and work-product doctrine. In\\n\\nlight of Lawyer A’s suspected misconduct, the government also initiated an investigation\\n\\nof Lawyer A.\\n\\n As part of those investigative efforts, an IRS agent applied for a warrant to conduct\\n\\na search of the Law Firm’s Baltimore offices. On June 13, 2019, the magistrate judge\\n\\napproved the search warrant application and issued the warrant as requested. Based on her\\n\\nreview of the supporting affidavit of the IRS agent, the judge found probable cause for the\\n\\nsearch of the Law Firm and the seizures of client-related materials concerning Lawyer A’s\\n\\nrepresentation of Client A.\\n\\n 2.\\n\\n Contemporaneously with issuance of the search warrant, the magistrate judge\\n\\nauthorized the Filter Team, which had been proposed to the judge ex parte by the\\n\\nprosecutors in connection with the search warrant application. In so doing, the judge\\n\\nadopted the “Filter Team Practices and Procedures” specified in an attachment to the search\\n\\n\\n\\n\\n 1\\n In seeking to protect the identities of those involved in these proceedings, we use\\nthe nonspecific terms “Law Firm,” “Lawyer A,” and “Client A.” Our use of those terms is\\ngenerally consistent with the record on appeal.\\n\\n 3\\n\\nwarrant application and affidavit (the “Filter Protocol”). See S.J.A. 41-45. 2 The Filter\\n\\nProtocol defined the membership of the Filter Team and established the process for its\\n\\nreview of the materials to be thereafter seized from the Law Firm. Members of the Filter\\n\\nTeam included lawyers from the United States Attorney’s Office in Maryland’s Greenbelt\\n\\nDivision (the “Filter Team AUSAs”); a legal assistant and a paralegal who also worked\\n\\nthere; agents of the IRS and DEA; and forensic examiners. The Filter Team operated in\\n\\none of the two offices of Maryland’s United States Attorney — the Greenbelt office.\\n\\n Pursuant to the Filter Protocol, the Filter Team members were not involved in the\\n\\ninvestigations of Lawyer A and Client A (apart from being Filter Team members). The\\n\\nagents and prosecutors conducting the investigations of Lawyer A and Client A (the\\n\\n“Prosecution Team”) were excluded from the Filter Team. In contrast to the Filter Team\\n\\nAUSAs who were assigned to the Greenbelt office, the Prosecution Team lawyers were\\n\\nassigned to the United States Attorney’s Baltimore office.\\n\\n As for the Filter Team’s process of reviewing attorney-client materials seized from\\n\\nthe Law Firm, the Filter Protocol provided for privilege issues to be handled thusly:\\n\\n • After seizing materials from the Law Firm, the Filter Team would\\n identify and separate privileged and potentially privileged materials\\n from materials that were not privileged. Under the Filter Protocol,\\n privileged materials included “attorney-client information, attorney\\n work product information, and client confidences that have not been\\n waived,” see S.J.A. 43, 45;\\n\\n 2\\n Citations herein to “S.J.A. __” refer to the contents of the Sealed Joint Appendix\\nfiled by the parties in this appeal. The government later sought to supplement the Sealed\\nJoint Appendix by filing an ex parte appendix, the contents of which would be available\\nonly to itself and the Court and were never available to the Law Firm. On September 12,\\n2019, we rejected the filing of the ex parte supplemental appendix.\\n\\n 4\\n\\n • When seized materials were found by the Filter Team to be\\n nonprivileged, the Filter Team AUSAs could forward such materials\\n directly to the Prosecution Team, without the consent of the Law Firm\\n or a court order (the “Privilege Assessment Provision”);\\n\\n • For privileged and potentially privileged materials, the Filter Team\\n would decide whether any such seized materials were “responsive to\\n the search warrant,” id. at 44;\\n\\n • For privileged and potentially privileged materials that were\\n “responsive to the search warrant,” id., the Filter Team AUSAs would\\n place them in one of three categories:\\n\\n 1. Seized materials that were privileged and could not\\n be redacted;\\n\\n 2. Seized materials that were privileged but could be\\n redacted; or\\n\\n 3. Seized materials that were potentially privileged (for\\n example, when the Filter Team identified some\\n possible exception, such as the crime-fraud\\n exception, to a claim of privilege);\\n\\n • After providing copies to counsel for Lawyer A of the seized materials\\n identified as within categories 2 and 3, the Filter Team AUSAs would\\n seek an agreement with counsel for Lawyer A concerning whether\\n those materials could be forwarded to the Prosecution Team; and\\n\\n • If the Filter Team AUSAs and counsel for Lawyer A disagreed on the\\n handling of seized materials, the Filter Team AUSAs would submit\\n such “items to the court for [a] determination regarding privilege\\n and/or proposed redactions of the privileged material,” id.\\n\\n The Filter Protocol also authorized the Filter Team to provide the Prosecution Team\\n\\nwith seized materials if a Filter Team member “obtain[ed] [a] waiver[] of the attorney-\\n\\nclient privilege” by directly contacting the Law Firm client holding the privilege. See\\n\\nS.J.A. 42. Under the Protocol, “[i]f a client waive[d] the attorney-client privilege as to\\n\\n 5\\n\\nfiles, no further filter review of [those] files . . . for attorney-client privileged material [was]\\n\\nrequired.” Id.\\n\\n 3.\\n\\n Five days after the magistrate judge issued the search warrant, on June 18, 2019,\\n\\nfifteen IRS and DEA agents — who were members of the Filter Team — executed the\\n\\nwarrant by conducting a six-hour search of the Law Firm’s offices. Those agents seized\\n\\nvoluminous materials, including certain “confidential, privileged documents” of the Law\\n\\nFirm concerning, inter alia, Lawyer A’s representation of Client A. See S.J.A. 66. For\\n\\nexample, the agents electronically copied and seized the contents of Lawyer A’s iPhone\\n\\nand computer. The electronically seized materials contained all of Lawyer A’s email\\n\\ncorrespondence, including email correspondence related to Client A and numerous other\\n\\nLaw Firm clients. 3 More specifically, Lawyer A’s seized email inbox contained\\n\\napproximately 37,000 emails, of which 62 were from Client A or contained Client A’s\\n\\nsurname. And Lawyer A’s seized email “sent items” folder contained approximately\\n\\n\\n\\n\\n 3\\n The inventory for the return of the search warrant that was filed under seal in the\\ndistrict court describes in very general terms the items seized. See Fed. R. Crim. P.\\n41(f)(1)(B) (requiring officer present during execution of warrant to prepare and verify\\ninventory of property seized). For example, the inventory states that agents performed\\n“extraction[s]” of Lawyer A’s iPhone, of an iPad belonging to the Law Firm, and of a\\nlaptop belonging to a Firm associate. See S.J.A. 21. The inventory also describes the\\nseizures of, inter alia, a laptop, a hard drive, a portable drive, and several compact discs.\\nAdditionally, the inventory describes the seizures of various physical documents, including\\n“handwritten notes” found at the desk of a Law Firm associate, “client notes” found at the\\ndesk of Lawyer A’s assistant, and a redweld folder containing “communications\\nhandwritten and typed” found in Lawyer A’s office. Id. at 22-23.\\n\\n 6\\n\\n15,000 emails, of which 54 had been sent to Client A or contained Client A’s surname. Id.\\n\\nat 80. 4 An “extensive” portion of the seized emails were “from other [Law Firm] attorneys\\n\\nconcerning . . . other attorneys’ clients that have no connection with th[e] investigation[s]”\\n\\nof Lawyer A and Client A. Id. at 66. Notably, some of those Law Firm clients “are being\\n\\ninvestigated by, or are being prosecuted by, the United States Attorney’s Office [for the\\n\\nDistrict of Maryland] for unrelated crimes.” Id. 5\\n\\n During the execution of the search warrant by the IRS and DEA on June 18, 2019,\\n\\nvarious Law Firm partners voiced objections, including to the breadth of the search and\\n\\nseizures. Those objections were made directly to the federal agents conducting the search,\\n\\nand were also made to at least two prosecutors, including a member of the Prosecution\\n\\nTeam. A Law Firm partner specifically requested that the government’s forensic\\n\\n\\n\\n\\n 4\\n Our foregoing explanation of the seizures of Lawyer A’s emails is derived in part\\nfrom the affidavit of an information technology professional filed by the Law Firm in the\\ndistrict court. See S.J.A. 80-81 (affidavit stating that “I electronically reviewed [Lawyer\\nA’s] email folders on the [F]irm’s computer server and determined that (a) [Lawyer A’s]\\nemail inbox contained a total of 37,114 emails with a total size of 9,124,544 KB, of which\\nonly 62 emails with a total size of 21,582 KB were from [Client A] or contained [Client\\nA’s surname]; and (b) [Lawyer A’s] email sent items contained 15,219 emails with a total\\nsize of 2,308,938 KB, of which only 54 emails with a total size of 20,049 KB were sent to\\n[Client A] or contained [Client A’s surname]”). No evidence contradicting that affidavit\\nwas presented to the district court.\\n 5\\n In addition to the seizures by federal agents of thousands of emails and other\\ncommunications between Lawyer A and persons other than Client A, the IRS and DEA\\nagents seized multiple compact discs containing electronic documents that Lawyer A had\\nreceived from lawyers who had previously represented Client A.\\n\\n 7\\n\\nexaminers limit their seizures of Lawyer A’s emails to those that included Client A’s name\\n\\nor other relevant search terms. Those requests were all rejected. 6\\n\\n By letter delivered to the United States Attorney on June 21, 2019, the Law Firm\\n\\nasserted that the search and seizures contravened the Constitution, Federal Rules of\\n\\nCriminal Procedure, and United States Attorneys’ Manual. Additionally, the Law Firm\\n\\nadvised the government that the Firm had a duty “to preserve client confidences and\\n\\nsecrets,” see S.J.A. 71, and that it was “ethically mandated to urge the return of all items\\n\\nseized by the government,” id. at 72. The Law Firm’s letter objected to the use of the Filter\\n\\nTeam and requested that the government return the seized materials so that the Firm could\\n\\nconduct a privilege review — which would have been the process had the government used\\n\\nsubpoenaes duces tecum rather than a search warrant. The Law Firm also requested that\\n\\nthe government not examine any of the seized materials until the Firm had an opportunity\\n\\nto complete its privilege review. Alternatively, the Law Firm asked the government to\\n\\nimmediately submit the seized materials to the magistrate judge or the district court for in\\n\\ncamera inspection. The government never responded to the Law Firm’s letter.\\n\\n\\n\\n 6\\n The facts specified herein with respect to the Law Firm’s objections to the\\nexecution of the search warrant, and the government’s refusal to limit the seizures of\\nLawyer A’s emails, are spelled out in the affidavit of a Law Firm partner that was filed in\\nthe district court. See S.J.A. 67 (affidavit stating that “[o]n June 18, 2019, my law partners\\nand I immediately voiced [the Law Firm’s] objections to the search and seizure, both to\\nagents conducting the search and by phone to Assistant United States Attorneys . . . . I\\nasked the [g]overnment’s forensic examiners to limit the downloading of [Lawyer A’s]\\nemails to those that included [Client A’s surname] or other relevant search terms, but they\\nrefused to do so without explanation”). The government did not rebut the lawyer’s\\naffidavit.\\n\\n 8\\n\\n B.\\n\\n On June 26, 2019, Client A — whose own office had also been searched by federal\\n\\nagents and whose files were seized — moved in the district court for relief from the Filter\\n\\nProtocol, which also applied to that search. The following day, the court ordered that the\\n\\nFilter Team not deliver to the Prosecution Team any materials that were seized from Client\\n\\nA and the Law Firm, pending further order of the court. 7\\n\\n On June 28, 2019, the Law Firm separately moved in the district court for injunctive\\n\\nrelief. More specifically, the Law Firm sought a temporary restraining order and a\\n\\npreliminary injunction, pursuant to Rule 65 of the Federal Rules of Civil Procedure, and\\n\\nthe return of seized property, pursuant to Rule 41(g) of the Federal Rules of Criminal\\n\\nProcedure (collectively, the “Injunction Requests”). On July 1, 2019, the government\\n\\nresponded to and opposed the Law Firm’s Injunction Requests. The Law Firm replied the\\n\\nvery next day.\\n\\n Eight days later, on July 10, 2019, the district court conducted a telephonic hearing\\n\\non the Injunction Requests. 8 During that hearing, the Law Firm’s counsel explained that\\n\\nthe Law Firm had more than twenty lawyers, and he described the Firm’s extensive and\\n\\nongoing law practice in Maryland, including its involvement in a vast amount of criminal\\n\\n\\n 7\\n Because all the district judges in the District of Maryland recused themselves from\\nthese proceedings, a district judge in the Eastern District of Virginia was designated to\\nhandle them. The magistrate judge on this case is also an Eastern District of Virginia judge\\ndesignated for service in the District of Maryland.\\n 8\\n The district court was not available for an earlier hearing due to the extended\\nFourth of July holiday weekend and the court’s schedule.\\n\\n 9\\n\\nand civil litigation and related legal services. Counsel emphasized to the court that Lawyer\\n\\nA’s entire email file had been copied and seized by the federal agents and that the file\\n\\ncontained privileged communications with and between various lawyers and clients of the\\n\\nLaw Firm concerning criminal and civil matters unrelated to the investigations of Lawyer\\n\\nA and Client A. Counsel advised the court that the Law Firm had conducted a search of\\n\\nLawyer A’s emails using Client A’s surname and identified only 116 responsive emails in\\n\\nthe approximately 52,000 emails that were seized from Lawyer A’s email file. The Law\\n\\nFirm’s counsel emphasized his objections to any use of a government filter team and\\n\\nargued that the Filter Protocol approved by the magistrate judge was fatally flawed. He\\n\\nstressed the Filter Protocol’s illegality as to all clients of the Law Firm. Counsel added\\n\\nthat the Filter Team would have access to and would be reviewing seized materials related\\n\\nto Law Firm clients that the Filter Team members could be investigating, or might thereby\\n\\nbecome interested in investigating.\\n\\n The government responded that the Filter Team AUSAs had asked the Law Firm\\n\\nfor a list of clients with pending matters in the United States Attorney’s Office, in order to\\n\\nconfirm that no Filter Team member was involved in such matters. 9 The Law Firm,\\n\\nhowever, declined to provide that information. The government represented that it had no\\n\\nalternative but to seize Lawyer A’s entire email file because an onsite review was\\n\\nimpractical. The government also argued that, if it had provided search terms to the Law\\n\\n\\n 9\\n In addition to a list of Law Firm clients with pending matters in the United States\\nAttorney’s Office, a Filter Team AUSA requested that a Firm partner supply the Filter\\nTeam with a list of all Lawyer A’s “cases.” See S.J.A. 74.\\n\\n 10\\n\\nFirm, those terms would have revealed what the government was searching for, and those\\n\\nrevelations might have allowed Lawyer A to obstruct its investigations. In addition, the\\n\\ngovernment claimed that using search terms might cause the Filter Team to overlook emails\\n\\nrelevant to the investigations.\\n\\n At the conclusion of the telephonic hearing of July 10, 2019, the district court orally\\n\\ndenied the Law Firm’s Injunction Requests, ruling that the Firm had not shown “any\\n\\nlikelihood of irreparable harm.” See S.J.A. 122. The court related that “filter teams can be\\n\\nneutral,” and that this Filter Team was “operating under the [c]ourt’s direction.” Id. at 120.\\n\\nThe court observed that, “absent a finding that there has been some breach of [the\\n\\nprosecutors’] ethical responsibilities and duties in this case, which rarely occurs,” the Filter\\n\\nProtocol was not “inappropriate.” Id. at 121. Additionally, the court related that “having\\n\\nan independent group” of prosecutors review the seized materials did not “create[] great\\n\\nrisk or create[] the appearance of unfairness.” Id. The court said there was no “per se rule\\n\\nthat law firms are to be treated so differently that neutral examiners must be appointed in\\n\\nevery case.” Id. Finally, the court remarked that the Law Firm had “delay[ed] in coming\\n\\nto the [c]ourt,” and stated that the Filter Team had made substantial progress in reviewing\\n\\nthe seized materials. Id. at 122.\\n\\n On July 11, 2019 — the day after the hearing — the district court entered an order\\n\\ndenying the Injunction Requests because the Law Firm had not established that it would\\n\\nsuffer irreparable harm absent injunctive relief. See In re Search of Under Seal, No. 1:19-\\n\\nmj-02155 (D. Md. July 11, 2019), ECF No. 11 (the “Denial Order”). The Denial Order\\n\\nstated, in part:\\n\\n 11\\n\\n In reviewing the search warrant, the [m]agistrate [j]udge knew that the search\\n was to be of [a] law firm[] and imposed appropriate and well-established\\n constraints on the [Filter Team] that would be reviewing the seized\\n documents. There is no inherent conflict in having the seized documents\\n reviewed by [the Filter Team] composed of Assistant United States\\n Attorneys who have no connection to the underlying case or [the Law Firm]\\n and no contact with the [Prosecution Team] on this case. . . . As a result, the\\n [c]ourt finds that the limits in the search warrant and the constraints imposed\\n on the [Filter Team] are such that the appointment of a special master or\\n magistrate judge is not necessary to protect [the Law Firm] or its clients from\\n irreparable harm.\\n\\nId. at 2.\\n\\n Later that day, the Law Firm noted this appeal, pursuant to 28 U.S.C. § 1292(a)(1).\\n\\nThat jurisdictional provision authorizes appellate review of a district court’s decision\\n\\ndenying injunctive relief.\\n\\n On July 17, 2019, after the Law Firm’s appeal was lodged, the district court entered\\n\\nan agreed order modifying the Privilege Assessment Provision of the Filter Protocol.\\n\\nSpecifically, the court altered that Provision to require that the Filter Team’s forwarding of\\n\\nseized materials to the Prosecution Team be first approved by the Law Firm or by the court\\n\\n(the “Modified Privilege Assessment Provision”). Prior to that modification, the Privilege\\n\\nAssessment Provision authorized the Filter Team to deem seized materials nonprivileged\\n\\nand give them directly to the Prosecution Team.\\n\\n C.\\n\\n On July 12, 2019, the Law Firm moved in this Court for an injunction pending\\n\\nappeal. Five days thereafter, on July 17, 2019, we granted the Law Firm some relief,\\n\\ndirecting the government to “cease review of the seized files and forthwith place the files\\n\\n\\n\\n 12\\n\\nin the custody of the [m]agistrate [j]udge to be held under seal pending further order of this\\n\\nCourt.” See ECF No. 39. 10\\n\\n After expediting this appeal and receiving the Law Firm’s opening brief, we directed\\n\\nthe government to specifically address four issues in its brief. Especially pertinent here,\\n\\nwe requested that the government address whether judicial functions had been improperly\\n\\nassigned to the Filter Team.\\n\\n We conducted oral argument in Richmond on September 10, 2019. Two days later,\\n\\non September 12, 2019, we entered an order that reversed “the district court’s denial of the\\n\\nLaw Firm’s request that review of the seized materials be made by the magistrate judge,\\n\\nrather than by the Filter Team.” See ECF No. 72 (the “Interim Order”). Our Interim Order\\n\\nreassigned the Filter Team’s duties and functions to the magistrate judge and gave guidance\\n\\nin that regard. More specifically, we advised the magistrate judge to review all seized\\n\\nmaterials, identify those not related to Client A and return them to the Law Firm, and\\n\\nconduct a privilege evaluation of the remaining materials. As promised in the Interim\\n\\nOrder, we now issue this opinion to explain our rulings in these proceedings. 11\\n\\n\\n 10\\n On July 22, 2019, the government filed with our Court a “Notice of Compliance”\\nwith our directive of July 17, 2019, explaining that the Filter Team had provided the\\nmagistrate judge with all files — both paper and electronic — seized from the Law Firm.\\nSee ECF No. 44. By July 22, 2019, the seized materials had been “substantially reviewed\\nand coded by the Filter Team.” Id. As of that date, the government had not returned any\\nof the seized materials to the Law Firm.\\n 11\\n The government represented at oral argument that it had given the magistrate\\njudge all the Filter Team’s work product that related to the seized materials. And the\\nlawyer asserted that the government’s July 22, 2019 Notice of Compliance so stated. We\\nare not at all certain, however, that the Notice provides such advice. As will be explained,\\n(Continued)\\n 13\\n\\n II.\\n\\n The Supreme Court has described the award of a preliminary injunction as “an\\n\\nextraordinary remedy [that is] never awarded as of right.” See Winter v. Nat. Res. Defense\\n\\nCouncil, Inc., 555 U.S. 7, 24 (2008). To prevail on a request for such preliminary relief,\\n\\nthe plaintiff must establish that (1) it is likely to succeed on the merits, (2) it is likely to\\n\\nsuffer irreparable harm absent the requested preliminary relief, (3) the balance of the\\n\\nequities weighs in its favor, and (4) a preliminary injunction is in the public interest. See\\n\\nCentro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th Cir. 2013) (en banc).\\n\\n When a district court denies a preliminary injunction based on its evaluation of only\\n\\none of the foregoing factors, we review its assessment of that factor for abuse of discretion.\\n\\nSee Fusaro v. Cogan, 930 F.3d 241, 248 (4th Cir. 2019) (explaining abuse of discretion\\n\\nstandard); cf. Henderson ex rel. NLRB v. Bluefield Hosp. Co., 902 F.3d 432, 439 (4th Cir.\\n\\n2018) (recognizing that court can deny preliminary injunction when party fails to satisfy\\n\\nany one of four factors). In that circumstance, however, we must perform our own\\n\\nassessment of the factors not addressed by the district court. See Hobby Lobby Stores, Inc.\\n\\nv. Sebelius, 723 F.3d 1114, 1145 & n.21 (10th Cir. 2013) (en banc). We then evaluate the\\n\\n\\n\\n\\nbecause the Filter Team was performing judicial functions when conducting its review\\npursuant to the Privilege Assessment Provision and the Modified Privilege Assessment\\nProvision, the government is obliged to fully advise the magistrate judge as to the work\\nthat was performed by the Filter Team and to deliver any Filter Team work product to the\\njudge. See Interim Order 2 (“All work product of the Filter Team shall forthwith be\\ndelivered by the [g]overnment to the magistrate judge for filing under seal.”).\\n\\n 14\\n\\ncourt’s “ultimate decision” to deny injunctive relief for abuse of discretion. See Gonzales\\n\\nv. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006).\\n\\n In performing an abuse of discretion review, we assess the district court’s factual\\n\\nfindings for clear error and its legal conclusions de novo. See Fusaro, 930 F.3d at 248. A\\n\\ncourt abuses its discretion in denying preliminary injunctive relief when it “rest[s] its\\n\\ndecision on a clearly erroneous finding of a material fact, or misapprehend[s] the law with\\n\\nrespect to underlying issues in litigation.” See Centro Tepeyac, 722 F.3d at 188 (internal\\n\\nquotation marks omitted). Furthermore, a court “abuses its discretion when it makes an\\n\\nerror of law,” see Koon v. United States, 518 U.S. 81, 100 (1996), or when it ignores\\n\\n“unrebutted, legally significant evidence,” see Alvarez Lagos v. Barr, 927 F.3d 236, 255\\n\\n(4th Cir. 2019).\\n\\n\\n\\n III.\\n\\n In making our assessment of the various injunction issues, we begin with whether\\n\\nthe Law Firm is likely to suffer irreparable harm absent injunctive relief. We proceed in\\n\\nthis manner because the district court’s denial of the Law Firm’s Injunction Requests was\\n\\npredicated solely on the irreparable harm factor of the four-part preliminary injunction test.\\n\\nWe then evaluate the other factors, which the district court did not reach and address. More\\n\\nspecifically, we consider and decide whether the Law Firm has demonstrated a likelihood\\n\\nof success on the merits of its challenge to the Filter Team and its Protocol, whether the\\n\\nbalance of the equities weighs in the Firm’s favor, and whether an award of injunctive relief\\n\\n\\n\\n 15\\n\\nis in the public interest. See Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th\\n\\nCir. 2013) (en banc). 12\\n\\n A.\\n\\n With respect to the irreparable harm factor, the Law Firm is obliged to demonstrate\\n\\nthat it is likely to suffer such harm in the absence of injunctive relief. See Winter v. Nat.\\n\\nRes. Defense Council, Inc., 555 U.S. 7, 20 (2008). The Law Firm maintains that, absent\\n\\nrelief from the Filter Team and its Protocol, federal agents and prosecutors on the Filter\\n\\nTeam will continue their review of “tens of thousands” of privileged materials concerning\\n\\nLaw Firm clients other than Client A. See Br. of Appellant 45. The Law Firm emphasizes\\n\\n(1) that 99.8 percent of the 52,000 emails seized by the government were not from Client\\n\\nA, were not sent to Client A, and did not mention Client A’s surname; and (2) that many\\n\\nof those emails contained privileged information relating to other clients of the Firm,\\n\\nincluding clients who are potential subjects or targets of government investigations. 13\\n\\n 1.\\n\\n In ruling that the Law Firm did not satisfy the irreparable harm factor, the district\\n\\ncourt failed to address the Law Firm’s unrebutted evidence with respect to Lawyer A’s\\n\\n\\n\\n\\n 12\\n Although the district court mentioned the balance of the equities factor during the\\ntelephonic hearing of July 10, 2019, the court did not rely on that factor to deny the\\nInjunction Requests.\\n 13\\n Although the government argues on appeal that the Law Firm’s evidence is not\\naccurate and cannot be relied on, it failed to present any contradictory evidence to the\\ndistrict court. See United States v. Anderson, 481 F.2d 685, 702 n.19 (4th Cir. 1973)\\n(emphasizing importance of building appellate record in district court).\\n\\n 16\\n\\nemails. See Alvarez Lagos v. Barr, 927 F.3d 236, 255 (4th Cir. 2019) (explaining that\\n\\nfailure to address “unrebutted, legally significant evidence” constitutes abuse of\\n\\ndiscretion). That is, the court ignored evidence that less than one percent of the seized\\n\\nemails were from Client A, were to Client A, or mentioned Client A’s surname, and that\\n\\nmany seized emails contained privileged communications and attorney work product\\n\\nconcerning other Law Firm clients. Additionally, the court failed to acknowledge the fact\\n\\nthat some of those communications were from or about clients who “are being investigated\\n\\nby, or are being prosecuted by,” federal prosecutors. See S.J.A. 66. As a result, the court\\n\\ndid not grapple with the harm that is likely to be inflicted on the Law Firm and its clients\\n\\nfrom the Filter Team’s review of many of the seized emails. 14 The court thus abused its\\n\\ndiscretion in that respect.\\n\\n\\n\\n 2.\\n\\n\\n\\n\\n 14\\n During the oral argument in this appeal, the government maintained that the Filter\\nTeam is entitled to review materials seized from the Law Firm that are not facially relevant\\nto Client A. The government’s justification for that proposition is that the Filter Team\\nneeds “context” for its privilege determinations. See Oral Argument at 43:20, United States\\nv. Under Seal, No. 19-1730 (4th Cir. Sept. 10, 2019), http://www.ca4.uscourts.gov/oral-\\nargument/listen-to-oral-arguments. According to this “context” argument, the government\\nwas entitled to seize and review documents for which probable cause was lacking.\\nUnsurprisingly, the government has no supporting authority in that regard. See United\\nStates v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1172 (9th Cir. 2010) (en banc)\\n(criticizing government “overreach[]” in seizure of electronic data unsupported by\\nprobable cause), abrogated on other grounds by Hamer v. Neighborhood Hous. Servs. of\\nChi., 138 S. Ct. 13, 16-17 (2017).\\n\\n 17\\n\\n The district court’s failure to consider the Law Firm’s unrebutted evidence\\n\\ncompounded other errors of law that the court made with respect to the irreparable harm\\n\\nfactor. See Koon v. United States, 518 U.S. 81, 100 (1996) (explaining that a court “by\\n\\ndefinition abuses its discretion when it makes an error of law”). More specifically, the\\n\\ncourt erred by giving short shrift to the important legal principles that protect attorney-\\n\\nclient relationships, which we are compelled to elucidate herein.\\n\\n a.\\n\\n As we know, the attorney-client privilege is “the oldest of the privileges for\\n\\nconfidential communications known to the common law.” See Upjohn Co. v. United\\n\\nStates, 449 U.S. 383, 389 (1981); see also In re Grand Jury Subpoenas, 454 F.3d 511, 519\\n\\n(6th Cir. 2006) (explaining that “[t]he privilege protecting confidential communications\\n\\nbetween an attorney and his client dates back to the Tudor dynasty”). The attorney-client\\n\\nprivilege empowers a client — as the privilege holder — “to refuse to disclose and to\\n\\nprevent any other person from disclosing confidential communications between him and\\n\\nhis attorney.” See Black’s Law Dictionary 129 (6th ed. 1990). And in proceedings such\\n\\nas these, lawyers are obliged to protect the attorney-client privilege to the maximum\\n\\npossible extent on behalf of their clients. See Republic Gear Co. v. Borg-Warner Corp.,\\n\\n381 F.2d 551, 556 (2d Cir. 1967) (recognizing that lawyer has duty to invoke claim of\\n\\nprivilege on client’s behalf); Model Rules of Prof’l Conduct r. 1.6(a), (c) (Am. Bar Ass’n\\n\\n1983) (explaining that lawyer owes duty of confidentiality to client and must prevent\\n\\nunauthorized disclosure of confidential information). That proposition underlies the Law\\n\\nFirm’s uncontested standing to pursue the legal positions it advances in this appeal. See\\n\\n 18\\n\\nFisher v. United States, 425 U.S. 391, 402 n.8 (1976) (“[I]t is universally accepted that the\\n\\nattorney-client privilege may be raised by the attorney[.]”); In re Grand Jury Proceedings,\\n\\n727 F.2d 1352, 1354-55 (4th Cir. 1984) (emphasizing that a lawyer “is entitled to raise [a\\n\\nclaim of] privilege on behalf of his . . . client”).\\n\\n The purpose of the attorney-client privilege is to ensure “full and frank\\n\\ncommunication” between a client and his lawyer and “thereby promote broader public\\n\\ninterests in the observance of law and administration of justice.” See Upjohn Co., 449 U.S.\\n\\nat 389. As the Supreme Court has consistently emphasized, the attorney-client privilege\\n\\nexists because “sound legal advice or advocacy serves public ends and . . . such advice or\\n\\nadvocacy depends upon the lawyer’s being fully informed by the client.” Id.; see also Hunt\\n\\nv. Blackburn, 128 U.S. 464, 470 (1888) (“The rule which places the seal of secrecy upon\\n\\ncommunications between client and attorney is founded upon the necessity, in the interest\\n\\nand administration of justice, of the aid of persons having knowledge of the law and skilled\\n\\nin its practice, which assistance can only be safely and readily availed of when free from\\n\\nthe consequences or the apprehension of disclosure.”).\\n\\n Although the work-product doctrine does not trace as far into history as the attorney-\\n\\nclient privilege, it is no less important. The Supreme Court explicitly recognized and\\n\\nexplained the work-product doctrine more than seventy years ago in its seminal decision\\n\\nin Hickman v. Taylor. See 329 U.S. 495, 510-11 (1947). In Hickman, the Court\\n\\nunderscored that a lawyer must be able to “work with a certain degree of privacy, free from\\n\\nunnecessary intrusion by opposing parties and their counsel.” Id. at 510. Elaborating on\\n\\nthat principle, the Court emphasized that “[p]roper preparation of a client’s case demands\\n\\n 19\\n\\nthat [a lawyer] assemble information, sift what he considers to be the relevant from the\\n\\nirrelevant facts, prepare his legal theories and plan his strategy without undue and needless\\n\\ninterference.” Id. at 511. As the Court warned, absent strong protection for work product,\\n\\n“[i]nefficiency, unfairness and sharp practices would inevitably develop in the giving of\\n\\nlegal advice and in the preparation of cases for trial,” all to the detriment of clients and “the\\n\\ncause of justice.” Id.\\n\\n Thus, the Supreme Court has explicitly approved what it called “a qualified\\n\\nprivilege,” to be held by lawyer and client alike, “for certain materials prepared by an\\n\\nattorney ‘acting for his client in anticipation of litigation.’” See United States v. Nobles,\\n\\n422 U.S. 225, 237-38 (1975) (quoting Hickman, 329 U.S. at 508). That privilege is the\\n\\nwork-product doctrine, which has now been incorporated into the Federal Rules of Civil\\n\\nProcedure, see Fed. R. Civ. P. 26(b)(3), and the Federal Rules of Criminal Procedure, see\\n\\nFed. R. Crim. P. 16(a)(2), (b)(2).\\n\\n There are two types of attorney work product that are within the ambit of the\\n\\ndoctrine: (1) fact work product, which is “a transaction of the factual events involved,”\\n\\nand (2) opinion work product, which “represents the actual thoughts and impressions of\\n\\nthe attorney.” See In re Grand Jury Subpoena, 870 F.3d 312, 316 (4th Cir. 2017) (internal\\n\\nquotation marks omitted). Opinion work product, we have recognized, “enjoys a nearly\\n\\nabsolute immunity” and can be discovered by adverse parties “only in very rare and\\n\\nextraordinary circumstances.” Id. (internal quotation marks omitted). Fact work product\\n\\nis somewhat less protected, and discovery thereof by others may only be had in limited\\n\\ncircumstances, where a party shows “both a substantial need and an inability to secure the\\n\\n 20\\n\\nsubstantial equivalent of the materials by alternate means without undue hardship.” Id.\\n\\n(internal quotation marks omitted).\\n\\n Notably, the attorney-client privilege and the work-product doctrine jointly support\\n\\nthe Sixth Amendment’s guarantee of effective assistance of counsel. See U.S. Const.\\n\\namend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to have the\\n\\nAssistance of Counsel for his defence.”); Strickland v. Washington, 466 U.S. 668, 686\\n\\n(1984) (analyzing Sixth Amendment right to effective assistance of counsel). For example,\\n\\nin assessing the interplay between the attorney-client privilege and the Sixth Amendment,\\n\\nwe have emphasized that “[t]he essence of the Sixth Amendment right to effective\\n\\nassistance of counsel is, indeed, privacy of communication with counsel.” See United\\n\\nStates v. Brugman, 655 F.2d 540, 546 (4th Cir. 1981); cf. DeMassa v. Nunez, 770 F.2d\\n\\n1505, 1507 (9th Cir. 1985) (describing Sixth Amendment as a “source” for the expectation\\n\\nof privacy in attorney-client communications); 1 Geoffrey C. Hazard, Jr. et al., The Law of\\n\\nLawyering § 10.14, 10-91 (4th ed. Supp. 2019) (explaining that “[t]he attorney-client\\n\\nprivilege has ties to the Sixth Amendment”). Absent privacy of communications and the\\n\\n“full and frank” discussions that flow therefrom, a lawyer could be deprived of the\\n\\ninformation necessary to prepare and present his client’s defense. See Upjohn Co., 449\\n\\nU.S. at 389.\\n\\n Similarly, the work-product doctrine fulfills an essential and important role in\\n\\nensuring the Sixth Amendment right to effective assistance of counsel. The Supreme Court\\n\\nhas recognized that the work-product doctrine is vital to “assur[e] the proper functioning\\n\\nof the criminal justice system,” in that it “provid[es] a privileged area within which [a\\n\\n 21\\n\\nlawyer] can analyze and prepare his client’s case.” See Nobles, 422 U.S. at 238; see also\\n\\nIn re Grand Jury Subpoenas, 454 F.3d at 520 (explaining that “people should be free to\\n\\nmake requests of their attorneys without fear, and that their attorneys should be free to\\n\\nconduct research and prepare litigation strategies without fear that these preparations will\\n\\nbe subject to review by outside parties”). Without that “privileged area,” a lawyer’s ability\\n\\nto plan and present his client’s defense will be impaired. See Nobles, 422 U.S. at 238; see\\n\\nalso Hickman, 329 U.S. at 511. 15\\n\\n\\n\\n\\n b.\\n\\n In ruling that the Law Firm had not established a likelihood of irreparable harm, the\\n\\ndistrict court erred as a matter of law by affording insignificant weight to the foregoing\\n\\nprinciples protecting attorney-client relationships. See Upjohn Co., 449 U.S. at 389\\n\\n(emphasizing importance of attorney-client privilege); Nobles, 422 U.S. at 237-38\\n\\n(recognizing significance of protecting lawyer work product); cf. Gunnells v. Healthplan\\n\\nServs., Inc., 348 F.3d 417, 434 (4th Cir. 2003) (explaining that court abuses discretion in\\n\\n\\n\\n 15\\n Although the attorney-client privilege and work-product doctrine are essential\\ncomponents of our adversarial system, neither is absolute. For example, claims of attorney-\\nclient privilege or work-product protection can sometimes be defeated by the crime-fraud\\nexception. See In re Grand Jury Proceedings #5 Empanelled Jan. 28, 2004, 401 F.3d 247,\\n251 (4th Cir. 2005). Put succinctly, “[b]oth the attorney-client and work-product privileges\\nmay be lost . . . when a client gives information to an attorney for the purpose of committing\\nor furthering a crime or fraud.” Id. In these proceedings, the government has invoked that\\nexception as to Client A of Lawyer A.\\n\\n 22\\n\\nignoring applicable legal principles). Crucially, the court failed to recognize that an\\n\\nadverse party’s review of privileged materials seriously injures the privilege holder. See\\n\\nUnited States v. Philip Morris Inc., 314 F.3d 612, 622 (D.C. Cir. 2003) (concluding that a\\n\\nparty had demonstrated the likelihood of irreparable harm predicated on “the general injury\\n\\ncaused by the breach of the attorney-client privilege and the harm resulting from the\\n\\ndisclosure of privileged documents to an adverse party”), abrogated on other grounds by\\n\\nMohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103 (2009); In re Perrigo Co., 128 F.3d\\n\\n430, 437 (6th Cir. 1997) (explaining that “forced disclosure of privileged material may\\n\\nbring about irreparable harm”); Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955,\\n\\n960-61 (3d Cir. 1984) (ruling that law firm had demonstrated likelihood of irreparable harm\\n\\nwhere government seized thousands of files containing privileged information).\\n\\n 3.\\n\\n When the pertinent legal principles are properly applied to the unrefuted evidence,\\n\\nthe Filter Team’s review of the materials seized from the Law Firm was and is injurious to\\n\\nthe Firm and its clients. And that harm is plainly irreparable, in that the Filter Team’s\\n\\nreview of those privileged materials cannot be undone. We are therefore satisfied that the\\n\\nLaw Firm will be irreparably harmed absent an award of injunctive relief against the Filter\\n\\nTeam and its Protocol. 16\\n\\n\\n 16\\n We observe that the Filter Team and its Protocol may inflict other injuries on the\\nLaw Firm. For example, adverse publicity about the search of the Law Firm, the Filter\\nTeam, and its Protocol could make potential clients less likely to seek out and retain the\\nFirm. Additionally, potential and current clients might be reluctant to candidly\\ncommunicate with the Law Firm attorneys because they fear government review of their\\n(Continued)\\n 23\\n\\n B.\\n\\n Turning to the injunction factors not reached and addressed by the district court, we\\n\\nbegin with the likelihood of success factor. In order to prevail on that factor, the Law Firm\\n\\nmust make a “clear showing” that the Filter Team and its Protocol are legally flawed. See\\n\\nPashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013). Stated differently, the Law Firm is\\n\\nobliged to demonstrate it is likely to succeed on its request that the magistrate judge —\\n\\nrather than the Filter Team — perform the privilege review of the seized materials.\\n\\n In that regard, the Law Firm maintains that the Filter Team and its Protocol are\\n\\nsimply “incompatible with courts’ historical protection of the attorney-client privilege and\\n\\nthe work-product doctrine.” See Br. of Appellant 35. The Law Firm contends that there is\\n\\na clear appearance of — and potential for — improprieties when government agents are\\n\\nauthorized to rummage through attorney-client communications, particularly when less\\n\\nthan one percent of those communications relate to the investigations at issue. And the\\n\\nLaw Firm posits that use of the Filter Team in these circumstances will chill the free flow\\n\\nof information between clients and lawyers. Put simply, the Law Firm maintains that\\n\\njudicial functions are involved in all aspects of assessing and deciding privilege issues.\\n\\nThe Law Firm thus argues that a magistrate judge or a special master must perform those\\n\\nfunctions.\\n\\n\\n\\n\\ncommunications and breaches of confidentiality. Consequently, the Law Firm is likely to\\nbe deprived of information necessary to the proper handling of its cases. See Upjohn Co.,\\n449 U.S. at 389 (explaining necessity of “full and frank communication” between client\\nand his lawyer).\\n\\n 24\\n\\n As further explained below, we are satisfied that the Law Firm has shown that it is\\n\\nlikely to succeed on the merits of its challenge to the Filter Team and its Protocol. In\\n\\napproving the Filter Team and its Protocol, the magistrate judge made several legal errors\\n\\nby, inter alia: (1) assigning judicial functions to the Filter Team; (2) authorizing the Filter\\n\\nTeam and its Protocol in ex parte proceedings that were conducted prior to the search and\\n\\nseizures at the Law Firm; and (3) failing to properly weigh the foundational principles that\\n\\nprotect attorney-client relationships.\\n\\n 1.\\n\\n To start, the magistrate judge — by authorizing the Filter Team and its Protocol —\\n\\nerred in assigning judicial functions to the executive branch. We have recognized that,\\n\\nwhen a dispute arises as to whether a lawyer’s communications or a lawyer’s documents\\n\\nare protected by the attorney-client privilege or work-product doctrine, the resolution of\\n\\nthat dispute is a judicial function. See NLRB v. Interbake Foods, LLC, 637 F.3d 492, 498,\\n\\n500 (4th Cir. 2011) (concluding that, in deciding whether to enforce an administrative\\n\\nsubpoena seeking potentially privileged documents, a court “cannot delegate” an in camera\\n\\nreview of documents to an agency, but must itself decide a claim of privilege); see also In\\n\\nre The City of New York, 607 F.3d 923, 947 (2d Cir. 2010) (observing that evaluating\\n\\nprivilege claim is always a judicial function); In re Grand Jury Proceedings #5 Empanelled\\n\\nJan. 28, 2004, 401 F.3d 247, 256 (4th Cir. 2005) (remanding to district court for in camera\\n\\nreview concerning privileged communications and applicability of crime-fraud exception).\\n\\nIndeed, the Constitution vests “[t]he judicial Power” solely in the federal courts, see U.S.\\n\\nConst. art. III, § 1, which includes “the duty of interpreting and applying” the law, see\\n\\n 25\\n\\nMassachusetts v. Mellon, 262 U.S. 447, 488 (1923). Put simply, a court is not entitled to\\n\\ndelegate its judicial power and related functions to the executive branch, especially when\\n\\nthe executive branch is an interested party in the pending dispute. See Interbake Foods,\\n\\n637 F.3d at 501 (affirming refusal “to delegate” to an administrative law judge the\\n\\njudiciary’s “responsibility to decide the issue of privilege”); NLRB v. Detroit Newspapers,\\n\\n185 F.3d 602, 606 (6th Cir. 1999) (concluding that “district court had the obligation . . . to\\n\\ndetermine whether the subpoenaed documents were protected by some privilege, and had\\n\\nno discretion to delegate that duty”).\\n\\n In these proceedings, the Privilege Assessment Provision of the Filter Protocol\\n\\ncontravened that nondelegation principle. Put succinctly, the Privilege Assessment\\n\\nProvision erroneously authorized the executive branch — that is, the Filter Team — to\\n\\nmake decisions on attorney-client privilege and the work-product doctrine. As our good\\n\\ncolleague Judge Niemeyer recognized in Interbake Foods, a court simply cannot delegate\\n\\nits responsibility to decide privilege issues to another government branch. See 637 F.3d at\\n\\n498, 500-01 (recognizing that court must decide privilege disputes); see also In re The City\\n\\nof New York, 607 F.3d at 947 (observing that evaluating privilege claim is a judicial\\n\\nfunction).\\n\\n To compound that error, the Privilege Assessment Provision delegated judicial\\n\\nfunctions to non-lawyer members of the Filter Team. In other words, the Privilege\\n\\nAssessment Provision authorized paralegals and IRS and DEA agents to designate seized\\n\\ndocuments as nonprivileged, and allowed the Filter Team AUSAs to deliver such\\n\\ndocuments to the Prosecution Team without the approval of the Law Firm or a court order.\\n\\n 26\\n\\nThe Third Circuit has strongly criticized a similar protocol and explicitly ruled that non-\\n\\nlawyer federal agents could not make privilege determinations. See In re Search of Elec.\\n\\nCommc’ns, 802 F.3d 516, 530 & n.54 (3d Cir. 2015).\\n\\n In addition to the separation of powers issues that arise from the Filter Protocol’s\\n\\ndelegation of judicial functions to the Filter Team, there are other apparent legal problems\\n\\ntherewith. There is the possibility that a filter team — even if composed entirely of trained\\n\\nlawyers — will make errors in privilege determinations and in transmitting seized materials\\n\\nto an investigation or prosecution team. On this point, the Sixth Circuit recognized several\\n\\nyears ago that such filter teams present “reasonably foreseeable risks to privilege” and\\n\\n“have been implicated . . . in leaks of confidential information to prosecutors.” See In re\\n\\nGrand Jury Subpoenas, 454 F.3d at 523. As Judge Boggs aptly explained, a filter team\\n\\nmight “have an interest in preserving privilege, but it also possesses a conflicting interest\\n\\nin pursuing the investigation, and . . . some [filter] team attorneys will make mistakes or\\n\\nviolate their ethical obligations. It is thus logical to suppose that [filter] teams pose a\\n\\nserious risk to holders of privilege.” Id.\\n\\n As the Sixth Circuit also emphasized, filter team errors can arise from differences\\n\\nof opinion regarding privilege. See In re Grand Jury Subpoenas, 454 F.3d at 523. In\\n\\nexplaining that problem, the court elaborated that a filter team’s members “might have a\\n\\nmore restrictive view of privilege” than the subject of the search, given their prosecutorial\\n\\ninterests in pursuing the underlying investigations. Id. That “more restrictive view of\\n\\nprivilege” could cause privileged documents to be misclassified and erroneously provided\\n\\nto an investigation or prosecution team. Id.\\n\\n 27\\n\\n The Sixth Circuit also acknowledged that filter team errors can result from mistakes\\n\\nor neglect, and described one infamous occurrence as follows:\\n\\n In United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991), . . . the\\n government’s [filter] team missed a document obviously protected by\\n attorney-client privilege, by turning over tapes of attorney-client\\n conversations to members of the investigating team. This Noriega incident\\n points to an obvious flaw in the [filter] team procedure: the government’s\\n fox is left in charge of the [law firm’s] henhouse, and may err by neglect or\\n malice, as well as by honest differences of opinion.\\n\\nSee In re Grand Jury Subpoenas, 454 F.3d at 523 (emphasis added).\\n\\n Strikingly, the risks to attorney-client privilege and the work-product doctrine that\\n\\nwere identified by the Sixth Circuit have been recently realized in the District of Maryland,\\n\\nfrom which this appeal arises. See United States v. Elbaz, No. 8:18-cr-00157, slip op. at\\n\\n4-6 (D. Md. June 20, 2019), ECF No. 216 (the “Elbaz opinion”). According to the Elbaz\\n\\nopinion, the government’s filter team improperly disclosed thousands of potentially\\n\\nprivileged documents to a prosecution team, which then examined some of the documents.\\n\\nId. Those blunders occurred nearly a year before this Filter Team was authorized by the\\n\\nmagistrate judge. Id. at 3-6. And the Elbaz opinion detailing that filter team’s mistakes\\n\\nwas filed in the District of Maryland on June 20, 2019, just a week after the magistrate\\n\\njudge’s authorization of this Filter Team on June 13, 2019, and three weeks before the\\n\\ndistrict court’s Denial Order of July 11, 2019.\\n\\n In sum, the Filter Protocol improperly delegated judicial functions to the Filter\\n\\nTeam. And the magistrate judge failed to recognize and consider the significant problems\\n\\nwith that delegation, which left the government’s fox in charge of guarding the Law Firm’s\\n\\nhenhouse. See In re Grand Jury Subpoenas, 454 F.3d at 523.\\n\\n 28\\n\\n 2.\\n\\n Relatedly, the magistrate judge erred by prematurely authorizing the Filter Team\\n\\nand its Protocol in ex parte proceedings that it conducted on June 13, 2019, five days before\\n\\nthe search warrant was executed and voluminous seizures were made from the Law Firm. 17\\n\\nFirst, the timing of the judge’s authorization undermined the judge’s ability to exercise\\n\\ndiscretion with respect to the Filter Team and its Protocol, in that the judge could not have\\n\\nbeen fully informed of what was seized from the Law Firm. See James v. Jacobson, 6 F.3d\\n\\n233, 238 (4th Cir. 1993) (emphasizing that court’s exercise of discretion must be\\n\\n“informed”). And the judge may well have rejected the Filter Team and its Protocol if the\\n\\njudge had known (1) that 99.8 percent of the 52,000 seized emails were not from Client A,\\n\\nwere not sent to Client A, and did not mention Client A’s surname; and (2) that many of\\n\\nthose seized emails contained privileged information concerning other clients of the Law\\n\\nFirm. Put simply, the judge should have deferred the decision concerning the proposed\\n\\nFilter Team and its Protocol pending the execution and return of the search warrant.\\n\\n\\n\\n\\n 17\\n Although the Law Firm generally contests the ex parte actions of the government\\nbelow and on appeal, the Firm does not specifically argue that the magistrate judge erred\\nby approving the Filter Team and its Protocol in ex parte proceedings before the search\\nwas conducted. See Br. of Appellant 57; Reply Br. of Appellant 3, 22. We are nevertheless\\nsatisfied that the process by which the authorization was made falls within the Law Firm’s\\nbroad challenge to the Filter Team and its Protocol. Moreover, we are entitled to assess\\nlegal issues that have not been squarely raised when it facilitates the correct resolution of\\nan appeal. See Meyers v. Lamer, 743 F.3d 908, 912 (4th Cir. 2014) (emphasizing that “it\\nis the fundamental province of this Court to decide cases correctly, even if that means\\nconsidering arguments . . . not raised by the parties at all”).\\n\\n 29\\n\\n Second, the magistrate judge should have declined the government’s ex parte\\n\\ninvitation with respect to the Filter Team, and the judge should have conducted adversarial\\n\\nproceedings on whether to authorize the Filter Team and the Filter Protocol. See RSZ\\n\\nHoldings AVV v. PDVSA Petroleo S.A., 506 F.3d 350, 356 (4th Cir. 2007) (emphasizing\\n\\nthat ex parte proceedings are “greatly disfavored”); In re Ingram, 915 F. Supp. 2d 761,\\n\\n763-64 (E.D. La. 2012) (assessing briefing from parties on propriety of filter team). In\\n\\nsuch contested proceedings, the judge could have been fully informed of the relevant\\n\\nbackground on the Law Firm and its clients, as well as the nature of the seized materials.\\n\\nAdditionally, the clients of the Law Firm and their lawyers could have been heard by the\\n\\njudge.\\n\\n In a recent example involving a proposed filter team, federal agents searched the\\n\\noffice of Michael Cohen, a New York City lawyer, and seized privileged materials. See\\n\\nCohen v. United States, No. 1:18-mj-03161 (S.D.N.Y. Apr. 13, 2018), ECF No. 6 at 4, 25.\\n\\nFour days after the search — and before the filter team created by the search warrant had\\n\\nreviewed any of the seized materials — the district court conducted adversarial proceedings\\n\\nconcerning the prosecutor’s proposed use of a filter team. See generally Cohen, ECF No.\\n\\n36 (May 1, 2018). Prior to those proceedings, the court was informed of the materials that\\n\\nhad been seized from Cohen’s office. See Cohen, ECF No. 6 at 18-19. During the\\n\\nproceedings, the court heard from Cohen’s lawyer and the lawyer for Cohen’s primary\\n\\nclient, who each argued against court approval of the filter team request. See Cohen, ECF\\n\\nNo. 36 at 12-16, 30-31.\\n\\n\\n\\n 30\\n\\n The sensible procedures adhered to by the Cohen court demonstrate that, if the\\n\\nmagistrate judge had conducted adversarial proceedings after the search but before\\n\\napproving the Filter Team and its Protocol in this case, the judge would have been fully\\n\\ninformed of the materials that were seized from the Law Firm. The judge would then have\\n\\nheard from the Law Firm’s counsel, and possibly also from the clients of the Firm through\\n\\ntheir lawyers, before the Filter Team reviewed any seized materials. The upshot is that —\\n\\nin failing to conduct adversarial proceedings prior to authorizing the Filter Team and its\\n\\nProtocol — the magistrate judge prematurely granted the ex parte request of the United\\n\\nStates Attorney. 18\\n\\n 3.\\n\\n a.\\n\\n We are also troubled that, in summarily approving the Filter Team and its Protocol,\\n\\nthe magistrate judge — like the district court in thereafter assessing the Injunction Requests\\n\\n— gave no indication that she had weighed any of the important legal principles that protect\\n\\nattorney-client relationships. Put simply, the Filter Protocol authorized government agents\\n\\nand prosecutors to rummage through Lawyer A’s email files. Again, many of the emails\\n\\n\\n\\n 18\\n The process adhered to by the Cohen court is pertinent to these proceedings in\\nseveral material respects. For example, the Cohen filter team did not review any of the\\nseized materials prior to an adversarial hearing and a ruling on the filter team’s propriety.\\nImportantly, the court heard from Cohen’s lawyer and counsel for Cohen’s primary client\\nin those proceedings. The court ultimately rejected the government’s filter team proposal\\nand appointed a special master. See Cohen, ECF No. 30 (Apr. 27, 2018). Notably, the\\nCohen proceedings were conducted more than a year before the magistrate judge’s\\nauthorization of this Filter Team.\\n\\n 31\\n\\nconcerned other clients and other matters. The court’s authorization of such an extensive\\n\\nreview of client communications and lawyer discussions by government agents and\\n\\nprosecutors was made in disregard of the attorney-client privilege, the work-product\\n\\ndoctrine, and the Sixth Amendment. See Klitzman, Klitzman & Gallagher v. Krut, 744\\n\\nF.2d at 961 (criticizing seizures of client files from law firm because government made no\\n\\neffort to limit seizures of firm’s materials, and thereby “trampl[ed]” on attorney-client\\n\\nprivilege and work-product protections as to all clients); United States v. Stewart, No. 1:02-\\n\\ncr-00396, 2002 WL 1300059, at *5, *10 (S.D.N.Y. June 11, 2002) (explaining that search\\n\\nof lawyer’s office raised Sixth Amendment concerns and appointing special master where\\n\\ndocuments seized from law firm were likely to contain privileged information relating to\\n\\ncriminal defendants). The magistrate judge erred in failing to explicitly weigh those\\n\\nfoundational principles that protect attorney-client relationships.\\n\\n b.\\n\\n At this juncture, we emphasize another “serious defect” of the Filter Protocol\\n\\nchallenged by the Law Firm as subverting attorney-client relationships. See Reply Br. of\\n\\nAppellant 14 n.4. Specifically, the Filter Protocol prospectively authorized the Filter Team\\n\\nto contact the Law Firm’s clients ex parte and seek waivers of their attorney-client\\n\\nprivileges. The Model Rules of Professional Conduct, however, generally bar a lawyer\\n\\nfrom communicating with a represented party about the subject of the representation\\n\\nwithout the represented party’s lawyer being present. See Model Rules of Prof’l Conduct\\n\\nr. 4.2 (Am. Bar Ass’n 1983); 2 Hazard, Jr. et al., supra, § 41.02 (explaining that Rule 4.2\\n\\n“prevents a lawyer from taking advantage of a lay person”); id. § 41.12 (discussing\\n\\n 32\\n\\napplication of Rule 4.2 to prosecutors). Although an exception to that rule can — in the\\n\\nproper circumstances — be made by a court, any such court order should be predicated on\\n\\nan individualized assessment of the attorney-client relationship. See Model Rules of Prof’l\\n\\nConduct r. 4.2; see also United States v. Lopez, 4 F.3d 1455, 1462 (9th Cir. 1993)\\n\\n(explaining that court must make “informed decision” regarding whether to authorize\\n\\nlawyer’s communication with represented party). That was not even attempted here, in\\n\\nthat the Filter Protocol was approved ex parte before the search warrant was executed.\\n\\n By asking the Law Firm to furnish the Filter Team with a client list — which could\\n\\nbe used by Filter Team members to directly contact clients and seek privilege waivers\\n\\nunder the Filter Protocol — the government demonstrated a lack of respect for the attorney-\\n\\nclient privilege and the Firm’s duty of confidentiality to its clients. In declining to reveal\\n\\na client list to the Filter Team, the Law Firm relied on its ethical obligations to protect\\n\\nconfidential and privileged information relating to its clients. See Br. of Appellant 37\\n\\n(asserting that the government’s request for a client list ignored the proposition that the\\n\\nLaw Firm is “ethically prohibited from disclosing . . . the identity of clients when the\\n\\nrelationship remains confidential”); see also Model Rules of Prof’l Conduct r. 1.6(a)\\n\\n(describing duty of confidentiality). Such information will sometimes include the\\n\\nexistence of the lawyer-client relationship itself. See In re Grand Jury Subpoena, 204 F.3d\\n\\n516, 520 (4th Cir. 2000) (recognizing that the attorney-client privilege can “extend to the\\n\\nclient’s identity”); 1 Hazard, Jr. et al., supra, § 10.12 (collecting cases where client identity\\n\\nconsidered confidential or privileged). The breach of the duty of confidentiality “is\\n\\nenforceable by civil remedies as well as through the [attorney] disciplinary process.” See\\n\\n 33\\n\\n1 Hazard, Jr. et al., supra, § 10.16, 10-108.1. And a breach of the attorney-client privilege\\n\\nby an attorney is likewise sanctionable. See id. Indeed, at least one jurisdiction imposes\\n\\ncriminal penalties for improperly breaching attorney-client privilege. See Tenn. Code Ann.\\n\\n§ 23-3-107. In short, authorizing the government in ex parte proceedings to directly\\n\\ncontact any and all clients of the Law Firm is another example of how the Filter Protocol\\n\\napproved by the magistrate judge undermined attorney-client principles.\\n\\n 4.\\n\\n At bottom, the magistrate judge erred in assigning judicial functions to the Filter\\n\\nTeam, approving the Filter Team and its Protocol in ex parte proceedings without first\\n\\nascertaining what had been seized in the Law Firm search, and disregarding the\\n\\nfoundational principles that serve to protect attorney-client relationships. In these\\n\\ncircumstances, we are satisfied that the magistrate judge (or an appointed special master)\\n\\n— rather than the Filter Team — must perform the privilege review of the seized materials.\\n\\nSee Klitzman, Klitzman & Gallagher, 744 F.2d at 962 (recommending appointment of\\n\\nspecial master in similar circumstances); United States v. Gallego, No. 4:18-cr-01537, slip\\n\\nop. at 5-6 (D. Ariz. Sept. 6, 2018), ECF No. 65 (appointing a special master “to review the\\n\\nitems seized from [the] [d]efendant’s law office for privilege and responsiveness to the\\n\\nsearch warrant”); Cohen, ECF No. 30 (Apr. 27, 2018) (appointing special master to review\\n\\ndocuments seized from lawyer); Stewart, 2002 WL 1300059, at *10 (appointing special\\n\\nmaster to perform privilege review of documents seized from office of criminal defense\\n\\n\\n\\n\\n 34\\n\\nlawyer). 19 We are therefore satisfied that the Law Firm has demonstrated that it is likely\\n\\nto succeed on the merits.\\n\\n C.\\n\\n In order to prevail on the next injunction factor, the Law Firm is obliged to show\\n\\nthat the equities weigh in its favor. See Winter, 555 U.S. at 20. And we are satisfied that\\n\\nthe Law Firm has done so. Specifically, the harm to the Law Firm and its clients that will\\n\\nbe caused by continuing the Filter Team’s review outweighs any harm to the government\\n\\nthat might result from the magistrate judge conducting the privilege review of the seized\\n\\nmaterials. Indeed, we discern no harm to the government in barring the Filter Team from\\n\\nrummaging through Law Firm materials that are unrelated to the underlying investigations.\\n\\n In seeking to convince us otherwise, the government maintains that the magistrate\\n\\njudge’s review of the seized materials will unduly delay the government’s investigations.\\n\\nAnd the government claims that it has an interest in efficiently investigating criminal\\n\\nwrongdoing. Although efficient criminal investigations are certainly desirable, we are not\\n\\npersuaded that the claimed delay in its investigations weighs in the government’s favor.\\n\\nPut simply, the government chose to proceed by securing a search warrant for the Law\\n\\nFirm and seeking and obtaining the magistrate judge’s approval of the Filter Protocol. The\\n\\n\\n\\n 19\\n The government contends on appeal that the Filter Team’s privilege review of the\\nseized materials is no different than such a review by a magistrate judge or a court-\\nappointed special master. Unlike the Filter Team, however, a magistrate judge and a\\nspecial master are judicial officers and neutral arbiters that have no stake in the outcome\\nof the privilege decisions. See In re Grand Jury Subpoenas, 454 F.3d at 523 (explaining\\ninherent conflict in authorizing filter team to decide privilege claims).\\n\\n 35\\n\\ngovernment should have been fully aware that use of a filter team in these circumstances\\n\\nwas ripe for substantial legal challenges, and should have anticipated that those challenges\\n\\ncould delay its investigations. 20 And, in any event, delay in the government’s\\n\\ninvestigations here does not outweigh the harm to the Law Firm and its clients caused by\\n\\nthe Filter Team’s review. See In re Grand Jury Subpoenas, 454 F.3d at 523-24.\\n\\n The government also argues that the equities weigh against the Law Firm because\\n\\nthe Firm waited ten days after the search to file its Injunction Requests. We are\\n\\nunconvinced, however, that the Law Firm somehow slumbered on its rights. Indeed, the\\n\\nLaw Firm contested the search and seizures when they were ongoing and — three days\\n\\nthereafter — dispatched a detailed letter to the United States Attorney objecting to what\\n\\nhad occurred and what was apparently going on with the Filter Team. The prosecutors\\n\\nignored that letter, prompting the Law Firm to file its Injunction Requests. We do not fault\\n\\nthe Law Firm for seeking a negotiated resolution of these important disputes before\\n\\nrequesting court intervention. And we will not reward the government for ignoring those\\n\\nefforts. See Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 522 (1947) (“[H]e who\\n\\nseeks equity must do equity.”). In these circumstances, the Law Firm has convincingly\\n\\nshown that the equities weigh in its favor.\\n\\n D.\\n\\n\\n\\n 20\\n Notwithstanding the government’s responsibility for some of the delay about\\nwhich it complains, we are nevertheless sensitive to its concerns. Indeed, we have\\nexpedited this appeal, and we issued our Interim Order within two days of the oral\\nargument.\\n\\n 36\\n\\n Finally, the Law Firm is obliged to establish, in order to secure the relief it seeks,\\n\\nthat “an injunction is in the public interest.” See Winter, 555 U.S. at 20. We are satisfied\\n\\nthat an award of injunctive relief in these circumstances supports the “strong public\\n\\ninterest” in the integrity of the judicial system. See United States v. Hasting, 461 U.S. 499,\\n\\n527 (1983) (Brennan, J., concurring in part and dissenting in part). By creating\\n\\nappearances of unfairness to the Law Firm clients who are unrelated to the government’s\\n\\ninvestigation of Client A, the Filter Team and its Protocol contravene the public interest.\\n\\nSee Gallego, slip op. at 4-6 (recognizing appearances of unfairness inherent in use of filter\\n\\nteams and appointing special master to review materials seized from law firm); Stewart,\\n\\n2002 WL 1300059, at *8 (explaining that “it is important that the procedure adopted [for\\n\\nthe review of seized materials] . . . not only be fair but also appear to be fair”); United\\n\\nStates v. Neill, 952 F. Supp. 834, 841 n.14 (D.D.C. 1997) (emphasizing that use of filter\\n\\nteam creates “appearance of unfairness”). For those clients — and to the public at large —\\n\\nit surely appears, as the Sixth Circuit recognized, that “the government’s fox [has been]\\n\\nleft in charge of the [Law Firm’s] henhouse.” See In re Grand Jury Subpoenas, 454 F.3d\\n\\nat 523; see also In re Search Warrant for Law Offices Executed on Mar. 19, 1992, 153\\n\\nF.R.D. 55, 59 (S.D.N.Y. 1994) (“It is a great leap of faith to expect that members of the\\n\\ngeneral public would believe any . . . wall [between a filter team and a prosecution team]\\n\\nwould be impenetrable; this notwithstanding our own trust in the honor of an AUSA.”).\\n\\n Appearances of unfairness are especially apparent in these proceedings, in that the\\n\\nFilter Team includes prosecutors employed in the same judicial district where Law Firm\\n\\nclients “are being investigated by, or are being prosecuted by,” the United States Attorney\\n\\n 37\\n\\nfor Maryland. See S.J.A. 66. It would be difficult for reasonable members of the public to\\n\\nbelieve that Filter Team AUSAs would disregard information in Lawyer A’s emails that\\n\\nmight be relevant to other criminal inquiries in Maryland. In fact, the government has\\n\\nnever disclaimed an intention to use the plain-view doctrine in connection with the Filter\\n\\nTeam’s access to the materials seized from the Law Firm. See United States v. Rumley,\\n\\n588 F.3d 202, 205 (4th Cir. 2009) (explaining that, under the plain-view doctrine, a law\\n\\nenforcement officer can make a seizure of an object in plain view if, inter alia, “the object’s\\n\\nincriminating character is immediately apparent” (internal quotation marks omitted)); cf.\\n\\nUnited States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1178 (9th Cir. 2010)\\n\\n(Kozinski, C.J., concurring) (suggesting that, “[w]hen the government wishes to obtain a\\n\\nwarrant to examine a[n] . . . electronic storage medium to search for certain incriminating\\n\\nfiles, . . . magistrate judges should insist that the government forswear reliance on the plain-\\n\\nview doctrine” (citation omitted)). 21\\n\\n Due to the appearances of unfairness caused by the Filter Team, and in view of the\\n\\nother problems associated with the Filter Team, it is surprising that the government has so\\n\\nvigorously supported it. We simply observe that prosecutors have a responsibility to not\\n\\nonly see that justice is done, but to also ensure that justice appears to be done. See In re\\n\\n\\n\\n 21\\n Even if the Filter Team AUSAs have been instructed to ignore information\\nrelating to possible criminal activity by other Law Firm clients in the seized materials, our\\nplain view concerns would not be assuaged. The review of such information by the Filter\\nTeam AUSAs cannot be undone. Additionally, the IRS and DEA agents on the Filter Team\\nhave their own superiors. It may well be difficult for those agents to withhold from their\\nsuperiors information about possible crimes potentially identified in the seized materials.\\n\\n 38\\n\\nSearch Warrant for Law Offices, 153 F.R.D. at 59 (“The appearance of [j]ustice must be\\n\\nserved, as well as the interests of [j]ustice.”). Federal agents and prosecutors rummaging\\n\\nthrough law firm materials that are protected by attorney-client privilege and the work-\\n\\nproduct doctrine is at odds with the appearance of justice.\\n\\n ***\\n\\n As reflected herein, we are satisfied that the magistrate judge’s authorization of the\\n\\nFilter Team and the Filter Protocol was improper and that injunctive relief is warranted.\\n\\nThe district court thus abused its discretion by failing to enjoin the Filter Team’s review of\\n\\nthe seized materials. 22\\n\\n\\n\\n IV.\\n\\n Pursuant to the foregoing and our Interim Order, we reverse the district court’s\\n\\nDenial Order and remand for such other and further proceedings as may be appropriate.\\n\\n REVERSED AND REMANDED\\n\\n\\n\\n\\n 22\\n Although the Law Firm has raised Fourth Amendment contentions, we leave those\\nissues to the district court. See Lovelace v. Lee, 472 F.3d 174, 203 (4th Cir. 2006)\\n(emphasizing that this Court is “a court of review, not of first view” (internal quotation\\nmarks omitted)).\\n\\n 39\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4452116/\", \"author_raw\": \"KING, Circuit Judge:\"}, {\"author\": \"RUSHING, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"RUSHING, Circuit Judge, concurring:\\n\\n As the majority correctly concludes, the unique facts and circumstances of this case\\n\\npreclude this Filter Team operating under this Filter Protocol from reviewing the fruits of\\n\\nthis search warrant. I write separately to expand upon two points in our analysis of the\\n\\nLaw Firm’s likelihood of success on the merits.\\n\\n First, as the majority notes, after the July 10, 2019 hearing on the Law Firm’s and\\n\\nClient A’s pending motions, the district court modified the Privilege Assessment Provision\\n\\nof the Filter Protocol. Maj. Op. 12. Under the Modified Privilege Assessment Provision,\\n\\nno documents—including those the Filter Team considers nonprivileged—can be sent to\\n\\nthe Prosecution Team without either the consent of the Law Firm or a court order. The\\n\\nmajority does not suggest that the Modified Privilege Assessment Provision, which\\n\\nreplaced the original Privilege Assessment Provision, impermissibly usurps a judicial\\n\\nfunction. See Maj. Op. 25–29.\\n\\n Second, the Filter Team immediately began reviewing the documents seized from\\n\\nthe Law Firm, despite the Law Firm’s protests about the attorney-client privilege and work-\\n\\nproduct doctrine. In other cases, the government has voluntarily delayed review for a brief\\n\\ntime until the court could schedule a hearing on the target’s motion for a restraining order\\n\\nor injunction. See, e.g., Cohen v. United States, No. 1:18-mj-03161 (S.D.N.Y. Apr. 13,\\n\\n2018), ECF Nos. 6, 36. That sensible procedure preserves the status quo until a court can\\n\\nrule. The majority suggests a procedure by which a magistrate judge could authorize a\\n\\nsearch but delay ruling on proposed review protocols until the court can sua sponte gather\\n\\nthe parties for an adversary proceeding. Maj. Op. 29–31. That innovative procedure may\\n\\n 40\\n\\nbe salutary in some circumstances, but the burden remains on the parties to voice their\\n\\nobjections, and accommodate the orderly resolution of those objections, in the normal\\n\\ncourse.\\n\\n\\n\\n\\n 41\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4452116/\", \"author_raw\": \"RUSHING, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"GREGORY"},"judge2":{"kind":"string","value":"KING"},"judge3":{"kind":"string","value":"RUSHING"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"GREGORY\": \", Chief\", \"KING\": \", Circuit\", \"RUSHING\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4674863/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: In re: Search Warrant\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-10-31\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 19-1730\n\n\nIn re: SEARCH WARRANT ISSUED JUNE 13, 2019\n____________________________\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n v.\n\nUNDER SEAL,\n\n Defendant - Appellant.\n\n\nAppeal from the United States District Court for the District of Maryland, at Baltimore.\nLiam O’Grady, District Judge. (1:19-mj-02155-TCB-1)\n\n\nArgued: September 10, 2019 Decided: October 31, 2019\n\n\nBefore GREGORY, Chief Judge, and KING and RUSHING, Circuit Judges.\n\n\nReversed and remanded by published opinion. Judge King wrote the opinion, in which\nChief Judge Gregory and Judge Rushing joined. Judge Rushing wrote a separate\nconcurring opinion.\n\n\nARGUED: James Patrick Ulwick, KRAMON & GRAHAM, P.A., Baltimore, Maryland,\nfor Appellant. Derek Edward Hines, OFFICE OF THE UNITED STATES ATTORNEY,\nBaltimore, Maryland, for Appellee. ON BRIEF: Steven M. Klepper, Louis P. Malick,\nKRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellant. Robert K. Hur,\nUnited States Attorney, Aaron S.J. Zelinsky, Assistant United States Attorney, OFFICE\nOF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.\n\nKING, Circuit Judge:\n\n The appellant in these proceedings is a Baltimore law firm (the “Law Firm”) that\n\nchallenges the government’s use of a so-called “Filter Team” — created ex parte by a\n\nmagistrate judge in the District of Maryland and comprised of federal agents and\n\nprosecutors — to inspect privileged attorney-client materials. Those materials were seized\n\nfrom the Law Firm in June 2019 during the execution of a search warrant issued by the\n\nmagistrate judge. The Law Firm requested that the district court enjoin the Filter Team’s\n\nreview of the seized materials, invoking the attorney-client privilege and the work-product\n\ndoctrine. When the court denied its request, the Law Firm pursued this appeal. As\n\nexplained below, we are satisfied that use of the Filter Team is improper for several\n\nreasons, including that, inter alia, the Team’s creation inappropriately assigned judicial\n\nfunctions to the executive branch, the Team was approved in ex parte proceedings prior to\n\nthe search and seizures, and the use of the Team contravenes foundational principles that\n\nprotect attorney-client relationships. We therefore reverse and remand.\n\n\n\n I.\n\n A.\n\n 1.\n\n For about three years, “Lawyer A,” a partner of the Law Firm, handled the\n\nrepresentation of “Client A” in an investigation conducted by federal authorities in\n\n\n\n\n 2\n\nMaryland. 1 Client A — who is also a Maryland lawyer — was suspected of assisting drug\n\ndealers in illicit activities, including money laundering and obstruction of federal\n\ninvestigations. According to the government, its investigation of Client A was obstructed\n\nby Lawyer A, and the relationship between Lawyer A and Client A triggered an application\n\nof the crime-fraud exception to the attorney-client privilege and work-product doctrine. In\n\nlight of Lawyer A’s suspected misconduct, the government also initiated an investigation\n\nof Lawyer A.\n\n As part of those investigative efforts, an IRS agent applied for a warrant to conduct\n\na search of the Law Firm’s Baltimore offices. On June 13, 2019, the magistrate judge\n\napproved the search warrant application and issued the warrant as requested. Based on her\n\nreview of the supporting affidavit of the IRS agent, the judge found probable cause for the\n\nsearch of the Law Firm and the seizures of client-related materials concerning Lawyer A’s\n\nrepresentation of Client A.\n\n 2.\n\n Contemporaneously with issuance of the search warrant, the magistrate judge\n\nauthorized the Filter Team, which had been proposed to the judge ex parte by the\n\nprosecutors in connection with the search warrant application. In so doing, the judge\n\nadopted the “Filter Team Practices and Procedures” specified in an attachment to the search\n\n\n\n\n 1\n In seeking to protect the identities of those involved in these proceedings, we use\nthe nonspecific terms “Law Firm,” “Lawyer A,” and “Client A.” Our use of those terms is\ngenerally consistent with the record on appeal.\n\n 3\n\nwarrant application and affidavit (the “Filter Protocol”). See S.J.A. 41-45. 2 The Filter\n\nProtocol defined the membership of the Filter Team and established the process for its\n\nreview of the materials to be thereafter seized from the Law Firm. Members of the Filter\n\nTeam included lawyers from the United States Attorney’s Office in Maryland’s Greenbelt\n\nDivision (the “Filter Team AUSAs”); a legal assistant and a paralegal who also worked\n\nthere; agents of the IRS and DEA; and forensic examiners. The Filter Team operated in\n\none of the two offices of Maryland’s United States Attorney — the Greenbelt office.\n\n Pursuant to the Filter Protocol, the Filter Team members were not involved in the\n\ninvestigations of Lawyer A and Client A (apart from being Filter Team members). The\n\nagents and prosecutors conducting the investigations of Lawyer A and Client A (the\n\n“Prosecution Team”) were excluded from the Filter Team. In contrast to the Filter Team\n\nAUSAs who were assigned to the Greenbelt office, the Prosecution Team lawyers were\n\nassigned to the United States Attorney’s Baltimore office.\n\n As for the Filter Team’s process of reviewing attorney-client materials seized from\n\nthe Law Firm, the Filter Protocol provided for privilege issues to be handled thusly:\n\n • After seizing materials from the Law Firm, the Filter Team would\n identify and separate privileged and potentially privileged materials\n from materials that were not privileged. Under the Filter Protocol,\n privileged materials included “attorney-client information, attorney\n work product information, and client confidences that have not been\n waived,” see S.J.A. 43, 45;\n\n 2\n Citations herein to “S.J.A. __” refer to the contents of the Sealed Joint Appendix\nfiled by the parties in this appeal. The government later sought to supplement the Sealed\nJoint Appendix by filing an ex parte appendix, the contents of which would be available\nonly to itself and the Court and were never available to the Law Firm. On September 12,\n2019, we rejected the filing of the ex parte supplemental appendix.\n\n 4\n\n • When seized materials were found by the Filter Team to be\n nonprivileged, the Filter Team AUSAs could forward such materials\n directly to the Prosecution Team, without the consent of the Law Firm\n or a court order (the “Privilege Assessment Provision”);\n\n • For privileged and potentially privileged materials, the Filter Team\n would decide whether any such seized materials were “responsive to\n the search warrant,” id. at 44;\n\n • For privileged and potentially privileged materials that were\n “responsive to the search warrant,” id., the Filter Team AUSAs would\n place them in one of three categories:\n\n 1. Seized materials that were privileged and could not\n be redacted;\n\n 2. Seized materials that were privileged but could be\n redacted; or\n\n 3. Seized materials that were potentially privileged (for\n example, when the Filter Team identified some\n possible exception, such as the crime-fraud\n exception, to a claim of privilege);\n\n • After providing copies to counsel for Lawyer A of the seized materials\n identified as within categories 2 and 3, the Filter Team AUSAs would\n seek an agreement with counsel for Lawyer A concerning whether\n those materials could be forwarded to the Prosecution Team; and\n\n • If the Filter Team AUSAs and counsel for Lawyer A disagreed on the\n handling of seized materials, the Filter Team AUSAs would submit\n such “items to the court for [a] determination regarding privilege\n and/or proposed redactions of the privileged material,” id.\n\n The Filter Protocol also authorized the Filter Team to provide the Prosecution Team\n\nwith seized materials if a Filter Team member “obtain[ed] [a] waiver[] of the attorney-\n\nclient privilege” by directly contacting the Law Firm client holding the privilege. See\n\nS.J.A. 42. Under the Protocol, “[i]f a client waive[d] the attorney-client privilege as to\n\n 5\n\nfiles, no further filter review of [those] files . . . for attorney-client privileged material [was]\n\nrequired.” Id.\n\n 3.\n\n Five days after the magistrate judge issued the search warrant, on June 18, 2019,\n\nfifteen IRS and DEA agents — who were members of the Filter Team — executed the\n\nwarrant by conducting a six-hour search of the Law Firm’s offices. Those agents seized\n\nvoluminous materials, including certain “confidential, privileged documents” of the Law\n\nFirm concerning, inter alia, Lawyer A’s representation of Client A. See S.J.A. 66. For\n\nexample, the agents electronically copied and seized the contents of Lawyer A’s iPhone\n\nand computer. The electronically seized materials contained all of Lawyer A’s email\n\ncorrespondence, including email correspondence related to Client A and numerous other\n\nLaw Firm clients. 3 More specifically, Lawyer A’s seized email inbox contained\n\napproximately 37,000 emails, of which 62 were from Client A or contained Client A’s\n\nsurname. And Lawyer A’s seized email “sent items” folder contained approximately\n\n\n\n\n 3\n The inventory for the return of the search warrant that was filed under seal in the\ndistrict court describes in very general terms the items seized. See Fed. R. Crim. P.\n41(f)(1)(B) (requiring officer present during execution of warrant to prepare and verify\ninventory of property seized). For example, the inventory states that agents performed\n“extraction[s]” of Lawyer A’s iPhone, of an iPad belonging to the Law Firm, and of a\nlaptop belonging to a Firm associate. See S.J.A. 21. The inventory also describes the\nseizures of, inter alia, a laptop, a hard drive, a portable drive, and several compact discs.\nAdditionally, the inventory describes the seizures of various physical documents, including\n“handwritten notes” found at the desk of a Law Firm associate, “client notes” found at the\ndesk of Lawyer A’s assistant, and a redweld folder containing “communications\nhandwritten and typed” found in Lawyer A’s office. Id. at 22-23.\n\n 6\n\n15,000 emails, of which 54 had been sent to Client A or contained Client A’s surname. Id.\n\nat 80. 4 An “extensive” portion of the seized emails were “from other [Law Firm] attorneys\n\nconcerning . . . other attorneys’ clients that have no connection with th[e] investigation[s]”\n\nof Lawyer A and Client A. Id. at 66. Notably, some of those Law Firm clients “are being\n\ninvestigated by, or are being prosecuted by, the United States Attorney’s Office [for the\n\nDistrict of Maryland] for unrelated crimes.” Id. 5\n\n During the execution of the search warrant by the IRS and DEA on June 18, 2019,\n\nvarious Law Firm partners voiced objections, including to the breadth of the search and\n\nseizures. Those objections were made directly to the federal agents conducting the search,\n\nand were also made to at least two prosecutors, including a member of the Prosecution\n\nTeam. A Law Firm partner specifically requested that the government’s forensic\n\n\n\n\n 4\n Our foregoing explanation of the seizures of Lawyer A’s emails is derived in part\nfrom the affidavit of an information technology professional filed by the Law Firm in the\ndistrict court. See S.J.A. 80-81 (affidavit stating that “I electronically reviewed [Lawyer\nA’s] email folders on the [F]irm’s computer server and determined that (a) [Lawyer A’s]\nemail inbox contained a total of 37,114 emails with a total size of 9,124,544 KB, of which\nonly 62 emails with a total size of 21,582 KB were from [Client A] or contained [Client\nA’s surname]; and (b) [Lawyer A’s] email sent items contained 15,219 emails with a total\nsize of 2,308,938 KB, of which only 54 emails with a total size of 20,049 KB were sent to\n[Client A] or contained [Client A’s surname]”). No evidence contradicting that affidavit\nwas presented to the district court.\n 5\n In addition to the seizures by federal agents of thousands of emails and other\ncommunications between Lawyer A and persons other than Client A, the IRS and DEA\nagents seized multiple compact discs containing electronic documents that Lawyer A had\nreceived from lawyers who had previously represented Client A.\n\n 7\n\nexaminers limit their seizures of Lawyer A’s emails to those that included Client A’s name\n\nor other relevant search terms. Those requests were all rejected. 6\n\n By letter delivered to the United States Attorney on June 21, 2019, the Law Firm\n\nasserted that the search and seizures contravened the Constitution, Federal Rules of\n\nCriminal Procedure, and United States Attorneys’ Manual. Additionally, the Law Firm\n\nadvised the government that the Firm had a duty “to preserve client confidences and\n\nsecrets,” see S.J.A. 71, and that it was “ethically mandated to urge the return of all items\n\nseized by the government,” id. at 72. The Law Firm’s letter objected to the use of the Filter\n\nTeam and requested that the government return the seized materials so that the Firm could\n\nconduct a privilege review — which would have been the process had the government used\n\nsubpoenaes duces tecum rather than a search warrant. The Law Firm also requested that\n\nthe government not examine any of the seized materials until the Firm had an opportunity\n\nto complete its privilege review. Alternatively, the Law Firm asked the government to\n\nimmediately submit the seized materials to the magistrate judge or the district court for in\n\ncamera inspection. The government never responded to the Law Firm’s letter.\n\n\n\n 6\n The facts specified herein with respect to the Law Firm’s objections to the\nexecution of the search warrant, and the government’s refusal to limit the seizures of\nLawyer A’s emails, are spelled out in the affidavit of a Law Firm partner that was filed in\nthe district court. See S.J.A. 67 (affidavit stating that “[o]n June 18, 2019, my law partners\nand I immediately voiced [the Law Firm’s] objections to the search and seizure, both to\nagents conducting the search and by phone to Assistant United States Attorneys . . . . I\nasked the [g]overnment’s forensic examiners to limit the downloading of [Lawyer A’s]\nemails to those that included [Client A’s surname] or other relevant search terms, but they\nrefused to do so without explanation”). The government did not rebut the lawyer’s\naffidavit.\n\n 8\n\n B.\n\n On June 26, 2019, Client A — whose own office had also been searched by federal\n\nagents and whose files were seized — moved in the district court for relief from the Filter\n\nProtocol, which also applied to that search. The following day, the court ordered that the\n\nFilter Team not deliver to the Prosecution Team any materials that were seized from Client\n\nA and the Law Firm, pending further order of the court. 7\n\n On June 28, 2019, the Law Firm separately moved in the district court for injunctive\n\nrelief. More specifically, the Law Firm sought a temporary restraining order and a\n\npreliminary injunction, pursuant to Rule 65 of the Federal Rules of Civil Procedure, and\n\nthe return of seized property, pursuant to Rule 41(g) of the Federal Rules of Criminal\n\nProcedure (collectively, the “Injunction Requests”). On July 1, 2019, the government\n\nresponded to and opposed the Law Firm’s Injunction Requests. The Law Firm replied the\n\nvery next day.\n\n Eight days later, on July 10, 2019, the district court conducted a telephonic hearing\n\non the Injunction Requests. 8 During that hearing, the Law Firm’s counsel explained that\n\nthe Law Firm had more than twenty lawyers, and he described the Firm’s extensive and\n\nongoing law practice in Maryland, including its involvement in a vast amount of criminal\n\n\n 7\n Because all the district judges in the District of Maryland recused themselves from\nthese proceedings, a district judge in the Eastern District of Virginia was designated to\nhandle them. The magistrate judge on this case is also an Eastern District of Virginia judge\ndesignated for service in the District of Maryland.\n 8\n The district court was not available for an earlier hearing due to the extended\nFourth of July holiday weekend and the court’s schedule.\n\n 9\n\nand civil litigation and related legal services. Counsel emphasized to the court that Lawyer\n\nA’s entire email file had been copied and seized by the federal agents and that the file\n\ncontained privileged communications with and between various lawyers and clients of the\n\nLaw Firm concerning criminal and civil matters unrelated to the investigations of Lawyer\n\nA and Client A. Counsel advised the court that the Law Firm had conducted a search of\n\nLawyer A’s emails using Client A’s surname and identified only 116 responsive emails in\n\nthe approximately 52,000 emails that were seized from Lawyer A’s email file. The Law\n\nFirm’s counsel emphasized his objections to any use of a government filter team and\n\nargued that the Filter Protocol approved by the magistrate judge was fatally flawed. He\n\nstressed the Filter Protocol’s illegality as to all clients of the Law Firm. Counsel added\n\nthat the Filter Team would have access to and would be reviewing seized materials related\n\nto Law Firm clients that the Filter Team members could be investigating, or might thereby\n\nbecome interested in investigating.\n\n The government responded that the Filter Team AUSAs had asked the Law Firm\n\nfor a list of clients with pending matters in the United States Attorney’s Office, in order to\n\nconfirm that no Filter Team member was involved in such matters. 9 The Law Firm,\n\nhowever, declined to provide that information. The government represented that it had no\n\nalternative but to seize Lawyer A’s entire email file because an onsite review was\n\nimpractical. The government also argued that, if it had provided search terms to the Law\n\n\n 9\n In addition to a list of Law Firm clients with pending matters in the United States\nAttorney’s Office, a Filter Team AUSA requested that a Firm partner supply the Filter\nTeam with a list of all Lawyer A’s “cases.” See S.J.A. 74.\n\n 10\n\nFirm, those terms would have revealed what the government was searching for, and those\n\nrevelations might have allowed Lawyer A to obstruct its investigations. In addition, the\n\ngovernment claimed that using search terms might cause the Filter Team to overlook emails\n\nrelevant to the investigations.\n\n At the conclusion of the telephonic hearing of July 10, 2019, the district court orally\n\ndenied the Law Firm’s Injunction Requests, ruling that the Firm had not shown “any\n\nlikelihood of irreparable harm.” See S.J.A. 122. The court related that “filter teams can be\n\nneutral,” and that this Filter Team was “operating under the [c]ourt’s direction.” Id. at 120.\n\nThe court observed that, “absent a finding that there has been some breach of [the\n\nprosecutors’] ethical responsibilities and duties in this case, which rarely occurs,” the Filter\n\nProtocol was not “inappropriate.” Id. at 121. Additionally, the court related that “having\n\nan independent group” of prosecutors review the seized materials did not “create[] great\n\nrisk or create[] the appearance of unfairness.” Id. The court said there was no “per se rule\n\nthat law firms are to be treated so differently that neutral examiners must be appointed in\n\nevery case.” Id. Finally, the court remarked that the Law Firm had “delay[ed] in coming\n\nto the [c]ourt,” and stated that the Filter Team had made substantial progress in reviewing\n\nthe seized materials. Id. at 122.\n\n On July 11, 2019 — the day after the hearing — the district court entered an order\n\ndenying the Injunction Requests because the Law Firm had not established that it would\n\nsuffer irreparable harm absent injunctive relief. See In re Search of Under Seal, No. 1:19-\n\nmj-02155 (D. Md. July 11, 2019), ECF No. 11 (the “Denial Order”). The Denial Order\n\nstated, in part:\n\n 11\n\n In reviewing the search warrant, the [m]agistrate [j]udge knew that the search\n was to be of [a] law firm[] and imposed appropriate and well-established\n constraints on the [Filter Team] that would be reviewing the seized\n documents. There is no inherent conflict in having the seized documents\n reviewed by [the Filter Team] composed of Assistant United States\n Attorneys who have no connection to the underlying case or [the Law Firm]\n and no contact with the [Prosecution Team] on this case. . . . As a result, the\n [c]ourt finds that the limits in the search warrant and the constraints imposed\n on the [Filter Team] are such that the appointment of a special master or\n magistrate judge is not necessary to protect [the Law Firm] or its clients from\n irreparable harm.\n\nId. at 2.\n\n Later that day, the Law Firm noted this appeal, pursuant to 28 U.S.C. § 1292(a)(1).\n\nThat jurisdictional provision authorizes appellate review of a district court’s decision\n\ndenying injunctive relief.\n\n On July 17, 2019, after the Law Firm’s appeal was lodged, the district court entered\n\nan agreed order modifying the Privilege Assessment Provision of the Filter Protocol.\n\nSpecifically, the court altered that Provision to require that the Filter Team’s forwarding of\n\nseized materials to the Prosecution Team be first approved by the Law Firm or by the court\n\n(the “Modified Privilege Assessment Provision”). Prior to that modification, the Privilege\n\nAssessment Provision authorized the Filter Team to deem seized materials nonprivileged\n\nand give them directly to the Prosecution Team.\n\n C.\n\n On July 12, 2019, the Law Firm moved in this Court for an injunction pending\n\nappeal. Five days thereafter, on July 17, 2019, we granted the Law Firm some relief,\n\ndirecting the government to “cease review of the seized files and forthwith place the files\n\n\n\n 12\n\nin the custody of the [m]agistrate [j]udge to be held under seal pending further order of this\n\nCourt.” See ECF No. 39. 10\n\n After expediting this appeal and receiving the Law Firm’s opening brief, we directed\n\nthe government to specifically address four issues in its brief. Especially pertinent here,\n\nwe requested that the government address whether judicial functions had been improperly\n\nassigned to the Filter Team.\n\n We conducted oral argument in Richmond on September 10, 2019. Two days later,\n\non September 12, 2019, we entered an order that reversed “the district court’s denial of the\n\nLaw Firm’s request that review of the seized materials be made by the magistrate judge,\n\nrather than by the Filter Team.” See ECF No. 72 (the “Interim Order”). Our Interim Order\n\nreassigned the Filter Team’s duties and functions to the magistrate judge and gave guidance\n\nin that regard. More specifically, we advised the magistrate judge to review all seized\n\nmaterials, identify those not related to Client A and return them to the Law Firm, and\n\nconduct a privilege evaluation of the remaining materials. As promised in the Interim\n\nOrder, we now issue this opinion to explain our rulings in these proceedings. 11\n\n\n 10\n On July 22, 2019, the government filed with our Court a “Notice of Compliance”\nwith our directive of July 17, 2019, explaining that the Filter Team had provided the\nmagistrate judge with all files — both paper and electronic — seized from the Law Firm.\nSee ECF No. 44. By July 22, 2019, the seized materials had been “substantially reviewed\nand coded by the Filter Team.” Id. As of that date, the government had not returned any\nof the seized materials to the Law Firm.\n 11\n The government represented at oral argument that it had given the magistrate\njudge all the Filter Team’s work product that related to the seized materials. And the\nlawyer asserted that the government’s July 22, 2019 Notice of Compliance so stated. We\nare not at all certain, however, that the Notice provides such advice. As will be explained,\n(Continued)\n 13\n\n II.\n\n The Supreme Court has described the award of a preliminary injunction as “an\n\nextraordinary remedy [that is] never awarded as of right.” See Winter v. Nat. Res. Defense\n\nCouncil, Inc., 555 U.S. 7, 24 (2008). To prevail on a request for such preliminary relief,\n\nthe plaintiff must establish that (1) it is likely to succeed on the merits, (2) it is likely to\n\nsuffer irreparable harm absent the requested preliminary relief, (3) the balance of the\n\nequities weighs in its favor, and (4) a preliminary injunction is in the public interest. See\n\nCentro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th Cir. 2013) (en banc).\n\n When a district court denies a preliminary injunction based on its evaluation of only\n\none of the foregoing factors, we review its assessment of that factor for abuse of discretion.\n\nSee Fusaro v. Cogan, 930 F.3d 241, 248 (4th Cir. 2019) (explaining abuse of discretion\n\nstandard); cf. Henderson ex rel. NLRB v. Bluefield Hosp. Co., 902 F.3d 432, 439 (4th Cir.\n\n2018) (recognizing that court can deny preliminary injunction when party fails to satisfy\n\nany one of four factors). In that circumstance, however, we must perform our own\n\nassessment of the factors not addressed by the district court. See Hobby Lobby Stores, Inc.\n\nv. Sebelius, 723 F.3d 1114, 1145 & n.21 (10th Cir. 2013) (en banc). We then evaluate the\n\n\n\n\nbecause the Filter Team was performing judicial functions when conducting its review\npursuant to the Privilege Assessment Provision and the Modified Privilege Assessment\nProvision, the government is obliged to fully advise the magistrate judge as to the work\nthat was performed by the Filter Team and to deliver any Filter Team work product to the\njudge. See Interim Order 2 (“All work product of the Filter Team shall forthwith be\ndelivered by the [g]overnment to the magistrate judge for filing under seal.”).\n\n 14\n\ncourt’s “ultimate decision” to deny injunctive relief for abuse of discretion. See Gonzales\n\nv. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006).\n\n In performing an abuse of discretion review, we assess the district court’s factual\n\nfindings for clear error and its legal conclusions de novo. See Fusaro, 930 F.3d at 248. A\n\ncourt abuses its discretion in denying preliminary injunctive relief when it “rest[s] its\n\ndecision on a clearly erroneous finding of a material fact, or misapprehend[s] the law with\n\nrespect to underlying issues in litigation.” See Centro Tepeyac, 722 F.3d at 188 (internal\n\nquotation marks omitted). Furthermore, a court “abuses its discretion when it makes an\n\nerror of law,” see Koon v. United States, 518 U.S. 81, 100 (1996), or when it ignores\n\n“unrebutted, legally significant evidence,” see Alvarez Lagos v. Barr, 927 F.3d 236, 255\n\n(4th Cir. 2019).\n\n\n\n III.\n\n In making our assessment of the various injunction issues, we begin with whether\n\nthe Law Firm is likely to suffer irreparable harm absent injunctive relief. We proceed in\n\nthis manner because the district court’s denial of the Law Firm’s Injunction Requests was\n\npredicated solely on the irreparable harm factor of the four-part preliminary injunction test.\n\nWe then evaluate the other factors, which the district court did not reach and address. More\n\nspecifically, we consider and decide whether the Law Firm has demonstrated a likelihood\n\nof success on the merits of its challenge to the Filter Team and its Protocol, whether the\n\nbalance of the equities weighs in the Firm’s favor, and whether an award of injunctive relief\n\n\n\n 15\n\nis in the public interest. See Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th\n\nCir. 2013) (en banc). 12\n\n A.\n\n With respect to the irreparable harm factor, the Law Firm is obliged to demonstrate\n\nthat it is likely to suffer such harm in the absence of injunctive relief. See Winter v. Nat.\n\nRes. Defense Council, Inc., 555 U.S. 7, 20 (2008). The Law Firm maintains that, absent\n\nrelief from the Filter Team and its Protocol, federal agents and prosecutors on the Filter\n\nTeam will continue their review of “tens of thousands” of privileged materials concerning\n\nLaw Firm clients other than Client A. See Br. of Appellant 45. The Law Firm emphasizes\n\n(1) that 99.8 percent of the 52,000 emails seized by the government were not from Client\n\nA, were not sent to Client A, and did not mention Client A’s surname; and (2) that many\n\nof those emails contained privileged information relating to other clients of the Firm,\n\nincluding clients who are potential subjects or targets of government investigations. 13\n\n 1.\n\n In ruling that the Law Firm did not satisfy the irreparable harm factor, the district\n\ncourt failed to address the Law Firm’s unrebutted evidence with respect to Lawyer A’s\n\n\n\n\n 12\n Although the district court mentioned the balance of the equities factor during the\ntelephonic hearing of July 10, 2019, the court did not rely on that factor to deny the\nInjunction Requests.\n 13\n Although the government argues on appeal that the Law Firm’s evidence is not\naccurate and cannot be relied on, it failed to present any contradictory evidence to the\ndistrict court. See United States v. Anderson, 481 F.2d 685, 702 n.19 (4th Cir. 1973)\n(emphasizing importance of building appellate record in district court).\n\n 16\n\nemails. See Alvarez Lagos v. Barr, 927 F.3d 236, 255 (4th Cir. 2019) (explaining that\n\nfailure to address “unrebutted, legally significant evidence” constitutes abuse of\n\ndiscretion). That is, the court ignored evidence that less than one percent of the seized\n\nemails were from Client A, were to Client A, or mentioned Client A’s surname, and that\n\nmany seized emails contained privileged communications and attorney work product\n\nconcerning other Law Firm clients. Additionally, the court failed to acknowledge the fact\n\nthat some of those communications were from or about clients who “are being investigated\n\nby, or are being prosecuted by,” federal prosecutors. See S.J.A. 66. As a result, the court\n\ndid not grapple with the harm that is likely to be inflicted on the Law Firm and its clients\n\nfrom the Filter Team’s review of many of the seized emails. 14 The court thus abused its\n\ndiscretion in that respect.\n\n\n\n 2.\n\n\n\n\n 14\n During the oral argument in this appeal, the government maintained that the Filter\nTeam is entitled to review materials seized from the Law Firm that are not facially relevant\nto Client A. The government’s justification for that proposition is that the Filter Team\nneeds “context” for its privilege determinations. See Oral Argument at 43:20, United States\nv. Under Seal, No. 19-1730 (4th Cir. Sept. 10, 2019), http://www.ca4.uscourts.gov/oral-\nargument/listen-to-oral-arguments. According to this “context” argument, the government\nwas entitled to seize and review documents for which probable cause was lacking.\nUnsurprisingly, the government has no supporting authority in that regard. See United\nStates v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1172 (9th Cir. 2010) (en banc)\n(criticizing government “overreach[]” in seizure of electronic data unsupported by\nprobable cause), abrogated on other grounds by Hamer v. Neighborhood Hous. Servs. of\nChi., 138 S. Ct. 13, 16-17 (2017).\n\n 17\n\n The district court’s failure to consider the Law Firm’s unrebutted evidence\n\ncompounded other errors of law that the court made with respect to the irreparable harm\n\nfactor. See Koon v. United States, 518 U.S. 81, 100 (1996) (explaining that a court “by\n\ndefinition abuses its discretion when it makes an error of law”). More specifically, the\n\ncourt erred by giving short shrift to the important legal principles that protect attorney-\n\nclient relationships, which we are compelled to elucidate herein.\n\n a.\n\n As we know, the attorney-client privilege is “the oldest of the privileges for\n\nconfidential communications known to the common law.” See Upjohn Co. v. United\n\nStates, 449 U.S. 383, 389 (1981); see also In re Grand Jury Subpoenas, 454 F.3d 511, 519\n\n(6th Cir. 2006) (explaining that “[t]he privilege protecting confidential communications\n\nbetween an attorney and his client dates back to the Tudor dynasty”). The attorney-client\n\nprivilege empowers a client — as the privilege holder — “to refuse to disclose and to\n\nprevent any other person from disclosing confidential communications between him and\n\nhis attorney.” See Black’s Law Dictionary 129 (6th ed. 1990). And in proceedings such\n\nas these, lawyers are obliged to protect the attorney-client privilege to the maximum\n\npossible extent on behalf of their clients. See Republic Gear Co. v. Borg-Warner Corp.,\n\n381 F.2d 551, 556 (2d Cir. 1967) (recognizing that lawyer has duty to invoke claim of\n\nprivilege on client’s behalf); Model Rules of Prof’l Conduct r. 1.6(a), (c) (Am. Bar Ass’n\n\n1983) (explaining that lawyer owes duty of confidentiality to client and must prevent\n\nunauthorized disclosure of confidential information). That proposition underlies the Law\n\nFirm’s uncontested standing to pursue the legal positions it advances in this appeal. See\n\n 18\n\nFisher v. United States, 425 U.S. 391, 402 n.8 (1976) (“[I]t is universally accepted that the\n\nattorney-client privilege may be raised by the attorney[.]”); In re Grand Jury Proceedings,\n\n727 F.2d 1352, 1354-55 (4th Cir. 1984) (emphasizing that a lawyer “is entitled to raise [a\n\nclaim of] privilege on behalf of his . . . client”).\n\n The purpose of the attorney-client privilege is to ensure “full and frank\n\ncommunication” between a client and his lawyer and “thereby promote broader public\n\ninterests in the observance of law and administration of justice.” See Upjohn Co., 449 U.S.\n\nat 389. As the Supreme Court has consistently emphasized, the attorney-client privilege\n\nexists because “sound legal advice or advocacy serves public ends and . . . such advice or\n\nadvocacy depends upon the lawyer’s being fully informed by the client.” Id.; see also Hunt\n\nv. Blackburn, 128 U.S. 464, 470 (1888) (“The rule which places the seal of secrecy upon\n\ncommunications between client and attorney is founded upon the necessity, in the interest\n\nand administration of justice, of the aid of persons having knowledge of the law and skilled\n\nin its practice, which assistance can only be safely and readily availed of when free from\n\nthe consequences or the apprehension of disclosure.”).\n\n Although the work-product doctrine does not trace as far into history as the attorney-\n\nclient privilege, it is no less important. The Supreme Court explicitly recognized and\n\nexplained the work-product doctrine more than seventy years ago in its seminal decision\n\nin Hickman v. Taylor. See 329 U.S. 495, 510-11 (1947). In Hickman, the Court\n\nunderscored that a lawyer must be able to “work with a certain degree of privacy, free from\n\nunnecessary intrusion by opposing parties and their counsel.” Id. at 510. Elaborating on\n\nthat principle, the Court emphasized that “[p]roper preparation of a client’s case demands\n\n 19\n\nthat [a lawyer] assemble information, sift what he considers to be the relevant from the\n\nirrelevant facts, prepare his legal theories and plan his strategy without undue and needless\n\ninterference.” Id. at 511. As the Court warned, absent strong protection for work product,\n\n“[i]nefficiency, unfairness and sharp practices would inevitably develop in the giving of\n\nlegal advice and in the preparation of cases for trial,” all to the detriment of clients and “the\n\ncause of justice.” Id.\n\n Thus, the Supreme Court has explicitly approved what it called “a qualified\n\nprivilege,” to be held by lawyer and client alike, “for certain materials prepared by an\n\nattorney ‘acting for his client in anticipation of litigation.’” See United States v. Nobles,\n\n422 U.S. 225, 237-38 (1975) (quoting Hickman, 329 U.S. at 508). That privilege is the\n\nwork-product doctrine, which has now been incorporated into the Federal Rules of Civil\n\nProcedure, see Fed. R. Civ. P. 26(b)(3), and the Federal Rules of Criminal Procedure, see\n\nFed. R. Crim. P. 16(a)(2), (b)(2).\n\n There are two types of attorney work product that are within the ambit of the\n\ndoctrine: (1) fact work product, which is “a transaction of the factual events involved,”\n\nand (2) opinion work product, which “represents the actual thoughts and impressions of\n\nthe attorney.” See In re Grand Jury Subpoena, 870 F.3d 312, 316 (4th Cir. 2017) (internal\n\nquotation marks omitted). Opinion work product, we have recognized, “enjoys a nearly\n\nabsolute immunity” and can be discovered by adverse parties “only in very rare and\n\nextraordinary circumstances.” Id. (internal quotation marks omitted). Fact work product\n\nis somewhat less protected, and discovery thereof by others may only be had in limited\n\ncircumstances, where a party shows “both a substantial need and an inability to secure the\n\n 20\n\nsubstantial equivalent of the materials by alternate means without undue hardship.” Id.\n\n(internal quotation marks omitted).\n\n Notably, the attorney-client privilege and the work-product doctrine jointly support\n\nthe Sixth Amendment’s guarantee of effective assistance of counsel. See U.S. Const.\n\namend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to have the\n\nAssistance of Counsel for his defence.”); Strickland v. Washington, 466 U.S. 668, 686\n\n(1984) (analyzing Sixth Amendment right to effective assistance of counsel). For example,\n\nin assessing the interplay between the attorney-client privilege and the Sixth Amendment,\n\nwe have emphasized that “[t]he essence of the Sixth Amendment right to effective\n\nassistance of counsel is, indeed, privacy of communication with counsel.” See United\n\nStates v. Brugman, 655 F.2d 540, 546 (4th Cir. 1981); cf. DeMassa v. Nunez, 770 F.2d\n\n1505, 1507 (9th Cir. 1985) (describing Sixth Amendment as a “source” for the expectation\n\nof privacy in attorney-client communications); 1 Geoffrey C. Hazard, Jr. et al., The Law of\n\nLawyering § 10.14, 10-91 (4th ed. Supp. 2019) (explaining that “[t]he attorney-client\n\nprivilege has ties to the Sixth Amendment”). Absent privacy of communications and the\n\n“full and frank” discussions that flow therefrom, a lawyer could be deprived of the\n\ninformation necessary to prepare and present his client’s defense. See Upjohn Co., 449\n\nU.S. at 389.\n\n Similarly, the work-product doctrine fulfills an essential and important role in\n\nensuring the Sixth Amendment right to effective assistance of counsel. The Supreme Court\n\nhas recognized that the work-product doctrine is vital to “assur[e] the proper functioning\n\nof the criminal justice system,” in that it “provid[es] a privileged area within which [a\n\n 21\n\nlawyer] can analyze and prepare his client’s case.” See Nobles, 422 U.S. at 238; see also\n\nIn re Grand Jury Subpoenas, 454 F.3d at 520 (explaining that “people should be free to\n\nmake requests of their attorneys without fear, and that their attorneys should be free to\n\nconduct research and prepare litigation strategies without fear that these preparations will\n\nbe subject to review by outside parties”). Without that “privileged area,” a lawyer’s ability\n\nto plan and present his client’s defense will be impaired. See Nobles, 422 U.S. at 238; see\n\nalso Hickman, 329 U.S. at 511. 15\n\n\n\n\n b.\n\n In ruling that the Law Firm had not established a likelihood of irreparable harm, the\n\ndistrict court erred as a matter of law by affording insignificant weight to the foregoing\n\nprinciples protecting attorney-client relationships. See Upjohn Co., 449 U.S. at 389\n\n(emphasizing importance of attorney-client privilege); Nobles, 422 U.S. at 237-38\n\n(recognizing significance of protecting lawyer work product); cf. Gunnells v. Healthplan\n\nServs., Inc., 348 F.3d 417, 434 (4th Cir. 2003) (explaining that court abuses discretion in\n\n\n\n 15\n Although the attorney-client privilege and work-product doctrine are essential\ncomponents of our adversarial system, neither is absolute. For example, claims of attorney-\nclient privilege or work-product protection can sometimes be defeated by the crime-fraud\nexception. See In re Grand Jury Proceedings #5 Empanelled Jan. 28, 2004, 401 F.3d 247,\n251 (4th Cir. 2005). Put succinctly, “[b]oth the attorney-client and work-product privileges\nmay be lost . . . when a client gives information to an attorney for the purpose of committing\nor furthering a crime or fraud.” Id. In these proceedings, the government has invoked that\nexception as to Client A of Lawyer A.\n\n 22\n\nignoring applicable legal principles). Crucially, the court failed to recognize that an\n\nadverse party’s review of privileged materials seriously injures the privilege holder. See\n\nUnited States v. Philip Morris Inc., 314 F.3d 612, 622 (D.C. Cir. 2003) (concluding that a\n\nparty had demonstrated the likelihood of irreparable harm predicated on “the general injury\n\ncaused by the breach of the attorney-client privilege and the harm resulting from the\n\ndisclosure of privileged documents to an adverse party”), abrogated on other grounds by\n\nMohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103 (2009); In re Perrigo Co., 128 F.3d\n\n430, 437 (6th Cir. 1997) (explaining that “forced disclosure of privileged material may\n\nbring about irreparable harm”); Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955,\n\n960-61 (3d Cir. 1984) (ruling that law firm had demonstrated likelihood of irreparable harm\n\nwhere government seized thousands of files containing privileged information).\n\n 3.\n\n When the pertinent legal principles are properly applied to the unrefuted evidence,\n\nthe Filter Team’s review of the materials seized from the Law Firm was and is injurious to\n\nthe Firm and its clients. And that harm is plainly irreparable, in that the Filter Team’s\n\nreview of those privileged materials cannot be undone. We are therefore satisfied that the\n\nLaw Firm will be irreparably harmed absent an award of injunctive relief against the Filter\n\nTeam and its Protocol. 16\n\n\n 16\n We observe that the Filter Team and its Protocol may inflict other injuries on the\nLaw Firm. For example, adverse publicity about the search of the Law Firm, the Filter\nTeam, and its Protocol could make potential clients less likely to seek out and retain the\nFirm. Additionally, potential and current clients might be reluctant to candidly\ncommunicate with the Law Firm attorneys because they fear government review of their\n(Continued)\n 23\n\n B.\n\n Turning to the injunction factors not reached and addressed by the district court, we\n\nbegin with the likelihood of success factor. In order to prevail on that factor, the Law Firm\n\nmust make a “clear showing” that the Filter Team and its Protocol are legally flawed. See\n\nPashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013). Stated differently, the Law Firm is\n\nobliged to demonstrate it is likely to succeed on its request that the magistrate judge —\n\nrather than the Filter Team — perform the privilege review of the seized materials.\n\n In that regard, the Law Firm maintains that the Filter Team and its Protocol are\n\nsimply “incompatible with courts’ historical protection of the attorney-client privilege and\n\nthe work-product doctrine.” See Br. of Appellant 35. The Law Firm contends that there is\n\na clear appearance of — and potential for — improprieties when government agents are\n\nauthorized to rummage through attorney-client communications, particularly when less\n\nthan one percent of those communications relate to the investigations at issue. And the\n\nLaw Firm posits that use of the Filter Team in these circumstances will chill the free flow\n\nof information between clients and lawyers. Put simply, the Law Firm maintains that\n\njudicial functions are involved in all aspects of assessing and deciding privilege issues.\n\nThe Law Firm thus argues that a magistrate judge or a special master must perform those\n\nfunctions.\n\n\n\n\ncommunications and breaches of confidentiality. Consequently, the Law Firm is likely to\nbe deprived of information necessary to the proper handling of its cases. See Upjohn Co.,\n449 U.S. at 389 (explaining necessity of “full and frank communication” between client\nand his lawyer).\n\n 24\n\n As further explained below, we are satisfied that the Law Firm has shown that it is\n\nlikely to succeed on the merits of its challenge to the Filter Team and its Protocol. In\n\napproving the Filter Team and its Protocol, the magistrate judge made several legal errors\n\nby, inter alia: (1) assigning judicial functions to the Filter Team; (2) authorizing the Filter\n\nTeam and its Protocol in ex parte proceedings that were conducted prior to the search and\n\nseizures at the Law Firm; and (3) failing to properly weigh the foundational principles that\n\nprotect attorney-client relationships.\n\n 1.\n\n To start, the magistrate judge — by authorizing the Filter Team and its Protocol —\n\nerred in assigning judicial functions to the executive branch. We have recognized that,\n\nwhen a dispute arises as to whether a lawyer’s communications or a lawyer’s documents\n\nare protected by the attorney-client privilege or work-product doctrine, the resolution of\n\nthat dispute is a judicial function. See NLRB v. Interbake Foods, LLC, 637 F.3d 492, 498,\n\n500 (4th Cir. 2011) (concluding that, in deciding whether to enforce an administrative\n\nsubpoena seeking potentially privileged documents, a court “cannot delegate” an in camera\n\nreview of documents to an agency, but must itself decide a claim of privilege); see also In\n\nre The City of New York, 607 F.3d 923, 947 (2d Cir. 2010) (observing that evaluating\n\nprivilege claim is always a judicial function); In re Grand Jury Proceedings #5 Empanelled\n\nJan. 28, 2004, 401 F.3d 247, 256 (4th Cir. 2005) (remanding to district court for in camera\n\nreview concerning privileged communications and applicability of crime-fraud exception).\n\nIndeed, the Constitution vests “[t]he judicial Power” solely in the federal courts, see U.S.\n\nConst. art. III, § 1, which includes “the duty of interpreting and applying” the law, see\n\n 25\n\nMassachusetts v. Mellon, 262 U.S. 447, 488 (1923). Put simply, a court is not entitled to\n\ndelegate its judicial power and related functions to the executive branch, especially when\n\nthe executive branch is an interested party in the pending dispute. See Interbake Foods,\n\n637 F.3d at 501 (affirming refusal “to delegate” to an administrative law judge the\n\njudiciary’s “responsibility to decide the issue of privilege”); NLRB v. Detroit Newspapers,\n\n185 F.3d 602, 606 (6th Cir. 1999) (concluding that “district court had the obligation . . . to\n\ndetermine whether the subpoenaed documents were protected by some privilege, and had\n\nno discretion to delegate that duty”).\n\n In these proceedings, the Privilege Assessment Provision of the Filter Protocol\n\ncontravened that nondelegation principle. Put succinctly, the Privilege Assessment\n\nProvision erroneously authorized the executive branch — that is, the Filter Team — to\n\nmake decisions on attorney-client privilege and the work-product doctrine. As our good\n\ncolleague Judge Niemeyer recognized in Interbake Foods, a court simply cannot delegate\n\nits responsibility to decide privilege issues to another government branch. See 637 F.3d at\n\n498, 500-01 (recognizing that court must decide privilege disputes); see also In re The City\n\nof New York, 607 F.3d at 947 (observing that evaluating privilege claim is a judicial\n\nfunction).\n\n To compound that error, the Privilege Assessment Provision delegated judicial\n\nfunctions to non-lawyer members of the Filter Team. In other words, the Privilege\n\nAssessment Provision authorized paralegals and IRS and DEA agents to designate seized\n\ndocuments as nonprivileged, and allowed the Filter Team AUSAs to deliver such\n\ndocuments to the Prosecution Team without the approval of the Law Firm or a court order.\n\n 26\n\nThe Third Circuit has strongly criticized a similar protocol and explicitly ruled that non-\n\nlawyer federal agents could not make privilege determinations. See In re Search of Elec.\n\nCommc’ns, 802 F.3d 516, 530 & n.54 (3d Cir. 2015).\n\n In addition to the separation of powers issues that arise from the Filter Protocol’s\n\ndelegation of judicial functions to the Filter Team, there are other apparent legal problems\n\ntherewith. There is the possibility that a filter team — even if composed entirely of trained\n\nlawyers — will make errors in privilege determinations and in transmitting seized materials\n\nto an investigation or prosecution team. On this point, the Sixth Circuit recognized several\n\nyears ago that such filter teams present “reasonably foreseeable risks to privilege” and\n\n“have been implicated . . . in leaks of confidential information to prosecutors.” See In re\n\nGrand Jury Subpoenas, 454 F.3d at 523. As Judge Boggs aptly explained, a filter team\n\nmight “have an interest in preserving privilege, but it also possesses a conflicting interest\n\nin pursuing the investigation, and . . . some [filter] team attorneys will make mistakes or\n\nviolate their ethical obligations. It is thus logical to suppose that [filter] teams pose a\n\nserious risk to holders of privilege.” Id.\n\n As the Sixth Circuit also emphasized, filter team errors can arise from differences\n\nof opinion regarding privilege. See In re Grand Jury Subpoenas, 454 F.3d at 523. In\n\nexplaining that problem, the court elaborated that a filter team’s members “might have a\n\nmore restrictive view of privilege” than the subject of the search, given their prosecutorial\n\ninterests in pursuing the underlying investigations. Id. That “more restrictive view of\n\nprivilege” could cause privileged documents to be misclassified and erroneously provided\n\nto an investigation or prosecution team. Id.\n\n 27\n\n The Sixth Circuit also acknowledged that filter team errors can result from mistakes\n\nor neglect, and described one infamous occurrence as follows:\n\n In United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991), . . . the\n government’s [filter] team missed a document obviously protected by\n attorney-client privilege, by turning over tapes of attorney-client\n conversations to members of the investigating team. This Noriega incident\n points to an obvious flaw in the [filter] team procedure: the government’s\n fox is left in charge of the [law firm’s] henhouse, and may err by neglect or\n malice, as well as by honest differences of opinion.\n\nSee In re Grand Jury Subpoenas, 454 F.3d at 523 (emphasis added).\n\n Strikingly, the risks to attorney-client privilege and the work-product doctrine that\n\nwere identified by the Sixth Circuit have been recently realized in the District of Maryland,\n\nfrom which this appeal arises. See United States v. Elbaz, No. 8:18-cr-00157, slip op. at\n\n4-6 (D. Md. June 20, 2019), ECF No. 216 (the “Elbaz opinion”). According to the Elbaz\n\nopinion, the government’s filter team improperly disclosed thousands of potentially\n\nprivileged documents to a prosecution team, which then examined some of the documents.\n\nId. Those blunders occurred nearly a year before this Filter Team was authorized by the\n\nmagistrate judge. Id. at 3-6. And the Elbaz opinion detailing that filter team’s mistakes\n\nwas filed in the District of Maryland on June 20, 2019, just a week after the magistrate\n\njudge’s authorization of this Filter Team on June 13, 2019, and three weeks before the\n\ndistrict court’s Denial Order of July 11, 2019.\n\n In sum, the Filter Protocol improperly delegated judicial functions to the Filter\n\nTeam. And the magistrate judge failed to recognize and consider the significant problems\n\nwith that delegation, which left the government’s fox in charge of guarding the Law Firm’s\n\nhenhouse. See In re Grand Jury Subpoenas, 454 F.3d at 523.\n\n 28\n\n 2.\n\n Relatedly, the magistrate judge erred by prematurely authorizing the Filter Team\n\nand its Protocol in ex parte proceedings that it conducted on June 13, 2019, five days before\n\nthe search warrant was executed and voluminous seizures were made from the Law Firm. 17\n\nFirst, the timing of the judge’s authorization undermined the judge’s ability to exercise\n\ndiscretion with respect to the Filter Team and its Protocol, in that the judge could not have\n\nbeen fully informed of what was seized from the Law Firm. See James v. Jacobson, 6 F.3d\n\n233, 238 (4th Cir. 1993) (emphasizing that court’s exercise of discretion must be\n\n“informed”). And the judge may well have rejected the Filter Team and its Protocol if the\n\njudge had known (1) that 99.8 percent of the 52,000 seized emails were not from Client A,\n\nwere not sent to Client A, and did not mention Client A’s surname; and (2) that many of\n\nthose seized emails contained privileged information concerning other clients of the Law\n\nFirm. Put simply, the judge should have deferred the decision concerning the proposed\n\nFilter Team and its Protocol pending the execution and return of the search warrant.\n\n\n\n\n 17\n Although the Law Firm generally contests the ex parte actions of the government\nbelow and on appeal, the Firm does not specifically argue that the magistrate judge erred\nby approving the Filter Team and its Protocol in ex parte proceedings before the search\nwas conducted. See Br. of Appellant 57; Reply Br. of Appellant 3, 22. We are nevertheless\nsatisfied that the process by which the authorization was made falls within the Law Firm’s\nbroad challenge to the Filter Team and its Protocol. Moreover, we are entitled to assess\nlegal issues that have not been squarely raised when it facilitates the correct resolution of\nan appeal. See Meyers v. Lamer, 743 F.3d 908, 912 (4th Cir. 2014) (emphasizing that “it\nis the fundamental province of this Court to decide cases correctly, even if that means\nconsidering arguments . . . not raised by the parties at all”).\n\n 29\n\n Second, the magistrate judge should have declined the government’s ex parte\n\ninvitation with respect to the Filter Team, and the judge should have conducted adversarial\n\nproceedings on whether to authorize the Filter Team and the Filter Protocol. See RSZ\n\nHoldings AVV v. PDVSA Petroleo S.A., 506 F.3d 350, 356 (4th Cir. 2007) (emphasizing\n\nthat ex parte proceedings are “greatly disfavored”); In re Ingram, 915 F. Supp. 2d 761,\n\n763-64 (E.D. La. 2012) (assessing briefing from parties on propriety of filter team). In\n\nsuch contested proceedings, the judge could have been fully informed of the relevant\n\nbackground on the Law Firm and its clients, as well as the nature of the seized materials.\n\nAdditionally, the clients of the Law Firm and their lawyers could have been heard by the\n\njudge.\n\n In a recent example involving a proposed filter team, federal agents searched the\n\noffice of Michael Cohen, a New York City lawyer, and seized privileged materials. See\n\nCohen v. United States, No. 1:18-mj-03161 (S.D.N.Y. Apr. 13, 2018), ECF No. 6 at 4, 25.\n\nFour days after the search — and before the filter team created by the search warrant had\n\nreviewed any of the seized materials — the district court conducted adversarial proceedings\n\nconcerning the prosecutor’s proposed use of a filter team. See generally Cohen, ECF No.\n\n36 (May 1, 2018). Prior to those proceedings, the court was informed of the materials that\n\nhad been seized from Cohen’s office. See Cohen, ECF No. 6 at 18-19. During the\n\nproceedings, the court heard from Cohen’s lawyer and the lawyer for Cohen’s primary\n\nclient, who each argued against court approval of the filter team request. See Cohen, ECF\n\nNo. 36 at 12-16, 30-31.\n\n\n\n 30\n\n The sensible procedures adhered to by the Cohen court demonstrate that, if the\n\nmagistrate judge had conducted adversarial proceedings after the search but before\n\napproving the Filter Team and its Protocol in this case, the judge would have been fully\n\ninformed of the materials that were seized from the Law Firm. The judge would then have\n\nheard from the Law Firm’s counsel, and possibly also from the clients of the Firm through\n\ntheir lawyers, before the Filter Team reviewed any seized materials. The upshot is that —\n\nin failing to conduct adversarial proceedings prior to authorizing the Filter Team and its\n\nProtocol — the magistrate judge prematurely granted the ex parte request of the United\n\nStates Attorney. 18\n\n 3.\n\n a.\n\n We are also troubled that, in summarily approving the Filter Team and its Protocol,\n\nthe magistrate judge — like the district court in thereafter assessing the Injunction Requests\n\n— gave no indication that she had weighed any of the important legal principles that protect\n\nattorney-client relationships. Put simply, the Filter Protocol authorized government agents\n\nand prosecutors to rummage through Lawyer A’s email files. Again, many of the emails\n\n\n\n 18\n The process adhered to by the Cohen court is pertinent to these proceedings in\nseveral material respects. For example, the Cohen filter team did not review any of the\nseized materials prior to an adversarial hearing and a ruling on the filter team’s propriety.\nImportantly, the court heard from Cohen’s lawyer and counsel for Cohen’s primary client\nin those proceedings. The court ultimately rejected the government’s filter team proposal\nand appointed a special master. See Cohen, ECF No. 30 (Apr. 27, 2018). Notably, the\nCohen proceedings were conducted more than a year before the magistrate judge’s\nauthorization of this Filter Team.\n\n 31\n\nconcerned other clients and other matters. The court’s authorization of such an extensive\n\nreview of client communications and lawyer discussions by government agents and\n\nprosecutors was made in disregard of the attorney-client privilege, the work-product\n\ndoctrine, and the Sixth Amendment. See Klitzman, Klitzman & Gallagher v. Krut, 744\n\nF.2d at 961 (criticizing seizures of client files from law firm because government made no\n\neffort to limit seizures of firm’s materials, and thereby “trampl[ed]” on attorney-client\n\nprivilege and work-product protections as to all clients); United States v. Stewart, No. 1:02-\n\ncr-00396, 2002 WL 1300059, at *5, *10 (S.D.N.Y. June 11, 2002) (explaining that search\n\nof lawyer’s office raised Sixth Amendment concerns and appointing special master where\n\ndocuments seized from law firm were likely to contain privileged information relating to\n\ncriminal defendants). The magistrate judge erred in failing to explicitly weigh those\n\nfoundational principles that protect attorney-client relationships.\n\n b.\n\n At this juncture, we emphasize another “serious defect” of the Filter Protocol\n\nchallenged by the Law Firm as subverting attorney-client relationships. See Reply Br. of\n\nAppellant 14 n.4. Specifically, the Filter Protocol prospectively authorized the Filter Team\n\nto contact the Law Firm’s clients ex parte and seek waivers of their attorney-client\n\nprivileges. The Model Rules of Professional Conduct, however, generally bar a lawyer\n\nfrom communicating with a represented party about the subject of the representation\n\nwithout the represented party’s lawyer being present. See Model Rules of Prof’l Conduct\n\nr. 4.2 (Am. Bar Ass’n 1983); 2 Hazard, Jr. et al., supra, § 41.02 (explaining that Rule 4.2\n\n“prevents a lawyer from taking advantage of a lay person”); id. § 41.12 (discussing\n\n 32\n\napplication of Rule 4.2 to prosecutors). Although an exception to that rule can — in the\n\nproper circumstances — be made by a court, any such court order should be predicated on\n\nan individualized assessment of the attorney-client relationship. See Model Rules of Prof’l\n\nConduct r. 4.2; see also United States v. Lopez, 4 F.3d 1455, 1462 (9th Cir. 1993)\n\n(explaining that court must make “informed decision” regarding whether to authorize\n\nlawyer’s communication with represented party). That was not even attempted here, in\n\nthat the Filter Protocol was approved ex parte before the search warrant was executed.\n\n By asking the Law Firm to furnish the Filter Team with a client list — which could\n\nbe used by Filter Team members to directly contact clients and seek privilege waivers\n\nunder the Filter Protocol — the government demonstrated a lack of respect for the attorney-\n\nclient privilege and the Firm’s duty of confidentiality to its clients. In declining to reveal\n\na client list to the Filter Team, the Law Firm relied on its ethical obligations to protect\n\nconfidential and privileged information relating to its clients. See Br. of Appellant 37\n\n(asserting that the government’s request for a client list ignored the proposition that the\n\nLaw Firm is “ethically prohibited from disclosing . . . the identity of clients when the\n\nrelationship remains confidential”); see also Model Rules of Prof’l Conduct r. 1.6(a)\n\n(describing duty of confidentiality). Such information will sometimes include the\n\nexistence of the lawyer-client relationship itself. See In re Grand Jury Subpoena, 204 F.3d\n\n516, 520 (4th Cir. 2000) (recognizing that the attorney-client privilege can “extend to the\n\nclient’s identity”); 1 Hazard, Jr. et al., supra, § 10.12 (collecting cases where client identity\n\nconsidered confidential or privileged). The breach of the duty of confidentiality “is\n\nenforceable by civil remedies as well as through the [attorney] disciplinary process.” See\n\n 33\n\n1 Hazard, Jr. et al., supra, § 10.16, 10-108.1. And a breach of the attorney-client privilege\n\nby an attorney is likewise sanctionable. See id. Indeed, at least one jurisdiction imposes\n\ncriminal penalties for improperly breaching attorney-client privilege. See Tenn. Code Ann.\n\n§ 23-3-107. In short, authorizing the government in ex parte proceedings to directly\n\ncontact any and all clients of the Law Firm is another example of how the Filter Protocol\n\napproved by the magistrate judge undermined attorney-client principles.\n\n 4.\n\n At bottom, the magistrate judge erred in assigning judicial functions to the Filter\n\nTeam, approving the Filter Team and its Protocol in ex parte proceedings without first\n\nascertaining what had been seized in the Law Firm search, and disregarding the\n\nfoundational principles that serve to protect attorney-client relationships. In these\n\ncircumstances, we are satisfied that the magistrate judge (or an appointed special master)\n\n— rather than the Filter Team — must perform the privilege review of the seized materials.\n\nSee Klitzman, Klitzman & Gallagher, 744 F.2d at 962 (recommending appointment of\n\nspecial master in similar circumstances); United States v. Gallego, No. 4:18-cr-01537, slip\n\nop. at 5-6 (D. Ariz. Sept. 6, 2018), ECF No. 65 (appointing a special master “to review the\n\nitems seized from [the] [d]efendant’s law office for privilege and responsiveness to the\n\nsearch warrant”); Cohen, ECF No. 30 (Apr. 27, 2018) (appointing special master to review\n\ndocuments seized from lawyer); Stewart, 2002 WL 1300059, at *10 (appointing special\n\nmaster to perform privilege review of documents seized from office of criminal defense\n\n\n\n\n 34\n\nlawyer). 19 We are therefore satisfied that the Law Firm has demonstrated that it is likely\n\nto succeed on the merits.\n\n C.\n\n In order to prevail on the next injunction factor, the Law Firm is obliged to show\n\nthat the equities weigh in its favor. See Winter, 555 U.S. at 20. And we are satisfied that\n\nthe Law Firm has done so. Specifically, the harm to the Law Firm and its clients that will\n\nbe caused by continuing the Filter Team’s review outweighs any harm to the government\n\nthat might result from the magistrate judge conducting the privilege review of the seized\n\nmaterials. Indeed, we discern no harm to the government in barring the Filter Team from\n\nrummaging through Law Firm materials that are unrelated to the underlying investigations.\n\n In seeking to convince us otherwise, the government maintains that the magistrate\n\njudge’s review of the seized materials will unduly delay the government’s investigations.\n\nAnd the government claims that it has an interest in efficiently investigating criminal\n\nwrongdoing. Although efficient criminal investigations are certainly desirable, we are not\n\npersuaded that the claimed delay in its investigations weighs in the government’s favor.\n\nPut simply, the government chose to proceed by securing a search warrant for the Law\n\nFirm and seeking and obtaining the magistrate judge’s approval of the Filter Protocol. The\n\n\n\n 19\n The government contends on appeal that the Filter Team’s privilege review of the\nseized materials is no different than such a review by a magistrate judge or a court-\nappointed special master. Unlike the Filter Team, however, a magistrate judge and a\nspecial master are judicial officers and neutral arbiters that have no stake in the outcome\nof the privilege decisions. See In re Grand Jury Subpoenas, 454 F.3d at 523 (explaining\ninherent conflict in authorizing filter team to decide privilege claims).\n\n 35\n\ngovernment should have been fully aware that use of a filter team in these circumstances\n\nwas ripe for substantial legal challenges, and should have anticipated that those challenges\n\ncould delay its investigations. 20 And, in any event, delay in the government’s\n\ninvestigations here does not outweigh the harm to the Law Firm and its clients caused by\n\nthe Filter Team’s review. See In re Grand Jury Subpoenas, 454 F.3d at 523-24.\n\n The government also argues that the equities weigh against the Law Firm because\n\nthe Firm waited ten days after the search to file its Injunction Requests. We are\n\nunconvinced, however, that the Law Firm somehow slumbered on its rights. Indeed, the\n\nLaw Firm contested the search and seizures when they were ongoing and — three days\n\nthereafter — dispatched a detailed letter to the United States Attorney objecting to what\n\nhad occurred and what was apparently going on with the Filter Team. The prosecutors\n\nignored that letter, prompting the Law Firm to file its Injunction Requests. We do not fault\n\nthe Law Firm for seeking a negotiated resolution of these important disputes before\n\nrequesting court intervention. And we will not reward the government for ignoring those\n\nefforts. See Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 522 (1947) (“[H]e who\n\nseeks equity must do equity.”). In these circumstances, the Law Firm has convincingly\n\nshown that the equities weigh in its favor.\n\n D.\n\n\n\n 20\n Notwithstanding the government’s responsibility for some of the delay about\nwhich it complains, we are nevertheless sensitive to its concerns. Indeed, we have\nexpedited this appeal, and we issued our Interim Order within two days of the oral\nargument.\n\n 36\n\n Finally, the Law Firm is obliged to establish, in order to secure the relief it seeks,\n\nthat “an injunction is in the public interest.” See Winter, 555 U.S. at 20. We are satisfied\n\nthat an award of injunctive relief in these circumstances supports the “strong public\n\ninterest” in the integrity of the judicial system. See United States v. Hasting, 461 U.S. 499,\n\n527 (1983) (Brennan, J., concurring in part and dissenting in part). By creating\n\nappearances of unfairness to the Law Firm clients who are unrelated to the government’s\n\ninvestigation of Client A, the Filter Team and its Protocol contravene the public interest.\n\nSee Gallego, slip op. at 4-6 (recognizing appearances of unfairness inherent in use of filter\n\nteams and appointing special master to review materials seized from law firm); Stewart,\n\n2002 WL 1300059, at *8 (explaining that “it is important that the procedure adopted [for\n\nthe review of seized materials] . . . not only be fair but also appear to be fair”); United\n\nStates v. Neill, 952 F. Supp. 834, 841 n.14 (D.D.C. 1997) (emphasizing that use of filter\n\nteam creates “appearance of unfairness”). For those clients — and to the public at large —\n\nit surely appears, as the Sixth Circuit recognized, that “the government’s fox [has been]\n\nleft in charge of the [Law Firm’s] henhouse.” See In re Grand Jury Subpoenas, 454 F.3d\n\nat 523; see also In re Search Warrant for Law Offices Executed on Mar. 19, 1992, 153\n\nF.R.D. 55, 59 (S.D.N.Y. 1994) (“It is a great leap of faith to expect that members of the\n\ngeneral public would believe any . . . wall [between a filter team and a prosecution team]\n\nwould be impenetrable; this notwithstanding our own trust in the honor of an AUSA.”).\n\n Appearances of unfairness are especially apparent in these proceedings, in that the\n\nFilter Team includes prosecutors employed in the same judicial district where Law Firm\n\nclients “are being investigated by, or are being prosecuted by,” the United States Attorney\n\n 37\n\nfor Maryland. See S.J.A. 66. It would be difficult for reasonable members of the public to\n\nbelieve that Filter Team AUSAs would disregard information in Lawyer A’s emails that\n\nmight be relevant to other criminal inquiries in Maryland. In fact, the government has\n\nnever disclaimed an intention to use the plain-view doctrine in connection with the Filter\n\nTeam’s access to the materials seized from the Law Firm. See United States v. Rumley,\n\n588 F.3d 202, 205 (4th Cir. 2009) (explaining that, under the plain-view doctrine, a law\n\nenforcement officer can make a seizure of an object in plain view if, inter alia, “the object’s\n\nincriminating character is immediately apparent” (internal quotation marks omitted)); cf.\n\nUnited States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1178 (9th Cir. 2010)\n\n(Kozinski, C.J., concurring) (suggesting that, “[w]hen the government wishes to obtain a\n\nwarrant to examine a[n] . . . electronic storage medium to search for certain incriminating\n\nfiles, . . . magistrate judges should insist that the government forswear reliance on the plain-\n\nview doctrine” (citation omitted)). 21\n\n Due to the appearances of unfairness caused by the Filter Team, and in view of the\n\nother problems associated with the Filter Team, it is surprising that the government has so\n\nvigorously supported it. We simply observe that prosecutors have a responsibility to not\n\nonly see that justice is done, but to also ensure that justice appears to be done. See In re\n\n\n\n 21\n Even if the Filter Team AUSAs have been instructed to ignore information\nrelating to possible criminal activity by other Law Firm clients in the seized materials, our\nplain view concerns would not be assuaged. The review of such information by the Filter\nTeam AUSAs cannot be undone. Additionally, the IRS and DEA agents on the Filter Team\nhave their own superiors. It may well be difficult for those agents to withhold from their\nsuperiors information about possible crimes potentially identified in the seized materials.\n\n 38\n\nSearch Warrant for Law Offices, 153 F.R.D. at 59 (“The appearance of [j]ustice must be\n\nserved, as well as the interests of [j]ustice.”). Federal agents and prosecutors rummaging\n\nthrough law firm materials that are protected by attorney-client privilege and the work-\n\nproduct doctrine is at odds with the appearance of justice.\n\n ***\n\n As reflected herein, we are satisfied that the magistrate judge’s authorization of the\n\nFilter Team and the Filter Protocol was improper and that injunctive relief is warranted.\n\nThe district court thus abused its discretion by failing to enjoin the Filter Team’s review of\n\nthe seized materials. 22\n\n\n\n IV.\n\n Pursuant to the foregoing and our Interim Order, we reverse the district court’s\n\nDenial Order and remand for such other and further proceedings as may be appropriate.\n\n REVERSED AND REMANDED\n\n\n\n\n 22\n Although the Law Firm has raised Fourth Amendment contentions, we leave those\nissues to the district court. See Lovelace v. Lee, 472 F.3d 174, 203 (4th Cir. 2006)\n(emphasizing that this Court is “a court of review, not of first view” (internal quotation\nmarks omitted)).\n\n 39\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: In re: Search Warrant\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-10-31\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 19-1730\\n\\n\\nIn re: SEARCH WARRANT ISSUED JUNE 13, 2019\\n____________________________\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n v.\\n\\nUNDER SEAL,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the District of Maryland, at Baltimore.\\nLiam O’Grady, District Judge. (1:19-mj-02155-TCB-1)\\n\\n\\nArgued: September 10, 2019 Decided: October 31, 2019\\n\\n\\nBefore GREGORY, Chief Judge, and KING and RUSHING, Circuit Judges.\\n\\n\\nReversed and remanded by published opinion. Judge King wrote the opinion, in which\\nChief Judge Gregory and Judge Rushing joined. Judge Rushing wrote a separate\\nconcurring opinion.\\n\\n\\nARGUED: James Patrick Ulwick, KRAMON & GRAHAM, P.A., Baltimore, Maryland,\\nfor Appellant. Derek Edward Hines, OFFICE OF THE UNITED STATES ATTORNEY,\\nBaltimore, Maryland, for Appellee. ON BRIEF: Steven M. Klepper, Louis P. Malick,\\nKRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellant. Robert K. Hur,\\nUnited States Attorney, Aaron S.J. Zelinsky, Assistant United States Attorney, OFFICE\\nOF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.\\n\\nKING, Circuit Judge:\\n\\n The appellant in these proceedings is a Baltimore law firm (the “Law Firm”) that\\n\\nchallenges the government’s use of a so-called “Filter Team” — created ex parte by a\\n\\nmagistrate judge in the District of Maryland and comprised of federal agents and\\n\\nprosecutors — to inspect privileged attorney-client materials. Those materials were seized\\n\\nfrom the Law Firm in June 2019 during the execution of a search warrant issued by the\\n\\nmagistrate judge. The Law Firm requested that the district court enjoin the Filter Team’s\\n\\nreview of the seized materials, invoking the attorney-client privilege and the work-product\\n\\ndoctrine. When the court denied its request, the Law Firm pursued this appeal. As\\n\\nexplained below, we are satisfied that use of the Filter Team is improper for several\\n\\nreasons, including that, inter alia, the Team’s creation inappropriately assigned judicial\\n\\nfunctions to the executive branch, the Team was approved in ex parte proceedings prior to\\n\\nthe search and seizures, and the use of the Team contravenes foundational principles that\\n\\nprotect attorney-client relationships. We therefore reverse and remand.\\n\\n\\n\\n I.\\n\\n A.\\n\\n 1.\\n\\n For about three years, “Lawyer A,” a partner of the Law Firm, handled the\\n\\nrepresentation of “Client A” in an investigation conducted by federal authorities in\\n\\n\\n\\n\\n 2\\n\\nMaryland. 1 Client A — who is also a Maryland lawyer — was suspected of assisting drug\\n\\ndealers in illicit activities, including money laundering and obstruction of federal\\n\\ninvestigations. According to the government, its investigation of Client A was obstructed\\n\\nby Lawyer A, and the relationship between Lawyer A and Client A triggered an application\\n\\nof the crime-fraud exception to the attorney-client privilege and work-product doctrine. In\\n\\nlight of Lawyer A’s suspected misconduct, the government also initiated an investigation\\n\\nof Lawyer A.\\n\\n As part of those investigative efforts, an IRS agent applied for a warrant to conduct\\n\\na search of the Law Firm’s Baltimore offices. On June 13, 2019, the magistrate judge\\n\\napproved the search warrant application and issued the warrant as requested. Based on her\\n\\nreview of the supporting affidavit of the IRS agent, the judge found probable cause for the\\n\\nsearch of the Law Firm and the seizures of client-related materials concerning Lawyer A’s\\n\\nrepresentation of Client A.\\n\\n 2.\\n\\n Contemporaneously with issuance of the search warrant, the magistrate judge\\n\\nauthorized the Filter Team, which had been proposed to the judge ex parte by the\\n\\nprosecutors in connection with the search warrant application. In so doing, the judge\\n\\nadopted the “Filter Team Practices and Procedures” specified in an attachment to the search\\n\\n\\n\\n\\n 1\\n In seeking to protect the identities of those involved in these proceedings, we use\\nthe nonspecific terms “Law Firm,” “Lawyer A,” and “Client A.” Our use of those terms is\\ngenerally consistent with the record on appeal.\\n\\n 3\\n\\nwarrant application and affidavit (the “Filter Protocol”). See S.J.A. 41-45. 2 The Filter\\n\\nProtocol defined the membership of the Filter Team and established the process for its\\n\\nreview of the materials to be thereafter seized from the Law Firm. Members of the Filter\\n\\nTeam included lawyers from the United States Attorney’s Office in Maryland’s Greenbelt\\n\\nDivision (the “Filter Team AUSAs”); a legal assistant and a paralegal who also worked\\n\\nthere; agents of the IRS and DEA; and forensic examiners. The Filter Team operated in\\n\\none of the two offices of Maryland’s United States Attorney — the Greenbelt office.\\n\\n Pursuant to the Filter Protocol, the Filter Team members were not involved in the\\n\\ninvestigations of Lawyer A and Client A (apart from being Filter Team members). The\\n\\nagents and prosecutors conducting the investigations of Lawyer A and Client A (the\\n\\n“Prosecution Team”) were excluded from the Filter Team. In contrast to the Filter Team\\n\\nAUSAs who were assigned to the Greenbelt office, the Prosecution Team lawyers were\\n\\nassigned to the United States Attorney’s Baltimore office.\\n\\n As for the Filter Team’s process of reviewing attorney-client materials seized from\\n\\nthe Law Firm, the Filter Protocol provided for privilege issues to be handled thusly:\\n\\n • After seizing materials from the Law Firm, the Filter Team would\\n identify and separate privileged and potentially privileged materials\\n from materials that were not privileged. Under the Filter Protocol,\\n privileged materials included “attorney-client information, attorney\\n work product information, and client confidences that have not been\\n waived,” see S.J.A. 43, 45;\\n\\n 2\\n Citations herein to “S.J.A. __” refer to the contents of the Sealed Joint Appendix\\nfiled by the parties in this appeal. The government later sought to supplement the Sealed\\nJoint Appendix by filing an ex parte appendix, the contents of which would be available\\nonly to itself and the Court and were never available to the Law Firm. On September 12,\\n2019, we rejected the filing of the ex parte supplemental appendix.\\n\\n 4\\n\\n • When seized materials were found by the Filter Team to be\\n nonprivileged, the Filter Team AUSAs could forward such materials\\n directly to the Prosecution Team, without the consent of the Law Firm\\n or a court order (the “Privilege Assessment Provision”);\\n\\n • For privileged and potentially privileged materials, the Filter Team\\n would decide whether any such seized materials were “responsive to\\n the search warrant,” id. at 44;\\n\\n • For privileged and potentially privileged materials that were\\n “responsive to the search warrant,” id., the Filter Team AUSAs would\\n place them in one of three categories:\\n\\n 1. Seized materials that were privileged and could not\\n be redacted;\\n\\n 2. Seized materials that were privileged but could be\\n redacted; or\\n\\n 3. Seized materials that were potentially privileged (for\\n example, when the Filter Team identified some\\n possible exception, such as the crime-fraud\\n exception, to a claim of privilege);\\n\\n • After providing copies to counsel for Lawyer A of the seized materials\\n identified as within categories 2 and 3, the Filter Team AUSAs would\\n seek an agreement with counsel for Lawyer A concerning whether\\n those materials could be forwarded to the Prosecution Team; and\\n\\n • If the Filter Team AUSAs and counsel for Lawyer A disagreed on the\\n handling of seized materials, the Filter Team AUSAs would submit\\n such “items to the court for [a] determination regarding privilege\\n and/or proposed redactions of the privileged material,” id.\\n\\n The Filter Protocol also authorized the Filter Team to provide the Prosecution Team\\n\\nwith seized materials if a Filter Team member “obtain[ed] [a] waiver[] of the attorney-\\n\\nclient privilege” by directly contacting the Law Firm client holding the privilege. See\\n\\nS.J.A. 42. Under the Protocol, “[i]f a client waive[d] the attorney-client privilege as to\\n\\n 5\\n\\nfiles, no further filter review of [those] files . . . for attorney-client privileged material [was]\\n\\nrequired.” Id.\\n\\n 3.\\n\\n Five days after the magistrate judge issued the search warrant, on June 18, 2019,\\n\\nfifteen IRS and DEA agents — who were members of the Filter Team — executed the\\n\\nwarrant by conducting a six-hour search of the Law Firm’s offices. Those agents seized\\n\\nvoluminous materials, including certain “confidential, privileged documents” of the Law\\n\\nFirm concerning, inter alia, Lawyer A’s representation of Client A. See S.J.A. 66. For\\n\\nexample, the agents electronically copied and seized the contents of Lawyer A’s iPhone\\n\\nand computer. The electronically seized materials contained all of Lawyer A’s email\\n\\ncorrespondence, including email correspondence related to Client A and numerous other\\n\\nLaw Firm clients. 3 More specifically, Lawyer A’s seized email inbox contained\\n\\napproximately 37,000 emails, of which 62 were from Client A or contained Client A’s\\n\\nsurname. And Lawyer A’s seized email “sent items” folder contained approximately\\n\\n\\n\\n\\n 3\\n The inventory for the return of the search warrant that was filed under seal in the\\ndistrict court describes in very general terms the items seized. See Fed. R. Crim. P.\\n41(f)(1)(B) (requiring officer present during execution of warrant to prepare and verify\\ninventory of property seized). For example, the inventory states that agents performed\\n“extraction[s]” of Lawyer A’s iPhone, of an iPad belonging to the Law Firm, and of a\\nlaptop belonging to a Firm associate. See S.J.A. 21. The inventory also describes the\\nseizures of, inter alia, a laptop, a hard drive, a portable drive, and several compact discs.\\nAdditionally, the inventory describes the seizures of various physical documents, including\\n“handwritten notes” found at the desk of a Law Firm associate, “client notes” found at the\\ndesk of Lawyer A’s assistant, and a redweld folder containing “communications\\nhandwritten and typed” found in Lawyer A’s office. Id. at 22-23.\\n\\n 6\\n\\n15,000 emails, of which 54 had been sent to Client A or contained Client A’s surname. Id.\\n\\nat 80. 4 An “extensive” portion of the seized emails were “from other [Law Firm] attorneys\\n\\nconcerning . . . other attorneys’ clients that have no connection with th[e] investigation[s]”\\n\\nof Lawyer A and Client A. Id. at 66. Notably, some of those Law Firm clients “are being\\n\\ninvestigated by, or are being prosecuted by, the United States Attorney’s Office [for the\\n\\nDistrict of Maryland] for unrelated crimes.” Id. 5\\n\\n During the execution of the search warrant by the IRS and DEA on June 18, 2019,\\n\\nvarious Law Firm partners voiced objections, including to the breadth of the search and\\n\\nseizures. Those objections were made directly to the federal agents conducting the search,\\n\\nand were also made to at least two prosecutors, including a member of the Prosecution\\n\\nTeam. A Law Firm partner specifically requested that the government’s forensic\\n\\n\\n\\n\\n 4\\n Our foregoing explanation of the seizures of Lawyer A’s emails is derived in part\\nfrom the affidavit of an information technology professional filed by the Law Firm in the\\ndistrict court. See S.J.A. 80-81 (affidavit stating that “I electronically reviewed [Lawyer\\nA’s] email folders on the [F]irm’s computer server and determined that (a) [Lawyer A’s]\\nemail inbox contained a total of 37,114 emails with a total size of 9,124,544 KB, of which\\nonly 62 emails with a total size of 21,582 KB were from [Client A] or contained [Client\\nA’s surname]; and (b) [Lawyer A’s] email sent items contained 15,219 emails with a total\\nsize of 2,308,938 KB, of which only 54 emails with a total size of 20,049 KB were sent to\\n[Client A] or contained [Client A’s surname]”). No evidence contradicting that affidavit\\nwas presented to the district court.\\n 5\\n In addition to the seizures by federal agents of thousands of emails and other\\ncommunications between Lawyer A and persons other than Client A, the IRS and DEA\\nagents seized multiple compact discs containing electronic documents that Lawyer A had\\nreceived from lawyers who had previously represented Client A.\\n\\n 7\\n\\nexaminers limit their seizures of Lawyer A’s emails to those that included Client A’s name\\n\\nor other relevant search terms. Those requests were all rejected. 6\\n\\n By letter delivered to the United States Attorney on June 21, 2019, the Law Firm\\n\\nasserted that the search and seizures contravened the Constitution, Federal Rules of\\n\\nCriminal Procedure, and United States Attorneys’ Manual. Additionally, the Law Firm\\n\\nadvised the government that the Firm had a duty “to preserve client confidences and\\n\\nsecrets,” see S.J.A. 71, and that it was “ethically mandated to urge the return of all items\\n\\nseized by the government,” id. at 72. The Law Firm’s letter objected to the use of the Filter\\n\\nTeam and requested that the government return the seized materials so that the Firm could\\n\\nconduct a privilege review — which would have been the process had the government used\\n\\nsubpoenaes duces tecum rather than a search warrant. The Law Firm also requested that\\n\\nthe government not examine any of the seized materials until the Firm had an opportunity\\n\\nto complete its privilege review. Alternatively, the Law Firm asked the government to\\n\\nimmediately submit the seized materials to the magistrate judge or the district court for in\\n\\ncamera inspection. The government never responded to the Law Firm’s letter.\\n\\n\\n\\n 6\\n The facts specified herein with respect to the Law Firm’s objections to the\\nexecution of the search warrant, and the government’s refusal to limit the seizures of\\nLawyer A’s emails, are spelled out in the affidavit of a Law Firm partner that was filed in\\nthe district court. See S.J.A. 67 (affidavit stating that “[o]n June 18, 2019, my law partners\\nand I immediately voiced [the Law Firm’s] objections to the search and seizure, both to\\nagents conducting the search and by phone to Assistant United States Attorneys . . . . I\\nasked the [g]overnment’s forensic examiners to limit the downloading of [Lawyer A’s]\\nemails to those that included [Client A’s surname] or other relevant search terms, but they\\nrefused to do so without explanation”). The government did not rebut the lawyer’s\\naffidavit.\\n\\n 8\\n\\n B.\\n\\n On June 26, 2019, Client A — whose own office had also been searched by federal\\n\\nagents and whose files were seized — moved in the district court for relief from the Filter\\n\\nProtocol, which also applied to that search. The following day, the court ordered that the\\n\\nFilter Team not deliver to the Prosecution Team any materials that were seized from Client\\n\\nA and the Law Firm, pending further order of the court. 7\\n\\n On June 28, 2019, the Law Firm separately moved in the district court for injunctive\\n\\nrelief. More specifically, the Law Firm sought a temporary restraining order and a\\n\\npreliminary injunction, pursuant to Rule 65 of the Federal Rules of Civil Procedure, and\\n\\nthe return of seized property, pursuant to Rule 41(g) of the Federal Rules of Criminal\\n\\nProcedure (collectively, the “Injunction Requests”). On July 1, 2019, the government\\n\\nresponded to and opposed the Law Firm’s Injunction Requests. The Law Firm replied the\\n\\nvery next day.\\n\\n Eight days later, on July 10, 2019, the district court conducted a telephonic hearing\\n\\non the Injunction Requests. 8 During that hearing, the Law Firm’s counsel explained that\\n\\nthe Law Firm had more than twenty lawyers, and he described the Firm’s extensive and\\n\\nongoing law practice in Maryland, including its involvement in a vast amount of criminal\\n\\n\\n 7\\n Because all the district judges in the District of Maryland recused themselves from\\nthese proceedings, a district judge in the Eastern District of Virginia was designated to\\nhandle them. The magistrate judge on this case is also an Eastern District of Virginia judge\\ndesignated for service in the District of Maryland.\\n 8\\n The district court was not available for an earlier hearing due to the extended\\nFourth of July holiday weekend and the court’s schedule.\\n\\n 9\\n\\nand civil litigation and related legal services. Counsel emphasized to the court that Lawyer\\n\\nA’s entire email file had been copied and seized by the federal agents and that the file\\n\\ncontained privileged communications with and between various lawyers and clients of the\\n\\nLaw Firm concerning criminal and civil matters unrelated to the investigations of Lawyer\\n\\nA and Client A. Counsel advised the court that the Law Firm had conducted a search of\\n\\nLawyer A’s emails using Client A’s surname and identified only 116 responsive emails in\\n\\nthe approximately 52,000 emails that were seized from Lawyer A’s email file. The Law\\n\\nFirm’s counsel emphasized his objections to any use of a government filter team and\\n\\nargued that the Filter Protocol approved by the magistrate judge was fatally flawed. He\\n\\nstressed the Filter Protocol’s illegality as to all clients of the Law Firm. Counsel added\\n\\nthat the Filter Team would have access to and would be reviewing seized materials related\\n\\nto Law Firm clients that the Filter Team members could be investigating, or might thereby\\n\\nbecome interested in investigating.\\n\\n The government responded that the Filter Team AUSAs had asked the Law Firm\\n\\nfor a list of clients with pending matters in the United States Attorney’s Office, in order to\\n\\nconfirm that no Filter Team member was involved in such matters. 9 The Law Firm,\\n\\nhowever, declined to provide that information. The government represented that it had no\\n\\nalternative but to seize Lawyer A’s entire email file because an onsite review was\\n\\nimpractical. The government also argued that, if it had provided search terms to the Law\\n\\n\\n 9\\n In addition to a list of Law Firm clients with pending matters in the United States\\nAttorney’s Office, a Filter Team AUSA requested that a Firm partner supply the Filter\\nTeam with a list of all Lawyer A’s “cases.” See S.J.A. 74.\\n\\n 10\\n\\nFirm, those terms would have revealed what the government was searching for, and those\\n\\nrevelations might have allowed Lawyer A to obstruct its investigations. In addition, the\\n\\ngovernment claimed that using search terms might cause the Filter Team to overlook emails\\n\\nrelevant to the investigations.\\n\\n At the conclusion of the telephonic hearing of July 10, 2019, the district court orally\\n\\ndenied the Law Firm’s Injunction Requests, ruling that the Firm had not shown “any\\n\\nlikelihood of irreparable harm.” See S.J.A. 122. The court related that “filter teams can be\\n\\nneutral,” and that this Filter Team was “operating under the [c]ourt’s direction.” Id. at 120.\\n\\nThe court observed that, “absent a finding that there has been some breach of [the\\n\\nprosecutors’] ethical responsibilities and duties in this case, which rarely occurs,” the Filter\\n\\nProtocol was not “inappropriate.” Id. at 121. Additionally, the court related that “having\\n\\nan independent group” of prosecutors review the seized materials did not “create[] great\\n\\nrisk or create[] the appearance of unfairness.” Id. The court said there was no “per se rule\\n\\nthat law firms are to be treated so differently that neutral examiners must be appointed in\\n\\nevery case.” Id. Finally, the court remarked that the Law Firm had “delay[ed] in coming\\n\\nto the [c]ourt,” and stated that the Filter Team had made substantial progress in reviewing\\n\\nthe seized materials. Id. at 122.\\n\\n On July 11, 2019 — the day after the hearing — the district court entered an order\\n\\ndenying the Injunction Requests because the Law Firm had not established that it would\\n\\nsuffer irreparable harm absent injunctive relief. See In re Search of Under Seal, No. 1:19-\\n\\nmj-02155 (D. Md. July 11, 2019), ECF No. 11 (the “Denial Order”). The Denial Order\\n\\nstated, in part:\\n\\n 11\\n\\n In reviewing the search warrant, the [m]agistrate [j]udge knew that the search\\n was to be of [a] law firm[] and imposed appropriate and well-established\\n constraints on the [Filter Team] that would be reviewing the seized\\n documents. There is no inherent conflict in having the seized documents\\n reviewed by [the Filter Team] composed of Assistant United States\\n Attorneys who have no connection to the underlying case or [the Law Firm]\\n and no contact with the [Prosecution Team] on this case. . . . As a result, the\\n [c]ourt finds that the limits in the search warrant and the constraints imposed\\n on the [Filter Team] are such that the appointment of a special master or\\n magistrate judge is not necessary to protect [the Law Firm] or its clients from\\n irreparable harm.\\n\\nId. at 2.\\n\\n Later that day, the Law Firm noted this appeal, pursuant to 28 U.S.C. § 1292(a)(1).\\n\\nThat jurisdictional provision authorizes appellate review of a district court’s decision\\n\\ndenying injunctive relief.\\n\\n On July 17, 2019, after the Law Firm’s appeal was lodged, the district court entered\\n\\nan agreed order modifying the Privilege Assessment Provision of the Filter Protocol.\\n\\nSpecifically, the court altered that Provision to require that the Filter Team’s forwarding of\\n\\nseized materials to the Prosecution Team be first approved by the Law Firm or by the court\\n\\n(the “Modified Privilege Assessment Provision”). Prior to that modification, the Privilege\\n\\nAssessment Provision authorized the Filter Team to deem seized materials nonprivileged\\n\\nand give them directly to the Prosecution Team.\\n\\n C.\\n\\n On July 12, 2019, the Law Firm moved in this Court for an injunction pending\\n\\nappeal. Five days thereafter, on July 17, 2019, we granted the Law Firm some relief,\\n\\ndirecting the government to “cease review of the seized files and forthwith place the files\\n\\n\\n\\n 12\\n\\nin the custody of the [m]agistrate [j]udge to be held under seal pending further order of this\\n\\nCourt.” See ECF No. 39. 10\\n\\n After expediting this appeal and receiving the Law Firm’s opening brief, we directed\\n\\nthe government to specifically address four issues in its brief. Especially pertinent here,\\n\\nwe requested that the government address whether judicial functions had been improperly\\n\\nassigned to the Filter Team.\\n\\n We conducted oral argument in Richmond on September 10, 2019. Two days later,\\n\\non September 12, 2019, we entered an order that reversed “the district court’s denial of the\\n\\nLaw Firm’s request that review of the seized materials be made by the magistrate judge,\\n\\nrather than by the Filter Team.” See ECF No. 72 (the “Interim Order”). Our Interim Order\\n\\nreassigned the Filter Team’s duties and functions to the magistrate judge and gave guidance\\n\\nin that regard. More specifically, we advised the magistrate judge to review all seized\\n\\nmaterials, identify those not related to Client A and return them to the Law Firm, and\\n\\nconduct a privilege evaluation of the remaining materials. As promised in the Interim\\n\\nOrder, we now issue this opinion to explain our rulings in these proceedings. 11\\n\\n\\n 10\\n On July 22, 2019, the government filed with our Court a “Notice of Compliance”\\nwith our directive of July 17, 2019, explaining that the Filter Team had provided the\\nmagistrate judge with all files — both paper and electronic — seized from the Law Firm.\\nSee ECF No. 44. By July 22, 2019, the seized materials had been “substantially reviewed\\nand coded by the Filter Team.” Id. As of that date, the government had not returned any\\nof the seized materials to the Law Firm.\\n 11\\n The government represented at oral argument that it had given the magistrate\\njudge all the Filter Team’s work product that related to the seized materials. And the\\nlawyer asserted that the government’s July 22, 2019 Notice of Compliance so stated. We\\nare not at all certain, however, that the Notice provides such advice. As will be explained,\\n(Continued)\\n 13\\n\\n II.\\n\\n The Supreme Court has described the award of a preliminary injunction as “an\\n\\nextraordinary remedy [that is] never awarded as of right.” See Winter v. Nat. Res. Defense\\n\\nCouncil, Inc., 555 U.S. 7, 24 (2008). To prevail on a request for such preliminary relief,\\n\\nthe plaintiff must establish that (1) it is likely to succeed on the merits, (2) it is likely to\\n\\nsuffer irreparable harm absent the requested preliminary relief, (3) the balance of the\\n\\nequities weighs in its favor, and (4) a preliminary injunction is in the public interest. See\\n\\nCentro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th Cir. 2013) (en banc).\\n\\n When a district court denies a preliminary injunction based on its evaluation of only\\n\\none of the foregoing factors, we review its assessment of that factor for abuse of discretion.\\n\\nSee Fusaro v. Cogan, 930 F.3d 241, 248 (4th Cir. 2019) (explaining abuse of discretion\\n\\nstandard); cf. Henderson ex rel. NLRB v. Bluefield Hosp. Co., 902 F.3d 432, 439 (4th Cir.\\n\\n2018) (recognizing that court can deny preliminary injunction when party fails to satisfy\\n\\nany one of four factors). In that circumstance, however, we must perform our own\\n\\nassessment of the factors not addressed by the district court. See Hobby Lobby Stores, Inc.\\n\\nv. Sebelius, 723 F.3d 1114, 1145 & n.21 (10th Cir. 2013) (en banc). We then evaluate the\\n\\n\\n\\n\\nbecause the Filter Team was performing judicial functions when conducting its review\\npursuant to the Privilege Assessment Provision and the Modified Privilege Assessment\\nProvision, the government is obliged to fully advise the magistrate judge as to the work\\nthat was performed by the Filter Team and to deliver any Filter Team work product to the\\njudge. See Interim Order 2 (“All work product of the Filter Team shall forthwith be\\ndelivered by the [g]overnment to the magistrate judge for filing under seal.”).\\n\\n 14\\n\\ncourt’s “ultimate decision” to deny injunctive relief for abuse of discretion. See Gonzales\\n\\nv. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006).\\n\\n In performing an abuse of discretion review, we assess the district court’s factual\\n\\nfindings for clear error and its legal conclusions de novo. See Fusaro, 930 F.3d at 248. A\\n\\ncourt abuses its discretion in denying preliminary injunctive relief when it “rest[s] its\\n\\ndecision on a clearly erroneous finding of a material fact, or misapprehend[s] the law with\\n\\nrespect to underlying issues in litigation.” See Centro Tepeyac, 722 F.3d at 188 (internal\\n\\nquotation marks omitted). Furthermore, a court “abuses its discretion when it makes an\\n\\nerror of law,” see Koon v. United States, 518 U.S. 81, 100 (1996), or when it ignores\\n\\n“unrebutted, legally significant evidence,” see Alvarez Lagos v. Barr, 927 F.3d 236, 255\\n\\n(4th Cir. 2019).\\n\\n\\n\\n III.\\n\\n In making our assessment of the various injunction issues, we begin with whether\\n\\nthe Law Firm is likely to suffer irreparable harm absent injunctive relief. We proceed in\\n\\nthis manner because the district court’s denial of the Law Firm’s Injunction Requests was\\n\\npredicated solely on the irreparable harm factor of the four-part preliminary injunction test.\\n\\nWe then evaluate the other factors, which the district court did not reach and address. More\\n\\nspecifically, we consider and decide whether the Law Firm has demonstrated a likelihood\\n\\nof success on the merits of its challenge to the Filter Team and its Protocol, whether the\\n\\nbalance of the equities weighs in the Firm’s favor, and whether an award of injunctive relief\\n\\n\\n\\n 15\\n\\nis in the public interest. See Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th\\n\\nCir. 2013) (en banc). 12\\n\\n A.\\n\\n With respect to the irreparable harm factor, the Law Firm is obliged to demonstrate\\n\\nthat it is likely to suffer such harm in the absence of injunctive relief. See Winter v. Nat.\\n\\nRes. Defense Council, Inc., 555 U.S. 7, 20 (2008). The Law Firm maintains that, absent\\n\\nrelief from the Filter Team and its Protocol, federal agents and prosecutors on the Filter\\n\\nTeam will continue their review of “tens of thousands” of privileged materials concerning\\n\\nLaw Firm clients other than Client A. See Br. of Appellant 45. The Law Firm emphasizes\\n\\n(1) that 99.8 percent of the 52,000 emails seized by the government were not from Client\\n\\nA, were not sent to Client A, and did not mention Client A’s surname; and (2) that many\\n\\nof those emails contained privileged information relating to other clients of the Firm,\\n\\nincluding clients who are potential subjects or targets of government investigations. 13\\n\\n 1.\\n\\n In ruling that the Law Firm did not satisfy the irreparable harm factor, the district\\n\\ncourt failed to address the Law Firm’s unrebutted evidence with respect to Lawyer A’s\\n\\n\\n\\n\\n 12\\n Although the district court mentioned the balance of the equities factor during the\\ntelephonic hearing of July 10, 2019, the court did not rely on that factor to deny the\\nInjunction Requests.\\n 13\\n Although the government argues on appeal that the Law Firm’s evidence is not\\naccurate and cannot be relied on, it failed to present any contradictory evidence to the\\ndistrict court. See United States v. Anderson, 481 F.2d 685, 702 n.19 (4th Cir. 1973)\\n(emphasizing importance of building appellate record in district court).\\n\\n 16\\n\\nemails. See Alvarez Lagos v. Barr, 927 F.3d 236, 255 (4th Cir. 2019) (explaining that\\n\\nfailure to address “unrebutted, legally significant evidence” constitutes abuse of\\n\\ndiscretion). That is, the court ignored evidence that less than one percent of the seized\\n\\nemails were from Client A, were to Client A, or mentioned Client A’s surname, and that\\n\\nmany seized emails contained privileged communications and attorney work product\\n\\nconcerning other Law Firm clients. Additionally, the court failed to acknowledge the fact\\n\\nthat some of those communications were from or about clients who “are being investigated\\n\\nby, or are being prosecuted by,” federal prosecutors. See S.J.A. 66. As a result, the court\\n\\ndid not grapple with the harm that is likely to be inflicted on the Law Firm and its clients\\n\\nfrom the Filter Team’s review of many of the seized emails. 14 The court thus abused its\\n\\ndiscretion in that respect.\\n\\n\\n\\n 2.\\n\\n\\n\\n\\n 14\\n During the oral argument in this appeal, the government maintained that the Filter\\nTeam is entitled to review materials seized from the Law Firm that are not facially relevant\\nto Client A. The government’s justification for that proposition is that the Filter Team\\nneeds “context” for its privilege determinations. See Oral Argument at 43:20, United States\\nv. Under Seal, No. 19-1730 (4th Cir. Sept. 10, 2019), http://www.ca4.uscourts.gov/oral-\\nargument/listen-to-oral-arguments. According to this “context” argument, the government\\nwas entitled to seize and review documents for which probable cause was lacking.\\nUnsurprisingly, the government has no supporting authority in that regard. See United\\nStates v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1172 (9th Cir. 2010) (en banc)\\n(criticizing government “overreach[]” in seizure of electronic data unsupported by\\nprobable cause), abrogated on other grounds by Hamer v. Neighborhood Hous. Servs. of\\nChi., 138 S. Ct. 13, 16-17 (2017).\\n\\n 17\\n\\n The district court’s failure to consider the Law Firm’s unrebutted evidence\\n\\ncompounded other errors of law that the court made with respect to the irreparable harm\\n\\nfactor. See Koon v. United States, 518 U.S. 81, 100 (1996) (explaining that a court “by\\n\\ndefinition abuses its discretion when it makes an error of law”). More specifically, the\\n\\ncourt erred by giving short shrift to the important legal principles that protect attorney-\\n\\nclient relationships, which we are compelled to elucidate herein.\\n\\n a.\\n\\n As we know, the attorney-client privilege is “the oldest of the privileges for\\n\\nconfidential communications known to the common law.” See Upjohn Co. v. United\\n\\nStates, 449 U.S. 383, 389 (1981); see also In re Grand Jury Subpoenas, 454 F.3d 511, 519\\n\\n(6th Cir. 2006) (explaining that “[t]he privilege protecting confidential communications\\n\\nbetween an attorney and his client dates back to the Tudor dynasty”). The attorney-client\\n\\nprivilege empowers a client — as the privilege holder — “to refuse to disclose and to\\n\\nprevent any other person from disclosing confidential communications between him and\\n\\nhis attorney.” See Black’s Law Dictionary 129 (6th ed. 1990). And in proceedings such\\n\\nas these, lawyers are obliged to protect the attorney-client privilege to the maximum\\n\\npossible extent on behalf of their clients. See Republic Gear Co. v. Borg-Warner Corp.,\\n\\n381 F.2d 551, 556 (2d Cir. 1967) (recognizing that lawyer has duty to invoke claim of\\n\\nprivilege on client’s behalf); Model Rules of Prof’l Conduct r. 1.6(a), (c) (Am. Bar Ass’n\\n\\n1983) (explaining that lawyer owes duty of confidentiality to client and must prevent\\n\\nunauthorized disclosure of confidential information). That proposition underlies the Law\\n\\nFirm’s uncontested standing to pursue the legal positions it advances in this appeal. See\\n\\n 18\\n\\nFisher v. United States, 425 U.S. 391, 402 n.8 (1976) (“[I]t is universally accepted that the\\n\\nattorney-client privilege may be raised by the attorney[.]”); In re Grand Jury Proceedings,\\n\\n727 F.2d 1352, 1354-55 (4th Cir. 1984) (emphasizing that a lawyer “is entitled to raise [a\\n\\nclaim of] privilege on behalf of his . . . client”).\\n\\n The purpose of the attorney-client privilege is to ensure “full and frank\\n\\ncommunication” between a client and his lawyer and “thereby promote broader public\\n\\ninterests in the observance of law and administration of justice.” See Upjohn Co., 449 U.S.\\n\\nat 389. As the Supreme Court has consistently emphasized, the attorney-client privilege\\n\\nexists because “sound legal advice or advocacy serves public ends and . . . such advice or\\n\\nadvocacy depends upon the lawyer’s being fully informed by the client.” Id.; see also Hunt\\n\\nv. Blackburn, 128 U.S. 464, 470 (1888) (“The rule which places the seal of secrecy upon\\n\\ncommunications between client and attorney is founded upon the necessity, in the interest\\n\\nand administration of justice, of the aid of persons having knowledge of the law and skilled\\n\\nin its practice, which assistance can only be safely and readily availed of when free from\\n\\nthe consequences or the apprehension of disclosure.”).\\n\\n Although the work-product doctrine does not trace as far into history as the attorney-\\n\\nclient privilege, it is no less important. The Supreme Court explicitly recognized and\\n\\nexplained the work-product doctrine more than seventy years ago in its seminal decision\\n\\nin Hickman v. Taylor. See 329 U.S. 495, 510-11 (1947). In Hickman, the Court\\n\\nunderscored that a lawyer must be able to “work with a certain degree of privacy, free from\\n\\nunnecessary intrusion by opposing parties and their counsel.” Id. at 510. Elaborating on\\n\\nthat principle, the Court emphasized that “[p]roper preparation of a client’s case demands\\n\\n 19\\n\\nthat [a lawyer] assemble information, sift what he considers to be the relevant from the\\n\\nirrelevant facts, prepare his legal theories and plan his strategy without undue and needless\\n\\ninterference.” Id. at 511. As the Court warned, absent strong protection for work product,\\n\\n“[i]nefficiency, unfairness and sharp practices would inevitably develop in the giving of\\n\\nlegal advice and in the preparation of cases for trial,” all to the detriment of clients and “the\\n\\ncause of justice.” Id.\\n\\n Thus, the Supreme Court has explicitly approved what it called “a qualified\\n\\nprivilege,” to be held by lawyer and client alike, “for certain materials prepared by an\\n\\nattorney ‘acting for his client in anticipation of litigation.’” See United States v. Nobles,\\n\\n422 U.S. 225, 237-38 (1975) (quoting Hickman, 329 U.S. at 508). That privilege is the\\n\\nwork-product doctrine, which has now been incorporated into the Federal Rules of Civil\\n\\nProcedure, see Fed. R. Civ. P. 26(b)(3), and the Federal Rules of Criminal Procedure, see\\n\\nFed. R. Crim. P. 16(a)(2), (b)(2).\\n\\n There are two types of attorney work product that are within the ambit of the\\n\\ndoctrine: (1) fact work product, which is “a transaction of the factual events involved,”\\n\\nand (2) opinion work product, which “represents the actual thoughts and impressions of\\n\\nthe attorney.” See In re Grand Jury Subpoena, 870 F.3d 312, 316 (4th Cir. 2017) (internal\\n\\nquotation marks omitted). Opinion work product, we have recognized, “enjoys a nearly\\n\\nabsolute immunity” and can be discovered by adverse parties “only in very rare and\\n\\nextraordinary circumstances.” Id. (internal quotation marks omitted). Fact work product\\n\\nis somewhat less protected, and discovery thereof by others may only be had in limited\\n\\ncircumstances, where a party shows “both a substantial need and an inability to secure the\\n\\n 20\\n\\nsubstantial equivalent of the materials by alternate means without undue hardship.” Id.\\n\\n(internal quotation marks omitted).\\n\\n Notably, the attorney-client privilege and the work-product doctrine jointly support\\n\\nthe Sixth Amendment’s guarantee of effective assistance of counsel. See U.S. Const.\\n\\namend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to have the\\n\\nAssistance of Counsel for his defence.”); Strickland v. Washington, 466 U.S. 668, 686\\n\\n(1984) (analyzing Sixth Amendment right to effective assistance of counsel). For example,\\n\\nin assessing the interplay between the attorney-client privilege and the Sixth Amendment,\\n\\nwe have emphasized that “[t]he essence of the Sixth Amendment right to effective\\n\\nassistance of counsel is, indeed, privacy of communication with counsel.” See United\\n\\nStates v. Brugman, 655 F.2d 540, 546 (4th Cir. 1981); cf. DeMassa v. Nunez, 770 F.2d\\n\\n1505, 1507 (9th Cir. 1985) (describing Sixth Amendment as a “source” for the expectation\\n\\nof privacy in attorney-client communications); 1 Geoffrey C. Hazard, Jr. et al., The Law of\\n\\nLawyering § 10.14, 10-91 (4th ed. Supp. 2019) (explaining that “[t]he attorney-client\\n\\nprivilege has ties to the Sixth Amendment”). Absent privacy of communications and the\\n\\n“full and frank” discussions that flow therefrom, a lawyer could be deprived of the\\n\\ninformation necessary to prepare and present his client’s defense. See Upjohn Co., 449\\n\\nU.S. at 389.\\n\\n Similarly, the work-product doctrine fulfills an essential and important role in\\n\\nensuring the Sixth Amendment right to effective assistance of counsel. The Supreme Court\\n\\nhas recognized that the work-product doctrine is vital to “assur[e] the proper functioning\\n\\nof the criminal justice system,” in that it “provid[es] a privileged area within which [a\\n\\n 21\\n\\nlawyer] can analyze and prepare his client’s case.” See Nobles, 422 U.S. at 238; see also\\n\\nIn re Grand Jury Subpoenas, 454 F.3d at 520 (explaining that “people should be free to\\n\\nmake requests of their attorneys without fear, and that their attorneys should be free to\\n\\nconduct research and prepare litigation strategies without fear that these preparations will\\n\\nbe subject to review by outside parties”). Without that “privileged area,” a lawyer’s ability\\n\\nto plan and present his client’s defense will be impaired. See Nobles, 422 U.S. at 238; see\\n\\nalso Hickman, 329 U.S. at 511. 15\\n\\n\\n\\n\\n b.\\n\\n In ruling that the Law Firm had not established a likelihood of irreparable harm, the\\n\\ndistrict court erred as a matter of law by affording insignificant weight to the foregoing\\n\\nprinciples protecting attorney-client relationships. See Upjohn Co., 449 U.S. at 389\\n\\n(emphasizing importance of attorney-client privilege); Nobles, 422 U.S. at 237-38\\n\\n(recognizing significance of protecting lawyer work product); cf. Gunnells v. Healthplan\\n\\nServs., Inc., 348 F.3d 417, 434 (4th Cir. 2003) (explaining that court abuses discretion in\\n\\n\\n\\n 15\\n Although the attorney-client privilege and work-product doctrine are essential\\ncomponents of our adversarial system, neither is absolute. For example, claims of attorney-\\nclient privilege or work-product protection can sometimes be defeated by the crime-fraud\\nexception. See In re Grand Jury Proceedings #5 Empanelled Jan. 28, 2004, 401 F.3d 247,\\n251 (4th Cir. 2005). Put succinctly, “[b]oth the attorney-client and work-product privileges\\nmay be lost . . . when a client gives information to an attorney for the purpose of committing\\nor furthering a crime or fraud.” Id. In these proceedings, the government has invoked that\\nexception as to Client A of Lawyer A.\\n\\n 22\\n\\nignoring applicable legal principles). Crucially, the court failed to recognize that an\\n\\nadverse party’s review of privileged materials seriously injures the privilege holder. See\\n\\nUnited States v. Philip Morris Inc., 314 F.3d 612, 622 (D.C. Cir. 2003) (concluding that a\\n\\nparty had demonstrated the likelihood of irreparable harm predicated on “the general injury\\n\\ncaused by the breach of the attorney-client privilege and the harm resulting from the\\n\\ndisclosure of privileged documents to an adverse party”), abrogated on other grounds by\\n\\nMohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103 (2009); In re Perrigo Co., 128 F.3d\\n\\n430, 437 (6th Cir. 1997) (explaining that “forced disclosure of privileged material may\\n\\nbring about irreparable harm”); Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955,\\n\\n960-61 (3d Cir. 1984) (ruling that law firm had demonstrated likelihood of irreparable harm\\n\\nwhere government seized thousands of files containing privileged information).\\n\\n 3.\\n\\n When the pertinent legal principles are properly applied to the unrefuted evidence,\\n\\nthe Filter Team’s review of the materials seized from the Law Firm was and is injurious to\\n\\nthe Firm and its clients. And that harm is plainly irreparable, in that the Filter Team’s\\n\\nreview of those privileged materials cannot be undone. We are therefore satisfied that the\\n\\nLaw Firm will be irreparably harmed absent an award of injunctive relief against the Filter\\n\\nTeam and its Protocol. 16\\n\\n\\n 16\\n We observe that the Filter Team and its Protocol may inflict other injuries on the\\nLaw Firm. For example, adverse publicity about the search of the Law Firm, the Filter\\nTeam, and its Protocol could make potential clients less likely to seek out and retain the\\nFirm. Additionally, potential and current clients might be reluctant to candidly\\ncommunicate with the Law Firm attorneys because they fear government review of their\\n(Continued)\\n 23\\n\\n B.\\n\\n Turning to the injunction factors not reached and addressed by the district court, we\\n\\nbegin with the likelihood of success factor. In order to prevail on that factor, the Law Firm\\n\\nmust make a “clear showing” that the Filter Team and its Protocol are legally flawed. See\\n\\nPashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013). Stated differently, the Law Firm is\\n\\nobliged to demonstrate it is likely to succeed on its request that the magistrate judge —\\n\\nrather than the Filter Team — perform the privilege review of the seized materials.\\n\\n In that regard, the Law Firm maintains that the Filter Team and its Protocol are\\n\\nsimply “incompatible with courts’ historical protection of the attorney-client privilege and\\n\\nthe work-product doctrine.” See Br. of Appellant 35. The Law Firm contends that there is\\n\\na clear appearance of — and potential for — improprieties when government agents are\\n\\nauthorized to rummage through attorney-client communications, particularly when less\\n\\nthan one percent of those communications relate to the investigations at issue. And the\\n\\nLaw Firm posits that use of the Filter Team in these circumstances will chill the free flow\\n\\nof information between clients and lawyers. Put simply, the Law Firm maintains that\\n\\njudicial functions are involved in all aspects of assessing and deciding privilege issues.\\n\\nThe Law Firm thus argues that a magistrate judge or a special master must perform those\\n\\nfunctions.\\n\\n\\n\\n\\ncommunications and breaches of confidentiality. Consequently, the Law Firm is likely to\\nbe deprived of information necessary to the proper handling of its cases. See Upjohn Co.,\\n449 U.S. at 389 (explaining necessity of “full and frank communication” between client\\nand his lawyer).\\n\\n 24\\n\\n As further explained below, we are satisfied that the Law Firm has shown that it is\\n\\nlikely to succeed on the merits of its challenge to the Filter Team and its Protocol. In\\n\\napproving the Filter Team and its Protocol, the magistrate judge made several legal errors\\n\\nby, inter alia: (1) assigning judicial functions to the Filter Team; (2) authorizing the Filter\\n\\nTeam and its Protocol in ex parte proceedings that were conducted prior to the search and\\n\\nseizures at the Law Firm; and (3) failing to properly weigh the foundational principles that\\n\\nprotect attorney-client relationships.\\n\\n 1.\\n\\n To start, the magistrate judge — by authorizing the Filter Team and its Protocol —\\n\\nerred in assigning judicial functions to the executive branch. We have recognized that,\\n\\nwhen a dispute arises as to whether a lawyer’s communications or a lawyer’s documents\\n\\nare protected by the attorney-client privilege or work-product doctrine, the resolution of\\n\\nthat dispute is a judicial function. See NLRB v. Interbake Foods, LLC, 637 F.3d 492, 498,\\n\\n500 (4th Cir. 2011) (concluding that, in deciding whether to enforce an administrative\\n\\nsubpoena seeking potentially privileged documents, a court “cannot delegate” an in camera\\n\\nreview of documents to an agency, but must itself decide a claim of privilege); see also In\\n\\nre The City of New York, 607 F.3d 923, 947 (2d Cir. 2010) (observing that evaluating\\n\\nprivilege claim is always a judicial function); In re Grand Jury Proceedings #5 Empanelled\\n\\nJan. 28, 2004, 401 F.3d 247, 256 (4th Cir. 2005) (remanding to district court for in camera\\n\\nreview concerning privileged communications and applicability of crime-fraud exception).\\n\\nIndeed, the Constitution vests “[t]he judicial Power” solely in the federal courts, see U.S.\\n\\nConst. art. III, § 1, which includes “the duty of interpreting and applying” the law, see\\n\\n 25\\n\\nMassachusetts v. Mellon, 262 U.S. 447, 488 (1923). Put simply, a court is not entitled to\\n\\ndelegate its judicial power and related functions to the executive branch, especially when\\n\\nthe executive branch is an interested party in the pending dispute. See Interbake Foods,\\n\\n637 F.3d at 501 (affirming refusal “to delegate” to an administrative law judge the\\n\\njudiciary’s “responsibility to decide the issue of privilege”); NLRB v. Detroit Newspapers,\\n\\n185 F.3d 602, 606 (6th Cir. 1999) (concluding that “district court had the obligation . . . to\\n\\ndetermine whether the subpoenaed documents were protected by some privilege, and had\\n\\nno discretion to delegate that duty”).\\n\\n In these proceedings, the Privilege Assessment Provision of the Filter Protocol\\n\\ncontravened that nondelegation principle. Put succinctly, the Privilege Assessment\\n\\nProvision erroneously authorized the executive branch — that is, the Filter Team — to\\n\\nmake decisions on attorney-client privilege and the work-product doctrine. As our good\\n\\ncolleague Judge Niemeyer recognized in Interbake Foods, a court simply cannot delegate\\n\\nits responsibility to decide privilege issues to another government branch. See 637 F.3d at\\n\\n498, 500-01 (recognizing that court must decide privilege disputes); see also In re The City\\n\\nof New York, 607 F.3d at 947 (observing that evaluating privilege claim is a judicial\\n\\nfunction).\\n\\n To compound that error, the Privilege Assessment Provision delegated judicial\\n\\nfunctions to non-lawyer members of the Filter Team. In other words, the Privilege\\n\\nAssessment Provision authorized paralegals and IRS and DEA agents to designate seized\\n\\ndocuments as nonprivileged, and allowed the Filter Team AUSAs to deliver such\\n\\ndocuments to the Prosecution Team without the approval of the Law Firm or a court order.\\n\\n 26\\n\\nThe Third Circuit has strongly criticized a similar protocol and explicitly ruled that non-\\n\\nlawyer federal agents could not make privilege determinations. See In re Search of Elec.\\n\\nCommc’ns, 802 F.3d 516, 530 & n.54 (3d Cir. 2015).\\n\\n In addition to the separation of powers issues that arise from the Filter Protocol’s\\n\\ndelegation of judicial functions to the Filter Team, there are other apparent legal problems\\n\\ntherewith. There is the possibility that a filter team — even if composed entirely of trained\\n\\nlawyers — will make errors in privilege determinations and in transmitting seized materials\\n\\nto an investigation or prosecution team. On this point, the Sixth Circuit recognized several\\n\\nyears ago that such filter teams present “reasonably foreseeable risks to privilege” and\\n\\n“have been implicated . . . in leaks of confidential information to prosecutors.” See In re\\n\\nGrand Jury Subpoenas, 454 F.3d at 523. As Judge Boggs aptly explained, a filter team\\n\\nmight “have an interest in preserving privilege, but it also possesses a conflicting interest\\n\\nin pursuing the investigation, and . . . some [filter] team attorneys will make mistakes or\\n\\nviolate their ethical obligations. It is thus logical to suppose that [filter] teams pose a\\n\\nserious risk to holders of privilege.” Id.\\n\\n As the Sixth Circuit also emphasized, filter team errors can arise from differences\\n\\nof opinion regarding privilege. See In re Grand Jury Subpoenas, 454 F.3d at 523. In\\n\\nexplaining that problem, the court elaborated that a filter team’s members “might have a\\n\\nmore restrictive view of privilege” than the subject of the search, given their prosecutorial\\n\\ninterests in pursuing the underlying investigations. Id. That “more restrictive view of\\n\\nprivilege” could cause privileged documents to be misclassified and erroneously provided\\n\\nto an investigation or prosecution team. Id.\\n\\n 27\\n\\n The Sixth Circuit also acknowledged that filter team errors can result from mistakes\\n\\nor neglect, and described one infamous occurrence as follows:\\n\\n In United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991), . . . the\\n government’s [filter] team missed a document obviously protected by\\n attorney-client privilege, by turning over tapes of attorney-client\\n conversations to members of the investigating team. This Noriega incident\\n points to an obvious flaw in the [filter] team procedure: the government’s\\n fox is left in charge of the [law firm’s] henhouse, and may err by neglect or\\n malice, as well as by honest differences of opinion.\\n\\nSee In re Grand Jury Subpoenas, 454 F.3d at 523 (emphasis added).\\n\\n Strikingly, the risks to attorney-client privilege and the work-product doctrine that\\n\\nwere identified by the Sixth Circuit have been recently realized in the District of Maryland,\\n\\nfrom which this appeal arises. See United States v. Elbaz, No. 8:18-cr-00157, slip op. at\\n\\n4-6 (D. Md. June 20, 2019), ECF No. 216 (the “Elbaz opinion”). According to the Elbaz\\n\\nopinion, the government’s filter team improperly disclosed thousands of potentially\\n\\nprivileged documents to a prosecution team, which then examined some of the documents.\\n\\nId. Those blunders occurred nearly a year before this Filter Team was authorized by the\\n\\nmagistrate judge. Id. at 3-6. And the Elbaz opinion detailing that filter team’s mistakes\\n\\nwas filed in the District of Maryland on June 20, 2019, just a week after the magistrate\\n\\njudge’s authorization of this Filter Team on June 13, 2019, and three weeks before the\\n\\ndistrict court’s Denial Order of July 11, 2019.\\n\\n In sum, the Filter Protocol improperly delegated judicial functions to the Filter\\n\\nTeam. And the magistrate judge failed to recognize and consider the significant problems\\n\\nwith that delegation, which left the government’s fox in charge of guarding the Law Firm’s\\n\\nhenhouse. See In re Grand Jury Subpoenas, 454 F.3d at 523.\\n\\n 28\\n\\n 2.\\n\\n Relatedly, the magistrate judge erred by prematurely authorizing the Filter Team\\n\\nand its Protocol in ex parte proceedings that it conducted on June 13, 2019, five days before\\n\\nthe search warrant was executed and voluminous seizures were made from the Law Firm. 17\\n\\nFirst, the timing of the judge’s authorization undermined the judge’s ability to exercise\\n\\ndiscretion with respect to the Filter Team and its Protocol, in that the judge could not have\\n\\nbeen fully informed of what was seized from the Law Firm. See James v. Jacobson, 6 F.3d\\n\\n233, 238 (4th Cir. 1993) (emphasizing that court’s exercise of discretion must be\\n\\n“informed”). And the judge may well have rejected the Filter Team and its Protocol if the\\n\\njudge had known (1) that 99.8 percent of the 52,000 seized emails were not from Client A,\\n\\nwere not sent to Client A, and did not mention Client A’s surname; and (2) that many of\\n\\nthose seized emails contained privileged information concerning other clients of the Law\\n\\nFirm. Put simply, the judge should have deferred the decision concerning the proposed\\n\\nFilter Team and its Protocol pending the execution and return of the search warrant.\\n\\n\\n\\n\\n 17\\n Although the Law Firm generally contests the ex parte actions of the government\\nbelow and on appeal, the Firm does not specifically argue that the magistrate judge erred\\nby approving the Filter Team and its Protocol in ex parte proceedings before the search\\nwas conducted. See Br. of Appellant 57; Reply Br. of Appellant 3, 22. We are nevertheless\\nsatisfied that the process by which the authorization was made falls within the Law Firm’s\\nbroad challenge to the Filter Team and its Protocol. Moreover, we are entitled to assess\\nlegal issues that have not been squarely raised when it facilitates the correct resolution of\\nan appeal. See Meyers v. Lamer, 743 F.3d 908, 912 (4th Cir. 2014) (emphasizing that “it\\nis the fundamental province of this Court to decide cases correctly, even if that means\\nconsidering arguments . . . not raised by the parties at all”).\\n\\n 29\\n\\n Second, the magistrate judge should have declined the government’s ex parte\\n\\ninvitation with respect to the Filter Team, and the judge should have conducted adversarial\\n\\nproceedings on whether to authorize the Filter Team and the Filter Protocol. See RSZ\\n\\nHoldings AVV v. PDVSA Petroleo S.A., 506 F.3d 350, 356 (4th Cir. 2007) (emphasizing\\n\\nthat ex parte proceedings are “greatly disfavored”); In re Ingram, 915 F. Supp. 2d 761,\\n\\n763-64 (E.D. La. 2012) (assessing briefing from parties on propriety of filter team). In\\n\\nsuch contested proceedings, the judge could have been fully informed of the relevant\\n\\nbackground on the Law Firm and its clients, as well as the nature of the seized materials.\\n\\nAdditionally, the clients of the Law Firm and their lawyers could have been heard by the\\n\\njudge.\\n\\n In a recent example involving a proposed filter team, federal agents searched the\\n\\noffice of Michael Cohen, a New York City lawyer, and seized privileged materials. See\\n\\nCohen v. United States, No. 1:18-mj-03161 (S.D.N.Y. Apr. 13, 2018), ECF No. 6 at 4, 25.\\n\\nFour days after the search — and before the filter team created by the search warrant had\\n\\nreviewed any of the seized materials — the district court conducted adversarial proceedings\\n\\nconcerning the prosecutor’s proposed use of a filter team. See generally Cohen, ECF No.\\n\\n36 (May 1, 2018). Prior to those proceedings, the court was informed of the materials that\\n\\nhad been seized from Cohen’s office. See Cohen, ECF No. 6 at 18-19. During the\\n\\nproceedings, the court heard from Cohen’s lawyer and the lawyer for Cohen’s primary\\n\\nclient, who each argued against court approval of the filter team request. See Cohen, ECF\\n\\nNo. 36 at 12-16, 30-31.\\n\\n\\n\\n 30\\n\\n The sensible procedures adhered to by the Cohen court demonstrate that, if the\\n\\nmagistrate judge had conducted adversarial proceedings after the search but before\\n\\napproving the Filter Team and its Protocol in this case, the judge would have been fully\\n\\ninformed of the materials that were seized from the Law Firm. The judge would then have\\n\\nheard from the Law Firm’s counsel, and possibly also from the clients of the Firm through\\n\\ntheir lawyers, before the Filter Team reviewed any seized materials. The upshot is that —\\n\\nin failing to conduct adversarial proceedings prior to authorizing the Filter Team and its\\n\\nProtocol — the magistrate judge prematurely granted the ex parte request of the United\\n\\nStates Attorney. 18\\n\\n 3.\\n\\n a.\\n\\n We are also troubled that, in summarily approving the Filter Team and its Protocol,\\n\\nthe magistrate judge — like the district court in thereafter assessing the Injunction Requests\\n\\n— gave no indication that she had weighed any of the important legal principles that protect\\n\\nattorney-client relationships. Put simply, the Filter Protocol authorized government agents\\n\\nand prosecutors to rummage through Lawyer A’s email files. Again, many of the emails\\n\\n\\n\\n 18\\n The process adhered to by the Cohen court is pertinent to these proceedings in\\nseveral material respects. For example, the Cohen filter team did not review any of the\\nseized materials prior to an adversarial hearing and a ruling on the filter team’s propriety.\\nImportantly, the court heard from Cohen’s lawyer and counsel for Cohen’s primary client\\nin those proceedings. The court ultimately rejected the government’s filter team proposal\\nand appointed a special master. See Cohen, ECF No. 30 (Apr. 27, 2018). Notably, the\\nCohen proceedings were conducted more than a year before the magistrate judge’s\\nauthorization of this Filter Team.\\n\\n 31\\n\\nconcerned other clients and other matters. The court’s authorization of such an extensive\\n\\nreview of client communications and lawyer discussions by government agents and\\n\\nprosecutors was made in disregard of the attorney-client privilege, the work-product\\n\\ndoctrine, and the Sixth Amendment. See Klitzman, Klitzman & Gallagher v. Krut, 744\\n\\nF.2d at 961 (criticizing seizures of client files from law firm because government made no\\n\\neffort to limit seizures of firm’s materials, and thereby “trampl[ed]” on attorney-client\\n\\nprivilege and work-product protections as to all clients); United States v. Stewart, No. 1:02-\\n\\ncr-00396, 2002 WL 1300059, at *5, *10 (S.D.N.Y. June 11, 2002) (explaining that search\\n\\nof lawyer’s office raised Sixth Amendment concerns and appointing special master where\\n\\ndocuments seized from law firm were likely to contain privileged information relating to\\n\\ncriminal defendants). The magistrate judge erred in failing to explicitly weigh those\\n\\nfoundational principles that protect attorney-client relationships.\\n\\n b.\\n\\n At this juncture, we emphasize another “serious defect” of the Filter Protocol\\n\\nchallenged by the Law Firm as subverting attorney-client relationships. See Reply Br. of\\n\\nAppellant 14 n.4. Specifically, the Filter Protocol prospectively authorized the Filter Team\\n\\nto contact the Law Firm’s clients ex parte and seek waivers of their attorney-client\\n\\nprivileges. The Model Rules of Professional Conduct, however, generally bar a lawyer\\n\\nfrom communicating with a represented party about the subject of the representation\\n\\nwithout the represented party’s lawyer being present. See Model Rules of Prof’l Conduct\\n\\nr. 4.2 (Am. Bar Ass’n 1983); 2 Hazard, Jr. et al., supra, § 41.02 (explaining that Rule 4.2\\n\\n“prevents a lawyer from taking advantage of a lay person”); id. § 41.12 (discussing\\n\\n 32\\n\\napplication of Rule 4.2 to prosecutors). Although an exception to that rule can — in the\\n\\nproper circumstances — be made by a court, any such court order should be predicated on\\n\\nan individualized assessment of the attorney-client relationship. See Model Rules of Prof’l\\n\\nConduct r. 4.2; see also United States v. Lopez, 4 F.3d 1455, 1462 (9th Cir. 1993)\\n\\n(explaining that court must make “informed decision” regarding whether to authorize\\n\\nlawyer’s communication with represented party). That was not even attempted here, in\\n\\nthat the Filter Protocol was approved ex parte before the search warrant was executed.\\n\\n By asking the Law Firm to furnish the Filter Team with a client list — which could\\n\\nbe used by Filter Team members to directly contact clients and seek privilege waivers\\n\\nunder the Filter Protocol — the government demonstrated a lack of respect for the attorney-\\n\\nclient privilege and the Firm’s duty of confidentiality to its clients. In declining to reveal\\n\\na client list to the Filter Team, the Law Firm relied on its ethical obligations to protect\\n\\nconfidential and privileged information relating to its clients. See Br. of Appellant 37\\n\\n(asserting that the government’s request for a client list ignored the proposition that the\\n\\nLaw Firm is “ethically prohibited from disclosing . . . the identity of clients when the\\n\\nrelationship remains confidential”); see also Model Rules of Prof’l Conduct r. 1.6(a)\\n\\n(describing duty of confidentiality). Such information will sometimes include the\\n\\nexistence of the lawyer-client relationship itself. See In re Grand Jury Subpoena, 204 F.3d\\n\\n516, 520 (4th Cir. 2000) (recognizing that the attorney-client privilege can “extend to the\\n\\nclient’s identity”); 1 Hazard, Jr. et al., supra, § 10.12 (collecting cases where client identity\\n\\nconsidered confidential or privileged). The breach of the duty of confidentiality “is\\n\\nenforceable by civil remedies as well as through the [attorney] disciplinary process.” See\\n\\n 33\\n\\n1 Hazard, Jr. et al., supra, § 10.16, 10-108.1. And a breach of the attorney-client privilege\\n\\nby an attorney is likewise sanctionable. See id. Indeed, at least one jurisdiction imposes\\n\\ncriminal penalties for improperly breaching attorney-client privilege. See Tenn. Code Ann.\\n\\n§ 23-3-107. In short, authorizing the government in ex parte proceedings to directly\\n\\ncontact any and all clients of the Law Firm is another example of how the Filter Protocol\\n\\napproved by the magistrate judge undermined attorney-client principles.\\n\\n 4.\\n\\n At bottom, the magistrate judge erred in assigning judicial functions to the Filter\\n\\nTeam, approving the Filter Team and its Protocol in ex parte proceedings without first\\n\\nascertaining what had been seized in the Law Firm search, and disregarding the\\n\\nfoundational principles that serve to protect attorney-client relationships. In these\\n\\ncircumstances, we are satisfied that the magistrate judge (or an appointed special master)\\n\\n— rather than the Filter Team — must perform the privilege review of the seized materials.\\n\\nSee Klitzman, Klitzman & Gallagher, 744 F.2d at 962 (recommending appointment of\\n\\nspecial master in similar circumstances); United States v. Gallego, No. 4:18-cr-01537, slip\\n\\nop. at 5-6 (D. Ariz. Sept. 6, 2018), ECF No. 65 (appointing a special master “to review the\\n\\nitems seized from [the] [d]efendant’s law office for privilege and responsiveness to the\\n\\nsearch warrant”); Cohen, ECF No. 30 (Apr. 27, 2018) (appointing special master to review\\n\\ndocuments seized from lawyer); Stewart, 2002 WL 1300059, at *10 (appointing special\\n\\nmaster to perform privilege review of documents seized from office of criminal defense\\n\\n\\n\\n\\n 34\\n\\nlawyer). 19 We are therefore satisfied that the Law Firm has demonstrated that it is likely\\n\\nto succeed on the merits.\\n\\n C.\\n\\n In order to prevail on the next injunction factor, the Law Firm is obliged to show\\n\\nthat the equities weigh in its favor. See Winter, 555 U.S. at 20. And we are satisfied that\\n\\nthe Law Firm has done so. Specifically, the harm to the Law Firm and its clients that will\\n\\nbe caused by continuing the Filter Team’s review outweighs any harm to the government\\n\\nthat might result from the magistrate judge conducting the privilege review of the seized\\n\\nmaterials. Indeed, we discern no harm to the government in barring the Filter Team from\\n\\nrummaging through Law Firm materials that are unrelated to the underlying investigations.\\n\\n In seeking to convince us otherwise, the government maintains that the magistrate\\n\\njudge’s review of the seized materials will unduly delay the government’s investigations.\\n\\nAnd the government claims that it has an interest in efficiently investigating criminal\\n\\nwrongdoing. Although efficient criminal investigations are certainly desirable, we are not\\n\\npersuaded that the claimed delay in its investigations weighs in the government’s favor.\\n\\nPut simply, the government chose to proceed by securing a search warrant for the Law\\n\\nFirm and seeking and obtaining the magistrate judge’s approval of the Filter Protocol. The\\n\\n\\n\\n 19\\n The government contends on appeal that the Filter Team’s privilege review of the\\nseized materials is no different than such a review by a magistrate judge or a court-\\nappointed special master. Unlike the Filter Team, however, a magistrate judge and a\\nspecial master are judicial officers and neutral arbiters that have no stake in the outcome\\nof the privilege decisions. See In re Grand Jury Subpoenas, 454 F.3d at 523 (explaining\\ninherent conflict in authorizing filter team to decide privilege claims).\\n\\n 35\\n\\ngovernment should have been fully aware that use of a filter team in these circumstances\\n\\nwas ripe for substantial legal challenges, and should have anticipated that those challenges\\n\\ncould delay its investigations. 20 And, in any event, delay in the government’s\\n\\ninvestigations here does not outweigh the harm to the Law Firm and its clients caused by\\n\\nthe Filter Team’s review. See In re Grand Jury Subpoenas, 454 F.3d at 523-24.\\n\\n The government also argues that the equities weigh against the Law Firm because\\n\\nthe Firm waited ten days after the search to file its Injunction Requests. We are\\n\\nunconvinced, however, that the Law Firm somehow slumbered on its rights. Indeed, the\\n\\nLaw Firm contested the search and seizures when they were ongoing and — three days\\n\\nthereafter — dispatched a detailed letter to the United States Attorney objecting to what\\n\\nhad occurred and what was apparently going on with the Filter Team. The prosecutors\\n\\nignored that letter, prompting the Law Firm to file its Injunction Requests. We do not fault\\n\\nthe Law Firm for seeking a negotiated resolution of these important disputes before\\n\\nrequesting court intervention. And we will not reward the government for ignoring those\\n\\nefforts. See Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 522 (1947) (“[H]e who\\n\\nseeks equity must do equity.”). In these circumstances, the Law Firm has convincingly\\n\\nshown that the equities weigh in its favor.\\n\\n D.\\n\\n\\n\\n 20\\n Notwithstanding the government’s responsibility for some of the delay about\\nwhich it complains, we are nevertheless sensitive to its concerns. Indeed, we have\\nexpedited this appeal, and we issued our Interim Order within two days of the oral\\nargument.\\n\\n 36\\n\\n Finally, the Law Firm is obliged to establish, in order to secure the relief it seeks,\\n\\nthat “an injunction is in the public interest.” See Winter, 555 U.S. at 20. We are satisfied\\n\\nthat an award of injunctive relief in these circumstances supports the “strong public\\n\\ninterest” in the integrity of the judicial system. See United States v. Hasting, 461 U.S. 499,\\n\\n527 (1983) (Brennan, J., concurring in part and dissenting in part). By creating\\n\\nappearances of unfairness to the Law Firm clients who are unrelated to the government’s\\n\\ninvestigation of Client A, the Filter Team and its Protocol contravene the public interest.\\n\\nSee Gallego, slip op. at 4-6 (recognizing appearances of unfairness inherent in use of filter\\n\\nteams and appointing special master to review materials seized from law firm); Stewart,\\n\\n2002 WL 1300059, at *8 (explaining that “it is important that the procedure adopted [for\\n\\nthe review of seized materials] . . . not only be fair but also appear to be fair”); United\\n\\nStates v. Neill, 952 F. Supp. 834, 841 n.14 (D.D.C. 1997) (emphasizing that use of filter\\n\\nteam creates “appearance of unfairness”). For those clients — and to the public at large —\\n\\nit surely appears, as the Sixth Circuit recognized, that “the government’s fox [has been]\\n\\nleft in charge of the [Law Firm’s] henhouse.” See In re Grand Jury Subpoenas, 454 F.3d\\n\\nat 523; see also In re Search Warrant for Law Offices Executed on Mar. 19, 1992, 153\\n\\nF.R.D. 55, 59 (S.D.N.Y. 1994) (“It is a great leap of faith to expect that members of the\\n\\ngeneral public would believe any . . . wall [between a filter team and a prosecution team]\\n\\nwould be impenetrable; this notwithstanding our own trust in the honor of an AUSA.”).\\n\\n Appearances of unfairness are especially apparent in these proceedings, in that the\\n\\nFilter Team includes prosecutors employed in the same judicial district where Law Firm\\n\\nclients “are being investigated by, or are being prosecuted by,” the United States Attorney\\n\\n 37\\n\\nfor Maryland. See S.J.A. 66. It would be difficult for reasonable members of the public to\\n\\nbelieve that Filter Team AUSAs would disregard information in Lawyer A’s emails that\\n\\nmight be relevant to other criminal inquiries in Maryland. In fact, the government has\\n\\nnever disclaimed an intention to use the plain-view doctrine in connection with the Filter\\n\\nTeam’s access to the materials seized from the Law Firm. See United States v. Rumley,\\n\\n588 F.3d 202, 205 (4th Cir. 2009) (explaining that, under the plain-view doctrine, a law\\n\\nenforcement officer can make a seizure of an object in plain view if, inter alia, “the object’s\\n\\nincriminating character is immediately apparent” (internal quotation marks omitted)); cf.\\n\\nUnited States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1178 (9th Cir. 2010)\\n\\n(Kozinski, C.J., concurring) (suggesting that, “[w]hen the government wishes to obtain a\\n\\nwarrant to examine a[n] . . . electronic storage medium to search for certain incriminating\\n\\nfiles, . . . magistrate judges should insist that the government forswear reliance on the plain-\\n\\nview doctrine” (citation omitted)). 21\\n\\n Due to the appearances of unfairness caused by the Filter Team, and in view of the\\n\\nother problems associated with the Filter Team, it is surprising that the government has so\\n\\nvigorously supported it. We simply observe that prosecutors have a responsibility to not\\n\\nonly see that justice is done, but to also ensure that justice appears to be done. See In re\\n\\n\\n\\n 21\\n Even if the Filter Team AUSAs have been instructed to ignore information\\nrelating to possible criminal activity by other Law Firm clients in the seized materials, our\\nplain view concerns would not be assuaged. The review of such information by the Filter\\nTeam AUSAs cannot be undone. Additionally, the IRS and DEA agents on the Filter Team\\nhave their own superiors. It may well be difficult for those agents to withhold from their\\nsuperiors information about possible crimes potentially identified in the seized materials.\\n\\n 38\\n\\nSearch Warrant for Law Offices, 153 F.R.D. at 59 (“The appearance of [j]ustice must be\\n\\nserved, as well as the interests of [j]ustice.”). Federal agents and prosecutors rummaging\\n\\nthrough law firm materials that are protected by attorney-client privilege and the work-\\n\\nproduct doctrine is at odds with the appearance of justice.\\n\\n ***\\n\\n As reflected herein, we are satisfied that the magistrate judge’s authorization of the\\n\\nFilter Team and the Filter Protocol was improper and that injunctive relief is warranted.\\n\\nThe district court thus abused its discretion by failing to enjoin the Filter Team’s review of\\n\\nthe seized materials. 22\\n\\n\\n\\n IV.\\n\\n Pursuant to the foregoing and our Interim Order, we reverse the district court’s\\n\\nDenial Order and remand for such other and further proceedings as may be appropriate.\\n\\n REVERSED AND REMANDED\\n\\n\\n\\n\\n 22\\n Although the Law Firm has raised Fourth Amendment contentions, we leave those\\nissues to the district court. See Lovelace v. Lee, 472 F.3d 174, 203 (4th Cir. 2006)\\n(emphasizing that this Court is “a court of review, not of first view” (internal quotation\\nmarks omitted)).\\n\\n 39\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4576,"cells":{"id":{"kind":"number","value":4674864,"string":"4,674,864"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Curtis Moore v. Denise Frazier"},"decision_date":{"kind":"string","value":"2019-10-31"},"docket_number":{"kind":"string","value":"18-2441"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"AGEE, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-2441\\n\\n\\nCURTIS DEWAYNE MOORE; PATRICIA GRANT-MOORE,\\n\\n Plaintiffs - Appellants,\\n\\nv.\\n\\nDENISE M. FRAZIER, District Director, Citizenship and Immigration Services;\\nKENNETH T. CUCCINELLI, Acting Director, Citizenship & Immigration Services;\\nKEVIN K. McALEENAN, Acting Secretary, Department of Homeland Security;\\nWILLIAM P. BARR, Attorney General,\\n\\n Defendants - Appellees.\\n\\n\\nAppeal from the United States District Court for the Eastern District of North Carolina, at\\nRaleigh. Louise W. Flanagan, District Judge. (5:17-cv-00542-FL)\\n\\n\\nArgued: September 18, 2019 Decided: October 31, 2019\\n\\n\\nBefore WILKINSON, NIEMEYER, and AGEE, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Agee wrote the opinion, in which Judge Wilkinson\\nand Judge Niemeyer joined.\\n\\n\\nARGUED: William Randall Stroud, ARANEDA AND STROUD LAW GROUP,\\nRaleigh, North Carolina, for Appellants. Lori B. Warlick, UNITED STATES\\nDEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Jorgelina\\nE. Araneda, ARANEDA AND STROUD LAW GROUP, Raleigh, North Carolina, for\\nAppellants. Robert J. Higdon, Jr., United States Attorney, Joshua B. Royster, Assistant\\n\\fUnited States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,\\nNorth Carolina, for Appellees.\\n\\n\\n\\n\\n 2\\n\\fAGEE, Circuit Judge:\\n\\n Curtis Dewayne Moore and his wife, Patricia Grant-Moore, appeal from the district\\n\\ncourt’s dismissal of their complaint alleging the U.S. Citizenship and Immigration Services\\n\\n(“USCIS”) unlawfully rejected the Form I-130 Petition for Alien Relative (“I-130\\n\\nPetition”) that Mr. Moore filed on behalf of his wife. The Moores alleged USCIS erred by\\n\\ndenying the I-130 Petition according to an amended version of 8 U.S.C. § 1154 that was in\\n\\neffect when the petition was adjudicated rather than using the version of that statute in\\n\\neffect when the petition was filed. The district court dismissed the Moores’ complaint after\\n\\nconcluding it lacked jurisdiction to consider the claim under the Immigration and\\n\\nNationality Act (“INA”), 8 U.S.C. § 1101 et seq. For the reasons set out below, we conclude\\n\\nthat the district court had jurisdiction, but we affirm the judgment dismissing the complaint\\n\\nbecause USCIS correctly used the amended statute in adjudicating Mr. Moore’s I-130\\n\\nPetition.\\n\\n\\n\\n I.\\n\\n The underlying facts are not in dispute. Mr. Moore is a United States citizen; Mrs.\\n\\nMoore is a citizen of Jamaica. The couple married in February 2006. Two months later,\\n\\nMr. Moore pleaded guilty to a Colorado sex offense involving a minor victim. The\\n\\nfollowing month, Mr. Moore filed an I-130 Petition, which is the first step to having a non-\\n\\ncitizen’s immigration status reclassified based on a familial relationship to a U.S. citizen.\\n\\nSee 8 U.S.C. § 1154(a)(1)(A)(i); 8 U.S.C. § 1101(a)(15)(K)(ii).\\n\\n\\n\\n 3\\n\\f At the time Mr. Moore filed his I-130 Petition, 8 U.S.C. § 1154 authorized all U.S.\\n\\ncitizens to file an I-130 Petition, have USCIS confirm the bona fides of the factual basis\\n\\nfor the adjustment of status, and thereafter obtain USCIS “approval” of the I-130 Petition\\n\\nso that the non-citizen family member could then pursue reclassification. A few months\\n\\nafter Mr. Moore filed his I-130 Petition, but before USCIS acted on it, 8 U.S.C. § 1154 was\\n\\namended as part of the Adam Walsh Child Protection and Safety Act of 2006 to require an\\n\\nadditional step: USCIS must perform a no-risk determination for U.S. citizen petitioners\\n\\nwith a conviction for specified offenses against a minor. The statute was amended in two\\n\\nways, adding the following italicized text to Clause (i) and adding an entirely new provision\\n\\nas Clause (viii):\\n\\n (i) Except as provided in clause (viii), any citizen of the United States\\n claiming that an alien is entitled to classification by reason of\\n [marriage] . . . may file a petition with the Attorney General for such\\n classification.\\n\\n ....\\n\\n (viii)(I) Clause (i) shall not apply to a citizen of the United States who has\\n been convicted of a specified offense against a minor, unless the\\n Secretary of Homeland Security, in the Secretary’s sole and\\n unreviewable discretion, determines that the citizen poses no risk to\\n the alien with respect to whom a petition described in clause (i) is\\n filed.\\n\\nClause (viii) also defines what a “specified offense against a minor” is by incorporating the\\n\\ndefinition from 34 U.S.C. § 20911. 8 U.S.C. § 1154(a)(1)(A)(viii)(II).\\n\\n Over three years after Mr. Moore filed his I-130 Petition, in December 2009, USCIS\\n\\ndenied it. The administrative record is not part of the record in this case, but the final\\n\\ndenial—which followed several appeals to the Board of Immigration Appeals (“BIA”) and\\n\\n 4\\n\\fremands to USCIS—was based on USCIS’s determination that Mr. Moore had a qualifying\\n\\nconviction for a specified offense against a minor and that he had failed to show he posed\\n\\nno risk to his wife. In August 2017, the BIA issued a one-member final decision dismissing\\n\\nMr. Moore’s appeal of USCIS’s decision.\\n\\n Thereafter, the Moores filed a complaint in the U.S. District Court for the Eastern\\n\\nDistrict of North Carolina alleging that USCIS’s denial of Mr. Moore’s I-130 Petition\\n\\nviolated the Administrative Procedure Act (“APA”), the INA, and the Fifth Amendment of\\n\\nthe U.S. Constitution. Specifically, they alleged that the amended version of 8 U.S.C.\\n\\n§ 1154 did not apply to Mr. Moore’s I-130 Petition because he had filed the petition prior\\n\\nto the amendment and the statutory language applies prospectively, caveating who may\\n\\nfile. They sought a declaratory judgment that Mr. Moore was entitled to approval of his I-\\n\\n130 Petition under the version of § 1154 applicable at the time it was filed.\\n\\n USCIS moved to dismiss for lack of jurisdiction, and the district court granted that\\n\\nmotion. 1 In sum, the district court concluded that the INA did not authorize federal district\\n\\ncourts to review the denial of an I-130 Petition because 8 U.S.C. § 1252(a)(2)(B) stripped\\n\\nfederal courts of jurisdiction to review the denial of discretionary relief such as I-130\\n\\nPetitions. Further, it held that § 1252(a)(2)(D) authorized only courts of appeals to review\\n\\n\\n\\n\\n 1\\n The four defendants being sued in their official capacities are Denise Frazier, the\\nDistrict Director for the USCIS office that denied Mr. Moore’s I-130 Petition; Kenneth T.\\nCuccinelli, the Director of USCIS; Kevin K. McAleenan, the Acting Secretary of the\\nDepartment of Homeland Security (under which USCIS operates); and William P. Barr,\\nthe Attorney General of the United States. The opinion will refer to them collectively as\\n“USCIS.”\\n 5\\n\\fagency decisions and only in the context of a removal proceeding. Based on its reading of\\n\\nthese provisions, the district court held it lacked jurisdiction to consider the Moores’ claim.\\n\\n The Moores noted a timely appeal, and the Court has jurisdiction under 28 U.S.C.\\n\\n§ 1291.\\n\\n\\n\\n II.\\n\\n A.\\n\\n We review the district court’s dismissal of the Moores’ complaint under a split\\n\\nstandard of review, reviewing its factual findings for clear error and its legal conclusions\\n\\nde novo. Al Shimari v. CACI Premier Tech., Inc., 840 F.3d 147, 154 (4th Cir. 2016). When\\n\\nreviewing the proper interpretation of a statute that is unambiguous, “our analysis begins\\n\\nand ends with the statute’s plain language.” Ignacio v. United States, 674 F.3d 252, 257\\n\\n(4th Cir. 2012). Further, we construe “statute[s] affecting federal jurisdiction . . . both with\\n\\nprecision and with fidelity to the terms by which Congress has expressed its wishes.”\\n\\nKucana v. Holder, 558 U.S. 233, 252 (2010).\\n\\n B.\\n\\n Determining if the district court had jurisdiction to consider the Moores’ complaint\\n\\nrequires us to examine the interplay between the APA and the INA, as well as our prior\\n\\ncases discussing those statutory provisions. Under the APA, an individual who is adversely\\n\\naffected by an agency action “is entitled to judicial review thereof,” 5 U.S.C. § 702, with\\n\\nthe exception that this express statutory grant of a cause of action does not “affect[] other\\n\\nlimitations on judicial review” or “confer[] authority to grant relief if any other statute that\\n\\n 6\\n\\fgrants consent to suit expressly or impliedly forbids the relief that is sought,” id. In sum,\\n\\nthe APA authorizes suits “except to the extent that” “statutes preclude judicial review” or\\n\\n“agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a) (emphasis\\n\\nadded). The APA thus “provide[s] a limited cause of action for parties adversely affected\\n\\nby agency action.” Lee v. U.S. Citizenship and Immig. Servs., 592 F.3d 612, 619 (4th Cir.\\n\\n2010). 2\\n\\n The INA contains several limitations on when an individual can seek judicial review\\n\\nof immigration-related agency determinations under the APA. For example, 8 U.S.C.\\n\\n§ 1252(a)(2)(B) provides that even if the APA or other federal law would grant federal\\n\\ncourts jurisdiction to consider a particular claim,\\n\\n no court shall have jurisdiction to review--\\n (i) any judgment regarding the granting of relief under section\\n 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or\\n\\n (ii) any other decision or action of the Attorney General or the\\n Secretary of Homeland Security the authority for which is\\n specified under this subchapter to be in the discretion of the\\n Attorney General or the Secretary of Homeland Security, other\\n than the granting of relief under section 1158(a) of this title.[ 3]\\n\\nNotwithstanding this general jurisdiction-stripping language, the INA expressly authorizes\\n\\ncourts of appeals to review “constitutional claims or questions of law raised upon a petition\\n\\nfor review” in the context of removal proceedings. 8 U.S.C. § 1252(a)(2)(D) (stating that\\n\\nsubsection (a)(2)(B) must not “be construed as precluding review of constitutional claims\\n\\n\\n 2\\n Here and throughout the opinion, we have omitted internal quotation marks,\\nalterations, and citations except where otherwise noted.\\n 3\\n “[T]his subchapter” refers to Subchapter 2 of Chapter 12 of Title 8. Subchapter 2\\ncovers immigration and spans 8 U.S.C. §§ 1151 to 1382.\\n 7\\n\\for questions of law raised upon a petition for review filed with an appropriate court of\\n\\nappeals in accordance with this section”). Of course, the Moores’ complaint and\\n\\nsubsequent appeal are not upon a petition for review.\\n\\n In Roland v. U.S. Citizenship and Immigration Services, 850 F.3d 625 (4th Cir.\\n\\n2017), we considered how these statutes operate together when considering whether the\\n\\ndistrict court had jurisdiction to consider an APA challenge to USCIS’s denial of an I-130\\n\\nPetition. Unlike Mr. Moore, Roland filed an I-130 Petition after the enactment of the Adam\\n\\nWalsh Act’s amendments to 8 U.S.C. § 1154. Id. at 627. USCIS denied his petition after\\n\\nperforming its no-risk assessment. Id. at 627–28. After his I-130 petition was denied,\\n\\nRoland and his wife filed a claim under the APA in district court. Id. at 628. Seeking to\\n\\navoid § 1252(a)(2)(B)(ii)’s jurisdictional bar, the Rolands asserted the district court had\\n\\njurisdiction to consider the claim because “they [did] not seek review of the agency\\n\\ndetermination itself, but rather of the legal and constitutional issues [such as] the standard\\n\\nof proof and the administrative process in adopting the rules which the USCIS used[.]” Id.\\n\\n Relying on the statutory language, we rejected the Rolands’ attempt to distinguish\\n\\nbetween the types of decisions USCIS made as part of the no-risk determination. In\\n\\nparticular, we observed that § 1252(a)(2)(B)(ii) states that “‘no court shall have jurisdiction\\n\\nto review’ certain discretionary actions or decisions” of USCIS and that\\n\\n§ 1154(a)(1)(A)(viii)(I) gave USCIS “‘sole and unreviewable discretion’ to determine\\n\\nwhether a petitioner poses no risk[.]” Id. at 629. Because the INA “specifically deems the\\n\\nno-risk determination as discretionary,” we also concluded it stripped federal courts of the\\n\\nauthority to review an agency decision unless another provision expressly authorized\\n\\n 8\\n\\freview. Id. We then observed that although § 1252(a)(2)(D) “permit[s] judicial review of\\n\\nconstitutional claims or legal questions” arising from that specific statutory authority, any\\n\\nsuch review is limited by the plain language of the statute to consideration “raised upon a\\n\\npetition for review filed with an appropriate court of appeals during removal proceedings.”\\n\\nId. Accordingly, no statute authorized review of USCIS’s no-risk determination in the\\n\\ndistrict court. Id. at 629–30.\\n\\n We observed in Roland that our reading of the statutory language was consistent\\n\\nwith our earlier decision in Lee v. U.S. Citizenship and Immigration Services, 592 F.3d 612\\n\\n(4th Cir. 2010), in which we also considered “the jurisdictional limiting effect of 8 U.S.C.\\n\\n§ 1252(a)(2)(B) on certain discretionary agency decisions.” Roland, 850 F.3d at 630. Lee\\n\\ninvolved a different type of discretionary relief and we held the appellant’s claim was\\n\\nbarred by a different provision in § 1252(a)(2)(B). Specifically, Lee had petitioned “for\\n\\nadjusted status based on employment” under 8 U.S.C. § 1255. Section 1252(a)(2)(B)(i)\\n\\nspecifically states that USCIS’s judgments concerning relief under § 1255 are not subject\\n\\nto judicial review. Id. (citing Lee, 592 F.3d at 618–19). Under the plain language of the\\n\\nstatute, we rejected the Lee petitioner’s contention that “he merely challenged the eligibility\\n\\ndetermination rather than the denial [of his petition for adjusted status] as a whole, because\\n\\nsuch relevant determinations cannot be divorced from the denial itself.” Id. (citing Lee, 592\\n\\nF.3d at 620). Lastly, we observed that § 1252(a)(2)(B)’s “broad jurisdiction stripping\\n\\nprovisions” were limited by § 1252(a)(2)(D), which “serve[d] as the exclusive means of\\n\\njudicial review of a legal issue related to the denial of an adjustment of status.” Id. (citing\\n\\nLee, 592 F.3d at 620–21).\\n\\n 9\\n\\f C.\\n\\n The Moores contend the district court erred in concluding that it lacked jurisdiction\\n\\nunder § 1252(a)(2)(B)(ii). They posit that their claim does not fall under this jurisdiction-\\n\\nstripping provision because they are not challenging a decision that Congress committed\\n\\nto USCIS’s discretion. Asserting they are unlike the petitioner in Roland, the Moores argue\\n\\nthey are not challenging any aspect of USCIS’s no-risk determination (which the statute\\n\\nleaves to USCIS’s discretion). Instead, they assert that their claim is different because it\\n\\nchallenges USCIS’s non-discretionary decision to apply the amended version of § 1154 to\\n\\nMr. Moore’s I-130 Petition. The Moores contend that this threshold question as to which\\n\\nstatute governs USCIS’s review of the petition is a matter of congressional directive rather\\n\\nthan USCIS discretion. As such, they argue that federal courts can review that decision\\n\\nwithout running afoul of § 1252(a)(2)(B)(ii).\\n\\n We agree with the Moores that the INA does not prevent the district court from\\n\\nreviewing their claim. First, although § 1252(a)(2)(B)(i) (“Clause (i)”) strips federal courts\\n\\nof jurisdiction to consider “any judgment regarding the granting of relief” sought under\\n\\nspecific statutes, § 1154—which governs I-130 Petitions—is not one of the statutes listed.\\n\\nAs such, Clause (i) does not deprive district courts of jurisdiction to consider USCIS\\n\\nhandling of an I-130 Petition.\\n\\n Second, the district court is not deprived of jurisdiction under § 1252(a)(2)(B)(ii)\\n\\n(“Clause (ii)”), which states courts cannot review “decision[s] or action[s]” Congress has\\n\\nspecified are “in the discretion of” USCIS. However, Congress did not designate to\\n\\n\\n\\n 10\\n\\fUSCIS’s discretion the decision of which version of § 1154 would apply to I-130 Petitions\\n\\npending at the time the Adam Walsh Act amendments were adopted. 4\\n\\n In Kucana v. Holder, 558 U.S. 233 (2010), the Supreme Court reiterated that Clause\\n\\n(ii)’s text means only what it says—district courts lack jurisdiction “when Congress itself\\n\\n[has] set out the Attorney General’s discretionary authority in the statute,” and that neither\\n\\nsilence nor an agency-promulgated regulation is sufficient to strip federal courts of\\n\\njurisdiction under this provision. Id. at 247; see also id. at 249–51. In § 1154, Congress has\\n\\ndesignated only certain aspects of USCIS’s review of I-130 Petitions to be within the\\n\\nagency’s discretion. In both the original and amended versions of § 1154, USCIS retains\\n\\n“sole discretion” to determine “what evidence is credible and the weight to be given that\\n\\nevidence” in making a credibility determination as to the bona fides of the I-130 Petitions’\\n\\ncontents. 8 U.S.C. § 1154(a)(1)(J). And in the amended version, USCIS has “sole and\\n\\nunreviewable discretion” in undertaking the no-risk determination. Id.\\n\\n§ 1154(a)(1)(A)(viii)(I) and (a)(1)(B)(i)(I). 5\\n\\n Thus, although certain decisions or actions regarding I-130 Petitions have been\\n\\ncommitted to USCIS’s discretion, nowhere is the decision of which version of the statute\\n\\napplies to the adjudication of pending petitions committed to that discretion. That query is\\n\\nentirely separate from any of the discretionary decisions cited above, and instead involves\\n\\n\\n 4\\n The statute refers to the Attorney General and the Secretary of the Department of\\nHomeland Security, but 8 C.F.R. § 2.1 authorizes the Secretary to delegate those\\nadministration and enforcement duties. Responsibility for I-130 Petitions has been\\ndelegated to USCIS.\\n 5\\n There are two provisions designated by subclause (I), but this refers to the second\\none.\\n 11\\n\\fa question of USCIS’s statutory authority: which version of § 1154 governs its\\n\\nconsideration of Mr. Moore’s I-130 Petition? Contrast Lee, 592 F.3d at 620 (stating that\\n\\nthe question presented in that case “cannot be divorced from the denial [of relief] itself”).\\n\\nIn an analogous situation in Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court\\n\\nheld that § 1252(a)(2)(B)(ii) did not strip the courts of jurisdiction. There, the Supreme\\n\\nCourt noted that it had jurisdiction to consider the issue of “the extent of the Attorney\\n\\nGeneral’s authority under” a statute because that question did not “seek review of the\\n\\nAttorney General’s exercise of discretion.” Id. at 688. Similarly, the Moores do not seek\\n\\nreview of USCIS’s exercise of discretion within the evidentiary assessment or no-risk\\n\\ndetermination; rather, they asked the district court to consider the separate issue of whether\\n\\nUSCIS used the correct statute to review Mr. Moore’s I-130 Petition. As such,\\n\\n§ 1252(a)(2)(B)(ii) does not strip federal courts of jurisdiction to consider that issue. 6\\n\\n\\n 6\\n Two recent Supreme Court decisions acknowledging federal courts’ jurisdiction\\ndespite jurisdiction-stripping language lend further weight to our conclusion. Although a\\nmajority of the justices in each case agreed that jurisdiction existed, a majority did not sign\\nonto an agreed explanation of why that was so. Because the only relevant discussion\\nappears in an opinion that did not garner a majority of the Court, that discussion offers only\\npersuasive, but not binding, analysis. Yet in each case, Justice Alito, joined by Chief Justice\\nRoberts and Justice Kavanaugh, noted courts had jurisdiction to consider the issue\\npresented because it involved a question of statutory authority apart from the grant or denial\\nof relief that the statute committed to the agency’s discretion. See Nielsen v. Preap, 139 S.\\nCt. 954, 961–63 (2019) (Alito, J.) (issuing an opinion as to Sec. II addressing jurisdiction);\\nJennings v. Rodriguez, 138 S. Ct. 830, 839–41 (2018) (Alito, J.) (same) (concluding the\\nCourt had jurisdiction to consider a challenge to the statutory framework under which the\\nAttorney General was operating because “the extent of the Government’s detention\\nauthority [under the statute] is not a matter of discretionary judgment, action, or decision”\\nsubject to the jurisdiction-stripping language of 8 U.S.C. § 1226(e)). That same distinction\\napplies in this case, as the Moores are not challenging how the agency exercised its\\ndiscretion, but rather which version of the statute Congress intended the agency to use\\nwhen adjudicating I-130 Petitions pending at the time the statute was amended.\\n 12\\n\\f It follows from this review of the applicable cases that § 1252(a)(2)(D) has no\\n\\nbearing on the analysis. As we have previously explained, in § 1252(a)(2)(D), “Congress\\n\\nexplicitly allowed courts of appeals to retain a narrow window for jurisdiction to review\\n\\nunder that section, despite otherwise stripping jurisdiction under Section 1252(a)(2)(B).”\\n\\nRoland, 850 F.3d at 630. Thus, § 1252(a)(2)(D) is inapplicable unless § 1252(a)(2)(B) has\\n\\nbeen triggered. Given that § 1252(a)(2)(B) does not strip the court of jurisdiction over the\\n\\nMoores’ claim, § 1252(a)(2)(D) does not apply.\\n\\n Neither Roland nor Lee compels a different conclusion as to the proper\\n\\ninterpretation of § 1252(a)(2)(B)(ii) or the court’s jurisdiction in this case. Although both\\n\\ncases observed that § 1252(a)(2)(D) “serve[d] as the ‘exclusive means of judicial review of\\n\\na legal issue related to the denial of an adjustment of status,’” the context for that discussion\\n\\nsupports our understanding that § 1252(a)(2)(D) applies only when the jurisdiction-\\n\\nstripping provisions of § 1252(a)(2)(B) had already been invoked. Indeed, it was only after\\n\\nthe Court concluded that § 1252(a)(2)(B)(i) or (ii) applied to the issue raised on appeal that\\n\\nthe Court considered whether § 1252(a)(2)(D) affected the analysis. Roland, 850 F.3d at\\n\\n629–30; Lee, 592 F.3d at 619–20.\\n\\n Further, the petitioner in Roland filed his I-130 Petition after enactment of the Adam\\n\\nWalsh Act’s amendments, so no question arose as to which version of the statute applied\\n\\nfor USCIS review. 850 F.3d at 627. Instead, Roland challenged various aspects of the\\n\\nagency’s no-risk determination and sought to create a line between legal questions about\\n\\nthat determination and factual questions about it. In rejecting that argument, the Court\\n\\npointed to the statutory language committing the no-risk determination unconditionally to\\n\\n 13\\n\\fthe discretion of USCIS. Id. at 629. The Moores raise a different sort of legal question, one\\n\\nentirely apart from the no-risk determination’s legal framework or factual assessment.\\n\\nRoland is thus inapposite.\\n\\n Lee is likewise distinguishable. The appellant in that case was seeking an adjustment\\n\\nof status under § 1255, which is one of the statutes listed in § 1252(a)(2)(B)(i). The Court\\n\\nin Lee looked to the type of petition at issue in the case, determined that it was listed in\\n\\n§ 1252(a)(2)(B)(i), and concluded that specific statutory provision “closes the door to\\n\\njudicial review of certain discretionary decisions, including the denial of an application for\\n\\nadjustment of status” under § 1255. Lee, 592 F.3d at 619; see also Kucana, 558 U.S. at\\n\\n247–48 (describing “the character of the decisions Congress enumerated in §\\n\\n1252(a)(2)(B)(i)” as “substantive decisions . . . made by the Executive in the immigration\\n\\ncontext as a matter of grace,” including “waivers of inadmissibility based on certain\\n\\ncriminal offenses, § 1182(h), or based on fraud or misrepresentation, § 1182(i);\\n\\ncancellation of removal, § 1229b; permission for voluntary departure, § 1229c; and\\n\\nadjustment of status, § 1255”). However, I-130 Petitions filed under § 1154, like the\\n\\nMoores’, are not listed in § 1252(a)(2)(B)(i), so the Court’s jurisdiction is not determined\\n\\nby that statute.\\n\\n In sum, we conclude that the district court erred in dismissing the complaint for lack\\n\\nof jurisdiction. The APA authorized the Moores’ claim and § 1252(a)(2)(B) did not strip\\n\\nthe court of jurisdiction to determine whether I-130 Petitions pending at the time the Adam\\n\\nWalsh Act amended § 1154 should be processed by USCIS under the former or amended\\n\\n\\n\\n 14\\n\\fversion of the statute. The district court thus had jurisdiction to consider that threshold\\n\\nquestion and so do we.\\n\\n\\n\\n III.\\n\\n Despite the district court’s erroneous conclusion about its jurisdiction, under well-\\n\\nestablished precedent, we can affirm its decision to dismiss the complaint on any ground\\n\\napparent on the record. See Greenhouse v. MCG Capital Corp., 392 F.3d 650, 660 (4th Cir.\\n\\n2004) (“[W]e may affirm the dismissal by the district court on the basis of any ground\\n\\nsupported by the record even if it is not the basis relied upon by the district court.”). In its\\n\\nmotion to dismiss, USCIS also asserted that the Moores’ complaint failed to state a claim\\n\\nbecause USCIS correctly used the amended version of § 1154 when adjudicating pending\\n\\nI-130 Petitions such as Mr. Moore’s. Given that this is a question of statutory interpretation\\n\\nand because both parties fully briefed this substantive legal issue on appeal, we will\\n\\nproceed to consider that issue rather than remanding for the district court’s consideration\\n\\nin the first instance.\\n\\n When determining whether Congress intended for the Adam Walsh Act\\n\\namendments to § 1154 to apply to pending I-130 Petitions, we first assess whether\\n\\nCongress “expressly prescribed the statute’s proper reach.” Landgraf v. USI Film Prods.,\\n\\n511 U.S. 244, 280 (1994). “If there is no congressional directive on the temporal reach of\\n\\na statute, we determine whether the application of the statute to the conduct at issue would\\n\\nresult in a retroactive effect. If so, then in keeping with our traditional presumption against\\n\\n\\n\\n 15\\n\\fretroactivity, we presume that the statute does not apply to that conduct.” Martin v. Hadix,\\n\\n527 U.S. 343, 352 (1999).\\n\\n A.\\n\\n The Moores contend that the amended version of § 1154 should not have been\\n\\napplied to I-130 Petitions (like theirs) pending at the time the Adam Walsh Act was\\n\\nenacted. They point to the language in §1154(a)(1)(A)(i), which says certain U.S. citizens\\n\\n“may file” an I-130 Petition, as support that the amendments restricted only the filing of\\n\\nnew petitions and did “not give the [USCIS] new authority to deny any previously filed\\n\\npetitions.” Opening Br. 18. The Moores caution that by applying the amended language\\n\\nretroactively, USCIS has violated the equal protection rights of petitioners who filed their\\n\\npetitions on the same day, but yet have their petitions adjudicated under different standards\\n\\ndepending on when USCIS made its determination. Lastly, the Moores assert that because\\n\\nCongress did not clearly indicate that the amendments should be applied retroactively, it\\n\\nwould be unfair to apply the amendments to pending petitions because it upsets the\\n\\nexpectations of petitioners.\\n\\n USCIS responds that it properly applied the Adam Walsh Act’s amendments when\\n\\nadjudicating Mr. Moore’s I-130 Petition. It points first to the irrationality of reading Clause\\n\\n(i) to literally restrict individuals from filing a new petition when the statute as a whole is\\n\\nmore naturally read to regulate the process by which USCIS approves I-130 Petitions.\\n\\nPointing to Clause (i)’s cross-reference to Clause (viii) as supporting the view that\\n\\nindividuals with a qualifying conviction are not prohibited from filing, USCIS contends a\\n\\npetitioner may be prohibited from having their petitions approved depending on the\\n\\n 16\\n\\foutcome of USCIS’s no-risk determination. The agency also points to the administrative\\n\\nlaw principle that applications for relief are considered “continuing applications” that must\\n\\ndemonstrate eligibility for relief under the facts and law applicable at the time of the agency\\n\\ndetermination, not just the time filed. Lastly, USCIS asserts the Moores’ retroactivity,\\n\\nequal protection and expectation arguments fail because there’s no proof that Mr. Moore’s\\n\\nI-130 Petition was treated any differently from similarly situated individuals and whenever\\n\\na new law is enacted, individuals are held to that new standard regardless of their prior\\n\\nexpectations.\\n\\n B.\\n\\n In matters of statutory interpretation, “the sole function of the courts—at least where\\n\\nthe disposition required by the text is not absurd—is to enforce it according to its terms,”\\n\\nLamie v. U.S. Tr., 540 U.S. 526, 534 (2004), and when “assessing for plain meaning, we\\n\\ndo not consider statutory phrases in isolation; we read statutes as a whole,” United States\\n\\nv. Mitchell, 518 F.3d 230, 234 (4th Cir. 2008). The Moores’ textual argument improperly\\n\\nisolates Clause (i) from the statute as a whole.\\n\\n The Moores would have us read Clause (i) in isolation to conclude that it restricts\\n\\nfilers of I-130 Petitions rather than USCIS’s review of filed petitions. But Clause (i) must\\n\\nbe read alongside the other provisions of § 1154 not only because that is the proper way to\\n\\nunderstand a statute’s meaning, but also because Clause (i) contains an explicit cross-\\n\\nreference to Clause (viii). Clause (i), which says “[e]xcept as provided in clause (viii), any\\n\\ncitizen . . . may file a petition,” must be read and understood in tandem with Clause (viii),\\n\\nwhich states:\\n\\n 17\\n\\f Clause (i) shall not apply to a citizen of the United States who has been\\n convicted of a specified offense against a minor, unless the Secretary of\\n Homeland Security, in the Secretary’s sole and unreviewable discretion,\\n determines that the citizen poses no risk to the alien with respect to whom a\\n petition described in clause (i) is filed.\\n\\nClause (viii) plainly provides that USCIS must make a no-risk determination for I-130\\n\\nPetitions filed by petitioners who have a qualifying conviction, and that this determination\\n\\nmust be made before those I-130 Petitions are eligible to continue on the course\\n\\ncontemplated in Clause (i). In other words, Clause (i) and Clause (viii) added a preliminary\\n\\nstep to USCIS’s review of some I-130 Petitions. And Clause (i)’s ordinary procedure is\\n\\nlimited to I-130 Petitions filed by individuals without a qualifying conviction and by\\n\\nindividuals with a qualifying conviction and USCIS’s approval upon determining the U.S.\\n\\ncitizen poses no risk. The amendments do not bar who can file an I-130 Petition, but rather\\n\\ndirect USCIS’s review of an I-130 Petition. Thus, the Moores’ textual argument against\\n\\napplying the Adam Walsh Act’s amendments to I-130 Petitions pending at the time of their\\n\\nadoption fails.\\n\\n This conclusion is confirmed by the holding of the Ninth Circuit, the only other\\n\\ncircuit court to have considered whether USCIS properly construed the Adam Walsh Act\\n\\namendments to § 1154 as applying to I-130 Petitions pending at the time of their enactment.\\n\\nWhile our reasoning rests on a slightly different analysis than the Ninth Circuit’s, we agree\\n\\nwith that court’s determination that\\n\\n Congress did not enact [§ 1154’s amendments] to bar certain citizens from\\n placing pieces of paper in front of an agency for processing. Rather, when\\n Congress declared that “Clause (i) shall not apply,” Congress was expressing\\n its judgment that citizens convicted of certain offenses may not, unless\\n stringent conditions are met, benefit from the petitioning framework\\n\\n 18\\n\\f described in Clause (i). In keeping with that goal, the Adam Walsh Act\\n provision amending the INA is described as “barring convicted sex\\n offenders” not from filing petitions, but “from having family-based petitions\\n approved.”\\n . . . . [I]f Clause (viii)(I) barred citizens convicted of a specified\\n offense against a minor from filing a petition at all, the Secretary could never\\n make the kind of risk determination that the Adam Walsh Act requires.\\n\\nGebhardt v. Nielsen, 879 F.3d 980, 985–86 (9th Cir. 2018). At bottom, nothing in the text\\n\\nof the amendments indicates that Congress did not intend for them to apply to pending I-\\n\\n130 Petitions. 7\\n\\n We also reject the Moores’ assertion that applying the amended version of § 1154\\n\\nto pending I-130 Petitions would have an impermissible retroactive effect. “A statute does\\n\\nnot operate retrospectively merely because it is applied in a case arising from conduct\\n\\nantedating the statute’s enactment.” Landgraf, 511 U.S. at 269. To have retroactive effect,\\n\\nthe statute must “impair rights a party possessed when he acted, increase a party’s liability\\n\\nfor past conduct, or impose new duties with respect to transactions already completed.” Id.\\n\\nat 280. None of these indicia of retroactive effect exists in this case.\\n\\n The Moores improperly focus on when Mr. Moore filed his I-130 Petition, but in\\n\\nthis context the proper inquiry is what law applied at the time the agency ruled on his\\n\\n\\n 7\\n Our holding also aligns with the BIA’s description of the Adam Walsh Act’s\\namendments to § 1154:\\n [S]ection 402(a)(2) of the Adam Walsh Act amended section 204(a)(1) of the\\n [INA], 8 U.S.C. § 1154(a)(1), by adding a provision barring a United States\\n citizen who has been convicted of a specified offense against a minor from\\n having a family-based visa petition approved unless the Secretary of\\n Homeland Security, in the Secretary’s sole and unreviewable discretion,\\n determines that the citizen poses no risk to the alien beneficiary.\\nMatter of Tatiana Aceijas-Quiroz, 26 I. & N. Dec. 294, 295–96 (BIA 2014) (emphasis\\nadded).\\n 19\\n\\fpetition. Mr. Moore’s I-130 Petition had been filed, but the agency had not yet approved\\n\\nor rejected it, when the statutory amendments came into effect. The amendments were not\\n\\napplied retroactively to a past decision or concerning past eligibility, but rather were\\n\\napplied to a then-pending decision regarding current eligibility for the requested relief. The\\n\\namendments altered how Mr. Moore’s I-130 Petition would be reviewed and approved, but\\n\\n“d[id] not infringe on a right that he possessed prior to [their] enactment,” increase his\\n\\nliability for any past act, or otherwise affect a completed transaction. See Appiah v. U.S.\\n\\nI.N.S., 202 F.3d 704, 709 (4th Cir. 2000).\\n\\n In undertaking its review of Mr. Moore’s I-130 Petition, USCIS was charged with\\n\\napplying whatever rules currently governed that review. This is so because applications for\\n\\nagency relief such as an I-130 Petition are considered “continuing applications,” meaning\\n\\nthat the agency must determine whether to approve them on the basis of the facts and law\\n\\nas they exist at the time the decision is made as opposed to the time when the application\\n\\nis filed. E.g., Matter of Alarcon, 20 I. & N. Dec. 557, 562 (BIA 1992) (“An application for\\n\\nadmission to the United States is a continuing application, and admissibility is determined\\n\\non the basis of the facts and the law at the time the application is finally considered. When\\n\\na law is changed before a decision is handed down by an administrative agency, the agency\\n\\nmust apply the new law. If a statutory amendment renders an individual ineligible for\\n\\nadjustment of status prior to a final administrative decision on the previously filed\\n\\napplication for relief, the application must be denied.”). This understanding of agency\\n\\nreview flows from the Supreme Court’s observation that “a change of law pending an\\n\\nadministrative [determination] must be followed in relation to permits for future acts.\\n\\n 20\\n\\fOtherwise the administrative body would issue orders contrary to the existing legislation.”\\n\\nZiffrin, Inc. v. United States, 318 U.S. 73, 78 (1943); see also Citizens to Preserve Overton\\n\\nPark, Inc. v. Volpe, 401 U.S. 402, 418–19 (1971) (stating that administrative regulations\\n\\nissued during the pendency of a case should be used to decide a dispute). USCIS thus acted\\n\\nappropriately when it relied on the amended version of § 1154 to review Mr. Moore’s I-\\n\\n130 Petition.\\n\\n The Moores’ remaining arguments also lack merit. It was not “arbitrary\\n\\ntreatment”—i.e., an equal protection violation—for USCIS to apply then-applicable law to\\n\\npending I-130 Petitions. See Opening Br. 23; see also Adarand Constructors, Inc. v. Pena,\\n\\n515 U.S. 200, 213 (1995) (recognizing that the Fifth Amendment’s due process clause\\n\\ncontains an equal protection component that “provide[s] some measure of protection\\n\\nagainst arbitrary treatment by the Federal Government”). Absent evidence of an invidious\\n\\nmotive giving rise to the delay—which has not been alleged here—that different laws\\n\\napplied to different petitions depending on the time each was decided cannot give rise to\\n\\nan equal protection violation. See Johnson v. Robison, 415 U.S. 361, 364 n.4 (1974)\\n\\n(discussing the scope of the Fifth Amendment’s equal protection clause). Similarly, as we\\n\\npreviously explained, in Landgraf, the Supreme Court “emphasized that a statute does not\\n\\noperate retroactively merely because it upsets expectations based in prior law.” Appiah,\\n\\n202 F.3d at 709. “Even uncontroversially prospective statutes may unsettle expectations\\n\\nand impose burdens on past conduct[.]” Landgraf, 511 U.S. at 269 n.24. But that prospect\\n\\n“is not a reason for declining to apply a statute to a pending case.” Appiah, 202 F.3d at 709.\\n\\n\\n\\n 21\\n\\f IV.\\n\\n For the reasons provided, we hold that although the district court had jurisdiction to\\n\\nconsider the Moores’ claim, it did not err in dismissing their complaint because their claim\\n\\nfails as a matter of law.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 22\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4452117/\", \"author_raw\": \"AGEE, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WILKINSON"},"judge2":{"kind":"string","value":"NIEMEYER"},"judge3":{"kind":"string","value":"AGEE"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"WILKINSON\": \", Circuit\", \"NIEMEYER\": \", Circuit\", \"AGEE\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4674864/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Curtis Moore v. Denise Frazier\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-10-31\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-2441\n\n\nCURTIS DEWAYNE MOORE; PATRICIA GRANT-MOORE,\n\n Plaintiffs - Appellants,\n\nv.\n\nDENISE M. FRAZIER, District Director, Citizenship and Immigration Services;\nKENNETH T. CUCCINELLI, Acting Director, Citizenship & Immigration Services;\nKEVIN K. McALEENAN, Acting Secretary, Department of Homeland Security;\nWILLIAM P. BARR, Attorney General,\n\n Defendants - Appellees.\n\n\nAppeal from the United States District Court for the Eastern District of North Carolina, at\nRaleigh. Louise W. Flanagan, District Judge. (5:17-cv-00542-FL)\n\n\nArgued: September 18, 2019 Decided: October 31, 2019\n\n\nBefore WILKINSON, NIEMEYER, and AGEE, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Agee wrote the opinion, in which Judge Wilkinson\nand Judge Niemeyer joined.\n\n\nARGUED: William Randall Stroud, ARANEDA AND STROUD LAW GROUP,\nRaleigh, North Carolina, for Appellants. Lori B. Warlick, UNITED STATES\nDEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Jorgelina\nE. Araneda, ARANEDA AND STROUD LAW GROUP, Raleigh, North Carolina, for\nAppellants. Robert J. Higdon, Jr., United States Attorney, Joshua B. Royster, Assistant\n\fUnited States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,\nNorth Carolina, for Appellees.\n\n\n\n\n 2\n\fAGEE, Circuit Judge:\n\n Curtis Dewayne Moore and his wife, Patricia Grant-Moore, appeal from the district\n\ncourt’s dismissal of their complaint alleging the U.S. Citizenship and Immigration Services\n\n(“USCIS”) unlawfully rejected the Form I-130 Petition for Alien Relative (“I-130\n\nPetition”) that Mr. Moore filed on behalf of his wife. The Moores alleged USCIS erred by\n\ndenying the I-130 Petition according to an amended version of 8 U.S.C. § 1154 that was in\n\neffect when the petition was adjudicated rather than using the version of that statute in\n\neffect when the petition was filed. The district court dismissed the Moores’ complaint after\n\nconcluding it lacked jurisdiction to consider the claim under the Immigration and\n\nNationality Act (“INA”), 8 U.S.C. § 1101 et seq. For the reasons set out below, we conclude\n\nthat the district court had jurisdiction, but we affirm the judgment dismissing the complaint\n\nbecause USCIS correctly used the amended statute in adjudicating Mr. Moore’s I-130\n\nPetition.\n\n\n\n I.\n\n The underlying facts are not in dispute. Mr. Moore is a United States citizen; Mrs.\n\nMoore is a citizen of Jamaica. The couple married in February 2006. Two months later,\n\nMr. Moore pleaded guilty to a Colorado sex offense involving a minor victim. The\n\nfollowing month, Mr. Moore filed an I-130 Petition, which is the first step to having a non-\n\ncitizen’s immigration status reclassified based on a familial relationship to a U.S. citizen.\n\nSee 8 U.S.C. § 1154(a)(1)(A)(i); 8 U.S.C. § 1101(a)(15)(K)(ii).\n\n\n\n 3\n\f At the time Mr. Moore filed his I-130 Petition, 8 U.S.C. § 1154 authorized all U.S.\n\ncitizens to file an I-130 Petition, have USCIS confirm the bona fides of the factual basis\n\nfor the adjustment of status, and thereafter obtain USCIS “approval” of the I-130 Petition\n\nso that the non-citizen family member could then pursue reclassification. A few months\n\nafter Mr. Moore filed his I-130 Petition, but before USCIS acted on it, 8 U.S.C. § 1154 was\n\namended as part of the Adam Walsh Child Protection and Safety Act of 2006 to require an\n\nadditional step: USCIS must perform a no-risk determination for U.S. citizen petitioners\n\nwith a conviction for specified offenses against a minor. The statute was amended in two\n\nways, adding the following italicized text to Clause (i) and adding an entirely new provision\n\nas Clause (viii):\n\n (i) Except as provided in clause (viii), any citizen of the United States\n claiming that an alien is entitled to classification by reason of\n [marriage] . . . may file a petition with the Attorney General for such\n classification.\n\n ....\n\n (viii)(I) Clause (i) shall not apply to a citizen of the United States who has\n been convicted of a specified offense against a minor, unless the\n Secretary of Homeland Security, in the Secretary’s sole and\n unreviewable discretion, determines that the citizen poses no risk to\n the alien with respect to whom a petition described in clause (i) is\n filed.\n\nClause (viii) also defines what a “specified offense against a minor” is by incorporating the\n\ndefinition from 34 U.S.C. § 20911. 8 U.S.C. § 1154(a)(1)(A)(viii)(II).\n\n Over three years after Mr. Moore filed his I-130 Petition, in December 2009, USCIS\n\ndenied it. The administrative record is not part of the record in this case, but the final\n\ndenial—which followed several appeals to the Board of Immigration Appeals (“BIA”) and\n\n 4\n\fremands to USCIS—was based on USCIS’s determination that Mr. Moore had a qualifying\n\nconviction for a specified offense against a minor and that he had failed to show he posed\n\nno risk to his wife. In August 2017, the BIA issued a one-member final decision dismissing\n\nMr. Moore’s appeal of USCIS’s decision.\n\n Thereafter, the Moores filed a complaint in the U.S. District Court for the Eastern\n\nDistrict of North Carolina alleging that USCIS’s denial of Mr. Moore’s I-130 Petition\n\nviolated the Administrative Procedure Act (“APA”), the INA, and the Fifth Amendment of\n\nthe U.S. Constitution. Specifically, they alleged that the amended version of 8 U.S.C.\n\n§ 1154 did not apply to Mr. Moore’s I-130 Petition because he had filed the petition prior\n\nto the amendment and the statutory language applies prospectively, caveating who may\n\nfile. They sought a declaratory judgment that Mr. Moore was entitled to approval of his I-\n\n130 Petition under the version of § 1154 applicable at the time it was filed.\n\n USCIS moved to dismiss for lack of jurisdiction, and the district court granted that\n\nmotion. 1 In sum, the district court concluded that the INA did not authorize federal district\n\ncourts to review the denial of an I-130 Petition because 8 U.S.C. § 1252(a)(2)(B) stripped\n\nfederal courts of jurisdiction to review the denial of discretionary relief such as I-130\n\nPetitions. Further, it held that § 1252(a)(2)(D) authorized only courts of appeals to review\n\n\n\n\n 1\n The four defendants being sued in their official capacities are Denise Frazier, the\nDistrict Director for the USCIS office that denied Mr. Moore’s I-130 Petition; Kenneth T.\nCuccinelli, the Director of USCIS; Kevin K. McAleenan, the Acting Secretary of the\nDepartment of Homeland Security (under which USCIS operates); and William P. Barr,\nthe Attorney General of the United States. The opinion will refer to them collectively as\n“USCIS.”\n 5\n\fagency decisions and only in the context of a removal proceeding. Based on its reading of\n\nthese provisions, the district court held it lacked jurisdiction to consider the Moores’ claim.\n\n The Moores noted a timely appeal, and the Court has jurisdiction under 28 U.S.C.\n\n§ 1291.\n\n\n\n II.\n\n A.\n\n We review the district court’s dismissal of the Moores’ complaint under a split\n\nstandard of review, reviewing its factual findings for clear error and its legal conclusions\n\nde novo. Al Shimari v. CACI Premier Tech., Inc., 840 F.3d 147, 154 (4th Cir. 2016). When\n\nreviewing the proper interpretation of a statute that is unambiguous, “our analysis begins\n\nand ends with the statute’s plain language.” Ignacio v. United States, 674 F.3d 252, 257\n\n(4th Cir. 2012). Further, we construe “statute[s] affecting federal jurisdiction . . . both with\n\nprecision and with fidelity to the terms by which Congress has expressed its wishes.”\n\nKucana v. Holder, 558 U.S. 233, 252 (2010).\n\n B.\n\n Determining if the district court had jurisdiction to consider the Moores’ complaint\n\nrequires us to examine the interplay between the APA and the INA, as well as our prior\n\ncases discussing those statutory provisions. Under the APA, an individual who is adversely\n\naffected by an agency action “is entitled to judicial review thereof,” 5 U.S.C. § 702, with\n\nthe exception that this express statutory grant of a cause of action does not “affect[] other\n\nlimitations on judicial review” or “confer[] authority to grant relief if any other statute that\n\n 6\n\fgrants consent to suit expressly or impliedly forbids the relief that is sought,” id. In sum,\n\nthe APA authorizes suits “except to the extent that” “statutes preclude judicial review” or\n\n“agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a) (emphasis\n\nadded). The APA thus “provide[s] a limited cause of action for parties adversely affected\n\nby agency action.” Lee v. U.S. Citizenship and Immig. Servs., 592 F.3d 612, 619 (4th Cir.\n\n2010). 2\n\n The INA contains several limitations on when an individual can seek judicial review\n\nof immigration-related agency determinations under the APA. For example, 8 U.S.C.\n\n§ 1252(a)(2)(B) provides that even if the APA or other federal law would grant federal\n\ncourts jurisdiction to consider a particular claim,\n\n no court shall have jurisdiction to review--\n (i) any judgment regarding the granting of relief under section\n 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or\n\n (ii) any other decision or action of the Attorney General or the\n Secretary of Homeland Security the authority for which is\n specified under this subchapter to be in the discretion of the\n Attorney General or the Secretary of Homeland Security, other\n than the granting of relief under section 1158(a) of this title.[ 3]\n\nNotwithstanding this general jurisdiction-stripping language, the INA expressly authorizes\n\ncourts of appeals to review “constitutional claims or questions of law raised upon a petition\n\nfor review” in the context of removal proceedings. 8 U.S.C. § 1252(a)(2)(D) (stating that\n\nsubsection (a)(2)(B) must not “be construed as precluding review of constitutional claims\n\n\n 2\n Here and throughout the opinion, we have omitted internal quotation marks,\nalterations, and citations except where otherwise noted.\n 3\n “[T]his subchapter” refers to Subchapter 2 of Chapter 12 of Title 8. Subchapter 2\ncovers immigration and spans 8 U.S.C. §§ 1151 to 1382.\n 7\n\for questions of law raised upon a petition for review filed with an appropriate court of\n\nappeals in accordance with this section”). Of course, the Moores’ complaint and\n\nsubsequent appeal are not upon a petition for review.\n\n In Roland v. U.S. Citizenship and Immigration Services, 850 F.3d 625 (4th Cir.\n\n2017), we considered how these statutes operate together when considering whether the\n\ndistrict court had jurisdiction to consider an APA challenge to USCIS’s denial of an I-130\n\nPetition. Unlike Mr. Moore, Roland filed an I-130 Petition after the enactment of the Adam\n\nWalsh Act’s amendments to 8 U.S.C. § 1154. Id. at 627. USCIS denied his petition after\n\nperforming its no-risk assessment. Id. at 627–28. After his I-130 petition was denied,\n\nRoland and his wife filed a claim under the APA in district court. Id. at 628. Seeking to\n\navoid § 1252(a)(2)(B)(ii)’s jurisdictional bar, the Rolands asserted the district court had\n\njurisdiction to consider the claim because “they [did] not seek review of the agency\n\ndetermination itself, but rather of the legal and constitutional issues [such as] the standard\n\nof proof and the administrative process in adopting the rules which the USCIS used[.]” Id.\n\n Relying on the statutory language, we rejected the Rolands’ attempt to distinguish\n\nbetween the types of decisions USCIS made as part of the no-risk determination. In\n\nparticular, we observed that § 1252(a)(2)(B)(ii) states that “‘no court shall have jurisdiction\n\nto review’ certain discretionary actions or decisions” of USCIS and that\n\n§ 1154(a)(1)(A)(viii)(I) gave USCIS “‘sole and unreviewable discretion’ to determine\n\nwhether a petitioner poses no risk[.]” Id. at 629. Because the INA “specifically deems the\n\nno-risk determination as discretionary,” we also concluded it stripped federal courts of the\n\nauthority to review an agency decision unless another provision expressly authorized\n\n 8\n\freview. Id. We then observed that although § 1252(a)(2)(D) “permit[s] judicial review of\n\nconstitutional claims or legal questions” arising from that specific statutory authority, any\n\nsuch review is limited by the plain language of the statute to consideration “raised upon a\n\npetition for review filed with an appropriate court of appeals during removal proceedings.”\n\nId. Accordingly, no statute authorized review of USCIS’s no-risk determination in the\n\ndistrict court. Id. at 629–30.\n\n We observed in Roland that our reading of the statutory language was consistent\n\nwith our earlier decision in Lee v. U.S. Citizenship and Immigration Services, 592 F.3d 612\n\n(4th Cir. 2010), in which we also considered “the jurisdictional limiting effect of 8 U.S.C.\n\n§ 1252(a)(2)(B) on certain discretionary agency decisions.” Roland, 850 F.3d at 630. Lee\n\ninvolved a different type of discretionary relief and we held the appellant’s claim was\n\nbarred by a different provision in § 1252(a)(2)(B). Specifically, Lee had petitioned “for\n\nadjusted status based on employment” under 8 U.S.C. § 1255. Section 1252(a)(2)(B)(i)\n\nspecifically states that USCIS’s judgments concerning relief under § 1255 are not subject\n\nto judicial review. Id. (citing Lee, 592 F.3d at 618–19). Under the plain language of the\n\nstatute, we rejected the Lee petitioner’s contention that “he merely challenged the eligibility\n\ndetermination rather than the denial [of his petition for adjusted status] as a whole, because\n\nsuch relevant determinations cannot be divorced from the denial itself.” Id. (citing Lee, 592\n\nF.3d at 620). Lastly, we observed that § 1252(a)(2)(B)’s “broad jurisdiction stripping\n\nprovisions” were limited by § 1252(a)(2)(D), which “serve[d] as the exclusive means of\n\njudicial review of a legal issue related to the denial of an adjustment of status.” Id. (citing\n\nLee, 592 F.3d at 620–21).\n\n 9\n\f C.\n\n The Moores contend the district court erred in concluding that it lacked jurisdiction\n\nunder § 1252(a)(2)(B)(ii). They posit that their claim does not fall under this jurisdiction-\n\nstripping provision because they are not challenging a decision that Congress committed\n\nto USCIS’s discretion. Asserting they are unlike the petitioner in Roland, the Moores argue\n\nthey are not challenging any aspect of USCIS’s no-risk determination (which the statute\n\nleaves to USCIS’s discretion). Instead, they assert that their claim is different because it\n\nchallenges USCIS’s non-discretionary decision to apply the amended version of § 1154 to\n\nMr. Moore’s I-130 Petition. The Moores contend that this threshold question as to which\n\nstatute governs USCIS’s review of the petition is a matter of congressional directive rather\n\nthan USCIS discretion. As such, they argue that federal courts can review that decision\n\nwithout running afoul of § 1252(a)(2)(B)(ii).\n\n We agree with the Moores that the INA does not prevent the district court from\n\nreviewing their claim. First, although § 1252(a)(2)(B)(i) (“Clause (i)”) strips federal courts\n\nof jurisdiction to consider “any judgment regarding the granting of relief” sought under\n\nspecific statutes, § 1154—which governs I-130 Petitions—is not one of the statutes listed.\n\nAs such, Clause (i) does not deprive district courts of jurisdiction to consider USCIS\n\nhandling of an I-130 Petition.\n\n Second, the district court is not deprived of jurisdiction under § 1252(a)(2)(B)(ii)\n\n(“Clause (ii)”), which states courts cannot review “decision[s] or action[s]” Congress has\n\nspecified are “in the discretion of” USCIS. However, Congress did not designate to\n\n\n\n 10\n\fUSCIS’s discretion the decision of which version of § 1154 would apply to I-130 Petitions\n\npending at the time the Adam Walsh Act amendments were adopted. 4\n\n In Kucana v. Holder, 558 U.S. 233 (2010), the Supreme Court reiterated that Clause\n\n(ii)’s text means only what it says—district courts lack jurisdiction “when Congress itself\n\n[has] set out the Attorney General’s discretionary authority in the statute,” and that neither\n\nsilence nor an agency-promulgated regulation is sufficient to strip federal courts of\n\njurisdiction under this provision. Id. at 247; see also id. at 249–51. In § 1154, Congress has\n\ndesignated only certain aspects of USCIS’s review of I-130 Petitions to be within the\n\nagency’s discretion. In both the original and amended versions of § 1154, USCIS retains\n\n“sole discretion” to determine “what evidence is credible and the weight to be given that\n\nevidence” in making a credibility determination as to the bona fides of the I-130 Petitions’\n\ncontents. 8 U.S.C. § 1154(a)(1)(J). And in the amended version, USCIS has “sole and\n\nunreviewable discretion” in undertaking the no-risk determination. Id.\n\n§ 1154(a)(1)(A)(viii)(I) and (a)(1)(B)(i)(I). 5\n\n Thus, although certain decisions or actions regarding I-130 Petitions have been\n\ncommitted to USCIS’s discretion, nowhere is the decision of which version of the statute\n\napplies to the adjudication of pending petitions committed to that discretion. That query is\n\nentirely separate from any of the discretionary decisions cited above, and instead involves\n\n\n 4\n The statute refers to the Attorney General and the Secretary of the Department of\nHomeland Security, but 8 C.F.R. § 2.1 authorizes the Secretary to delegate those\nadministration and enforcement duties. Responsibility for I-130 Petitions has been\ndelegated to USCIS.\n 5\n There are two provisions designated by subclause (I), but this refers to the second\none.\n 11\n\fa question of USCIS’s statutory authority: which version of § 1154 governs its\n\nconsideration of Mr. Moore’s I-130 Petition? Contrast Lee, 592 F.3d at 620 (stating that\n\nthe question presented in that case “cannot be divorced from the denial [of relief] itself”).\n\nIn an analogous situation in Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court\n\nheld that § 1252(a)(2)(B)(ii) did not strip the courts of jurisdiction. There, the Supreme\n\nCourt noted that it had jurisdiction to consider the issue of “the extent of the Attorney\n\nGeneral’s authority under” a statute because that question did not “seek review of the\n\nAttorney General’s exercise of discretion.” Id. at 688. Similarly, the Moores do not seek\n\nreview of USCIS’s exercise of discretion within the evidentiary assessment or no-risk\n\ndetermination; rather, they asked the district court to consider the separate issue of whether\n\nUSCIS used the correct statute to review Mr. Moore’s I-130 Petition. As such,\n\n§ 1252(a)(2)(B)(ii) does not strip federal courts of jurisdiction to consider that issue. 6\n\n\n 6\n Two recent Supreme Court decisions acknowledging federal courts’ jurisdiction\ndespite jurisdiction-stripping language lend further weight to our conclusion. Although a\nmajority of the justices in each case agreed that jurisdiction existed, a majority did not sign\nonto an agreed explanation of why that was so. Because the only relevant discussion\nappears in an opinion that did not garner a majority of the Court, that discussion offers only\npersuasive, but not binding, analysis. Yet in each case, Justice Alito, joined by Chief Justice\nRoberts and Justice Kavanaugh, noted courts had jurisdiction to consider the issue\npresented because it involved a question of statutory authority apart from the grant or denial\nof relief that the statute committed to the agency’s discretion. See Nielsen v. Preap, 139 S.\nCt. 954, 961–63 (2019) (Alito, J.) (issuing an opinion as to Sec. II addressing jurisdiction);\nJennings v. Rodriguez, 138 S. Ct. 830, 839–41 (2018) (Alito, J.) (same) (concluding the\nCourt had jurisdiction to consider a challenge to the statutory framework under which the\nAttorney General was operating because “the extent of the Government’s detention\nauthority [under the statute] is not a matter of discretionary judgment, action, or decision”\nsubject to the jurisdiction-stripping language of 8 U.S.C. § 1226(e)). That same distinction\napplies in this case, as the Moores are not challenging how the agency exercised its\ndiscretion, but rather which version of the statute Congress intended the agency to use\nwhen adjudicating I-130 Petitions pending at the time the statute was amended.\n 12\n\f It follows from this review of the applicable cases that § 1252(a)(2)(D) has no\n\nbearing on the analysis. As we have previously explained, in § 1252(a)(2)(D), “Congress\n\nexplicitly allowed courts of appeals to retain a narrow window for jurisdiction to review\n\nunder that section, despite otherwise stripping jurisdiction under Section 1252(a)(2)(B).”\n\nRoland, 850 F.3d at 630. Thus, § 1252(a)(2)(D) is inapplicable unless § 1252(a)(2)(B) has\n\nbeen triggered. Given that § 1252(a)(2)(B) does not strip the court of jurisdiction over the\n\nMoores’ claim, § 1252(a)(2)(D) does not apply.\n\n Neither Roland nor Lee compels a different conclusion as to the proper\n\ninterpretation of § 1252(a)(2)(B)(ii) or the court’s jurisdiction in this case. Although both\n\ncases observed that § 1252(a)(2)(D) “serve[d] as the ‘exclusive means of judicial review of\n\na legal issue related to the denial of an adjustment of status,’” the context for that discussion\n\nsupports our understanding that § 1252(a)(2)(D) applies only when the jurisdiction-\n\nstripping provisions of § 1252(a)(2)(B) had already been invoked. Indeed, it was only after\n\nthe Court concluded that § 1252(a)(2)(B)(i) or (ii) applied to the issue raised on appeal that\n\nthe Court considered whether § 1252(a)(2)(D) affected the analysis. Roland, 850 F.3d at\n\n629–30; Lee, 592 F.3d at 619–20.\n\n Further, the petitioner in Roland filed his I-130 Petition after enactment of the Adam\n\nWalsh Act’s amendments, so no question arose as to which version of the statute applied\n\nfor USCIS review. 850 F.3d at 627. Instead, Roland challenged various aspects of the\n\nagency’s no-risk determination and sought to create a line between legal questions about\n\nthat determination and factual questions about it. In rejecting that argument, the Court\n\npointed to the statutory language committing the no-risk determination unconditionally to\n\n 13\n\fthe discretion of USCIS. Id. at 629. The Moores raise a different sort of legal question, one\n\nentirely apart from the no-risk determination’s legal framework or factual assessment.\n\nRoland is thus inapposite.\n\n Lee is likewise distinguishable. The appellant in that case was seeking an adjustment\n\nof status under § 1255, which is one of the statutes listed in § 1252(a)(2)(B)(i). The Court\n\nin Lee looked to the type of petition at issue in the case, determined that it was listed in\n\n§ 1252(a)(2)(B)(i), and concluded that specific statutory provision “closes the door to\n\njudicial review of certain discretionary decisions, including the denial of an application for\n\nadjustment of status” under § 1255. Lee, 592 F.3d at 619; see also Kucana, 558 U.S. at\n\n247–48 (describing “the character of the decisions Congress enumerated in §\n\n1252(a)(2)(B)(i)” as “substantive decisions . . . made by the Executive in the immigration\n\ncontext as a matter of grace,” including “waivers of inadmissibility based on certain\n\ncriminal offenses, § 1182(h), or based on fraud or misrepresentation, § 1182(i);\n\ncancellation of removal, § 1229b; permission for voluntary departure, § 1229c; and\n\nadjustment of status, § 1255”). However, I-130 Petitions filed under § 1154, like the\n\nMoores’, are not listed in § 1252(a)(2)(B)(i), so the Court’s jurisdiction is not determined\n\nby that statute.\n\n In sum, we conclude that the district court erred in dismissing the complaint for lack\n\nof jurisdiction. The APA authorized the Moores’ claim and § 1252(a)(2)(B) did not strip\n\nthe court of jurisdiction to determine whether I-130 Petitions pending at the time the Adam\n\nWalsh Act amended § 1154 should be processed by USCIS under the former or amended\n\n\n\n 14\n\fversion of the statute. The district court thus had jurisdiction to consider that threshold\n\nquestion and so do we.\n\n\n\n III.\n\n Despite the district court’s erroneous conclusion about its jurisdiction, under well-\n\nestablished precedent, we can affirm its decision to dismiss the complaint on any ground\n\napparent on the record. See Greenhouse v. MCG Capital Corp., 392 F.3d 650, 660 (4th Cir.\n\n2004) (“[W]e may affirm the dismissal by the district court on the basis of any ground\n\nsupported by the record even if it is not the basis relied upon by the district court.”). In its\n\nmotion to dismiss, USCIS also asserted that the Moores’ complaint failed to state a claim\n\nbecause USCIS correctly used the amended version of § 1154 when adjudicating pending\n\nI-130 Petitions such as Mr. Moore’s. Given that this is a question of statutory interpretation\n\nand because both parties fully briefed this substantive legal issue on appeal, we will\n\nproceed to consider that issue rather than remanding for the district court’s consideration\n\nin the first instance.\n\n When determining whether Congress intended for the Adam Walsh Act\n\namendments to § 1154 to apply to pending I-130 Petitions, we first assess whether\n\nCongress “expressly prescribed the statute’s proper reach.” Landgraf v. USI Film Prods.,\n\n511 U.S. 244, 280 (1994). “If there is no congressional directive on the temporal reach of\n\na statute, we determine whether the application of the statute to the conduct at issue would\n\nresult in a retroactive effect. If so, then in keeping with our traditional presumption against\n\n\n\n 15\n\fretroactivity, we presume that the statute does not apply to that conduct.” Martin v. Hadix,\n\n527 U.S. 343, 352 (1999).\n\n A.\n\n The Moores contend that the amended version of § 1154 should not have been\n\napplied to I-130 Petitions (like theirs) pending at the time the Adam Walsh Act was\n\nenacted. They point to the language in §1154(a)(1)(A)(i), which says certain U.S. citizens\n\n“may file” an I-130 Petition, as support that the amendments restricted only the filing of\n\nnew petitions and did “not give the [USCIS] new authority to deny any previously filed\n\npetitions.” Opening Br. 18. The Moores caution that by applying the amended language\n\nretroactively, USCIS has violated the equal protection rights of petitioners who filed their\n\npetitions on the same day, but yet have their petitions adjudicated under different standards\n\ndepending on when USCIS made its determination. Lastly, the Moores assert that because\n\nCongress did not clearly indicate that the amendments should be applied retroactively, it\n\nwould be unfair to apply the amendments to pending petitions because it upsets the\n\nexpectations of petitioners.\n\n USCIS responds that it properly applied the Adam Walsh Act’s amendments when\n\nadjudicating Mr. Moore’s I-130 Petition. It points first to the irrationality of reading Clause\n\n(i) to literally restrict individuals from filing a new petition when the statute as a whole is\n\nmore naturally read to regulate the process by which USCIS approves I-130 Petitions.\n\nPointing to Clause (i)’s cross-reference to Clause (viii) as supporting the view that\n\nindividuals with a qualifying conviction are not prohibited from filing, USCIS contends a\n\npetitioner may be prohibited from having their petitions approved depending on the\n\n 16\n\foutcome of USCIS’s no-risk determination. The agency also points to the administrative\n\nlaw principle that applications for relief are considered “continuing applications” that must\n\ndemonstrate eligibility for relief under the facts and law applicable at the time of the agency\n\ndetermination, not just the time filed. Lastly, USCIS asserts the Moores’ retroactivity,\n\nequal protection and expectation arguments fail because there’s no proof that Mr. Moore’s\n\nI-130 Petition was treated any differently from similarly situated individuals and whenever\n\na new law is enacted, individuals are held to that new standard regardless of their prior\n\nexpectations.\n\n B.\n\n In matters of statutory interpretation, “the sole function of the courts—at least where\n\nthe disposition required by the text is not absurd—is to enforce it according to its terms,”\n\nLamie v. U.S. Tr., 540 U.S. 526, 534 (2004), and when “assessing for plain meaning, we\n\ndo not consider statutory phrases in isolation; we read statutes as a whole,” United States\n\nv. Mitchell, 518 F.3d 230, 234 (4th Cir. 2008). The Moores’ textual argument improperly\n\nisolates Clause (i) from the statute as a whole.\n\n The Moores would have us read Clause (i) in isolation to conclude that it restricts\n\nfilers of I-130 Petitions rather than USCIS’s review of filed petitions. But Clause (i) must\n\nbe read alongside the other provisions of § 1154 not only because that is the proper way to\n\nunderstand a statute’s meaning, but also because Clause (i) contains an explicit cross-\n\nreference to Clause (viii). Clause (i), which says “[e]xcept as provided in clause (viii), any\n\ncitizen . . . may file a petition,” must be read and understood in tandem with Clause (viii),\n\nwhich states:\n\n 17\n\f Clause (i) shall not apply to a citizen of the United States who has been\n convicted of a specified offense against a minor, unless the Secretary of\n Homeland Security, in the Secretary’s sole and unreviewable discretion,\n determines that the citizen poses no risk to the alien with respect to whom a\n petition described in clause (i) is filed.\n\nClause (viii) plainly provides that USCIS must make a no-risk determination for I-130\n\nPetitions filed by petitioners who have a qualifying conviction, and that this determination\n\nmust be made before those I-130 Petitions are eligible to continue on the course\n\ncontemplated in Clause (i). In other words, Clause (i) and Clause (viii) added a preliminary\n\nstep to USCIS’s review of some I-130 Petitions. And Clause (i)’s ordinary procedure is\n\nlimited to I-130 Petitions filed by individuals without a qualifying conviction and by\n\nindividuals with a qualifying conviction and USCIS’s approval upon determining the U.S.\n\ncitizen poses no risk. The amendments do not bar who can file an I-130 Petition, but rather\n\ndirect USCIS’s review of an I-130 Petition. Thus, the Moores’ textual argument against\n\napplying the Adam Walsh Act’s amendments to I-130 Petitions pending at the time of their\n\nadoption fails.\n\n This conclusion is confirmed by the holding of the Ninth Circuit, the only other\n\ncircuit court to have considered whether USCIS properly construed the Adam Walsh Act\n\namendments to § 1154 as applying to I-130 Petitions pending at the time of their enactment.\n\nWhile our reasoning rests on a slightly different analysis than the Ninth Circuit’s, we agree\n\nwith that court’s determination that\n\n Congress did not enact [§ 1154’s amendments] to bar certain citizens from\n placing pieces of paper in front of an agency for processing. Rather, when\n Congress declared that “Clause (i) shall not apply,” Congress was expressing\n its judgment that citizens convicted of certain offenses may not, unless\n stringent conditions are met, benefit from the petitioning framework\n\n 18\n\f described in Clause (i). In keeping with that goal, the Adam Walsh Act\n provision amending the INA is described as “barring convicted sex\n offenders” not from filing petitions, but “from having family-based petitions\n approved.”\n . . . . [I]f Clause (viii)(I) barred citizens convicted of a specified\n offense against a minor from filing a petition at all, the Secretary could never\n make the kind of risk determination that the Adam Walsh Act requires.\n\nGebhardt v. Nielsen, 879 F.3d 980, 985–86 (9th Cir. 2018). At bottom, nothing in the text\n\nof the amendments indicates that Congress did not intend for them to apply to pending I-\n\n130 Petitions. 7\n\n We also reject the Moores’ assertion that applying the amended version of § 1154\n\nto pending I-130 Petitions would have an impermissible retroactive effect. “A statute does\n\nnot operate retrospectively merely because it is applied in a case arising from conduct\n\nantedating the statute’s enactment.” Landgraf, 511 U.S. at 269. To have retroactive effect,\n\nthe statute must “impair rights a party possessed when he acted, increase a party’s liability\n\nfor past conduct, or impose new duties with respect to transactions already completed.” Id.\n\nat 280. None of these indicia of retroactive effect exists in this case.\n\n The Moores improperly focus on when Mr. Moore filed his I-130 Petition, but in\n\nthis context the proper inquiry is what law applied at the time the agency ruled on his\n\n\n 7\n Our holding also aligns with the BIA’s description of the Adam Walsh Act’s\namendments to § 1154:\n [S]ection 402(a)(2) of the Adam Walsh Act amended section 204(a)(1) of the\n [INA], 8 U.S.C. § 1154(a)(1), by adding a provision barring a United States\n citizen who has been convicted of a specified offense against a minor from\n having a family-based visa petition approved unless the Secretary of\n Homeland Security, in the Secretary’s sole and unreviewable discretion,\n determines that the citizen poses no risk to the alien beneficiary.\nMatter of Tatiana Aceijas-Quiroz, 26 I. & N. Dec. 294, 295–96 (BIA 2014) (emphasis\nadded).\n 19\n\fpetition. Mr. Moore’s I-130 Petition had been filed, but the agency had not yet approved\n\nor rejected it, when the statutory amendments came into effect. The amendments were not\n\napplied retroactively to a past decision or concerning past eligibility, but rather were\n\napplied to a then-pending decision regarding current eligibility for the requested relief. The\n\namendments altered how Mr. Moore’s I-130 Petition would be reviewed and approved, but\n\n“d[id] not infringe on a right that he possessed prior to [their] enactment,” increase his\n\nliability for any past act, or otherwise affect a completed transaction. See Appiah v. U.S.\n\nI.N.S., 202 F.3d 704, 709 (4th Cir. 2000).\n\n In undertaking its review of Mr. Moore’s I-130 Petition, USCIS was charged with\n\napplying whatever rules currently governed that review. This is so because applications for\n\nagency relief such as an I-130 Petition are considered “continuing applications,” meaning\n\nthat the agency must determine whether to approve them on the basis of the facts and law\n\nas they exist at the time the decision is made as opposed to the time when the application\n\nis filed. E.g., Matter of Alarcon, 20 I. & N. Dec. 557, 562 (BIA 1992) (“An application for\n\nadmission to the United States is a continuing application, and admissibility is determined\n\non the basis of the facts and the law at the time the application is finally considered. When\n\na law is changed before a decision is handed down by an administrative agency, the agency\n\nmust apply the new law. If a statutory amendment renders an individual ineligible for\n\nadjustment of status prior to a final administrative decision on the previously filed\n\napplication for relief, the application must be denied.”). This understanding of agency\n\nreview flows from the Supreme Court’s observation that “a change of law pending an\n\nadministrative [determination] must be followed in relation to permits for future acts.\n\n 20\n\fOtherwise the administrative body would issue orders contrary to the existing legislation.”\n\nZiffrin, Inc. v. United States, 318 U.S. 73, 78 (1943); see also Citizens to Preserve Overton\n\nPark, Inc. v. Volpe, 401 U.S. 402, 418–19 (1971) (stating that administrative regulations\n\nissued during the pendency of a case should be used to decide a dispute). USCIS thus acted\n\nappropriately when it relied on the amended version of § 1154 to review Mr. Moore’s I-\n\n130 Petition.\n\n The Moores’ remaining arguments also lack merit. It was not “arbitrary\n\ntreatment”—i.e., an equal protection violation—for USCIS to apply then-applicable law to\n\npending I-130 Petitions. See Opening Br. 23; see also Adarand Constructors, Inc. v. Pena,\n\n515 U.S. 200, 213 (1995) (recognizing that the Fifth Amendment’s due process clause\n\ncontains an equal protection component that “provide[s] some measure of protection\n\nagainst arbitrary treatment by the Federal Government”). Absent evidence of an invidious\n\nmotive giving rise to the delay—which has not been alleged here—that different laws\n\napplied to different petitions depending on the time each was decided cannot give rise to\n\nan equal protection violation. See Johnson v. Robison, 415 U.S. 361, 364 n.4 (1974)\n\n(discussing the scope of the Fifth Amendment’s equal protection clause). Similarly, as we\n\npreviously explained, in Landgraf, the Supreme Court “emphasized that a statute does not\n\noperate retroactively merely because it upsets expectations based in prior law.” Appiah,\n\n202 F.3d at 709. “Even uncontroversially prospective statutes may unsettle expectations\n\nand impose burdens on past conduct[.]” Landgraf, 511 U.S. at 269 n.24. But that prospect\n\n“is not a reason for declining to apply a statute to a pending case.” Appiah, 202 F.3d at 709.\n\n\n\n 21\n\f IV.\n\n For the reasons provided, we hold that although the district court had jurisdiction to\n\nconsider the Moores’ claim, it did not err in dismissing their complaint because their claim\n\nfails as a matter of law.\n\n AFFIRMED\n\n\n\n\n 22\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Curtis Moore v. Denise Frazier\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-10-31\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-2441\\n\\n\\nCURTIS DEWAYNE MOORE; PATRICIA GRANT-MOORE,\\n\\n Plaintiffs - Appellants,\\n\\nv.\\n\\nDENISE M. FRAZIER, District Director, Citizenship and Immigration Services;\\nKENNETH T. CUCCINELLI, Acting Director, Citizenship & Immigration Services;\\nKEVIN K. McALEENAN, Acting Secretary, Department of Homeland Security;\\nWILLIAM P. BARR, Attorney General,\\n\\n Defendants - Appellees.\\n\\n\\nAppeal from the United States District Court for the Eastern District of North Carolina, at\\nRaleigh. Louise W. Flanagan, District Judge. (5:17-cv-00542-FL)\\n\\n\\nArgued: September 18, 2019 Decided: October 31, 2019\\n\\n\\nBefore WILKINSON, NIEMEYER, and AGEE, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Agee wrote the opinion, in which Judge Wilkinson\\nand Judge Niemeyer joined.\\n\\n\\nARGUED: William Randall Stroud, ARANEDA AND STROUD LAW GROUP,\\nRaleigh, North Carolina, for Appellants. Lori B. Warlick, UNITED STATES\\nDEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Jorgelina\\nE. Araneda, ARANEDA AND STROUD LAW GROUP, Raleigh, North Carolina, for\\nAppellants. Robert J. Higdon, Jr., United States Attorney, Joshua B. Royster, Assistant\\n\\fUnited States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,\\nNorth Carolina, for Appellees.\\n\\n\\n\\n\\n 2\\n\\fAGEE, Circuit Judge:\\n\\n Curtis Dewayne Moore and his wife, Patricia Grant-Moore, appeal from the district\\n\\ncourt’s dismissal of their complaint alleging the U.S. Citizenship and Immigration Services\\n\\n(“USCIS”) unlawfully rejected the Form I-130 Petition for Alien Relative (“I-130\\n\\nPetition”) that Mr. Moore filed on behalf of his wife. The Moores alleged USCIS erred by\\n\\ndenying the I-130 Petition according to an amended version of 8 U.S.C. § 1154 that was in\\n\\neffect when the petition was adjudicated rather than using the version of that statute in\\n\\neffect when the petition was filed. The district court dismissed the Moores’ complaint after\\n\\nconcluding it lacked jurisdiction to consider the claim under the Immigration and\\n\\nNationality Act (“INA”), 8 U.S.C. § 1101 et seq. For the reasons set out below, we conclude\\n\\nthat the district court had jurisdiction, but we affirm the judgment dismissing the complaint\\n\\nbecause USCIS correctly used the amended statute in adjudicating Mr. Moore’s I-130\\n\\nPetition.\\n\\n\\n\\n I.\\n\\n The underlying facts are not in dispute. Mr. Moore is a United States citizen; Mrs.\\n\\nMoore is a citizen of Jamaica. The couple married in February 2006. Two months later,\\n\\nMr. Moore pleaded guilty to a Colorado sex offense involving a minor victim. The\\n\\nfollowing month, Mr. Moore filed an I-130 Petition, which is the first step to having a non-\\n\\ncitizen’s immigration status reclassified based on a familial relationship to a U.S. citizen.\\n\\nSee 8 U.S.C. § 1154(a)(1)(A)(i); 8 U.S.C. § 1101(a)(15)(K)(ii).\\n\\n\\n\\n 3\\n\\f At the time Mr. Moore filed his I-130 Petition, 8 U.S.C. § 1154 authorized all U.S.\\n\\ncitizens to file an I-130 Petition, have USCIS confirm the bona fides of the factual basis\\n\\nfor the adjustment of status, and thereafter obtain USCIS “approval” of the I-130 Petition\\n\\nso that the non-citizen family member could then pursue reclassification. A few months\\n\\nafter Mr. Moore filed his I-130 Petition, but before USCIS acted on it, 8 U.S.C. § 1154 was\\n\\namended as part of the Adam Walsh Child Protection and Safety Act of 2006 to require an\\n\\nadditional step: USCIS must perform a no-risk determination for U.S. citizen petitioners\\n\\nwith a conviction for specified offenses against a minor. The statute was amended in two\\n\\nways, adding the following italicized text to Clause (i) and adding an entirely new provision\\n\\nas Clause (viii):\\n\\n (i) Except as provided in clause (viii), any citizen of the United States\\n claiming that an alien is entitled to classification by reason of\\n [marriage] . . . may file a petition with the Attorney General for such\\n classification.\\n\\n ....\\n\\n (viii)(I) Clause (i) shall not apply to a citizen of the United States who has\\n been convicted of a specified offense against a minor, unless the\\n Secretary of Homeland Security, in the Secretary’s sole and\\n unreviewable discretion, determines that the citizen poses no risk to\\n the alien with respect to whom a petition described in clause (i) is\\n filed.\\n\\nClause (viii) also defines what a “specified offense against a minor” is by incorporating the\\n\\ndefinition from 34 U.S.C. § 20911. 8 U.S.C. § 1154(a)(1)(A)(viii)(II).\\n\\n Over three years after Mr. Moore filed his I-130 Petition, in December 2009, USCIS\\n\\ndenied it. The administrative record is not part of the record in this case, but the final\\n\\ndenial—which followed several appeals to the Board of Immigration Appeals (“BIA”) and\\n\\n 4\\n\\fremands to USCIS—was based on USCIS’s determination that Mr. Moore had a qualifying\\n\\nconviction for a specified offense against a minor and that he had failed to show he posed\\n\\nno risk to his wife. In August 2017, the BIA issued a one-member final decision dismissing\\n\\nMr. Moore’s appeal of USCIS’s decision.\\n\\n Thereafter, the Moores filed a complaint in the U.S. District Court for the Eastern\\n\\nDistrict of North Carolina alleging that USCIS’s denial of Mr. Moore’s I-130 Petition\\n\\nviolated the Administrative Procedure Act (“APA”), the INA, and the Fifth Amendment of\\n\\nthe U.S. Constitution. Specifically, they alleged that the amended version of 8 U.S.C.\\n\\n§ 1154 did not apply to Mr. Moore’s I-130 Petition because he had filed the petition prior\\n\\nto the amendment and the statutory language applies prospectively, caveating who may\\n\\nfile. They sought a declaratory judgment that Mr. Moore was entitled to approval of his I-\\n\\n130 Petition under the version of § 1154 applicable at the time it was filed.\\n\\n USCIS moved to dismiss for lack of jurisdiction, and the district court granted that\\n\\nmotion. 1 In sum, the district court concluded that the INA did not authorize federal district\\n\\ncourts to review the denial of an I-130 Petition because 8 U.S.C. § 1252(a)(2)(B) stripped\\n\\nfederal courts of jurisdiction to review the denial of discretionary relief such as I-130\\n\\nPetitions. Further, it held that § 1252(a)(2)(D) authorized only courts of appeals to review\\n\\n\\n\\n\\n 1\\n The four defendants being sued in their official capacities are Denise Frazier, the\\nDistrict Director for the USCIS office that denied Mr. Moore’s I-130 Petition; Kenneth T.\\nCuccinelli, the Director of USCIS; Kevin K. McAleenan, the Acting Secretary of the\\nDepartment of Homeland Security (under which USCIS operates); and William P. Barr,\\nthe Attorney General of the United States. The opinion will refer to them collectively as\\n“USCIS.”\\n 5\\n\\fagency decisions and only in the context of a removal proceeding. Based on its reading of\\n\\nthese provisions, the district court held it lacked jurisdiction to consider the Moores’ claim.\\n\\n The Moores noted a timely appeal, and the Court has jurisdiction under 28 U.S.C.\\n\\n§ 1291.\\n\\n\\n\\n II.\\n\\n A.\\n\\n We review the district court’s dismissal of the Moores’ complaint under a split\\n\\nstandard of review, reviewing its factual findings for clear error and its legal conclusions\\n\\nde novo. Al Shimari v. CACI Premier Tech., Inc., 840 F.3d 147, 154 (4th Cir. 2016). When\\n\\nreviewing the proper interpretation of a statute that is unambiguous, “our analysis begins\\n\\nand ends with the statute’s plain language.” Ignacio v. United States, 674 F.3d 252, 257\\n\\n(4th Cir. 2012). Further, we construe “statute[s] affecting federal jurisdiction . . . both with\\n\\nprecision and with fidelity to the terms by which Congress has expressed its wishes.”\\n\\nKucana v. Holder, 558 U.S. 233, 252 (2010).\\n\\n B.\\n\\n Determining if the district court had jurisdiction to consider the Moores’ complaint\\n\\nrequires us to examine the interplay between the APA and the INA, as well as our prior\\n\\ncases discussing those statutory provisions. Under the APA, an individual who is adversely\\n\\naffected by an agency action “is entitled to judicial review thereof,” 5 U.S.C. § 702, with\\n\\nthe exception that this express statutory grant of a cause of action does not “affect[] other\\n\\nlimitations on judicial review” or “confer[] authority to grant relief if any other statute that\\n\\n 6\\n\\fgrants consent to suit expressly or impliedly forbids the relief that is sought,” id. In sum,\\n\\nthe APA authorizes suits “except to the extent that” “statutes preclude judicial review” or\\n\\n“agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a) (emphasis\\n\\nadded). The APA thus “provide[s] a limited cause of action for parties adversely affected\\n\\nby agency action.” Lee v. U.S. Citizenship and Immig. Servs., 592 F.3d 612, 619 (4th Cir.\\n\\n2010). 2\\n\\n The INA contains several limitations on when an individual can seek judicial review\\n\\nof immigration-related agency determinations under the APA. For example, 8 U.S.C.\\n\\n§ 1252(a)(2)(B) provides that even if the APA or other federal law would grant federal\\n\\ncourts jurisdiction to consider a particular claim,\\n\\n no court shall have jurisdiction to review--\\n (i) any judgment regarding the granting of relief under section\\n 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or\\n\\n (ii) any other decision or action of the Attorney General or the\\n Secretary of Homeland Security the authority for which is\\n specified under this subchapter to be in the discretion of the\\n Attorney General or the Secretary of Homeland Security, other\\n than the granting of relief under section 1158(a) of this title.[ 3]\\n\\nNotwithstanding this general jurisdiction-stripping language, the INA expressly authorizes\\n\\ncourts of appeals to review “constitutional claims or questions of law raised upon a petition\\n\\nfor review” in the context of removal proceedings. 8 U.S.C. § 1252(a)(2)(D) (stating that\\n\\nsubsection (a)(2)(B) must not “be construed as precluding review of constitutional claims\\n\\n\\n 2\\n Here and throughout the opinion, we have omitted internal quotation marks,\\nalterations, and citations except where otherwise noted.\\n 3\\n “[T]his subchapter” refers to Subchapter 2 of Chapter 12 of Title 8. Subchapter 2\\ncovers immigration and spans 8 U.S.C. §§ 1151 to 1382.\\n 7\\n\\for questions of law raised upon a petition for review filed with an appropriate court of\\n\\nappeals in accordance with this section”). Of course, the Moores’ complaint and\\n\\nsubsequent appeal are not upon a petition for review.\\n\\n In Roland v. U.S. Citizenship and Immigration Services, 850 F.3d 625 (4th Cir.\\n\\n2017), we considered how these statutes operate together when considering whether the\\n\\ndistrict court had jurisdiction to consider an APA challenge to USCIS’s denial of an I-130\\n\\nPetition. Unlike Mr. Moore, Roland filed an I-130 Petition after the enactment of the Adam\\n\\nWalsh Act’s amendments to 8 U.S.C. § 1154. Id. at 627. USCIS denied his petition after\\n\\nperforming its no-risk assessment. Id. at 627–28. After his I-130 petition was denied,\\n\\nRoland and his wife filed a claim under the APA in district court. Id. at 628. Seeking to\\n\\navoid § 1252(a)(2)(B)(ii)’s jurisdictional bar, the Rolands asserted the district court had\\n\\njurisdiction to consider the claim because “they [did] not seek review of the agency\\n\\ndetermination itself, but rather of the legal and constitutional issues [such as] the standard\\n\\nof proof and the administrative process in adopting the rules which the USCIS used[.]” Id.\\n\\n Relying on the statutory language, we rejected the Rolands’ attempt to distinguish\\n\\nbetween the types of decisions USCIS made as part of the no-risk determination. In\\n\\nparticular, we observed that § 1252(a)(2)(B)(ii) states that “‘no court shall have jurisdiction\\n\\nto review’ certain discretionary actions or decisions” of USCIS and that\\n\\n§ 1154(a)(1)(A)(viii)(I) gave USCIS “‘sole and unreviewable discretion’ to determine\\n\\nwhether a petitioner poses no risk[.]” Id. at 629. Because the INA “specifically deems the\\n\\nno-risk determination as discretionary,” we also concluded it stripped federal courts of the\\n\\nauthority to review an agency decision unless another provision expressly authorized\\n\\n 8\\n\\freview. Id. We then observed that although § 1252(a)(2)(D) “permit[s] judicial review of\\n\\nconstitutional claims or legal questions” arising from that specific statutory authority, any\\n\\nsuch review is limited by the plain language of the statute to consideration “raised upon a\\n\\npetition for review filed with an appropriate court of appeals during removal proceedings.”\\n\\nId. Accordingly, no statute authorized review of USCIS’s no-risk determination in the\\n\\ndistrict court. Id. at 629–30.\\n\\n We observed in Roland that our reading of the statutory language was consistent\\n\\nwith our earlier decision in Lee v. U.S. Citizenship and Immigration Services, 592 F.3d 612\\n\\n(4th Cir. 2010), in which we also considered “the jurisdictional limiting effect of 8 U.S.C.\\n\\n§ 1252(a)(2)(B) on certain discretionary agency decisions.” Roland, 850 F.3d at 630. Lee\\n\\ninvolved a different type of discretionary relief and we held the appellant’s claim was\\n\\nbarred by a different provision in § 1252(a)(2)(B). Specifically, Lee had petitioned “for\\n\\nadjusted status based on employment” under 8 U.S.C. § 1255. Section 1252(a)(2)(B)(i)\\n\\nspecifically states that USCIS’s judgments concerning relief under § 1255 are not subject\\n\\nto judicial review. Id. (citing Lee, 592 F.3d at 618–19). Under the plain language of the\\n\\nstatute, we rejected the Lee petitioner’s contention that “he merely challenged the eligibility\\n\\ndetermination rather than the denial [of his petition for adjusted status] as a whole, because\\n\\nsuch relevant determinations cannot be divorced from the denial itself.” Id. (citing Lee, 592\\n\\nF.3d at 620). Lastly, we observed that § 1252(a)(2)(B)’s “broad jurisdiction stripping\\n\\nprovisions” were limited by § 1252(a)(2)(D), which “serve[d] as the exclusive means of\\n\\njudicial review of a legal issue related to the denial of an adjustment of status.” Id. (citing\\n\\nLee, 592 F.3d at 620–21).\\n\\n 9\\n\\f C.\\n\\n The Moores contend the district court erred in concluding that it lacked jurisdiction\\n\\nunder § 1252(a)(2)(B)(ii). They posit that their claim does not fall under this jurisdiction-\\n\\nstripping provision because they are not challenging a decision that Congress committed\\n\\nto USCIS’s discretion. Asserting they are unlike the petitioner in Roland, the Moores argue\\n\\nthey are not challenging any aspect of USCIS’s no-risk determination (which the statute\\n\\nleaves to USCIS’s discretion). Instead, they assert that their claim is different because it\\n\\nchallenges USCIS’s non-discretionary decision to apply the amended version of § 1154 to\\n\\nMr. Moore’s I-130 Petition. The Moores contend that this threshold question as to which\\n\\nstatute governs USCIS’s review of the petition is a matter of congressional directive rather\\n\\nthan USCIS discretion. As such, they argue that federal courts can review that decision\\n\\nwithout running afoul of § 1252(a)(2)(B)(ii).\\n\\n We agree with the Moores that the INA does not prevent the district court from\\n\\nreviewing their claim. First, although § 1252(a)(2)(B)(i) (“Clause (i)”) strips federal courts\\n\\nof jurisdiction to consider “any judgment regarding the granting of relief” sought under\\n\\nspecific statutes, § 1154—which governs I-130 Petitions—is not one of the statutes listed.\\n\\nAs such, Clause (i) does not deprive district courts of jurisdiction to consider USCIS\\n\\nhandling of an I-130 Petition.\\n\\n Second, the district court is not deprived of jurisdiction under § 1252(a)(2)(B)(ii)\\n\\n(“Clause (ii)”), which states courts cannot review “decision[s] or action[s]” Congress has\\n\\nspecified are “in the discretion of” USCIS. However, Congress did not designate to\\n\\n\\n\\n 10\\n\\fUSCIS’s discretion the decision of which version of § 1154 would apply to I-130 Petitions\\n\\npending at the time the Adam Walsh Act amendments were adopted. 4\\n\\n In Kucana v. Holder, 558 U.S. 233 (2010), the Supreme Court reiterated that Clause\\n\\n(ii)’s text means only what it says—district courts lack jurisdiction “when Congress itself\\n\\n[has] set out the Attorney General’s discretionary authority in the statute,” and that neither\\n\\nsilence nor an agency-promulgated regulation is sufficient to strip federal courts of\\n\\njurisdiction under this provision. Id. at 247; see also id. at 249–51. In § 1154, Congress has\\n\\ndesignated only certain aspects of USCIS’s review of I-130 Petitions to be within the\\n\\nagency’s discretion. In both the original and amended versions of § 1154, USCIS retains\\n\\n“sole discretion” to determine “what evidence is credible and the weight to be given that\\n\\nevidence” in making a credibility determination as to the bona fides of the I-130 Petitions’\\n\\ncontents. 8 U.S.C. § 1154(a)(1)(J). And in the amended version, USCIS has “sole and\\n\\nunreviewable discretion” in undertaking the no-risk determination. Id.\\n\\n§ 1154(a)(1)(A)(viii)(I) and (a)(1)(B)(i)(I). 5\\n\\n Thus, although certain decisions or actions regarding I-130 Petitions have been\\n\\ncommitted to USCIS’s discretion, nowhere is the decision of which version of the statute\\n\\napplies to the adjudication of pending petitions committed to that discretion. That query is\\n\\nentirely separate from any of the discretionary decisions cited above, and instead involves\\n\\n\\n 4\\n The statute refers to the Attorney General and the Secretary of the Department of\\nHomeland Security, but 8 C.F.R. § 2.1 authorizes the Secretary to delegate those\\nadministration and enforcement duties. Responsibility for I-130 Petitions has been\\ndelegated to USCIS.\\n 5\\n There are two provisions designated by subclause (I), but this refers to the second\\none.\\n 11\\n\\fa question of USCIS’s statutory authority: which version of § 1154 governs its\\n\\nconsideration of Mr. Moore’s I-130 Petition? Contrast Lee, 592 F.3d at 620 (stating that\\n\\nthe question presented in that case “cannot be divorced from the denial [of relief] itself”).\\n\\nIn an analogous situation in Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court\\n\\nheld that § 1252(a)(2)(B)(ii) did not strip the courts of jurisdiction. There, the Supreme\\n\\nCourt noted that it had jurisdiction to consider the issue of “the extent of the Attorney\\n\\nGeneral’s authority under” a statute because that question did not “seek review of the\\n\\nAttorney General’s exercise of discretion.” Id. at 688. Similarly, the Moores do not seek\\n\\nreview of USCIS’s exercise of discretion within the evidentiary assessment or no-risk\\n\\ndetermination; rather, they asked the district court to consider the separate issue of whether\\n\\nUSCIS used the correct statute to review Mr. Moore’s I-130 Petition. As such,\\n\\n§ 1252(a)(2)(B)(ii) does not strip federal courts of jurisdiction to consider that issue. 6\\n\\n\\n 6\\n Two recent Supreme Court decisions acknowledging federal courts’ jurisdiction\\ndespite jurisdiction-stripping language lend further weight to our conclusion. Although a\\nmajority of the justices in each case agreed that jurisdiction existed, a majority did not sign\\nonto an agreed explanation of why that was so. Because the only relevant discussion\\nappears in an opinion that did not garner a majority of the Court, that discussion offers only\\npersuasive, but not binding, analysis. Yet in each case, Justice Alito, joined by Chief Justice\\nRoberts and Justice Kavanaugh, noted courts had jurisdiction to consider the issue\\npresented because it involved a question of statutory authority apart from the grant or denial\\nof relief that the statute committed to the agency’s discretion. See Nielsen v. Preap, 139 S.\\nCt. 954, 961–63 (2019) (Alito, J.) (issuing an opinion as to Sec. II addressing jurisdiction);\\nJennings v. Rodriguez, 138 S. Ct. 830, 839–41 (2018) (Alito, J.) (same) (concluding the\\nCourt had jurisdiction to consider a challenge to the statutory framework under which the\\nAttorney General was operating because “the extent of the Government’s detention\\nauthority [under the statute] is not a matter of discretionary judgment, action, or decision”\\nsubject to the jurisdiction-stripping language of 8 U.S.C. § 1226(e)). That same distinction\\napplies in this case, as the Moores are not challenging how the agency exercised its\\ndiscretion, but rather which version of the statute Congress intended the agency to use\\nwhen adjudicating I-130 Petitions pending at the time the statute was amended.\\n 12\\n\\f It follows from this review of the applicable cases that § 1252(a)(2)(D) has no\\n\\nbearing on the analysis. As we have previously explained, in § 1252(a)(2)(D), “Congress\\n\\nexplicitly allowed courts of appeals to retain a narrow window for jurisdiction to review\\n\\nunder that section, despite otherwise stripping jurisdiction under Section 1252(a)(2)(B).”\\n\\nRoland, 850 F.3d at 630. Thus, § 1252(a)(2)(D) is inapplicable unless § 1252(a)(2)(B) has\\n\\nbeen triggered. Given that § 1252(a)(2)(B) does not strip the court of jurisdiction over the\\n\\nMoores’ claim, § 1252(a)(2)(D) does not apply.\\n\\n Neither Roland nor Lee compels a different conclusion as to the proper\\n\\ninterpretation of § 1252(a)(2)(B)(ii) or the court’s jurisdiction in this case. Although both\\n\\ncases observed that § 1252(a)(2)(D) “serve[d] as the ‘exclusive means of judicial review of\\n\\na legal issue related to the denial of an adjustment of status,’” the context for that discussion\\n\\nsupports our understanding that § 1252(a)(2)(D) applies only when the jurisdiction-\\n\\nstripping provisions of § 1252(a)(2)(B) had already been invoked. Indeed, it was only after\\n\\nthe Court concluded that § 1252(a)(2)(B)(i) or (ii) applied to the issue raised on appeal that\\n\\nthe Court considered whether § 1252(a)(2)(D) affected the analysis. Roland, 850 F.3d at\\n\\n629–30; Lee, 592 F.3d at 619–20.\\n\\n Further, the petitioner in Roland filed his I-130 Petition after enactment of the Adam\\n\\nWalsh Act’s amendments, so no question arose as to which version of the statute applied\\n\\nfor USCIS review. 850 F.3d at 627. Instead, Roland challenged various aspects of the\\n\\nagency’s no-risk determination and sought to create a line between legal questions about\\n\\nthat determination and factual questions about it. In rejecting that argument, the Court\\n\\npointed to the statutory language committing the no-risk determination unconditionally to\\n\\n 13\\n\\fthe discretion of USCIS. Id. at 629. The Moores raise a different sort of legal question, one\\n\\nentirely apart from the no-risk determination’s legal framework or factual assessment.\\n\\nRoland is thus inapposite.\\n\\n Lee is likewise distinguishable. The appellant in that case was seeking an adjustment\\n\\nof status under § 1255, which is one of the statutes listed in § 1252(a)(2)(B)(i). The Court\\n\\nin Lee looked to the type of petition at issue in the case, determined that it was listed in\\n\\n§ 1252(a)(2)(B)(i), and concluded that specific statutory provision “closes the door to\\n\\njudicial review of certain discretionary decisions, including the denial of an application for\\n\\nadjustment of status” under § 1255. Lee, 592 F.3d at 619; see also Kucana, 558 U.S. at\\n\\n247–48 (describing “the character of the decisions Congress enumerated in §\\n\\n1252(a)(2)(B)(i)” as “substantive decisions . . . made by the Executive in the immigration\\n\\ncontext as a matter of grace,” including “waivers of inadmissibility based on certain\\n\\ncriminal offenses, § 1182(h), or based on fraud or misrepresentation, § 1182(i);\\n\\ncancellation of removal, § 1229b; permission for voluntary departure, § 1229c; and\\n\\nadjustment of status, § 1255”). However, I-130 Petitions filed under § 1154, like the\\n\\nMoores’, are not listed in § 1252(a)(2)(B)(i), so the Court’s jurisdiction is not determined\\n\\nby that statute.\\n\\n In sum, we conclude that the district court erred in dismissing the complaint for lack\\n\\nof jurisdiction. The APA authorized the Moores’ claim and § 1252(a)(2)(B) did not strip\\n\\nthe court of jurisdiction to determine whether I-130 Petitions pending at the time the Adam\\n\\nWalsh Act amended § 1154 should be processed by USCIS under the former or amended\\n\\n\\n\\n 14\\n\\fversion of the statute. The district court thus had jurisdiction to consider that threshold\\n\\nquestion and so do we.\\n\\n\\n\\n III.\\n\\n Despite the district court’s erroneous conclusion about its jurisdiction, under well-\\n\\nestablished precedent, we can affirm its decision to dismiss the complaint on any ground\\n\\napparent on the record. See Greenhouse v. MCG Capital Corp., 392 F.3d 650, 660 (4th Cir.\\n\\n2004) (“[W]e may affirm the dismissal by the district court on the basis of any ground\\n\\nsupported by the record even if it is not the basis relied upon by the district court.”). In its\\n\\nmotion to dismiss, USCIS also asserted that the Moores’ complaint failed to state a claim\\n\\nbecause USCIS correctly used the amended version of § 1154 when adjudicating pending\\n\\nI-130 Petitions such as Mr. Moore’s. Given that this is a question of statutory interpretation\\n\\nand because both parties fully briefed this substantive legal issue on appeal, we will\\n\\nproceed to consider that issue rather than remanding for the district court’s consideration\\n\\nin the first instance.\\n\\n When determining whether Congress intended for the Adam Walsh Act\\n\\namendments to § 1154 to apply to pending I-130 Petitions, we first assess whether\\n\\nCongress “expressly prescribed the statute’s proper reach.” Landgraf v. USI Film Prods.,\\n\\n511 U.S. 244, 280 (1994). “If there is no congressional directive on the temporal reach of\\n\\na statute, we determine whether the application of the statute to the conduct at issue would\\n\\nresult in a retroactive effect. If so, then in keeping with our traditional presumption against\\n\\n\\n\\n 15\\n\\fretroactivity, we presume that the statute does not apply to that conduct.” Martin v. Hadix,\\n\\n527 U.S. 343, 352 (1999).\\n\\n A.\\n\\n The Moores contend that the amended version of § 1154 should not have been\\n\\napplied to I-130 Petitions (like theirs) pending at the time the Adam Walsh Act was\\n\\nenacted. They point to the language in §1154(a)(1)(A)(i), which says certain U.S. citizens\\n\\n“may file” an I-130 Petition, as support that the amendments restricted only the filing of\\n\\nnew petitions and did “not give the [USCIS] new authority to deny any previously filed\\n\\npetitions.” Opening Br. 18. The Moores caution that by applying the amended language\\n\\nretroactively, USCIS has violated the equal protection rights of petitioners who filed their\\n\\npetitions on the same day, but yet have their petitions adjudicated under different standards\\n\\ndepending on when USCIS made its determination. Lastly, the Moores assert that because\\n\\nCongress did not clearly indicate that the amendments should be applied retroactively, it\\n\\nwould be unfair to apply the amendments to pending petitions because it upsets the\\n\\nexpectations of petitioners.\\n\\n USCIS responds that it properly applied the Adam Walsh Act’s amendments when\\n\\nadjudicating Mr. Moore’s I-130 Petition. It points first to the irrationality of reading Clause\\n\\n(i) to literally restrict individuals from filing a new petition when the statute as a whole is\\n\\nmore naturally read to regulate the process by which USCIS approves I-130 Petitions.\\n\\nPointing to Clause (i)’s cross-reference to Clause (viii) as supporting the view that\\n\\nindividuals with a qualifying conviction are not prohibited from filing, USCIS contends a\\n\\npetitioner may be prohibited from having their petitions approved depending on the\\n\\n 16\\n\\foutcome of USCIS’s no-risk determination. The agency also points to the administrative\\n\\nlaw principle that applications for relief are considered “continuing applications” that must\\n\\ndemonstrate eligibility for relief under the facts and law applicable at the time of the agency\\n\\ndetermination, not just the time filed. Lastly, USCIS asserts the Moores’ retroactivity,\\n\\nequal protection and expectation arguments fail because there’s no proof that Mr. Moore’s\\n\\nI-130 Petition was treated any differently from similarly situated individuals and whenever\\n\\na new law is enacted, individuals are held to that new standard regardless of their prior\\n\\nexpectations.\\n\\n B.\\n\\n In matters of statutory interpretation, “the sole function of the courts—at least where\\n\\nthe disposition required by the text is not absurd—is to enforce it according to its terms,”\\n\\nLamie v. U.S. Tr., 540 U.S. 526, 534 (2004), and when “assessing for plain meaning, we\\n\\ndo not consider statutory phrases in isolation; we read statutes as a whole,” United States\\n\\nv. Mitchell, 518 F.3d 230, 234 (4th Cir. 2008). The Moores’ textual argument improperly\\n\\nisolates Clause (i) from the statute as a whole.\\n\\n The Moores would have us read Clause (i) in isolation to conclude that it restricts\\n\\nfilers of I-130 Petitions rather than USCIS’s review of filed petitions. But Clause (i) must\\n\\nbe read alongside the other provisions of § 1154 not only because that is the proper way to\\n\\nunderstand a statute’s meaning, but also because Clause (i) contains an explicit cross-\\n\\nreference to Clause (viii). Clause (i), which says “[e]xcept as provided in clause (viii), any\\n\\ncitizen . . . may file a petition,” must be read and understood in tandem with Clause (viii),\\n\\nwhich states:\\n\\n 17\\n\\f Clause (i) shall not apply to a citizen of the United States who has been\\n convicted of a specified offense against a minor, unless the Secretary of\\n Homeland Security, in the Secretary’s sole and unreviewable discretion,\\n determines that the citizen poses no risk to the alien with respect to whom a\\n petition described in clause (i) is filed.\\n\\nClause (viii) plainly provides that USCIS must make a no-risk determination for I-130\\n\\nPetitions filed by petitioners who have a qualifying conviction, and that this determination\\n\\nmust be made before those I-130 Petitions are eligible to continue on the course\\n\\ncontemplated in Clause (i). In other words, Clause (i) and Clause (viii) added a preliminary\\n\\nstep to USCIS’s review of some I-130 Petitions. And Clause (i)’s ordinary procedure is\\n\\nlimited to I-130 Petitions filed by individuals without a qualifying conviction and by\\n\\nindividuals with a qualifying conviction and USCIS’s approval upon determining the U.S.\\n\\ncitizen poses no risk. The amendments do not bar who can file an I-130 Petition, but rather\\n\\ndirect USCIS’s review of an I-130 Petition. Thus, the Moores’ textual argument against\\n\\napplying the Adam Walsh Act’s amendments to I-130 Petitions pending at the time of their\\n\\nadoption fails.\\n\\n This conclusion is confirmed by the holding of the Ninth Circuit, the only other\\n\\ncircuit court to have considered whether USCIS properly construed the Adam Walsh Act\\n\\namendments to § 1154 as applying to I-130 Petitions pending at the time of their enactment.\\n\\nWhile our reasoning rests on a slightly different analysis than the Ninth Circuit’s, we agree\\n\\nwith that court’s determination that\\n\\n Congress did not enact [§ 1154’s amendments] to bar certain citizens from\\n placing pieces of paper in front of an agency for processing. Rather, when\\n Congress declared that “Clause (i) shall not apply,” Congress was expressing\\n its judgment that citizens convicted of certain offenses may not, unless\\n stringent conditions are met, benefit from the petitioning framework\\n\\n 18\\n\\f described in Clause (i). In keeping with that goal, the Adam Walsh Act\\n provision amending the INA is described as “barring convicted sex\\n offenders” not from filing petitions, but “from having family-based petitions\\n approved.”\\n . . . . [I]f Clause (viii)(I) barred citizens convicted of a specified\\n offense against a minor from filing a petition at all, the Secretary could never\\n make the kind of risk determination that the Adam Walsh Act requires.\\n\\nGebhardt v. Nielsen, 879 F.3d 980, 985–86 (9th Cir. 2018). At bottom, nothing in the text\\n\\nof the amendments indicates that Congress did not intend for them to apply to pending I-\\n\\n130 Petitions. 7\\n\\n We also reject the Moores’ assertion that applying the amended version of § 1154\\n\\nto pending I-130 Petitions would have an impermissible retroactive effect. “A statute does\\n\\nnot operate retrospectively merely because it is applied in a case arising from conduct\\n\\nantedating the statute’s enactment.” Landgraf, 511 U.S. at 269. To have retroactive effect,\\n\\nthe statute must “impair rights a party possessed when he acted, increase a party’s liability\\n\\nfor past conduct, or impose new duties with respect to transactions already completed.” Id.\\n\\nat 280. None of these indicia of retroactive effect exists in this case.\\n\\n The Moores improperly focus on when Mr. Moore filed his I-130 Petition, but in\\n\\nthis context the proper inquiry is what law applied at the time the agency ruled on his\\n\\n\\n 7\\n Our holding also aligns with the BIA’s description of the Adam Walsh Act’s\\namendments to § 1154:\\n [S]ection 402(a)(2) of the Adam Walsh Act amended section 204(a)(1) of the\\n [INA], 8 U.S.C. § 1154(a)(1), by adding a provision barring a United States\\n citizen who has been convicted of a specified offense against a minor from\\n having a family-based visa petition approved unless the Secretary of\\n Homeland Security, in the Secretary’s sole and unreviewable discretion,\\n determines that the citizen poses no risk to the alien beneficiary.\\nMatter of Tatiana Aceijas-Quiroz, 26 I. & N. Dec. 294, 295–96 (BIA 2014) (emphasis\\nadded).\\n 19\\n\\fpetition. Mr. Moore’s I-130 Petition had been filed, but the agency had not yet approved\\n\\nor rejected it, when the statutory amendments came into effect. The amendments were not\\n\\napplied retroactively to a past decision or concerning past eligibility, but rather were\\n\\napplied to a then-pending decision regarding current eligibility for the requested relief. The\\n\\namendments altered how Mr. Moore’s I-130 Petition would be reviewed and approved, but\\n\\n“d[id] not infringe on a right that he possessed prior to [their] enactment,” increase his\\n\\nliability for any past act, or otherwise affect a completed transaction. See Appiah v. U.S.\\n\\nI.N.S., 202 F.3d 704, 709 (4th Cir. 2000).\\n\\n In undertaking its review of Mr. Moore’s I-130 Petition, USCIS was charged with\\n\\napplying whatever rules currently governed that review. This is so because applications for\\n\\nagency relief such as an I-130 Petition are considered “continuing applications,” meaning\\n\\nthat the agency must determine whether to approve them on the basis of the facts and law\\n\\nas they exist at the time the decision is made as opposed to the time when the application\\n\\nis filed. E.g., Matter of Alarcon, 20 I. & N. Dec. 557, 562 (BIA 1992) (“An application for\\n\\nadmission to the United States is a continuing application, and admissibility is determined\\n\\non the basis of the facts and the law at the time the application is finally considered. When\\n\\na law is changed before a decision is handed down by an administrative agency, the agency\\n\\nmust apply the new law. If a statutory amendment renders an individual ineligible for\\n\\nadjustment of status prior to a final administrative decision on the previously filed\\n\\napplication for relief, the application must be denied.”). This understanding of agency\\n\\nreview flows from the Supreme Court’s observation that “a change of law pending an\\n\\nadministrative [determination] must be followed in relation to permits for future acts.\\n\\n 20\\n\\fOtherwise the administrative body would issue orders contrary to the existing legislation.”\\n\\nZiffrin, Inc. v. United States, 318 U.S. 73, 78 (1943); see also Citizens to Preserve Overton\\n\\nPark, Inc. v. Volpe, 401 U.S. 402, 418–19 (1971) (stating that administrative regulations\\n\\nissued during the pendency of a case should be used to decide a dispute). USCIS thus acted\\n\\nappropriately when it relied on the amended version of § 1154 to review Mr. Moore’s I-\\n\\n130 Petition.\\n\\n The Moores’ remaining arguments also lack merit. It was not “arbitrary\\n\\ntreatment”—i.e., an equal protection violation—for USCIS to apply then-applicable law to\\n\\npending I-130 Petitions. See Opening Br. 23; see also Adarand Constructors, Inc. v. Pena,\\n\\n515 U.S. 200, 213 (1995) (recognizing that the Fifth Amendment’s due process clause\\n\\ncontains an equal protection component that “provide[s] some measure of protection\\n\\nagainst arbitrary treatment by the Federal Government”). Absent evidence of an invidious\\n\\nmotive giving rise to the delay—which has not been alleged here—that different laws\\n\\napplied to different petitions depending on the time each was decided cannot give rise to\\n\\nan equal protection violation. See Johnson v. Robison, 415 U.S. 361, 364 n.4 (1974)\\n\\n(discussing the scope of the Fifth Amendment’s equal protection clause). Similarly, as we\\n\\npreviously explained, in Landgraf, the Supreme Court “emphasized that a statute does not\\n\\noperate retroactively merely because it upsets expectations based in prior law.” Appiah,\\n\\n202 F.3d at 709. “Even uncontroversially prospective statutes may unsettle expectations\\n\\nand impose burdens on past conduct[.]” Landgraf, 511 U.S. at 269 n.24. But that prospect\\n\\n“is not a reason for declining to apply a statute to a pending case.” Appiah, 202 F.3d at 709.\\n\\n\\n\\n 21\\n\\f IV.\\n\\n For the reasons provided, we hold that although the district court had jurisdiction to\\n\\nconsider the Moores’ claim, it did not err in dismissing their complaint because their claim\\n\\nfails as a matter of law.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 22\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4577,"cells":{"id":{"kind":"number","value":4675351,"string":"4,675,351"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"In re: Search Warrant"},"decision_date":{"kind":"string","value":"2019-10-31"},"docket_number":{"kind":"string","value":"19-1730"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before GREGORY, Chief Judge, and KING and RUSHING, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"KING, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 19-1730\\n\\n\\nIn re: SEARCH WARRANT ISSUED JUNE 13, 2019\\n____________________________\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n v.\\n\\nUNDER SEAL,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the District of Maryland, at Baltimore.\\nLiam O’Grady, District Judge. (1:19-mj-02155-TCB-1)\\n\\nArgued: September 10, 2019 Decided: October 31, 2019\\n Amended: October 31, 2019\\n\\n\\nBefore GREGORY, Chief Judge, and KING and RUSHING, Circuit Judges.\\n\\n\\nReversed and remanded by published opinion. Judge King wrote the opinion, in which\\nChief Judge Gregory and Judge Rushing joined. Judge Rushing wrote a separate\\nconcurring opinion.\\n\\n\\nARGUED: James Patrick Ulwick, KRAMON & GRAHAM, P.A., Baltimore, Maryland,\\nfor Appellant. Derek Edward Hines, OFFICE OF THE UNITED STATES ATTORNEY,\\nBaltimore, Maryland, for Appellee. ON BRIEF: Steven M. Klepper, Louis P. Malick,\\nKRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellant. Robert K. Hur,\\nUnited States Attorney, Aaron S.J. Zelinsky, Assistant United States Attorney, OFFICE\\nOF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.\\n\\nKING, Circuit Judge:\\n\\n The appellant in these proceedings is a Baltimore law firm (the “Law Firm”) that\\n\\nchallenges the government’s use of a so-called “Filter Team” — created ex parte by a\\n\\nmagistrate judge in the District of Maryland and comprised of federal agents and\\n\\nprosecutors — to inspect privileged attorney-client materials. Those materials were seized\\n\\nfrom the Law Firm in June 2019 during the execution of a search warrant issued by the\\n\\nmagistrate judge. The Law Firm requested that the district court enjoin the Filter Team’s\\n\\nreview of the seized materials, invoking the attorney-client privilege and the work-product\\n\\ndoctrine. When the court denied its request, the Law Firm pursued this appeal. As\\n\\nexplained below, we are satisfied that use of the Filter Team is improper for several\\n\\nreasons, including that, inter alia, the Team’s creation inappropriately assigned judicial\\n\\nfunctions to the executive branch, the Team was approved in ex parte proceedings prior to\\n\\nthe search and seizures, and the use of the Team contravenes foundational principles that\\n\\nprotect attorney-client relationships. We therefore reverse and remand.\\n\\n\\n\\n I.\\n\\n A.\\n\\n 1.\\n\\n For about three years, “Lawyer A,” a partner of the Law Firm, handled the\\n\\nrepresentation of “Client A” in an investigation conducted by federal authorities in\\n\\n\\n\\n\\n 2\\n\\nMaryland. 1 Client A — who is also a Maryland lawyer — was suspected of assisting drug\\n\\ndealers in illicit activities, including money laundering and obstruction of federal\\n\\ninvestigations. According to the government, its investigation of Client A was obstructed\\n\\nby Lawyer A, and the relationship between Lawyer A and Client A triggered an application\\n\\nof the crime-fraud exception to the attorney-client privilege and work-product doctrine. In\\n\\nlight of Lawyer A’s suspected misconduct, the government also initiated an investigation\\n\\nof Lawyer A.\\n\\n As part of those investigative efforts, an IRS agent applied for a warrant to conduct\\n\\na search of the Law Firm’s Baltimore offices. On June 13, 2019, the magistrate judge\\n\\napproved the search warrant application and issued the warrant as requested. Based on her\\n\\nreview of the supporting affidavit of the IRS agent, the judge found probable cause for the\\n\\nsearch of the Law Firm and the seizures of client-related materials concerning Lawyer A’s\\n\\nrepresentation of Client A.\\n\\n 2.\\n\\n Contemporaneously with issuance of the search warrant, the magistrate judge\\n\\nauthorized the Filter Team, which had been proposed to the judge ex parte by the\\n\\nprosecutors in connection with the search warrant application. In so doing, the judge\\n\\nadopted the “Filter Team Practices and Procedures” specified in an attachment to the search\\n\\n\\n\\n\\n 1\\n In seeking to protect the identities of those involved in these proceedings, we use\\nthe nonspecific terms “Law Firm,” “Lawyer A,” and “Client A.” Our use of those terms is\\ngenerally consistent with the record on appeal.\\n\\n 3\\n\\nwarrant application and affidavit (the “Filter Protocol”). See S.J.A. 41-45. 2 The Filter\\n\\nProtocol defined the membership of the Filter Team and established the process for its\\n\\nreview of the materials to be thereafter seized from the Law Firm. Members of the Filter\\n\\nTeam included lawyers from the United States Attorney’s Office in Maryland’s Greenbelt\\n\\nDivision (the “Filter Team AUSAs”); a legal assistant and a paralegal who also worked\\n\\nthere; agents of the IRS and DEA; and forensic examiners. The Filter Team operated in\\n\\none of the two offices of Maryland’s United States Attorney — the Greenbelt office.\\n\\n Pursuant to the Filter Protocol, the Filter Team members were not involved in the\\n\\ninvestigations of Lawyer A and Client A (apart from being Filter Team members). The\\n\\nagents and prosecutors conducting the investigations of Lawyer A and Client A (the\\n\\n“Prosecution Team”) were excluded from the Filter Team. In contrast to the Filter Team\\n\\nAUSAs who were assigned to the Greenbelt office, the Prosecution Team lawyers were\\n\\nassigned to the United States Attorney’s Baltimore office.\\n\\n As for the Filter Team’s process of reviewing attorney-client materials seized from\\n\\nthe Law Firm, the Filter Protocol provided for privilege issues to be handled thusly:\\n\\n • After seizing materials from the Law Firm, the Filter Team would\\n identify and separate privileged and potentially privileged materials\\n from materials that were not privileged. Under the Filter Protocol,\\n privileged materials included “attorney-client information, attorney\\n work product information, and client confidences that have not been\\n waived,” see S.J.A. 43, 45;\\n\\n 2\\n Citations herein to “S.J.A. __” refer to the contents of the Sealed Joint Appendix\\nfiled by the parties in this appeal. The government later sought to supplement the Sealed\\nJoint Appendix by filing an ex parte appendix, the contents of which would be available\\nonly to itself and the Court and were never available to the Law Firm. On September 12,\\n2019, we rejected the filing of the ex parte supplemental appendix.\\n\\n 4\\n\\n • When seized materials were found by the Filter Team to be\\n nonprivileged, the Filter Team AUSAs could forward such materials\\n directly to the Prosecution Team, without the consent of the Law Firm\\n or a court order (the “Privilege Assessment Provision”);\\n\\n • For privileged and potentially privileged materials, the Filter Team\\n would decide whether any such seized materials were “responsive to\\n the search warrant,” id. at 44;\\n\\n • For privileged and potentially privileged materials that were\\n “responsive to the search warrant,” id., the Filter Team AUSAs would\\n place them in one of three categories:\\n\\n 1. Seized materials that were privileged and could not\\n be redacted;\\n\\n 2. Seized materials that were privileged but could be\\n redacted; or\\n\\n 3. Seized materials that were potentially privileged (for\\n example, when the Filter Team identified some\\n possible exception, such as the crime-fraud\\n exception, to a claim of privilege);\\n\\n • After providing copies to counsel for Lawyer A of the seized materials\\n identified as within categories 2 and 3, the Filter Team AUSAs would\\n seek an agreement with counsel for Lawyer A concerning whether\\n those materials could be forwarded to the Prosecution Team; and\\n\\n • If the Filter Team AUSAs and counsel for Lawyer A disagreed on the\\n handling of seized materials, the Filter Team AUSAs would submit\\n such “items to the court for [a] determination regarding privilege\\n and/or proposed redactions of the privileged material,” id.\\n\\n The Filter Protocol also authorized the Filter Team to provide the Prosecution Team\\n\\nwith seized materials if a Filter Team member “obtain[ed] [a] waiver[] of the attorney-\\n\\nclient privilege” by directly contacting the Law Firm client holding the privilege. See\\n\\nS.J.A. 42. Under the Protocol, “[i]f a client waive[d] the attorney-client privilege as to\\n\\n 5\\n\\nfiles, no further filter review of [those] files . . . for attorney-client privileged material [was]\\n\\nrequired.” Id.\\n\\n 3.\\n\\n Five days after the magistrate judge issued the search warrant, on June 18, 2019,\\n\\nfifteen IRS and DEA agents — who were members of the Filter Team — executed the\\n\\nwarrant by conducting a six-hour search of the Law Firm’s offices. Those agents seized\\n\\nvoluminous materials, including certain “confidential, privileged documents” of the Law\\n\\nFirm concerning, inter alia, Lawyer A’s representation of Client A. See S.J.A. 66. For\\n\\nexample, the agents electronically copied and seized the contents of Lawyer A’s iPhone\\n\\nand computer. The electronically seized materials contained all of Lawyer A’s email\\n\\ncorrespondence, including email correspondence related to Client A and numerous other\\n\\nLaw Firm clients. 3 More specifically, Lawyer A’s seized email inbox contained\\n\\napproximately 37,000 emails, of which 62 were from Client A or contained Client A’s\\n\\nsurname. And Lawyer A’s seized email “sent items” folder contained approximately\\n\\n\\n\\n\\n 3\\n The inventory for the return of the search warrant that was filed under seal in the\\ndistrict court describes in very general terms the items seized. See Fed. R. Crim. P.\\n41(f)(1)(B) (requiring officer present during execution of warrant to prepare and verify\\ninventory of property seized). For example, the inventory states that agents performed\\n“extraction[s]” of Lawyer A’s iPhone, of an iPad belonging to the Law Firm, and of a\\nlaptop belonging to a Firm associate. See S.J.A. 21. The inventory also describes the\\nseizures of, inter alia, a laptop, a hard drive, a portable drive, and several compact discs.\\nAdditionally, the inventory describes the seizures of various physical documents, including\\n“handwritten notes” found at the desk of a Law Firm associate, “client notes” found at the\\ndesk of Lawyer A’s assistant, and a redweld folder containing “communications\\nhandwritten and typed” found in Lawyer A’s office. Id. at 22-23.\\n\\n 6\\n\\n15,000 emails, of which 54 had been sent to Client A or contained Client A’s surname. Id.\\n\\nat 80. 4 An “extensive” portion of the seized emails were “from other [Law Firm] attorneys\\n\\nconcerning . . . other attorneys’ clients that have no connection with th[e] investigation[s]”\\n\\nof Lawyer A and Client A. Id. at 66. Notably, some of those Law Firm clients “are being\\n\\ninvestigated by, or are being prosecuted by, the United States Attorney’s Office [for the\\n\\nDistrict of Maryland] for unrelated crimes.” Id. 5\\n\\n During the execution of the search warrant by the IRS and DEA on June 18, 2019,\\n\\nvarious Law Firm partners voiced objections, including to the breadth of the search and\\n\\nseizures. Those objections were made directly to the federal agents conducting the search,\\n\\nand were also made to at least two prosecutors, including a member of the Prosecution\\n\\nTeam. A Law Firm partner specifically requested that the government’s forensic\\n\\n\\n\\n\\n 4\\n Our foregoing explanation of the seizures of Lawyer A’s emails is derived in part\\nfrom the affidavit of an information technology professional filed by the Law Firm in the\\ndistrict court. See S.J.A. 80-81 (affidavit stating that “I electronically reviewed [Lawyer\\nA’s] email folders on the [F]irm’s computer server and determined that (a) [Lawyer A’s]\\nemail inbox contained a total of 37,114 emails with a total size of 9,124,544 KB, of which\\nonly 62 emails with a total size of 21,582 KB were from [Client A] or contained [Client\\nA’s surname]; and (b) [Lawyer A’s] email sent items contained 15,219 emails with a total\\nsize of 2,308,938 KB, of which only 54 emails with a total size of 20,049 KB were sent to\\n[Client A] or contained [Client A’s surname]”). No evidence contradicting that affidavit\\nwas presented to the district court.\\n 5\\n In addition to the seizures by federal agents of thousands of emails and other\\ncommunications between Lawyer A and persons other than Client A, the IRS and DEA\\nagents seized multiple compact discs containing electronic documents that Lawyer A had\\nreceived from lawyers who had previously represented Client A.\\n\\n 7\\n\\nexaminers limit their seizures of Lawyer A’s emails to those that included Client A’s name\\n\\nor other relevant search terms. Those requests were all rejected. 6\\n\\n By letter delivered to the United States Attorney on June 21, 2019, the Law Firm\\n\\nasserted that the search and seizures contravened the Constitution, Federal Rules of\\n\\nCriminal Procedure, and United States Attorneys’ Manual. Additionally, the Law Firm\\n\\nadvised the government that the Firm had a duty “to preserve client confidences and\\n\\nsecrets,” see S.J.A. 71, and that it was “ethically mandated to urge the return of all items\\n\\nseized by the government,” id. at 72. The Law Firm’s letter objected to the use of the Filter\\n\\nTeam and requested that the government return the seized materials so that the Firm could\\n\\nconduct a privilege review — which would have been the process had the government used\\n\\nsubpoenaes duces tecum rather than a search warrant. The Law Firm also requested that\\n\\nthe government not examine any of the seized materials until the Firm had an opportunity\\n\\nto complete its privilege review. Alternatively, the Law Firm asked the government to\\n\\nimmediately submit the seized materials to the magistrate judge or the district court for in\\n\\ncamera inspection. The government never responded to the Law Firm’s letter.\\n\\n\\n\\n 6\\n The facts specified herein with respect to the Law Firm’s objections to the\\nexecution of the search warrant, and the government’s refusal to limit the seizures of\\nLawyer A’s emails, are spelled out in the affidavit of a Law Firm partner that was filed in\\nthe district court. See S.J.A. 67 (affidavit stating that “[o]n June 18, 2019, my law partners\\nand I immediately voiced [the Law Firm’s] objections to the search and seizure, both to\\nagents conducting the search and by phone to Assistant United States Attorneys . . . . I\\nasked the [g]overnment’s forensic examiners to limit the downloading of [Lawyer A’s]\\nemails to those that included [Client A’s surname] or other relevant search terms, but they\\nrefused to do so without explanation”). The government did not rebut the lawyer’s\\naffidavit.\\n\\n 8\\n\\n B.\\n\\n On June 26, 2019, Client A — whose own office had also been searched by federal\\n\\nagents and whose files were seized — moved in the district court for relief from the Filter\\n\\nProtocol, which also applied to that search. The following day, the court ordered that the\\n\\nFilter Team not deliver to the Prosecution Team any materials that were seized from Client\\n\\nA and the Law Firm, pending further order of the court. 7\\n\\n On June 28, 2019, the Law Firm separately moved in the district court for injunctive\\n\\nrelief. More specifically, the Law Firm sought a temporary restraining order and a\\n\\npreliminary injunction, pursuant to Rule 65 of the Federal Rules of Civil Procedure, and\\n\\nthe return of seized property, pursuant to Rule 41(g) of the Federal Rules of Criminal\\n\\nProcedure (collectively, the “Injunction Requests”). On July 1, 2019, the government\\n\\nresponded to and opposed the Law Firm’s Injunction Requests. The Law Firm replied the\\n\\nvery next day.\\n\\n Eight days later, on July 10, 2019, the district court conducted a telephonic hearing\\n\\non the Injunction Requests. 8 During that hearing, the Law Firm’s counsel explained that\\n\\nthe Law Firm had more than twenty lawyers, and he described the Firm’s extensive and\\n\\nongoing law practice in Maryland, including its involvement in a vast amount of criminal\\n\\n\\n 7\\n Because all the district judges in the District of Maryland recused themselves from\\nthese proceedings, a district judge in the Eastern District of Virginia was designated to\\nhandle them. The magistrate judge on this case is also an Eastern District of Virginia judge\\ndesignated for service in the District of Maryland.\\n 8\\n The district court was not available for an earlier hearing due to the extended\\nFourth of July holiday weekend and the court’s schedule.\\n\\n 9\\n\\nand civil litigation and related legal services. Counsel emphasized to the court that Lawyer\\n\\nA’s entire email file had been copied and seized by the federal agents and that the file\\n\\ncontained privileged communications with and between various lawyers and clients of the\\n\\nLaw Firm concerning criminal and civil matters unrelated to the investigations of Lawyer\\n\\nA and Client A. Counsel advised the court that the Law Firm had conducted a search of\\n\\nLawyer A’s emails using Client A’s surname and identified only 116 responsive emails in\\n\\nthe approximately 52,000 emails that were seized from Lawyer A’s email file. The Law\\n\\nFirm’s counsel emphasized his objections to any use of a government filter team and\\n\\nargued that the Filter Protocol approved by the magistrate judge was fatally flawed. He\\n\\nstressed the Filter Protocol’s illegality as to all clients of the Law Firm. Counsel added\\n\\nthat the Filter Team would have access to and would be reviewing seized materials related\\n\\nto Law Firm clients that the Filter Team members could be investigating, or might thereby\\n\\nbecome interested in investigating.\\n\\n The government responded that the Filter Team AUSAs had asked the Law Firm\\n\\nfor a list of clients with pending matters in the United States Attorney’s Office, in order to\\n\\nconfirm that no Filter Team member was involved in such matters. 9 The Law Firm,\\n\\nhowever, declined to provide that information. The government represented that it had no\\n\\nalternative but to seize Lawyer A’s entire email file because an onsite review was\\n\\nimpractical. The government also argued that, if it had provided search terms to the Law\\n\\n\\n 9\\n In addition to a list of Law Firm clients with pending matters in the United States\\nAttorney’s Office, a Filter Team AUSA requested that a Firm partner supply the Filter\\nTeam with a list of all Lawyer A’s “cases.” See S.J.A. 74.\\n\\n 10\\n\\nFirm, those terms would have revealed what the government was searching for, and those\\n\\nrevelations might have allowed Lawyer A to obstruct its investigations. In addition, the\\n\\ngovernment claimed that using search terms might cause the Filter Team to overlook emails\\n\\nrelevant to the investigations.\\n\\n At the conclusion of the telephonic hearing of July 10, 2019, the district court orally\\n\\ndenied the Law Firm’s Injunction Requests, ruling that the Firm had not shown “any\\n\\nlikelihood of irreparable harm.” See S.J.A. 122. The court related that “filter teams can be\\n\\nneutral,” and that this Filter Team was “operating under the [c]ourt’s direction.” Id. at 120.\\n\\nThe court observed that, “absent a finding that there has been some breach of [the\\n\\nprosecutors’] ethical responsibilities and duties in this case, which rarely occurs,” the Filter\\n\\nProtocol was not “inappropriate.” Id. at 121. Additionally, the court related that “having\\n\\nan independent group” of prosecutors review the seized materials did not “create[] great\\n\\nrisk or create[] the appearance of unfairness.” Id. The court said there was no “per se rule\\n\\nthat law firms are to be treated so differently that neutral examiners must be appointed in\\n\\nevery case.” Id. Finally, the court remarked that the Law Firm had “delay[ed] in coming\\n\\nto the [c]ourt,” and stated that the Filter Team had made substantial progress in reviewing\\n\\nthe seized materials. Id. at 122.\\n\\n On July 11, 2019 — the day after the hearing — the district court entered an order\\n\\ndenying the Injunction Requests because the Law Firm had not established that it would\\n\\nsuffer irreparable harm absent injunctive relief. See In re Search of Under Seal, No. 1:19-\\n\\nmj-02155 (D. Md. July 11, 2019), ECF No. 11 (the “Denial Order”). The Denial Order\\n\\nstated, in part:\\n\\n 11\\n\\n In reviewing the search warrant, the [m]agistrate [j]udge knew that the search\\n was to be of [a] law firm[] and imposed appropriate and well-established\\n constraints on the [Filter Team] that would be reviewing the seized\\n documents. There is no inherent conflict in having the seized documents\\n reviewed by [the Filter Team] composed of Assistant United States\\n Attorneys who have no connection to the underlying case or [the Law Firm]\\n and no contact with the [Prosecution Team] on this case. . . . As a result, the\\n [c]ourt finds that the limits in the search warrant and the constraints imposed\\n on the [Filter Team] are such that the appointment of a special master or\\n magistrate judge is not necessary to protect [the Law Firm] or its clients from\\n irreparable harm.\\n\\nId. at 2.\\n\\n Later that day, the Law Firm noted this appeal, pursuant to 28 U.S.C. § 1292(a)(1).\\n\\nThat jurisdictional provision authorizes appellate review of a district court’s decision\\n\\ndenying injunctive relief.\\n\\n On July 17, 2019, after the Law Firm’s appeal was lodged, the district court entered\\n\\nan agreed order modifying the Privilege Assessment Provision of the Filter Protocol.\\n\\nSpecifically, the court altered that Provision to require that the Filter Team’s forwarding of\\n\\nseized materials to the Prosecution Team be first approved by the Law Firm or by the court\\n\\n(the “Modified Privilege Assessment Provision”). Prior to that modification, the Privilege\\n\\nAssessment Provision authorized the Filter Team to deem seized materials nonprivileged\\n\\nand give them directly to the Prosecution Team.\\n\\n C.\\n\\n On July 12, 2019, the Law Firm moved in this Court for an injunction pending\\n\\nappeal. Five days thereafter, on July 17, 2019, we granted the Law Firm some relief,\\n\\ndirecting the government to “cease review of the seized files and forthwith place the files\\n\\n\\n\\n 12\\n\\nin the custody of the [m]agistrate [j]udge to be held under seal pending further order of this\\n\\nCourt.” See ECF No. 39. 10\\n\\n After expediting this appeal and receiving the Law Firm’s opening brief, we directed\\n\\nthe government to specifically address four issues in its brief. Especially pertinent here,\\n\\nwe requested that the government address whether judicial functions had been improperly\\n\\nassigned to the Filter Team.\\n\\n We conducted oral argument in Richmond on September 10, 2019. Two days later,\\n\\non September 12, 2019, we entered an order that reversed “the district court’s denial of the\\n\\nLaw Firm’s request that review of the seized materials be made by the magistrate judge,\\n\\nrather than by the Filter Team.” See ECF No. 72 (the “Interim Order”). Our Interim Order\\n\\nreassigned the Filter Team’s duties and functions to the magistrate judge and gave guidance\\n\\nin that regard. More specifically, we advised the magistrate judge to review all seized\\n\\nmaterials, identify those not related to Client A and return them to the Law Firm, and\\n\\nconduct a privilege evaluation of the remaining materials. As promised in the Interim\\n\\nOrder, we now issue this opinion to explain our rulings in these proceedings. 11\\n\\n\\n 10\\n On July 22, 2019, the government filed with our Court a “Notice of Compliance”\\nwith our directive of July 17, 2019, explaining that the Filter Team had provided the\\nmagistrate judge with all files — both paper and electronic — seized from the Law Firm.\\nSee ECF No. 44. By July 22, 2019, the seized materials had been “substantially reviewed\\nand coded by the Filter Team.” Id. As of that date, the government had not returned any\\nof the seized materials to the Law Firm.\\n 11\\n The government represented at oral argument that it had given the magistrate\\njudge all the Filter Team’s work product that related to the seized materials. And the\\nlawyer asserted that the government’s July 22, 2019 Notice of Compliance so stated. We\\nare not at all certain, however, that the Notice provides such advice. As will be explained,\\n(Continued)\\n 13\\n\\n II.\\n\\n The Supreme Court has described the award of a preliminary injunction as “an\\n\\nextraordinary remedy [that is] never awarded as of right.” See Winter v. Nat. Res. Defense\\n\\nCouncil, Inc., 555 U.S. 7, 24 (2008). To prevail on a request for such preliminary relief,\\n\\nthe plaintiff must establish that (1) it is likely to succeed on the merits, (2) it is likely to\\n\\nsuffer irreparable harm absent the requested preliminary relief, (3) the balance of the\\n\\nequities weighs in its favor, and (4) a preliminary injunction is in the public interest. See\\n\\nCentro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th Cir. 2013) (en banc).\\n\\n When a district court denies a preliminary injunction based on its evaluation of only\\n\\none of the foregoing factors, we review its assessment of that factor for abuse of discretion.\\n\\nSee Fusaro v. Cogan, 930 F.3d 241, 248 (4th Cir. 2019) (explaining abuse of discretion\\n\\nstandard); cf. Henderson ex rel. NLRB v. Bluefield Hosp. Co., 902 F.3d 432, 439 (4th Cir.\\n\\n2018) (recognizing that court can deny preliminary injunction when party fails to satisfy\\n\\nany one of four factors). In that circumstance, however, we must perform our own\\n\\nassessment of the factors not addressed by the district court. See Hobby Lobby Stores, Inc.\\n\\nv. Sebelius, 723 F.3d 1114, 1145 & n.21 (10th Cir. 2013) (en banc). We then evaluate the\\n\\n\\n\\n\\nbecause the Filter Team was performing judicial functions when conducting its review\\npursuant to the Privilege Assessment Provision and the Modified Privilege Assessment\\nProvision, the government is obliged to fully advise the magistrate judge as to the work\\nthat was performed by the Filter Team and to deliver any Filter Team work product to the\\njudge. See Interim Order 2 (“All work product of the Filter Team shall forthwith be\\ndelivered by the [g]overnment to the magistrate judge for filing under seal.”).\\n\\n 14\\n\\ncourt’s “ultimate decision” to deny injunctive relief for abuse of discretion. See Gonzales\\n\\nv. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006).\\n\\n In performing an abuse of discretion review, we assess the district court’s factual\\n\\nfindings for clear error and its legal conclusions de novo. See Fusaro, 930 F.3d at 248. A\\n\\ncourt abuses its discretion in denying preliminary injunctive relief when it “rest[s] its\\n\\ndecision on a clearly erroneous finding of a material fact, or misapprehend[s] the law with\\n\\nrespect to underlying issues in litigation.” See Centro Tepeyac, 722 F.3d at 188 (internal\\n\\nquotation marks omitted). Furthermore, a court “abuses its discretion when it makes an\\n\\nerror of law,” see Koon v. United States, 518 U.S. 81, 100 (1996), or when it ignores\\n\\n“unrebutted, legally significant evidence,” see Alvarez Lagos v. Barr, 927 F.3d 236, 255\\n\\n(4th Cir. 2019).\\n\\n\\n\\n III.\\n\\n In making our assessment of the various injunction issues, we begin with whether\\n\\nthe Law Firm is likely to suffer irreparable harm absent injunctive relief. We proceed in\\n\\nthis manner because the district court’s denial of the Law Firm’s Injunction Requests was\\n\\npredicated solely on the irreparable harm factor of the four-part preliminary injunction test.\\n\\nWe then evaluate the other factors, which the district court did not reach and address. More\\n\\nspecifically, we consider and decide whether the Law Firm has demonstrated a likelihood\\n\\nof success on the merits of its challenge to the Filter Team and its Protocol, whether the\\n\\nbalance of the equities weighs in the Firm’s favor, and whether an award of injunctive relief\\n\\n\\n\\n 15\\n\\nis in the public interest. See Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th\\n\\nCir. 2013) (en banc). 12\\n\\n A.\\n\\n With respect to the irreparable harm factor, the Law Firm is obliged to demonstrate\\n\\nthat it is likely to suffer such harm in the absence of injunctive relief. See Winter v. Nat.\\n\\nRes. Defense Council, Inc., 555 U.S. 7, 20 (2008). The Law Firm maintains that, absent\\n\\nrelief from the Filter Team and its Protocol, federal agents and prosecutors on the Filter\\n\\nTeam will continue their review of “tens of thousands” of privileged materials concerning\\n\\nLaw Firm clients other than Client A. See Br. of Appellant 45. The Law Firm emphasizes\\n\\n(1) that 99.8 percent of the 52,000 emails seized by the government were not from Client\\n\\nA, were not sent to Client A, and did not mention Client A’s surname; and (2) that many\\n\\nof those emails contained privileged information relating to other clients of the Firm,\\n\\nincluding clients who are potential subjects or targets of government investigations. 13\\n\\n 1.\\n\\n In ruling that the Law Firm did not satisfy the irreparable harm factor, the district\\n\\ncourt failed to address the Law Firm’s unrebutted evidence with respect to Lawyer A’s\\n\\n\\n\\n\\n 12\\n Although the district court mentioned the balance of the equities factor during the\\ntelephonic hearing of July 10, 2019, the court did not rely on that factor to deny the\\nInjunction Requests.\\n 13\\n Although the government argues on appeal that the Law Firm’s evidence is not\\naccurate and cannot be relied on, it failed to present any contradictory evidence to the\\ndistrict court. See United States v. Anderson, 481 F.2d 685, 702 n.19 (4th Cir. 1973)\\n(emphasizing importance of building appellate record in district court).\\n\\n 16\\n\\nemails. See Alvarez Lagos v. Barr, 927 F.3d 236, 255 (4th Cir. 2019) (explaining that\\n\\nfailure to address “unrebutted, legally significant evidence” constitutes abuse of\\n\\ndiscretion). That is, the court ignored evidence that less than one percent of the seized\\n\\nemails were from Client A, were to Client A, or mentioned Client A’s surname, and that\\n\\nmany seized emails contained privileged communications and attorney work product\\n\\nconcerning other Law Firm clients. Additionally, the court failed to acknowledge the fact\\n\\nthat some of those communications were from or about clients who “are being investigated\\n\\nby, or are being prosecuted by,” federal prosecutors. See S.J.A. 66. As a result, the court\\n\\ndid not grapple with the harm that is likely to be inflicted on the Law Firm and its clients\\n\\nfrom the Filter Team’s review of many of the seized emails. 14 The court thus abused its\\n\\ndiscretion in that respect.\\n\\n 2.\\n\\n The district court’s failure to consider the Law Firm’s unrebutted evidence\\n\\ncompounded other errors of law that the court made with respect to the irreparable harm\\n\\n\\n\\n 14\\n During the oral argument in this appeal, the government maintained that the Filter\\nTeam is entitled to review materials seized from the Law Firm that are not facially relevant\\nto Client A. The government’s justification for that proposition is that the Filter Team\\nneeds “context” for its privilege determinations. See Oral Argument at 43:20, United States\\nv. Under Seal, No. 19-1730 (4th Cir. Sept. 10, 2019), http://www.ca4.uscourts.gov/oral-\\nargument/listen-to-oral-arguments. According to this “context” argument, the government\\nwas entitled to seize and review documents for which probable cause was lacking.\\nUnsurprisingly, the government has no supporting authority in that regard. See United\\nStates v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1172 (9th Cir. 2010) (en banc)\\n(criticizing government “overreach[]” in seizure of electronic data unsupported by\\nprobable cause), abrogated on other grounds by Hamer v. Neighborhood Hous. Servs. of\\nChi., 138 S. Ct. 13, 16-17 (2017).\\n\\n 17\\n\\nfactor. See Koon v. United States, 518 U.S. 81, 100 (1996) (explaining that a court “by\\n\\ndefinition abuses its discretion when it makes an error of law”). More specifically, the\\n\\ncourt erred by giving short shrift to the important legal principles that protect attorney-\\n\\nclient relationships, which we are compelled to elucidate herein.\\n\\n a.\\n\\n As we know, the attorney-client privilege is “the oldest of the privileges for\\n\\nconfidential communications known to the common law.” See Upjohn Co. v. United\\n\\nStates, 449 U.S. 383, 389 (1981); see also In re Grand Jury Subpoenas, 454 F.3d 511, 519\\n\\n(6th Cir. 2006) (explaining that “[t]he privilege protecting confidential communications\\n\\nbetween an attorney and his client dates back to the Tudor dynasty”). The attorney-client\\n\\nprivilege empowers a client — as the privilege holder — “to refuse to disclose and to\\n\\nprevent any other person from disclosing confidential communications between him and\\n\\nhis attorney.” See Black’s Law Dictionary 129 (6th ed. 1990). And in proceedings such\\n\\nas these, lawyers are obliged to protect the attorney-client privilege to the maximum\\n\\npossible extent on behalf of their clients. See Republic Gear Co. v. Borg-Warner Corp.,\\n\\n381 F.2d 551, 556 (2d Cir. 1967) (recognizing that lawyer has duty to invoke claim of\\n\\nprivilege on client’s behalf); Model Rules of Prof’l Conduct r. 1.6(a), (c) (Am. Bar Ass’n\\n\\n1983) (explaining that lawyer owes duty of confidentiality to client and must prevent\\n\\nunauthorized disclosure of confidential information). That proposition underlies the Law\\n\\nFirm’s uncontested standing to pursue the legal positions it advances in this appeal. See\\n\\nFisher v. United States, 425 U.S. 391, 402 n.8 (1976) (“[I]t is universally accepted that the\\n\\nattorney-client privilege may be raised by the attorney[.]”); In re Grand Jury Proceedings,\\n\\n 18\\n\\n727 F.2d 1352, 1354-55 (4th Cir. 1984) (emphasizing that a lawyer “is entitled to raise [a\\n\\nclaim of] privilege on behalf of his . . . client”).\\n\\n The purpose of the attorney-client privilege is to ensure “full and frank\\n\\ncommunication” between a client and his lawyer and “thereby promote broader public\\n\\ninterests in the observance of law and administration of justice.” See Upjohn Co., 449 U.S.\\n\\nat 389. As the Supreme Court has consistently emphasized, the attorney-client privilege\\n\\nexists because “sound legal advice or advocacy serves public ends and . . . such advice or\\n\\nadvocacy depends upon the lawyer’s being fully informed by the client.” Id.; see also Hunt\\n\\nv. Blackburn, 128 U.S. 464, 470 (1888) (“The rule which places the seal of secrecy upon\\n\\ncommunications between client and attorney is founded upon the necessity, in the interest\\n\\nand administration of justice, of the aid of persons having knowledge of the law and skilled\\n\\nin its practice, which assistance can only be safely and readily availed of when free from\\n\\nthe consequences or the apprehension of disclosure.”).\\n\\n Although the work-product doctrine does not trace as far into history as the attorney-\\n\\nclient privilege, it is no less important. The Supreme Court explicitly recognized and\\n\\nexplained the work-product doctrine more than seventy years ago in its seminal decision\\n\\nin Hickman v. Taylor. See 329 U.S. 495, 510-11 (1947). In Hickman, the Court\\n\\nunderscored that a lawyer must be able to “work with a certain degree of privacy, free from\\n\\nunnecessary intrusion by opposing parties and their counsel.” Id. at 510. Elaborating on\\n\\nthat principle, the Court emphasized that “[p]roper preparation of a client’s case demands\\n\\nthat [a lawyer] assemble information, sift what he considers to be the relevant from the\\n\\nirrelevant facts, prepare his legal theories and plan his strategy without undue and needless\\n\\n 19\\n\\ninterference.” Id. at 511. As the Court warned, absent strong protection for work product,\\n\\n“[i]nefficiency, unfairness and sharp practices would inevitably develop in the giving of\\n\\nlegal advice and in the preparation of cases for trial,” all to the detriment of clients and “the\\n\\ncause of justice.” Id.\\n\\n Thus, the Supreme Court has explicitly approved what it called “a qualified\\n\\nprivilege,” to be held by lawyer and client alike, “for certain materials prepared by an\\n\\nattorney ‘acting for his client in anticipation of litigation.’” See United States v. Nobles,\\n\\n422 U.S. 225, 237-38 (1975) (quoting Hickman, 329 U.S. at 508). That privilege is the\\n\\nwork-product doctrine, which has now been incorporated into the Federal Rules of Civil\\n\\nProcedure, see Fed. R. Civ. P. 26(b)(3), and the Federal Rules of Criminal Procedure, see\\n\\nFed. R. Crim. P. 16(a)(2), (b)(2).\\n\\n There are two types of attorney work product that are within the ambit of the\\n\\ndoctrine: (1) fact work product, which is “a transaction of the factual events involved,”\\n\\nand (2) opinion work product, which “represents the actual thoughts and impressions of\\n\\nthe attorney.” See In re Grand Jury Subpoena, 870 F.3d 312, 316 (4th Cir. 2017) (internal\\n\\nquotation marks omitted). Opinion work product, we have recognized, “enjoys a nearly\\n\\nabsolute immunity” and can be discovered by adverse parties “only in very rare and\\n\\nextraordinary circumstances.” Id. (internal quotation marks omitted). Fact work product\\n\\nis somewhat less protected, and discovery thereof by others may only be had in limited\\n\\ncircumstances, where a party shows “both a substantial need and an inability to secure the\\n\\nsubstantial equivalent of the materials by alternate means without undue hardship.” Id.\\n\\n(internal quotation marks omitted).\\n\\n 20\\n\\n Notably, the attorney-client privilege and the work-product doctrine jointly support\\n\\nthe Sixth Amendment’s guarantee of effective assistance of counsel. See U.S. Const.\\n\\namend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to have the\\n\\nAssistance of Counsel for his defence.”); Strickland v. Washington, 466 U.S. 668, 686\\n\\n(1984) (analyzing Sixth Amendment right to effective assistance of counsel). For example,\\n\\nin assessing the interplay between the attorney-client privilege and the Sixth Amendment,\\n\\nwe have emphasized that “[t]he essence of the Sixth Amendment right to effective\\n\\nassistance of counsel is, indeed, privacy of communication with counsel.” See United\\n\\nStates v. Brugman, 655 F.2d 540, 546 (4th Cir. 1981); cf. DeMassa v. Nunez, 770 F.2d\\n\\n1505, 1507 (9th Cir. 1985) (describing Sixth Amendment as a “source” for the expectation\\n\\nof privacy in attorney-client communications); 1 Geoffrey C. Hazard, Jr. et al., The Law of\\n\\nLawyering § 10.14, 10-91 (4th ed. Supp. 2019) (explaining that “[t]he attorney-client\\n\\nprivilege has ties to the Sixth Amendment”). Absent privacy of communications and the\\n\\n“full and frank” discussions that flow therefrom, a lawyer could be deprived of the\\n\\ninformation necessary to prepare and present his client’s defense. See Upjohn Co., 449\\n\\nU.S. at 389.\\n\\n Similarly, the work-product doctrine fulfills an essential and important role in\\n\\nensuring the Sixth Amendment right to effective assistance of counsel. The Supreme Court\\n\\nhas recognized that the work-product doctrine is vital to “assur[e] the proper functioning\\n\\nof the criminal justice system,” in that it “provid[es] a privileged area within which [a\\n\\nlawyer] can analyze and prepare his client’s case.” See Nobles, 422 U.S. at 238; see also\\n\\nIn re Grand Jury Subpoenas, 454 F.3d at 520 (explaining that “people should be free to\\n\\n 21\\n\\nmake requests of their attorneys without fear, and that their attorneys should be free to\\n\\nconduct research and prepare litigation strategies without fear that these preparations will\\n\\nbe subject to review by outside parties”). Without that “privileged area,” a lawyer’s ability\\n\\nto plan and present his client’s defense will be impaired. See Nobles, 422 U.S. at 238; see\\n\\nalso Hickman, 329 U.S. at 511. 15\\n\\n b.\\n\\n In ruling that the Law Firm had not established a likelihood of irreparable harm, the\\n\\ndistrict court erred as a matter of law by affording insignificant weight to the foregoing\\n\\nprinciples protecting attorney-client relationships. See Upjohn Co., 449 U.S. at 389\\n\\n(emphasizing importance of attorney-client privilege); Nobles, 422 U.S. at 237-38\\n\\n(recognizing significance of protecting lawyer work product); cf. Gunnells v. Healthplan\\n\\nServs., Inc., 348 F.3d 417, 434 (4th Cir. 2003) (explaining that court abuses discretion in\\n\\nignoring applicable legal principles). Crucially, the court failed to recognize that an\\n\\nadverse party’s review of privileged materials seriously injures the privilege holder. See\\n\\nUnited States v. Philip Morris Inc., 314 F.3d 612, 622 (D.C. Cir. 2003) (concluding that a\\n\\nparty had demonstrated the likelihood of irreparable harm predicated on “the general injury\\n\\n\\n\\n 15\\n Although the attorney-client privilege and work-product doctrine are essential\\ncomponents of our adversarial system, neither is absolute. For example, claims of attorney-\\nclient privilege or work-product protection can sometimes be defeated by the crime-fraud\\nexception. See In re Grand Jury Proceedings #5 Empanelled Jan. 28, 2004, 401 F.3d 247,\\n251 (4th Cir. 2005). Put succinctly, “[b]oth the attorney-client and work-product privileges\\nmay be lost . . . when a client gives information to an attorney for the purpose of committing\\nor furthering a crime or fraud.” Id. In these proceedings, the government has invoked that\\nexception as to Client A of Lawyer A.\\n\\n 22\\n\\ncaused by the breach of the attorney-client privilege and the harm resulting from the\\n\\ndisclosure of privileged documents to an adverse party”), abrogated on other grounds by\\n\\nMohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103 (2009); In re Perrigo Co., 128 F.3d\\n\\n430, 437 (6th Cir. 1997) (explaining that “forced disclosure of privileged material may\\n\\nbring about irreparable harm”); Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955,\\n\\n960-61 (3d Cir. 1984) (ruling that law firm had demonstrated likelihood of irreparable harm\\n\\nwhere government seized thousands of files containing privileged information).\\n\\n 3.\\n\\n When the pertinent legal principles are properly applied to the unrefuted evidence,\\n\\nthe Filter Team’s review of the materials seized from the Law Firm was and is injurious to\\n\\nthe Firm and its clients. And that harm is plainly irreparable, in that the Filter Team’s\\n\\nreview of those privileged materials cannot be undone. We are therefore satisfied that the\\n\\nLaw Firm will be irreparably harmed absent an award of injunctive relief against the Filter\\n\\nTeam and its Protocol. 16\\n\\n\\n\\n\\n 16\\n We observe that the Filter Team and its Protocol may inflict other injuries on the\\nLaw Firm. For example, adverse publicity about the search of the Law Firm, the Filter\\nTeam, and its Protocol could make potential clients less likely to seek out and retain the\\nFirm. Additionally, potential and current clients might be reluctant to candidly\\ncommunicate with the Law Firm attorneys because they fear government review of their\\ncommunications and breaches of confidentiality. Consequently, the Law Firm is likely to\\nbe deprived of information necessary to the proper handling of its cases. See Upjohn Co.,\\n449 U.S. at 389 (explaining necessity of “full and frank communication” between client\\nand his lawyer).\\n\\n 23\\n\\n B.\\n\\n Turning to the injunction factors not reached and addressed by the district court, we\\n\\nbegin with the likelihood of success factor. In order to prevail on that factor, the Law Firm\\n\\nmust make a “clear showing” that the Filter Team and its Protocol are legally flawed. See\\n\\nPashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013). Stated differently, the Law Firm is\\n\\nobliged to demonstrate it is likely to succeed on its request that the magistrate judge —\\n\\nrather than the Filter Team — perform the privilege review of the seized materials.\\n\\n In that regard, the Law Firm maintains that the Filter Team and its Protocol are\\n\\nsimply “incompatible with courts’ historical protection of the attorney-client privilege and\\n\\nthe work-product doctrine.” See Br. of Appellant 35. The Law Firm contends that there is\\n\\na clear appearance of — and potential for — improprieties when government agents are\\n\\nauthorized to rummage through attorney-client communications, particularly when less\\n\\nthan one percent of those communications relate to the investigations at issue. And the\\n\\nLaw Firm posits that use of the Filter Team in these circumstances will chill the free flow\\n\\nof information between clients and lawyers. Put simply, the Law Firm maintains that\\n\\njudicial functions are involved in all aspects of assessing and deciding privilege issues.\\n\\nThe Law Firm thus argues that a magistrate judge or a special master must perform those\\n\\nfunctions.\\n\\n As further explained below, we are satisfied that the Law Firm has shown that it is\\n\\nlikely to succeed on the merits of its challenge to the Filter Team and its Protocol. In\\n\\napproving the Filter Team and its Protocol, the magistrate judge made several legal errors\\n\\nby, inter alia: (1) assigning judicial functions to the Filter Team; (2) authorizing the Filter\\n\\n 24\\n\\nTeam and its Protocol in ex parte proceedings that were conducted prior to the search and\\n\\nseizures at the Law Firm; and (3) failing to properly weigh the foundational principles that\\n\\nprotect attorney-client relationships.\\n\\n 1.\\n\\n To start, the magistrate judge — by authorizing the Filter Team and its Protocol —\\n\\nerred in assigning judicial functions to the executive branch. We have recognized that,\\n\\nwhen a dispute arises as to whether a lawyer’s communications or a lawyer’s documents\\n\\nare protected by the attorney-client privilege or work-product doctrine, the resolution of\\n\\nthat dispute is a judicial function. See NLRB v. Interbake Foods, LLC, 637 F.3d 492, 498,\\n\\n500 (4th Cir. 2011) (concluding that, in deciding whether to enforce an administrative\\n\\nsubpoena seeking potentially privileged documents, a court “cannot delegate” an in camera\\n\\nreview of documents to an agency, but must itself decide a claim of privilege); see also In\\n\\nre The City of New York, 607 F.3d 923, 947 (2d Cir. 2010) (observing that evaluating\\n\\nprivilege claim is always a judicial function); In re Grand Jury Proceedings #5 Empanelled\\n\\nJan. 28, 2004, 401 F.3d 247, 256 (4th Cir. 2005) (remanding to district court for in camera\\n\\nreview concerning privileged communications and applicability of crime-fraud exception).\\n\\nIndeed, the Constitution vests “[t]he judicial Power” solely in the federal courts, see U.S.\\n\\nConst. art. III, § 1, which includes “the duty of interpreting and applying” the law, see\\n\\nMassachusetts v. Mellon, 262 U.S. 447, 488 (1923). Put simply, a court is not entitled to\\n\\ndelegate its judicial power and related functions to the executive branch, especially when\\n\\nthe executive branch is an interested party in the pending dispute. See Interbake Foods,\\n\\n637 F.3d at 501 (affirming refusal “to delegate” to an administrative law judge the\\n\\n 25\\n\\njudiciary’s “responsibility to decide the issue of privilege”); NLRB v. Detroit Newspapers,\\n\\n185 F.3d 602, 606 (6th Cir. 1999) (concluding that “district court had the obligation . . . to\\n\\ndetermine whether the subpoenaed documents were protected by some privilege, and had\\n\\nno discretion to delegate that duty”).\\n\\n In these proceedings, the Privilege Assessment Provision of the Filter Protocol\\n\\ncontravened that nondelegation principle. Put succinctly, the Privilege Assessment\\n\\nProvision erroneously authorized the executive branch — that is, the Filter Team — to\\n\\nmake decisions on attorney-client privilege and the work-product doctrine. As our good\\n\\ncolleague Judge Niemeyer recognized in Interbake Foods, a court simply cannot delegate\\n\\nits responsibility to decide privilege issues to another government branch. See 637 F.3d at\\n\\n498, 500-01 (recognizing that court must decide privilege disputes); see also In re The City\\n\\nof New York, 607 F.3d at 947 (observing that evaluating privilege claim is a judicial\\n\\nfunction).\\n\\n To compound that error, the Privilege Assessment Provision delegated judicial\\n\\nfunctions to non-lawyer members of the Filter Team. In other words, the Privilege\\n\\nAssessment Provision authorized paralegals and IRS and DEA agents to designate seized\\n\\ndocuments as nonprivileged, and allowed the Filter Team AUSAs to deliver such\\n\\ndocuments to the Prosecution Team without the approval of the Law Firm or a court order.\\n\\nThe Third Circuit has strongly criticized a similar protocol and explicitly ruled that non-\\n\\nlawyer federal agents could not make privilege determinations. See In re Search of Elec.\\n\\nCommc’ns, 802 F.3d 516, 530 & n.54 (3d Cir. 2015).\\n\\n\\n\\n 26\\n\\n In addition to the separation of powers issues that arise from the Filter Protocol’s\\n\\ndelegation of judicial functions to the Filter Team, there are other apparent legal problems\\n\\ntherewith. There is the possibility that a filter team — even if composed entirely of trained\\n\\nlawyers — will make errors in privilege determinations and in transmitting seized materials\\n\\nto an investigation or prosecution team. On this point, the Sixth Circuit recognized several\\n\\nyears ago that such filter teams present “reasonably foreseeable risks to privilege” and\\n\\n“have been implicated . . . in leaks of confidential information to prosecutors.” See In re\\n\\nGrand Jury Subpoenas, 454 F.3d at 523. As Judge Boggs aptly explained, a filter team\\n\\nmight “have an interest in preserving privilege, but it also possesses a conflicting interest\\n\\nin pursuing the investigation, and . . . some [filter] team attorneys will make mistakes or\\n\\nviolate their ethical obligations. It is thus logical to suppose that [filter] teams pose a\\n\\nserious risk to holders of privilege.” Id.\\n\\n As the Sixth Circuit also emphasized, filter team errors can arise from differences\\n\\nof opinion regarding privilege. See In re Grand Jury Subpoenas, 454 F.3d at 523. In\\n\\nexplaining that problem, the court elaborated that a filter team’s members “might have a\\n\\nmore restrictive view of privilege” than the subject of the search, given their prosecutorial\\n\\ninterests in pursuing the underlying investigations. Id. That “more restrictive view of\\n\\nprivilege” could cause privileged documents to be misclassified and erroneously provided\\n\\nto an investigation or prosecution team. Id.\\n\\n The Sixth Circuit also acknowledged that filter team errors can result from mistakes\\n\\nor neglect, and described one infamous occurrence as follows:\\n\\n\\n\\n 27\\n\\n In United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991), . . . the\\n government’s [filter] team missed a document obviously protected by\\n attorney-client privilege, by turning over tapes of attorney-client\\n conversations to members of the investigating team. This Noriega incident\\n points to an obvious flaw in the [filter] team procedure: the government’s\\n fox is left in charge of the [law firm’s] henhouse, and may err by neglect or\\n malice, as well as by honest differences of opinion.\\n\\nSee In re Grand Jury Subpoenas, 454 F.3d at 523 (emphasis added).\\n\\n Strikingly, the risks to attorney-client privilege and the work-product doctrine that\\n\\nwere identified by the Sixth Circuit have been recently realized in the District of Maryland,\\n\\nfrom which this appeal arises. See United States v. Elbaz, No. 8:18-cr-00157, slip op. at\\n\\n4-6 (D. Md. June 20, 2019), ECF No. 216 (the “Elbaz opinion”). According to the Elbaz\\n\\nopinion, the government’s filter team improperly disclosed thousands of potentially\\n\\nprivileged documents to a prosecution team, which then examined some of the documents.\\n\\nId. Those blunders occurred nearly a year before this Filter Team was authorized by the\\n\\nmagistrate judge. Id. at 3-6. And the Elbaz opinion detailing that filter team’s mistakes\\n\\nwas filed in the District of Maryland on June 20, 2019, just a week after the magistrate\\n\\njudge’s authorization of this Filter Team on June 13, 2019, and three weeks before the\\n\\ndistrict court’s Denial Order of July 11, 2019.\\n\\n In sum, the Filter Protocol improperly delegated judicial functions to the Filter\\n\\nTeam. And the magistrate judge failed to recognize and consider the significant problems\\n\\nwith that delegation, which left the government’s fox in charge of guarding the Law Firm’s\\n\\nhenhouse. See In re Grand Jury Subpoenas, 454 F.3d at 523.\\n\\n\\n\\n\\n 28\\n\\n 2.\\n\\n Relatedly, the magistrate judge erred by prematurely authorizing the Filter Team\\n\\nand its Protocol in ex parte proceedings that it conducted on June 13, 2019, five days before\\n\\nthe search warrant was executed and voluminous seizures were made from the Law Firm. 17\\n\\nFirst, the timing of the judge’s authorization undermined the judge’s ability to exercise\\n\\ndiscretion with respect to the Filter Team and its Protocol, in that the judge could not have\\n\\nbeen fully informed of what was seized from the Law Firm. See James v. Jacobson, 6 F.3d\\n\\n233, 238 (4th Cir. 1993) (emphasizing that court’s exercise of discretion must be\\n\\n“informed”). And the judge may well have rejected the Filter Team and its Protocol if the\\n\\njudge had known (1) that 99.8 percent of the 52,000 seized emails were not from Client A,\\n\\nwere not sent to Client A, and did not mention Client A’s surname; and (2) that many of\\n\\nthose seized emails contained privileged information concerning other clients of the Law\\n\\nFirm. Put simply, the judge should have deferred the decision concerning the proposed\\n\\nFilter Team and its Protocol pending the execution and return of the search warrant.\\n\\n\\n\\n\\n 17\\n Although the Law Firm generally contests the ex parte actions of the government\\nbelow and on appeal, the Firm does not specifically argue that the magistrate judge erred\\nby approving the Filter Team and its Protocol in ex parte proceedings before the search\\nwas conducted. See Br. of Appellant 57; Reply Br. of Appellant 3, 22. We are nevertheless\\nsatisfied that the process by which the authorization was made falls within the Law Firm’s\\nbroad challenge to the Filter Team and its Protocol. Moreover, we are entitled to assess\\nlegal issues that have not been squarely raised when it facilitates the correct resolution of\\nan appeal. See Meyers v. Lamer, 743 F.3d 908, 912 (4th Cir. 2014) (emphasizing that “it\\nis the fundamental province of this Court to decide cases correctly, even if that means\\nconsidering arguments . . . not raised by the parties at all”).\\n\\n 29\\n\\n Second, the magistrate judge should have declined the government’s ex parte\\n\\ninvitation with respect to the Filter Team, and the judge should have conducted adversarial\\n\\nproceedings on whether to authorize the Filter Team and the Filter Protocol. See RSZ\\n\\nHoldings AVV v. PDVSA Petroleo S.A., 506 F.3d 350, 356 (4th Cir. 2007) (emphasizing\\n\\nthat ex parte proceedings are “greatly disfavored”); In re Ingram, 915 F. Supp. 2d 761,\\n\\n763-64 (E.D. La. 2012) (assessing briefing from parties on propriety of filter team). In\\n\\nsuch contested proceedings, the judge could have been fully informed of the relevant\\n\\nbackground on the Law Firm and its clients, as well as the nature of the seized materials.\\n\\nAdditionally, the clients of the Law Firm and their lawyers could have been heard by the\\n\\njudge.\\n\\n In a recent example involving a proposed filter team, federal agents searched the\\n\\noffice of Michael Cohen, a New York City lawyer, and seized privileged materials. See\\n\\nCohen v. United States, No. 1:18-mj-03161 (S.D.N.Y. Apr. 13, 2018), ECF No. 6 at 4, 25.\\n\\nFour days after the search — and before the filter team created by the search warrant had\\n\\nreviewed any of the seized materials — the district court conducted adversarial proceedings\\n\\nconcerning the prosecutor’s proposed use of a filter team. See generally Cohen, ECF No.\\n\\n36 (May 1, 2018). Prior to those proceedings, the court was informed of the materials that\\n\\nhad been seized from Cohen’s office. See Cohen, ECF No. 6 at 18-19. During the\\n\\nproceedings, the court heard from Cohen’s lawyer and the lawyer for Cohen’s primary\\n\\nclient, who each argued against court approval of the filter team request. See Cohen, ECF\\n\\nNo. 36 at 12-16, 30-31.\\n\\n\\n\\n 30\\n\\n The sensible procedures adhered to by the Cohen court demonstrate that, if the\\n\\nmagistrate judge had conducted adversarial proceedings after the search but before\\n\\napproving the Filter Team and its Protocol in this case, the judge would have been fully\\n\\ninformed of the materials that were seized from the Law Firm. The judge would then have\\n\\nheard from the Law Firm’s counsel, and possibly also from the clients of the Firm through\\n\\ntheir lawyers, before the Filter Team reviewed any seized materials. The upshot is that —\\n\\nin failing to conduct adversarial proceedings prior to authorizing the Filter Team and its\\n\\nProtocol — the magistrate judge prematurely granted the ex parte request of the United\\n\\nStates Attorney. 18\\n\\n 3.\\n\\n a.\\n\\n We are also troubled that, in summarily approving the Filter Team and its Protocol,\\n\\nthe magistrate judge — like the district court in thereafter assessing the Injunction Requests\\n\\n— gave no indication that she had weighed any of the important legal principles that protect\\n\\nattorney-client relationships. Put simply, the Filter Protocol authorized government agents\\n\\nand prosecutors to rummage through Lawyer A’s email files. Again, many of the emails\\n\\n\\n\\n 18\\n The process adhered to by the Cohen court is pertinent to these proceedings in\\nseveral material respects. For example, the Cohen filter team did not review any of the\\nseized materials prior to an adversarial hearing and a ruling on the filter team’s propriety.\\nImportantly, the court heard from Cohen’s lawyer and counsel for Cohen’s primary client\\nin those proceedings. The court ultimately rejected the government’s filter team proposal\\nand appointed a special master. See Cohen, ECF No. 30 (Apr. 27, 2018). Notably, the\\nCohen proceedings were conducted more than a year before the magistrate judge’s\\nauthorization of this Filter Team.\\n\\n 31\\n\\nconcerned other clients and other matters. The court’s authorization of such an extensive\\n\\nreview of client communications and lawyer discussions by government agents and\\n\\nprosecutors was made in disregard of the attorney-client privilege, the work-product\\n\\ndoctrine, and the Sixth Amendment. See Klitzman, Klitzman & Gallagher v. Krut, 744\\n\\nF.2d at 961 (criticizing seizures of client files from law firm because government made no\\n\\neffort to limit seizures of firm’s materials, and thereby “trampl[ed]” on attorney-client\\n\\nprivilege and work-product protections as to all clients); United States v. Stewart, No. 1:02-\\n\\ncr-00396, 2002 WL 1300059, at *5, *10 (S.D.N.Y. June 11, 2002) (explaining that search\\n\\nof lawyer’s office raised Sixth Amendment concerns and appointing special master where\\n\\ndocuments seized from law firm were likely to contain privileged information relating to\\n\\ncriminal defendants). The magistrate judge erred in failing to explicitly weigh those\\n\\nfoundational principles that protect attorney-client relationships.\\n\\n b.\\n\\n At this juncture, we emphasize another “serious defect” of the Filter Protocol\\n\\nchallenged by the Law Firm as subverting attorney-client relationships. See Reply Br. of\\n\\nAppellant 14 n.4. Specifically, the Filter Protocol prospectively authorized the Filter Team\\n\\nto contact the Law Firm’s clients ex parte and seek waivers of their attorney-client\\n\\nprivileges. The Model Rules of Professional Conduct, however, generally bar a lawyer\\n\\nfrom communicating with a represented party about the subject of the representation\\n\\nwithout the represented party’s lawyer being present. See Model Rules of Prof’l Conduct\\n\\nr. 4.2 (Am. Bar Ass’n 1983); 2 Hazard, Jr. et al., supra, § 41.02 (explaining that Rule 4.2\\n\\n“prevents a lawyer from taking advantage of a lay person”); id. § 41.12 (discussing\\n\\n 32\\n\\napplication of Rule 4.2 to prosecutors). Although an exception to that rule can — in the\\n\\nproper circumstances — be made by a court, any such court order should be predicated on\\n\\nan individualized assessment of the attorney-client relationship. See Model Rules of Prof’l\\n\\nConduct r. 4.2; see also United States v. Lopez, 4 F.3d 1455, 1462 (9th Cir. 1993)\\n\\n(explaining that court must make “informed decision” regarding whether to authorize\\n\\nlawyer’s communication with represented party). That was not even attempted here, in\\n\\nthat the Filter Protocol was approved ex parte before the search warrant was executed.\\n\\n By asking the Law Firm to furnish the Filter Team with a client list — which could\\n\\nbe used by Filter Team members to directly contact clients and seek privilege waivers\\n\\nunder the Filter Protocol — the government demonstrated a lack of respect for the attorney-\\n\\nclient privilege and the Firm’s duty of confidentiality to its clients. In declining to reveal\\n\\na client list to the Filter Team, the Law Firm relied on its ethical obligations to protect\\n\\nconfidential and privileged information relating to its clients. See Br. of Appellant 37\\n\\n(asserting that the government’s request for a client list ignored the proposition that the\\n\\nLaw Firm is “ethically prohibited from disclosing . . . the identity of clients when the\\n\\nrelationship remains confidential”); see also Model Rules of Prof’l Conduct r. 1.6(a)\\n\\n(describing duty of confidentiality). Such information will sometimes include the\\n\\nexistence of the lawyer-client relationship itself. See In re Grand Jury Subpoena, 204 F.3d\\n\\n516, 520 (4th Cir. 2000) (recognizing that the attorney-client privilege can “extend to the\\n\\nclient’s identity”); 1 Hazard, Jr. et al., supra, § 10.12 (collecting cases where client identity\\n\\nconsidered confidential or privileged). The breach of the duty of confidentiality “is\\n\\nenforceable by civil remedies as well as through the [attorney] disciplinary process.” See\\n\\n 33\\n\\n1 Hazard, Jr. et al., supra, § 10.16, 10-108.1. And a breach of the attorney-client privilege\\n\\nby an attorney is likewise sanctionable. See id. Indeed, at least one jurisdiction imposes\\n\\ncriminal penalties for improperly breaching attorney-client privilege. See Tenn. Code Ann.\\n\\n§ 23-3-107. In short, authorizing the government in ex parte proceedings to directly\\n\\ncontact any and all clients of the Law Firm is another example of how the Filter Protocol\\n\\napproved by the magistrate judge undermined attorney-client principles.\\n\\n 4.\\n\\n At bottom, the magistrate judge erred in assigning judicial functions to the Filter\\n\\nTeam, approving the Filter Team and its Protocol in ex parte proceedings without first\\n\\nascertaining what had been seized in the Law Firm search, and disregarding the\\n\\nfoundational principles that serve to protect attorney-client relationships. In these\\n\\ncircumstances, we are satisfied that the magistrate judge (or an appointed special master)\\n\\n— rather than the Filter Team — must perform the privilege review of the seized materials.\\n\\nSee Klitzman, Klitzman & Gallagher, 744 F.2d at 962 (recommending appointment of\\n\\nspecial master in similar circumstances); United States v. Gallego, No. 4:18-cr-01537, slip\\n\\nop. at 5-6 (D. Ariz. Sept. 6, 2018), ECF No. 65 (appointing a special master “to review the\\n\\nitems seized from [the] [d]efendant’s law office for privilege and responsiveness to the\\n\\nsearch warrant”); Cohen, ECF No. 30 (Apr. 27, 2018) (appointing special master to review\\n\\ndocuments seized from lawyer); Stewart, 2002 WL 1300059, at *10 (appointing special\\n\\nmaster to perform privilege review of documents seized from office of criminal defense\\n\\n\\n\\n\\n 34\\n\\nlawyer). 19 We are therefore satisfied that the Law Firm has demonstrated that it is likely\\n\\nto succeed on the merits.\\n\\n C.\\n\\n In order to prevail on the next injunction factor, the Law Firm is obliged to show\\n\\nthat the equities weigh in its favor. See Winter, 555 U.S. at 20. And we are satisfied that\\n\\nthe Law Firm has done so. Specifically, the harm to the Law Firm and its clients that will\\n\\nbe caused by continuing the Filter Team’s review outweighs any harm to the government\\n\\nthat might result from the magistrate judge conducting the privilege review of the seized\\n\\nmaterials. Indeed, we discern no harm to the government in barring the Filter Team from\\n\\nrummaging through Law Firm materials that are unrelated to the underlying investigations.\\n\\n In seeking to convince us otherwise, the government maintains that the magistrate\\n\\njudge’s review of the seized materials will unduly delay the government’s investigations.\\n\\nAnd the government claims that it has an interest in efficiently investigating criminal\\n\\nwrongdoing. Although efficient criminal investigations are certainly desirable, we are not\\n\\npersuaded that the claimed delay in its investigations weighs in the government’s favor.\\n\\nPut simply, the government chose to proceed by securing a search warrant for the Law\\n\\nFirm and seeking and obtaining the magistrate judge’s approval of the Filter Protocol. The\\n\\n\\n\\n 19\\n The government contends on appeal that the Filter Team’s privilege review of the\\nseized materials is no different than such a review by a magistrate judge or a court-\\nappointed special master. Unlike the Filter Team, however, a magistrate judge and a\\nspecial master are judicial officers and neutral arbiters that have no stake in the outcome\\nof the privilege decisions. See In re Grand Jury Subpoenas, 454 F.3d at 523 (explaining\\ninherent conflict in authorizing filter team to decide privilege claims).\\n\\n 35\\n\\ngovernment should have been fully aware that use of a filter team in these circumstances\\n\\nwas ripe for substantial legal challenges, and should have anticipated that those challenges\\n\\ncould delay its investigations. 20 And, in any event, delay in the government’s\\n\\ninvestigations here does not outweigh the harm to the Law Firm and its clients caused by\\n\\nthe Filter Team’s review. See In re Grand Jury Subpoenas, 454 F.3d at 523-24.\\n\\n The government also argues that the equities weigh against the Law Firm because\\n\\nthe Firm waited ten days after the search to file its Injunction Requests. We are\\n\\nunconvinced, however, that the Law Firm somehow slumbered on its rights. Indeed, the\\n\\nLaw Firm contested the search and seizures when they were ongoing and — three days\\n\\nthereafter — dispatched a detailed letter to the United States Attorney objecting to what\\n\\nhad occurred and what was apparently going on with the Filter Team. The prosecutors\\n\\nignored that letter, prompting the Law Firm to file its Injunction Requests. We do not fault\\n\\nthe Law Firm for seeking a negotiated resolution of these important disputes before\\n\\nrequesting court intervention. And we will not reward the government for ignoring those\\n\\nefforts. See Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 522 (1947) (“[H]e who\\n\\nseeks equity must do equity.”). In these circumstances, the Law Firm has convincingly\\n\\nshown that the equities weigh in its favor.\\n\\n\\n\\n\\n 20\\n Notwithstanding the government’s responsibility for some of the delay about\\nwhich it complains, we are nevertheless sensitive to its concerns. Indeed, we have\\nexpedited this appeal, and we issued our Interim Order within two days of the oral\\nargument.\\n\\n 36\\n\\n D.\\n\\n Finally, the Law Firm is obliged to establish, in order to secure the relief it seeks,\\n\\nthat “an injunction is in the public interest.” See Winter, 555 U.S. at 20. We are satisfied\\n\\nthat an award of injunctive relief in these circumstances supports the “strong public\\n\\ninterest” in the integrity of the judicial system. See United States v. Hasting, 461 U.S. 499,\\n\\n527 (1983) (Brennan, J., concurring in part and dissenting in part). By creating\\n\\nappearances of unfairness to the Law Firm clients who are unrelated to the government’s\\n\\ninvestigation of Client A, the Filter Team and its Protocol contravene the public interest.\\n\\nSee Gallego, slip op. at 4-6 (recognizing appearances of unfairness inherent in use of filter\\n\\nteams and appointing special master to review materials seized from law firm); Stewart,\\n\\n2002 WL 1300059, at *8 (explaining that “it is important that the procedure adopted [for\\n\\nthe review of seized materials] . . . not only be fair but also appear to be fair”); United\\n\\nStates v. Neill, 952 F. Supp. 834, 841 n.14 (D.D.C. 1997) (emphasizing that use of filter\\n\\nteam creates “appearance of unfairness”). For those clients — and to the public at large —\\n\\nit surely appears, as the Sixth Circuit recognized, that “the government’s fox [has been]\\n\\nleft in charge of the [Law Firm’s] henhouse.” See In re Grand Jury Subpoenas, 454 F.3d\\n\\nat 523; see also In re Search Warrant for Law Offices Executed on Mar. 19, 1992, 153\\n\\nF.R.D. 55, 59 (S.D.N.Y. 1994) (“It is a great leap of faith to expect that members of the\\n\\ngeneral public would believe any . . . wall [between a filter team and a prosecution team]\\n\\nwould be impenetrable; this notwithstanding our own trust in the honor of an AUSA.”).\\n\\n Appearances of unfairness are especially apparent in these proceedings, in that the\\n\\nFilter Team includes prosecutors employed in the same judicial district where Law Firm\\n\\n 37\\n\\nclients “are being investigated by, or are being prosecuted by,” the United States Attorney\\n\\nfor Maryland. See S.J.A. 66. It would be difficult for reasonable members of the public to\\n\\nbelieve that Filter Team AUSAs would disregard information in Lawyer A’s emails that\\n\\nmight be relevant to other criminal inquiries in Maryland. In fact, the government has\\n\\nnever disclaimed an intention to use the plain-view doctrine in connection with the Filter\\n\\nTeam’s access to the materials seized from the Law Firm. See United States v. Rumley,\\n\\n588 F.3d 202, 205 (4th Cir. 2009) (explaining that, under the plain-view doctrine, a law\\n\\nenforcement officer can make a seizure of an object in plain view if, inter alia, “the object’s\\n\\nincriminating character is immediately apparent” (internal quotation marks omitted)); cf.\\n\\nUnited States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1178 (9th Cir. 2010)\\n\\n(Kozinski, C.J., concurring) (suggesting that, “[w]hen the government wishes to obtain a\\n\\nwarrant to examine a[n] . . . electronic storage medium to search for certain incriminating\\n\\nfiles, . . . magistrate judges should insist that the government forswear reliance on the plain-\\n\\nview doctrine” (citation omitted)). 21\\n\\n Due to the appearances of unfairness caused by the Filter Team, and in view of the\\n\\nother problems associated with the Filter Team, it is surprising that the government has so\\n\\nvigorously supported it. We simply observe that prosecutors have a responsibility to not\\n\\n\\n\\n 21\\n Even if the Filter Team AUSAs have been instructed to ignore information\\nrelating to possible criminal activity by other Law Firm clients in the seized materials, our\\nplain view concerns would not be assuaged. The review of such information by the Filter\\nTeam AUSAs cannot be undone. Additionally, the IRS and DEA agents on the Filter Team\\nhave their own superiors. It may well be difficult for those agents to withhold from their\\nsuperiors information about possible crimes potentially identified in the seized materials.\\n\\n 38\\n\\nonly see that justice is done, but to also ensure that justice appears to be done. See In re\\n\\nSearch Warrant for Law Offices, 153 F.R.D. at 59 (“The appearance of [j]ustice must be\\n\\nserved, as well as the interests of [j]ustice.”). Federal agents and prosecutors rummaging\\n\\nthrough law firm materials that are protected by attorney-client privilege and the work-\\n\\nproduct doctrine is at odds with the appearance of justice.\\n\\n ***\\n\\n As reflected herein, we are satisfied that the magistrate judge’s authorization of the\\n\\nFilter Team and the Filter Protocol was improper and that injunctive relief is warranted.\\n\\nThe district court thus abused its discretion by failing to enjoin the Filter Team’s review of\\n\\nthe seized materials. 22\\n\\n\\n\\n IV.\\n\\n Pursuant to the foregoing and our Interim Order, we reverse the district court’s\\n\\nDenial Order and remand for such other and further proceedings as may be appropriate.\\n\\n REVERSED AND REMANDED\\n\\n\\n\\n\\n 22\\n Although the Law Firm has raised Fourth Amendment contentions, we leave those\\nissues to the district court. See Lovelace v. Lee, 472 F.3d 174, 203 (4th Cir. 2006)\\n(emphasizing that this Court is “a court of review, not of first view” (internal quotation\\nmarks omitted)).\\n\\n 39\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4452604/\", \"author_raw\": \"KING, Circuit Judge:\"}, {\"author\": \"RUSHING, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"RUSHING, Circuit Judge, concurring:\\n\\n As the majority correctly concludes, the unique facts and circumstances of this case\\n\\npreclude this Filter Team operating under this Filter Protocol from reviewing the fruits of\\n\\nthis search warrant. I write separately to expand upon two points in our analysis of the\\n\\nLaw Firm’s likelihood of success on the merits.\\n\\n First, as the majority notes, after the July 10, 2019 hearing on the Law Firm’s and\\n\\nClient A’s pending motions, the district court modified the Privilege Assessment Provision\\n\\nof the Filter Protocol. Maj. Op. 12. Under the Modified Privilege Assessment Provision,\\n\\nno documents—including those the Filter Team considers nonprivileged—can be sent to\\n\\nthe Prosecution Team without either the consent of the Law Firm or a court order. The\\n\\nmajority does not suggest that the Modified Privilege Assessment Provision, which\\n\\nreplaced the original Privilege Assessment Provision, impermissibly usurps a judicial\\n\\nfunction. See Maj. Op. 25–28.\\n\\n Second, the Filter Team immediately began reviewing the documents seized from\\n\\nthe Law Firm, despite the Law Firm’s protests about the attorney-client privilege and work-\\n\\nproduct doctrine. In other cases, the government has voluntarily delayed review for a brief\\n\\ntime until the court could schedule a hearing on the target’s motion for a restraining order\\n\\nor injunction. See, e.g., Cohen v. United States, No. 1:18-mj-03161 (S.D.N.Y. Apr. 13,\\n\\n2018), ECF Nos. 6, 36. That sensible procedure preserves the status quo until a court can\\n\\nrule. The majority suggests a procedure by which a magistrate judge could authorize a\\n\\nsearch but delay ruling on proposed review protocols until the court can sua sponte gather\\n\\nthe parties for an adversary proceeding. Maj. Op. 30–31. That innovative procedure may\\n\\n 40\\n\\nbe salutary in some circumstances, but the burden remains on the parties to voice their\\n\\nobjections, and accommodate the orderly resolution of those objections, in the normal\\n\\ncourse.\\n\\n\\n\\n\\n 41\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4452604/\", \"author_raw\": \"RUSHING, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"GREGORY"},"judge2":{"kind":"string","value":"KING"},"judge3":{"kind":"string","value":"RUSHING"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"GREGORY\": \", Chief\", \"KING\": \", Circuit\", \"RUSHING\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4675351/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: In re: Search Warrant\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-10-31\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 19-1730\n\n\nIn re: SEARCH WARRANT ISSUED JUNE 13, 2019\n____________________________\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n v.\n\nUNDER SEAL,\n\n Defendant - Appellant.\n\n\nAppeal from the United States District Court for the District of Maryland, at Baltimore.\nLiam O’Grady, District Judge. (1:19-mj-02155-TCB-1)\n\nArgued: September 10, 2019 Decided: October 31, 2019\n Amended: October 31, 2019\n\n\nBefore GREGORY, Chief Judge, and KING and RUSHING, Circuit Judges.\n\n\nReversed and remanded by published opinion. Judge King wrote the opinion, in which\nChief Judge Gregory and Judge Rushing joined. Judge Rushing wrote a separate\nconcurring opinion.\n\n\nARGUED: James Patrick Ulwick, KRAMON & GRAHAM, P.A., Baltimore, Maryland,\nfor Appellant. Derek Edward Hines, OFFICE OF THE UNITED STATES ATTORNEY,\nBaltimore, Maryland, for Appellee. ON BRIEF: Steven M. Klepper, Louis P. Malick,\nKRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellant. Robert K. Hur,\nUnited States Attorney, Aaron S.J. Zelinsky, Assistant United States Attorney, OFFICE\nOF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.\n\nKING, Circuit Judge:\n\n The appellant in these proceedings is a Baltimore law firm (the “Law Firm”) that\n\nchallenges the government’s use of a so-called “Filter Team” — created ex parte by a\n\nmagistrate judge in the District of Maryland and comprised of federal agents and\n\nprosecutors — to inspect privileged attorney-client materials. Those materials were seized\n\nfrom the Law Firm in June 2019 during the execution of a search warrant issued by the\n\nmagistrate judge. The Law Firm requested that the district court enjoin the Filter Team’s\n\nreview of the seized materials, invoking the attorney-client privilege and the work-product\n\ndoctrine. When the court denied its request, the Law Firm pursued this appeal. As\n\nexplained below, we are satisfied that use of the Filter Team is improper for several\n\nreasons, including that, inter alia, the Team’s creation inappropriately assigned judicial\n\nfunctions to the executive branch, the Team was approved in ex parte proceedings prior to\n\nthe search and seizures, and the use of the Team contravenes foundational principles that\n\nprotect attorney-client relationships. We therefore reverse and remand.\n\n\n\n I.\n\n A.\n\n 1.\n\n For about three years, “Lawyer A,” a partner of the Law Firm, handled the\n\nrepresentation of “Client A” in an investigation conducted by federal authorities in\n\n\n\n\n 2\n\nMaryland. 1 Client A — who is also a Maryland lawyer — was suspected of assisting drug\n\ndealers in illicit activities, including money laundering and obstruction of federal\n\ninvestigations. According to the government, its investigation of Client A was obstructed\n\nby Lawyer A, and the relationship between Lawyer A and Client A triggered an application\n\nof the crime-fraud exception to the attorney-client privilege and work-product doctrine. In\n\nlight of Lawyer A’s suspected misconduct, the government also initiated an investigation\n\nof Lawyer A.\n\n As part of those investigative efforts, an IRS agent applied for a warrant to conduct\n\na search of the Law Firm’s Baltimore offices. On June 13, 2019, the magistrate judge\n\napproved the search warrant application and issued the warrant as requested. Based on her\n\nreview of the supporting affidavit of the IRS agent, the judge found probable cause for the\n\nsearch of the Law Firm and the seizures of client-related materials concerning Lawyer A’s\n\nrepresentation of Client A.\n\n 2.\n\n Contemporaneously with issuance of the search warrant, the magistrate judge\n\nauthorized the Filter Team, which had been proposed to the judge ex parte by the\n\nprosecutors in connection with the search warrant application. In so doing, the judge\n\nadopted the “Filter Team Practices and Procedures” specified in an attachment to the search\n\n\n\n\n 1\n In seeking to protect the identities of those involved in these proceedings, we use\nthe nonspecific terms “Law Firm,” “Lawyer A,” and “Client A.” Our use of those terms is\ngenerally consistent with the record on appeal.\n\n 3\n\nwarrant application and affidavit (the “Filter Protocol”). See S.J.A. 41-45. 2 The Filter\n\nProtocol defined the membership of the Filter Team and established the process for its\n\nreview of the materials to be thereafter seized from the Law Firm. Members of the Filter\n\nTeam included lawyers from the United States Attorney’s Office in Maryland’s Greenbelt\n\nDivision (the “Filter Team AUSAs”); a legal assistant and a paralegal who also worked\n\nthere; agents of the IRS and DEA; and forensic examiners. The Filter Team operated in\n\none of the two offices of Maryland’s United States Attorney — the Greenbelt office.\n\n Pursuant to the Filter Protocol, the Filter Team members were not involved in the\n\ninvestigations of Lawyer A and Client A (apart from being Filter Team members). The\n\nagents and prosecutors conducting the investigations of Lawyer A and Client A (the\n\n“Prosecution Team”) were excluded from the Filter Team. In contrast to the Filter Team\n\nAUSAs who were assigned to the Greenbelt office, the Prosecution Team lawyers were\n\nassigned to the United States Attorney’s Baltimore office.\n\n As for the Filter Team’s process of reviewing attorney-client materials seized from\n\nthe Law Firm, the Filter Protocol provided for privilege issues to be handled thusly:\n\n • After seizing materials from the Law Firm, the Filter Team would\n identify and separate privileged and potentially privileged materials\n from materials that were not privileged. Under the Filter Protocol,\n privileged materials included “attorney-client information, attorney\n work product information, and client confidences that have not been\n waived,” see S.J.A. 43, 45;\n\n 2\n Citations herein to “S.J.A. __” refer to the contents of the Sealed Joint Appendix\nfiled by the parties in this appeal. The government later sought to supplement the Sealed\nJoint Appendix by filing an ex parte appendix, the contents of which would be available\nonly to itself and the Court and were never available to the Law Firm. On September 12,\n2019, we rejected the filing of the ex parte supplemental appendix.\n\n 4\n\n • When seized materials were found by the Filter Team to be\n nonprivileged, the Filter Team AUSAs could forward such materials\n directly to the Prosecution Team, without the consent of the Law Firm\n or a court order (the “Privilege Assessment Provision”);\n\n • For privileged and potentially privileged materials, the Filter Team\n would decide whether any such seized materials were “responsive to\n the search warrant,” id. at 44;\n\n • For privileged and potentially privileged materials that were\n “responsive to the search warrant,” id., the Filter Team AUSAs would\n place them in one of three categories:\n\n 1. Seized materials that were privileged and could not\n be redacted;\n\n 2. Seized materials that were privileged but could be\n redacted; or\n\n 3. Seized materials that were potentially privileged (for\n example, when the Filter Team identified some\n possible exception, such as the crime-fraud\n exception, to a claim of privilege);\n\n • After providing copies to counsel for Lawyer A of the seized materials\n identified as within categories 2 and 3, the Filter Team AUSAs would\n seek an agreement with counsel for Lawyer A concerning whether\n those materials could be forwarded to the Prosecution Team; and\n\n • If the Filter Team AUSAs and counsel for Lawyer A disagreed on the\n handling of seized materials, the Filter Team AUSAs would submit\n such “items to the court for [a] determination regarding privilege\n and/or proposed redactions of the privileged material,” id.\n\n The Filter Protocol also authorized the Filter Team to provide the Prosecution Team\n\nwith seized materials if a Filter Team member “obtain[ed] [a] waiver[] of the attorney-\n\nclient privilege” by directly contacting the Law Firm client holding the privilege. See\n\nS.J.A. 42. Under the Protocol, “[i]f a client waive[d] the attorney-client privilege as to\n\n 5\n\nfiles, no further filter review of [those] files . . . for attorney-client privileged material [was]\n\nrequired.” Id.\n\n 3.\n\n Five days after the magistrate judge issued the search warrant, on June 18, 2019,\n\nfifteen IRS and DEA agents — who were members of the Filter Team — executed the\n\nwarrant by conducting a six-hour search of the Law Firm’s offices. Those agents seized\n\nvoluminous materials, including certain “confidential, privileged documents” of the Law\n\nFirm concerning, inter alia, Lawyer A’s representation of Client A. See S.J.A. 66. For\n\nexample, the agents electronically copied and seized the contents of Lawyer A’s iPhone\n\nand computer. The electronically seized materials contained all of Lawyer A’s email\n\ncorrespondence, including email correspondence related to Client A and numerous other\n\nLaw Firm clients. 3 More specifically, Lawyer A’s seized email inbox contained\n\napproximately 37,000 emails, of which 62 were from Client A or contained Client A’s\n\nsurname. And Lawyer A’s seized email “sent items” folder contained approximately\n\n\n\n\n 3\n The inventory for the return of the search warrant that was filed under seal in the\ndistrict court describes in very general terms the items seized. See Fed. R. Crim. P.\n41(f)(1)(B) (requiring officer present during execution of warrant to prepare and verify\ninventory of property seized). For example, the inventory states that agents performed\n“extraction[s]” of Lawyer A’s iPhone, of an iPad belonging to the Law Firm, and of a\nlaptop belonging to a Firm associate. See S.J.A. 21. The inventory also describes the\nseizures of, inter alia, a laptop, a hard drive, a portable drive, and several compact discs.\nAdditionally, the inventory describes the seizures of various physical documents, including\n“handwritten notes” found at the desk of a Law Firm associate, “client notes” found at the\ndesk of Lawyer A’s assistant, and a redweld folder containing “communications\nhandwritten and typed” found in Lawyer A’s office. Id. at 22-23.\n\n 6\n\n15,000 emails, of which 54 had been sent to Client A or contained Client A’s surname. Id.\n\nat 80. 4 An “extensive” portion of the seized emails were “from other [Law Firm] attorneys\n\nconcerning . . . other attorneys’ clients that have no connection with th[e] investigation[s]”\n\nof Lawyer A and Client A. Id. at 66. Notably, some of those Law Firm clients “are being\n\ninvestigated by, or are being prosecuted by, the United States Attorney’s Office [for the\n\nDistrict of Maryland] for unrelated crimes.” Id. 5\n\n During the execution of the search warrant by the IRS and DEA on June 18, 2019,\n\nvarious Law Firm partners voiced objections, including to the breadth of the search and\n\nseizures. Those objections were made directly to the federal agents conducting the search,\n\nand were also made to at least two prosecutors, including a member of the Prosecution\n\nTeam. A Law Firm partner specifically requested that the government’s forensic\n\n\n\n\n 4\n Our foregoing explanation of the seizures of Lawyer A’s emails is derived in part\nfrom the affidavit of an information technology professional filed by the Law Firm in the\ndistrict court. See S.J.A. 80-81 (affidavit stating that “I electronically reviewed [Lawyer\nA’s] email folders on the [F]irm’s computer server and determined that (a) [Lawyer A’s]\nemail inbox contained a total of 37,114 emails with a total size of 9,124,544 KB, of which\nonly 62 emails with a total size of 21,582 KB were from [Client A] or contained [Client\nA’s surname]; and (b) [Lawyer A’s] email sent items contained 15,219 emails with a total\nsize of 2,308,938 KB, of which only 54 emails with a total size of 20,049 KB were sent to\n[Client A] or contained [Client A’s surname]”). No evidence contradicting that affidavit\nwas presented to the district court.\n 5\n In addition to the seizures by federal agents of thousands of emails and other\ncommunications between Lawyer A and persons other than Client A, the IRS and DEA\nagents seized multiple compact discs containing electronic documents that Lawyer A had\nreceived from lawyers who had previously represented Client A.\n\n 7\n\nexaminers limit their seizures of Lawyer A’s emails to those that included Client A’s name\n\nor other relevant search terms. Those requests were all rejected. 6\n\n By letter delivered to the United States Attorney on June 21, 2019, the Law Firm\n\nasserted that the search and seizures contravened the Constitution, Federal Rules of\n\nCriminal Procedure, and United States Attorneys’ Manual. Additionally, the Law Firm\n\nadvised the government that the Firm had a duty “to preserve client confidences and\n\nsecrets,” see S.J.A. 71, and that it was “ethically mandated to urge the return of all items\n\nseized by the government,” id. at 72. The Law Firm’s letter objected to the use of the Filter\n\nTeam and requested that the government return the seized materials so that the Firm could\n\nconduct a privilege review — which would have been the process had the government used\n\nsubpoenaes duces tecum rather than a search warrant. The Law Firm also requested that\n\nthe government not examine any of the seized materials until the Firm had an opportunity\n\nto complete its privilege review. Alternatively, the Law Firm asked the government to\n\nimmediately submit the seized materials to the magistrate judge or the district court for in\n\ncamera inspection. The government never responded to the Law Firm’s letter.\n\n\n\n 6\n The facts specified herein with respect to the Law Firm’s objections to the\nexecution of the search warrant, and the government’s refusal to limit the seizures of\nLawyer A’s emails, are spelled out in the affidavit of a Law Firm partner that was filed in\nthe district court. See S.J.A. 67 (affidavit stating that “[o]n June 18, 2019, my law partners\nand I immediately voiced [the Law Firm’s] objections to the search and seizure, both to\nagents conducting the search and by phone to Assistant United States Attorneys . . . . I\nasked the [g]overnment’s forensic examiners to limit the downloading of [Lawyer A’s]\nemails to those that included [Client A’s surname] or other relevant search terms, but they\nrefused to do so without explanation”). The government did not rebut the lawyer’s\naffidavit.\n\n 8\n\n B.\n\n On June 26, 2019, Client A — whose own office had also been searched by federal\n\nagents and whose files were seized — moved in the district court for relief from the Filter\n\nProtocol, which also applied to that search. The following day, the court ordered that the\n\nFilter Team not deliver to the Prosecution Team any materials that were seized from Client\n\nA and the Law Firm, pending further order of the court. 7\n\n On June 28, 2019, the Law Firm separately moved in the district court for injunctive\n\nrelief. More specifically, the Law Firm sought a temporary restraining order and a\n\npreliminary injunction, pursuant to Rule 65 of the Federal Rules of Civil Procedure, and\n\nthe return of seized property, pursuant to Rule 41(g) of the Federal Rules of Criminal\n\nProcedure (collectively, the “Injunction Requests”). On July 1, 2019, the government\n\nresponded to and opposed the Law Firm’s Injunction Requests. The Law Firm replied the\n\nvery next day.\n\n Eight days later, on July 10, 2019, the district court conducted a telephonic hearing\n\non the Injunction Requests. 8 During that hearing, the Law Firm’s counsel explained that\n\nthe Law Firm had more than twenty lawyers, and he described the Firm’s extensive and\n\nongoing law practice in Maryland, including its involvement in a vast amount of criminal\n\n\n 7\n Because all the district judges in the District of Maryland recused themselves from\nthese proceedings, a district judge in the Eastern District of Virginia was designated to\nhandle them. The magistrate judge on this case is also an Eastern District of Virginia judge\ndesignated for service in the District of Maryland.\n 8\n The district court was not available for an earlier hearing due to the extended\nFourth of July holiday weekend and the court’s schedule.\n\n 9\n\nand civil litigation and related legal services. Counsel emphasized to the court that Lawyer\n\nA’s entire email file had been copied and seized by the federal agents and that the file\n\ncontained privileged communications with and between various lawyers and clients of the\n\nLaw Firm concerning criminal and civil matters unrelated to the investigations of Lawyer\n\nA and Client A. Counsel advised the court that the Law Firm had conducted a search of\n\nLawyer A’s emails using Client A’s surname and identified only 116 responsive emails in\n\nthe approximately 52,000 emails that were seized from Lawyer A’s email file. The Law\n\nFirm’s counsel emphasized his objections to any use of a government filter team and\n\nargued that the Filter Protocol approved by the magistrate judge was fatally flawed. He\n\nstressed the Filter Protocol’s illegality as to all clients of the Law Firm. Counsel added\n\nthat the Filter Team would have access to and would be reviewing seized materials related\n\nto Law Firm clients that the Filter Team members could be investigating, or might thereby\n\nbecome interested in investigating.\n\n The government responded that the Filter Team AUSAs had asked the Law Firm\n\nfor a list of clients with pending matters in the United States Attorney’s Office, in order to\n\nconfirm that no Filter Team member was involved in such matters. 9 The Law Firm,\n\nhowever, declined to provide that information. The government represented that it had no\n\nalternative but to seize Lawyer A’s entire email file because an onsite review was\n\nimpractical. The government also argued that, if it had provided search terms to the Law\n\n\n 9\n In addition to a list of Law Firm clients with pending matters in the United States\nAttorney’s Office, a Filter Team AUSA requested that a Firm partner supply the Filter\nTeam with a list of all Lawyer A’s “cases.” See S.J.A. 74.\n\n 10\n\nFirm, those terms would have revealed what the government was searching for, and those\n\nrevelations might have allowed Lawyer A to obstruct its investigations. In addition, the\n\ngovernment claimed that using search terms might cause the Filter Team to overlook emails\n\nrelevant to the investigations.\n\n At the conclusion of the telephonic hearing of July 10, 2019, the district court orally\n\ndenied the Law Firm’s Injunction Requests, ruling that the Firm had not shown “any\n\nlikelihood of irreparable harm.” See S.J.A. 122. The court related that “filter teams can be\n\nneutral,” and that this Filter Team was “operating under the [c]ourt’s direction.” Id. at 120.\n\nThe court observed that, “absent a finding that there has been some breach of [the\n\nprosecutors’] ethical responsibilities and duties in this case, which rarely occurs,” the Filter\n\nProtocol was not “inappropriate.” Id. at 121. Additionally, the court related that “having\n\nan independent group” of prosecutors review the seized materials did not “create[] great\n\nrisk or create[] the appearance of unfairness.” Id. The court said there was no “per se rule\n\nthat law firms are to be treated so differently that neutral examiners must be appointed in\n\nevery case.” Id. Finally, the court remarked that the Law Firm had “delay[ed] in coming\n\nto the [c]ourt,” and stated that the Filter Team had made substantial progress in reviewing\n\nthe seized materials. Id. at 122.\n\n On July 11, 2019 — the day after the hearing — the district court entered an order\n\ndenying the Injunction Requests because the Law Firm had not established that it would\n\nsuffer irreparable harm absent injunctive relief. See In re Search of Under Seal, No. 1:19-\n\nmj-02155 (D. Md. July 11, 2019), ECF No. 11 (the “Denial Order”). The Denial Order\n\nstated, in part:\n\n 11\n\n In reviewing the search warrant, the [m]agistrate [j]udge knew that the search\n was to be of [a] law firm[] and imposed appropriate and well-established\n constraints on the [Filter Team] that would be reviewing the seized\n documents. There is no inherent conflict in having the seized documents\n reviewed by [the Filter Team] composed of Assistant United States\n Attorneys who have no connection to the underlying case or [the Law Firm]\n and no contact with the [Prosecution Team] on this case. . . . As a result, the\n [c]ourt finds that the limits in the search warrant and the constraints imposed\n on the [Filter Team] are such that the appointment of a special master or\n magistrate judge is not necessary to protect [the Law Firm] or its clients from\n irreparable harm.\n\nId. at 2.\n\n Later that day, the Law Firm noted this appeal, pursuant to 28 U.S.C. § 1292(a)(1).\n\nThat jurisdictional provision authorizes appellate review of a district court’s decision\n\ndenying injunctive relief.\n\n On July 17, 2019, after the Law Firm’s appeal was lodged, the district court entered\n\nan agreed order modifying the Privilege Assessment Provision of the Filter Protocol.\n\nSpecifically, the court altered that Provision to require that the Filter Team’s forwarding of\n\nseized materials to the Prosecution Team be first approved by the Law Firm or by the court\n\n(the “Modified Privilege Assessment Provision”). Prior to that modification, the Privilege\n\nAssessment Provision authorized the Filter Team to deem seized materials nonprivileged\n\nand give them directly to the Prosecution Team.\n\n C.\n\n On July 12, 2019, the Law Firm moved in this Court for an injunction pending\n\nappeal. Five days thereafter, on July 17, 2019, we granted the Law Firm some relief,\n\ndirecting the government to “cease review of the seized files and forthwith place the files\n\n\n\n 12\n\nin the custody of the [m]agistrate [j]udge to be held under seal pending further order of this\n\nCourt.” See ECF No. 39. 10\n\n After expediting this appeal and receiving the Law Firm’s opening brief, we directed\n\nthe government to specifically address four issues in its brief. Especially pertinent here,\n\nwe requested that the government address whether judicial functions had been improperly\n\nassigned to the Filter Team.\n\n We conducted oral argument in Richmond on September 10, 2019. Two days later,\n\non September 12, 2019, we entered an order that reversed “the district court’s denial of the\n\nLaw Firm’s request that review of the seized materials be made by the magistrate judge,\n\nrather than by the Filter Team.” See ECF No. 72 (the “Interim Order”). Our Interim Order\n\nreassigned the Filter Team’s duties and functions to the magistrate judge and gave guidance\n\nin that regard. More specifically, we advised the magistrate judge to review all seized\n\nmaterials, identify those not related to Client A and return them to the Law Firm, and\n\nconduct a privilege evaluation of the remaining materials. As promised in the Interim\n\nOrder, we now issue this opinion to explain our rulings in these proceedings. 11\n\n\n 10\n On July 22, 2019, the government filed with our Court a “Notice of Compliance”\nwith our directive of July 17, 2019, explaining that the Filter Team had provided the\nmagistrate judge with all files — both paper and electronic — seized from the Law Firm.\nSee ECF No. 44. By July 22, 2019, the seized materials had been “substantially reviewed\nand coded by the Filter Team.” Id. As of that date, the government had not returned any\nof the seized materials to the Law Firm.\n 11\n The government represented at oral argument that it had given the magistrate\njudge all the Filter Team’s work product that related to the seized materials. And the\nlawyer asserted that the government’s July 22, 2019 Notice of Compliance so stated. We\nare not at all certain, however, that the Notice provides such advice. As will be explained,\n(Continued)\n 13\n\n II.\n\n The Supreme Court has described the award of a preliminary injunction as “an\n\nextraordinary remedy [that is] never awarded as of right.” See Winter v. Nat. Res. Defense\n\nCouncil, Inc., 555 U.S. 7, 24 (2008). To prevail on a request for such preliminary relief,\n\nthe plaintiff must establish that (1) it is likely to succeed on the merits, (2) it is likely to\n\nsuffer irreparable harm absent the requested preliminary relief, (3) the balance of the\n\nequities weighs in its favor, and (4) a preliminary injunction is in the public interest. See\n\nCentro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th Cir. 2013) (en banc).\n\n When a district court denies a preliminary injunction based on its evaluation of only\n\none of the foregoing factors, we review its assessment of that factor for abuse of discretion.\n\nSee Fusaro v. Cogan, 930 F.3d 241, 248 (4th Cir. 2019) (explaining abuse of discretion\n\nstandard); cf. Henderson ex rel. NLRB v. Bluefield Hosp. Co., 902 F.3d 432, 439 (4th Cir.\n\n2018) (recognizing that court can deny preliminary injunction when party fails to satisfy\n\nany one of four factors). In that circumstance, however, we must perform our own\n\nassessment of the factors not addressed by the district court. See Hobby Lobby Stores, Inc.\n\nv. Sebelius, 723 F.3d 1114, 1145 & n.21 (10th Cir. 2013) (en banc). We then evaluate the\n\n\n\n\nbecause the Filter Team was performing judicial functions when conducting its review\npursuant to the Privilege Assessment Provision and the Modified Privilege Assessment\nProvision, the government is obliged to fully advise the magistrate judge as to the work\nthat was performed by the Filter Team and to deliver any Filter Team work product to the\njudge. See Interim Order 2 (“All work product of the Filter Team shall forthwith be\ndelivered by the [g]overnment to the magistrate judge for filing under seal.”).\n\n 14\n\ncourt’s “ultimate decision” to deny injunctive relief for abuse of discretion. See Gonzales\n\nv. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006).\n\n In performing an abuse of discretion review, we assess the district court’s factual\n\nfindings for clear error and its legal conclusions de novo. See Fusaro, 930 F.3d at 248. A\n\ncourt abuses its discretion in denying preliminary injunctive relief when it “rest[s] its\n\ndecision on a clearly erroneous finding of a material fact, or misapprehend[s] the law with\n\nrespect to underlying issues in litigation.” See Centro Tepeyac, 722 F.3d at 188 (internal\n\nquotation marks omitted). Furthermore, a court “abuses its discretion when it makes an\n\nerror of law,” see Koon v. United States, 518 U.S. 81, 100 (1996), or when it ignores\n\n“unrebutted, legally significant evidence,” see Alvarez Lagos v. Barr, 927 F.3d 236, 255\n\n(4th Cir. 2019).\n\n\n\n III.\n\n In making our assessment of the various injunction issues, we begin with whether\n\nthe Law Firm is likely to suffer irreparable harm absent injunctive relief. We proceed in\n\nthis manner because the district court’s denial of the Law Firm’s Injunction Requests was\n\npredicated solely on the irreparable harm factor of the four-part preliminary injunction test.\n\nWe then evaluate the other factors, which the district court did not reach and address. More\n\nspecifically, we consider and decide whether the Law Firm has demonstrated a likelihood\n\nof success on the merits of its challenge to the Filter Team and its Protocol, whether the\n\nbalance of the equities weighs in the Firm’s favor, and whether an award of injunctive relief\n\n\n\n 15\n\nis in the public interest. See Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th\n\nCir. 2013) (en banc). 12\n\n A.\n\n With respect to the irreparable harm factor, the Law Firm is obliged to demonstrate\n\nthat it is likely to suffer such harm in the absence of injunctive relief. See Winter v. Nat.\n\nRes. Defense Council, Inc., 555 U.S. 7, 20 (2008). The Law Firm maintains that, absent\n\nrelief from the Filter Team and its Protocol, federal agents and prosecutors on the Filter\n\nTeam will continue their review of “tens of thousands” of privileged materials concerning\n\nLaw Firm clients other than Client A. See Br. of Appellant 45. The Law Firm emphasizes\n\n(1) that 99.8 percent of the 52,000 emails seized by the government were not from Client\n\nA, were not sent to Client A, and did not mention Client A’s surname; and (2) that many\n\nof those emails contained privileged information relating to other clients of the Firm,\n\nincluding clients who are potential subjects or targets of government investigations. 13\n\n 1.\n\n In ruling that the Law Firm did not satisfy the irreparable harm factor, the district\n\ncourt failed to address the Law Firm’s unrebutted evidence with respect to Lawyer A’s\n\n\n\n\n 12\n Although the district court mentioned the balance of the equities factor during the\ntelephonic hearing of July 10, 2019, the court did not rely on that factor to deny the\nInjunction Requests.\n 13\n Although the government argues on appeal that the Law Firm’s evidence is not\naccurate and cannot be relied on, it failed to present any contradictory evidence to the\ndistrict court. See United States v. Anderson, 481 F.2d 685, 702 n.19 (4th Cir. 1973)\n(emphasizing importance of building appellate record in district court).\n\n 16\n\nemails. See Alvarez Lagos v. Barr, 927 F.3d 236, 255 (4th Cir. 2019) (explaining that\n\nfailure to address “unrebutted, legally significant evidence” constitutes abuse of\n\ndiscretion). That is, the court ignored evidence that less than one percent of the seized\n\nemails were from Client A, were to Client A, or mentioned Client A’s surname, and that\n\nmany seized emails contained privileged communications and attorney work product\n\nconcerning other Law Firm clients. Additionally, the court failed to acknowledge the fact\n\nthat some of those communications were from or about clients who “are being investigated\n\nby, or are being prosecuted by,” federal prosecutors. See S.J.A. 66. As a result, the court\n\ndid not grapple with the harm that is likely to be inflicted on the Law Firm and its clients\n\nfrom the Filter Team’s review of many of the seized emails. 14 The court thus abused its\n\ndiscretion in that respect.\n\n 2.\n\n The district court’s failure to consider the Law Firm’s unrebutted evidence\n\ncompounded other errors of law that the court made with respect to the irreparable harm\n\n\n\n 14\n During the oral argument in this appeal, the government maintained that the Filter\nTeam is entitled to review materials seized from the Law Firm that are not facially relevant\nto Client A. The government’s justification for that proposition is that the Filter Team\nneeds “context” for its privilege determinations. See Oral Argument at 43:20, United States\nv. Under Seal, No. 19-1730 (4th Cir. Sept. 10, 2019), http://www.ca4.uscourts.gov/oral-\nargument/listen-to-oral-arguments. According to this “context” argument, the government\nwas entitled to seize and review documents for which probable cause was lacking.\nUnsurprisingly, the government has no supporting authority in that regard. See United\nStates v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1172 (9th Cir. 2010) (en banc)\n(criticizing government “overreach[]” in seizure of electronic data unsupported by\nprobable cause), abrogated on other grounds by Hamer v. Neighborhood Hous. Servs. of\nChi., 138 S. Ct. 13, 16-17 (2017).\n\n 17\n\nfactor. See Koon v. United States, 518 U.S. 81, 100 (1996) (explaining that a court “by\n\ndefinition abuses its discretion when it makes an error of law”). More specifically, the\n\ncourt erred by giving short shrift to the important legal principles that protect attorney-\n\nclient relationships, which we are compelled to elucidate herein.\n\n a.\n\n As we know, the attorney-client privilege is “the oldest of the privileges for\n\nconfidential communications known to the common law.” See Upjohn Co. v. United\n\nStates, 449 U.S. 383, 389 (1981); see also In re Grand Jury Subpoenas, 454 F.3d 511, 519\n\n(6th Cir. 2006) (explaining that “[t]he privilege protecting confidential communications\n\nbetween an attorney and his client dates back to the Tudor dynasty”). The attorney-client\n\nprivilege empowers a client — as the privilege holder — “to refuse to disclose and to\n\nprevent any other person from disclosing confidential communications between him and\n\nhis attorney.” See Black’s Law Dictionary 129 (6th ed. 1990). And in proceedings such\n\nas these, lawyers are obliged to protect the attorney-client privilege to the maximum\n\npossible extent on behalf of their clients. See Republic Gear Co. v. Borg-Warner Corp.,\n\n381 F.2d 551, 556 (2d Cir. 1967) (recognizing that lawyer has duty to invoke claim of\n\nprivilege on client’s behalf); Model Rules of Prof’l Conduct r. 1.6(a), (c) (Am. Bar Ass’n\n\n1983) (explaining that lawyer owes duty of confidentiality to client and must prevent\n\nunauthorized disclosure of confidential information). That proposition underlies the Law\n\nFirm’s uncontested standing to pursue the legal positions it advances in this appeal. See\n\nFisher v. United States, 425 U.S. 391, 402 n.8 (1976) (“[I]t is universally accepted that the\n\nattorney-client privilege may be raised by the attorney[.]”); In re Grand Jury Proceedings,\n\n 18\n\n727 F.2d 1352, 1354-55 (4th Cir. 1984) (emphasizing that a lawyer “is entitled to raise [a\n\nclaim of] privilege on behalf of his . . . client”).\n\n The purpose of the attorney-client privilege is to ensure “full and frank\n\ncommunication” between a client and his lawyer and “thereby promote broader public\n\ninterests in the observance of law and administration of justice.” See Upjohn Co., 449 U.S.\n\nat 389. As the Supreme Court has consistently emphasized, the attorney-client privilege\n\nexists because “sound legal advice or advocacy serves public ends and . . . such advice or\n\nadvocacy depends upon the lawyer’s being fully informed by the client.” Id.; see also Hunt\n\nv. Blackburn, 128 U.S. 464, 470 (1888) (“The rule which places the seal of secrecy upon\n\ncommunications between client and attorney is founded upon the necessity, in the interest\n\nand administration of justice, of the aid of persons having knowledge of the law and skilled\n\nin its practice, which assistance can only be safely and readily availed of when free from\n\nthe consequences or the apprehension of disclosure.”).\n\n Although the work-product doctrine does not trace as far into history as the attorney-\n\nclient privilege, it is no less important. The Supreme Court explicitly recognized and\n\nexplained the work-product doctrine more than seventy years ago in its seminal decision\n\nin Hickman v. Taylor. See 329 U.S. 495, 510-11 (1947). In Hickman, the Court\n\nunderscored that a lawyer must be able to “work with a certain degree of privacy, free from\n\nunnecessary intrusion by opposing parties and their counsel.” Id. at 510. Elaborating on\n\nthat principle, the Court emphasized that “[p]roper preparation of a client’s case demands\n\nthat [a lawyer] assemble information, sift what he considers to be the relevant from the\n\nirrelevant facts, prepare his legal theories and plan his strategy without undue and needless\n\n 19\n\ninterference.” Id. at 511. As the Court warned, absent strong protection for work product,\n\n“[i]nefficiency, unfairness and sharp practices would inevitably develop in the giving of\n\nlegal advice and in the preparation of cases for trial,” all to the detriment of clients and “the\n\ncause of justice.” Id.\n\n Thus, the Supreme Court has explicitly approved what it called “a qualified\n\nprivilege,” to be held by lawyer and client alike, “for certain materials prepared by an\n\nattorney ‘acting for his client in anticipation of litigation.’” See United States v. Nobles,\n\n422 U.S. 225, 237-38 (1975) (quoting Hickman, 329 U.S. at 508). That privilege is the\n\nwork-product doctrine, which has now been incorporated into the Federal Rules of Civil\n\nProcedure, see Fed. R. Civ. P. 26(b)(3), and the Federal Rules of Criminal Procedure, see\n\nFed. R. Crim. P. 16(a)(2), (b)(2).\n\n There are two types of attorney work product that are within the ambit of the\n\ndoctrine: (1) fact work product, which is “a transaction of the factual events involved,”\n\nand (2) opinion work product, which “represents the actual thoughts and impressions of\n\nthe attorney.” See In re Grand Jury Subpoena, 870 F.3d 312, 316 (4th Cir. 2017) (internal\n\nquotation marks omitted). Opinion work product, we have recognized, “enjoys a nearly\n\nabsolute immunity” and can be discovered by adverse parties “only in very rare and\n\nextraordinary circumstances.” Id. (internal quotation marks omitted). Fact work product\n\nis somewhat less protected, and discovery thereof by others may only be had in limited\n\ncircumstances, where a party shows “both a substantial need and an inability to secure the\n\nsubstantial equivalent of the materials by alternate means without undue hardship.” Id.\n\n(internal quotation marks omitted).\n\n 20\n\n Notably, the attorney-client privilege and the work-product doctrine jointly support\n\nthe Sixth Amendment’s guarantee of effective assistance of counsel. See U.S. Const.\n\namend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to have the\n\nAssistance of Counsel for his defence.”); Strickland v. Washington, 466 U.S. 668, 686\n\n(1984) (analyzing Sixth Amendment right to effective assistance of counsel). For example,\n\nin assessing the interplay between the attorney-client privilege and the Sixth Amendment,\n\nwe have emphasized that “[t]he essence of the Sixth Amendment right to effective\n\nassistance of counsel is, indeed, privacy of communication with counsel.” See United\n\nStates v. Brugman, 655 F.2d 540, 546 (4th Cir. 1981); cf. DeMassa v. Nunez, 770 F.2d\n\n1505, 1507 (9th Cir. 1985) (describing Sixth Amendment as a “source” for the expectation\n\nof privacy in attorney-client communications); 1 Geoffrey C. Hazard, Jr. et al., The Law of\n\nLawyering § 10.14, 10-91 (4th ed. Supp. 2019) (explaining that “[t]he attorney-client\n\nprivilege has ties to the Sixth Amendment”). Absent privacy of communications and the\n\n“full and frank” discussions that flow therefrom, a lawyer could be deprived of the\n\ninformation necessary to prepare and present his client’s defense. See Upjohn Co., 449\n\nU.S. at 389.\n\n Similarly, the work-product doctrine fulfills an essential and important role in\n\nensuring the Sixth Amendment right to effective assistance of counsel. The Supreme Court\n\nhas recognized that the work-product doctrine is vital to “assur[e] the proper functioning\n\nof the criminal justice system,” in that it “provid[es] a privileged area within which [a\n\nlawyer] can analyze and prepare his client’s case.” See Nobles, 422 U.S. at 238; see also\n\nIn re Grand Jury Subpoenas, 454 F.3d at 520 (explaining that “people should be free to\n\n 21\n\nmake requests of their attorneys without fear, and that their attorneys should be free to\n\nconduct research and prepare litigation strategies without fear that these preparations will\n\nbe subject to review by outside parties”). Without that “privileged area,” a lawyer’s ability\n\nto plan and present his client’s defense will be impaired. See Nobles, 422 U.S. at 238; see\n\nalso Hickman, 329 U.S. at 511. 15\n\n b.\n\n In ruling that the Law Firm had not established a likelihood of irreparable harm, the\n\ndistrict court erred as a matter of law by affording insignificant weight to the foregoing\n\nprinciples protecting attorney-client relationships. See Upjohn Co., 449 U.S. at 389\n\n(emphasizing importance of attorney-client privilege); Nobles, 422 U.S. at 237-38\n\n(recognizing significance of protecting lawyer work product); cf. Gunnells v. Healthplan\n\nServs., Inc., 348 F.3d 417, 434 (4th Cir. 2003) (explaining that court abuses discretion in\n\nignoring applicable legal principles). Crucially, the court failed to recognize that an\n\nadverse party’s review of privileged materials seriously injures the privilege holder. See\n\nUnited States v. Philip Morris Inc., 314 F.3d 612, 622 (D.C. Cir. 2003) (concluding that a\n\nparty had demonstrated the likelihood of irreparable harm predicated on “the general injury\n\n\n\n 15\n Although the attorney-client privilege and work-product doctrine are essential\ncomponents of our adversarial system, neither is absolute. For example, claims of attorney-\nclient privilege or work-product protection can sometimes be defeated by the crime-fraud\nexception. See In re Grand Jury Proceedings #5 Empanelled Jan. 28, 2004, 401 F.3d 247,\n251 (4th Cir. 2005). Put succinctly, “[b]oth the attorney-client and work-product privileges\nmay be lost . . . when a client gives information to an attorney for the purpose of committing\nor furthering a crime or fraud.” Id. In these proceedings, the government has invoked that\nexception as to Client A of Lawyer A.\n\n 22\n\ncaused by the breach of the attorney-client privilege and the harm resulting from the\n\ndisclosure of privileged documents to an adverse party”), abrogated on other grounds by\n\nMohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103 (2009); In re Perrigo Co., 128 F.3d\n\n430, 437 (6th Cir. 1997) (explaining that “forced disclosure of privileged material may\n\nbring about irreparable harm”); Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955,\n\n960-61 (3d Cir. 1984) (ruling that law firm had demonstrated likelihood of irreparable harm\n\nwhere government seized thousands of files containing privileged information).\n\n 3.\n\n When the pertinent legal principles are properly applied to the unrefuted evidence,\n\nthe Filter Team’s review of the materials seized from the Law Firm was and is injurious to\n\nthe Firm and its clients. And that harm is plainly irreparable, in that the Filter Team’s\n\nreview of those privileged materials cannot be undone. We are therefore satisfied that the\n\nLaw Firm will be irreparably harmed absent an award of injunctive relief against the Filter\n\nTeam and its Protocol. 16\n\n\n\n\n 16\n We observe that the Filter Team and its Protocol may inflict other injuries on the\nLaw Firm. For example, adverse publicity about the search of the Law Firm, the Filter\nTeam, and its Protocol could make potential clients less likely to seek out and retain the\nFirm. Additionally, potential and current clients might be reluctant to candidly\ncommunicate with the Law Firm attorneys because they fear government review of their\ncommunications and breaches of confidentiality. Consequently, the Law Firm is likely to\nbe deprived of information necessary to the proper handling of its cases. See Upjohn Co.,\n449 U.S. at 389 (explaining necessity of “full and frank communication” between client\nand his lawyer).\n\n 23\n\n B.\n\n Turning to the injunction factors not reached and addressed by the district court, we\n\nbegin with the likelihood of success factor. In order to prevail on that factor, the Law Firm\n\nmust make a “clear showing” that the Filter Team and its Protocol are legally flawed. See\n\nPashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013). Stated differently, the Law Firm is\n\nobliged to demonstrate it is likely to succeed on its request that the magistrate judge —\n\nrather than the Filter Team — perform the privilege review of the seized materials.\n\n In that regard, the Law Firm maintains that the Filter Team and its Protocol are\n\nsimply “incompatible with courts’ historical protection of the attorney-client privilege and\n\nthe work-product doctrine.” See Br. of Appellant 35. The Law Firm contends that there is\n\na clear appearance of — and potential for — improprieties when government agents are\n\nauthorized to rummage through attorney-client communications, particularly when less\n\nthan one percent of those communications relate to the investigations at issue. And the\n\nLaw Firm posits that use of the Filter Team in these circumstances will chill the free flow\n\nof information between clients and lawyers. Put simply, the Law Firm maintains that\n\njudicial functions are involved in all aspects of assessing and deciding privilege issues.\n\nThe Law Firm thus argues that a magistrate judge or a special master must perform those\n\nfunctions.\n\n As further explained below, we are satisfied that the Law Firm has shown that it is\n\nlikely to succeed on the merits of its challenge to the Filter Team and its Protocol. In\n\napproving the Filter Team and its Protocol, the magistrate judge made several legal errors\n\nby, inter alia: (1) assigning judicial functions to the Filter Team; (2) authorizing the Filter\n\n 24\n\nTeam and its Protocol in ex parte proceedings that were conducted prior to the search and\n\nseizures at the Law Firm; and (3) failing to properly weigh the foundational principles that\n\nprotect attorney-client relationships.\n\n 1.\n\n To start, the magistrate judge — by authorizing the Filter Team and its Protocol —\n\nerred in assigning judicial functions to the executive branch. We have recognized that,\n\nwhen a dispute arises as to whether a lawyer’s communications or a lawyer’s documents\n\nare protected by the attorney-client privilege or work-product doctrine, the resolution of\n\nthat dispute is a judicial function. See NLRB v. Interbake Foods, LLC, 637 F.3d 492, 498,\n\n500 (4th Cir. 2011) (concluding that, in deciding whether to enforce an administrative\n\nsubpoena seeking potentially privileged documents, a court “cannot delegate” an in camera\n\nreview of documents to an agency, but must itself decide a claim of privilege); see also In\n\nre The City of New York, 607 F.3d 923, 947 (2d Cir. 2010) (observing that evaluating\n\nprivilege claim is always a judicial function); In re Grand Jury Proceedings #5 Empanelled\n\nJan. 28, 2004, 401 F.3d 247, 256 (4th Cir. 2005) (remanding to district court for in camera\n\nreview concerning privileged communications and applicability of crime-fraud exception).\n\nIndeed, the Constitution vests “[t]he judicial Power” solely in the federal courts, see U.S.\n\nConst. art. III, § 1, which includes “the duty of interpreting and applying” the law, see\n\nMassachusetts v. Mellon, 262 U.S. 447, 488 (1923). Put simply, a court is not entitled to\n\ndelegate its judicial power and related functions to the executive branch, especially when\n\nthe executive branch is an interested party in the pending dispute. See Interbake Foods,\n\n637 F.3d at 501 (affirming refusal “to delegate” to an administrative law judge the\n\n 25\n\njudiciary’s “responsibility to decide the issue of privilege”); NLRB v. Detroit Newspapers,\n\n185 F.3d 602, 606 (6th Cir. 1999) (concluding that “district court had the obligation . . . to\n\ndetermine whether the subpoenaed documents were protected by some privilege, and had\n\nno discretion to delegate that duty”).\n\n In these proceedings, the Privilege Assessment Provision of the Filter Protocol\n\ncontravened that nondelegation principle. Put succinctly, the Privilege Assessment\n\nProvision erroneously authorized the executive branch — that is, the Filter Team — to\n\nmake decisions on attorney-client privilege and the work-product doctrine. As our good\n\ncolleague Judge Niemeyer recognized in Interbake Foods, a court simply cannot delegate\n\nits responsibility to decide privilege issues to another government branch. See 637 F.3d at\n\n498, 500-01 (recognizing that court must decide privilege disputes); see also In re The City\n\nof New York, 607 F.3d at 947 (observing that evaluating privilege claim is a judicial\n\nfunction).\n\n To compound that error, the Privilege Assessment Provision delegated judicial\n\nfunctions to non-lawyer members of the Filter Team. In other words, the Privilege\n\nAssessment Provision authorized paralegals and IRS and DEA agents to designate seized\n\ndocuments as nonprivileged, and allowed the Filter Team AUSAs to deliver such\n\ndocuments to the Prosecution Team without the approval of the Law Firm or a court order.\n\nThe Third Circuit has strongly criticized a similar protocol and explicitly ruled that non-\n\nlawyer federal agents could not make privilege determinations. See In re Search of Elec.\n\nCommc’ns, 802 F.3d 516, 530 & n.54 (3d Cir. 2015).\n\n\n\n 26\n\n In addition to the separation of powers issues that arise from the Filter Protocol’s\n\ndelegation of judicial functions to the Filter Team, there are other apparent legal problems\n\ntherewith. There is the possibility that a filter team — even if composed entirely of trained\n\nlawyers — will make errors in privilege determinations and in transmitting seized materials\n\nto an investigation or prosecution team. On this point, the Sixth Circuit recognized several\n\nyears ago that such filter teams present “reasonably foreseeable risks to privilege” and\n\n“have been implicated . . . in leaks of confidential information to prosecutors.” See In re\n\nGrand Jury Subpoenas, 454 F.3d at 523. As Judge Boggs aptly explained, a filter team\n\nmight “have an interest in preserving privilege, but it also possesses a conflicting interest\n\nin pursuing the investigation, and . . . some [filter] team attorneys will make mistakes or\n\nviolate their ethical obligations. It is thus logical to suppose that [filter] teams pose a\n\nserious risk to holders of privilege.” Id.\n\n As the Sixth Circuit also emphasized, filter team errors can arise from differences\n\nof opinion regarding privilege. See In re Grand Jury Subpoenas, 454 F.3d at 523. In\n\nexplaining that problem, the court elaborated that a filter team’s members “might have a\n\nmore restrictive view of privilege” than the subject of the search, given their prosecutorial\n\ninterests in pursuing the underlying investigations. Id. That “more restrictive view of\n\nprivilege” could cause privileged documents to be misclassified and erroneously provided\n\nto an investigation or prosecution team. Id.\n\n The Sixth Circuit also acknowledged that filter team errors can result from mistakes\n\nor neglect, and described one infamous occurrence as follows:\n\n\n\n 27\n\n In United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991), . . . the\n government’s [filter] team missed a document obviously protected by\n attorney-client privilege, by turning over tapes of attorney-client\n conversations to members of the investigating team. This Noriega incident\n points to an obvious flaw in the [filter] team procedure: the government’s\n fox is left in charge of the [law firm’s] henhouse, and may err by neglect or\n malice, as well as by honest differences of opinion.\n\nSee In re Grand Jury Subpoenas, 454 F.3d at 523 (emphasis added).\n\n Strikingly, the risks to attorney-client privilege and the work-product doctrine that\n\nwere identified by the Sixth Circuit have been recently realized in the District of Maryland,\n\nfrom which this appeal arises. See United States v. Elbaz, No. 8:18-cr-00157, slip op. at\n\n4-6 (D. Md. June 20, 2019), ECF No. 216 (the “Elbaz opinion”). According to the Elbaz\n\nopinion, the government’s filter team improperly disclosed thousands of potentially\n\nprivileged documents to a prosecution team, which then examined some of the documents.\n\nId. Those blunders occurred nearly a year before this Filter Team was authorized by the\n\nmagistrate judge. Id. at 3-6. And the Elbaz opinion detailing that filter team’s mistakes\n\nwas filed in the District of Maryland on June 20, 2019, just a week after the magistrate\n\njudge’s authorization of this Filter Team on June 13, 2019, and three weeks before the\n\ndistrict court’s Denial Order of July 11, 2019.\n\n In sum, the Filter Protocol improperly delegated judicial functions to the Filter\n\nTeam. And the magistrate judge failed to recognize and consider the significant problems\n\nwith that delegation, which left the government’s fox in charge of guarding the Law Firm’s\n\nhenhouse. See In re Grand Jury Subpoenas, 454 F.3d at 523.\n\n\n\n\n 28\n\n 2.\n\n Relatedly, the magistrate judge erred by prematurely authorizing the Filter Team\n\nand its Protocol in ex parte proceedings that it conducted on June 13, 2019, five days before\n\nthe search warrant was executed and voluminous seizures were made from the Law Firm. 17\n\nFirst, the timing of the judge’s authorization undermined the judge’s ability to exercise\n\ndiscretion with respect to the Filter Team and its Protocol, in that the judge could not have\n\nbeen fully informed of what was seized from the Law Firm. See James v. Jacobson, 6 F.3d\n\n233, 238 (4th Cir. 1993) (emphasizing that court’s exercise of discretion must be\n\n“informed”). And the judge may well have rejected the Filter Team and its Protocol if the\n\njudge had known (1) that 99.8 percent of the 52,000 seized emails were not from Client A,\n\nwere not sent to Client A, and did not mention Client A’s surname; and (2) that many of\n\nthose seized emails contained privileged information concerning other clients of the Law\n\nFirm. Put simply, the judge should have deferred the decision concerning the proposed\n\nFilter Team and its Protocol pending the execution and return of the search warrant.\n\n\n\n\n 17\n Although the Law Firm generally contests the ex parte actions of the government\nbelow and on appeal, the Firm does not specifically argue that the magistrate judge erred\nby approving the Filter Team and its Protocol in ex parte proceedings before the search\nwas conducted. See Br. of Appellant 57; Reply Br. of Appellant 3, 22. We are nevertheless\nsatisfied that the process by which the authorization was made falls within the Law Firm’s\nbroad challenge to the Filter Team and its Protocol. Moreover, we are entitled to assess\nlegal issues that have not been squarely raised when it facilitates the correct resolution of\nan appeal. See Meyers v. Lamer, 743 F.3d 908, 912 (4th Cir. 2014) (emphasizing that “it\nis the fundamental province of this Court to decide cases correctly, even if that means\nconsidering arguments . . . not raised by the parties at all”).\n\n 29\n\n Second, the magistrate judge should have declined the government’s ex parte\n\ninvitation with respect to the Filter Team, and the judge should have conducted adversarial\n\nproceedings on whether to authorize the Filter Team and the Filter Protocol. See RSZ\n\nHoldings AVV v. PDVSA Petroleo S.A., 506 F.3d 350, 356 (4th Cir. 2007) (emphasizing\n\nthat ex parte proceedings are “greatly disfavored”); In re Ingram, 915 F. Supp. 2d 761,\n\n763-64 (E.D. La. 2012) (assessing briefing from parties on propriety of filter team). In\n\nsuch contested proceedings, the judge could have been fully informed of the relevant\n\nbackground on the Law Firm and its clients, as well as the nature of the seized materials.\n\nAdditionally, the clients of the Law Firm and their lawyers could have been heard by the\n\njudge.\n\n In a recent example involving a proposed filter team, federal agents searched the\n\noffice of Michael Cohen, a New York City lawyer, and seized privileged materials. See\n\nCohen v. United States, No. 1:18-mj-03161 (S.D.N.Y. Apr. 13, 2018), ECF No. 6 at 4, 25.\n\nFour days after the search — and before the filter team created by the search warrant had\n\nreviewed any of the seized materials — the district court conducted adversarial proceedings\n\nconcerning the prosecutor’s proposed use of a filter team. See generally Cohen, ECF No.\n\n36 (May 1, 2018). Prior to those proceedings, the court was informed of the materials that\n\nhad been seized from Cohen’s office. See Cohen, ECF No. 6 at 18-19. During the\n\nproceedings, the court heard from Cohen’s lawyer and the lawyer for Cohen’s primary\n\nclient, who each argued against court approval of the filter team request. See Cohen, ECF\n\nNo. 36 at 12-16, 30-31.\n\n\n\n 30\n\n The sensible procedures adhered to by the Cohen court demonstrate that, if the\n\nmagistrate judge had conducted adversarial proceedings after the search but before\n\napproving the Filter Team and its Protocol in this case, the judge would have been fully\n\ninformed of the materials that were seized from the Law Firm. The judge would then have\n\nheard from the Law Firm’s counsel, and possibly also from the clients of the Firm through\n\ntheir lawyers, before the Filter Team reviewed any seized materials. The upshot is that —\n\nin failing to conduct adversarial proceedings prior to authorizing the Filter Team and its\n\nProtocol — the magistrate judge prematurely granted the ex parte request of the United\n\nStates Attorney. 18\n\n 3.\n\n a.\n\n We are also troubled that, in summarily approving the Filter Team and its Protocol,\n\nthe magistrate judge — like the district court in thereafter assessing the Injunction Requests\n\n— gave no indication that she had weighed any of the important legal principles that protect\n\nattorney-client relationships. Put simply, the Filter Protocol authorized government agents\n\nand prosecutors to rummage through Lawyer A’s email files. Again, many of the emails\n\n\n\n 18\n The process adhered to by the Cohen court is pertinent to these proceedings in\nseveral material respects. For example, the Cohen filter team did not review any of the\nseized materials prior to an adversarial hearing and a ruling on the filter team’s propriety.\nImportantly, the court heard from Cohen’s lawyer and counsel for Cohen’s primary client\nin those proceedings. The court ultimately rejected the government’s filter team proposal\nand appointed a special master. See Cohen, ECF No. 30 (Apr. 27, 2018). Notably, the\nCohen proceedings were conducted more than a year before the magistrate judge’s\nauthorization of this Filter Team.\n\n 31\n\nconcerned other clients and other matters. The court’s authorization of such an extensive\n\nreview of client communications and lawyer discussions by government agents and\n\nprosecutors was made in disregard of the attorney-client privilege, the work-product\n\ndoctrine, and the Sixth Amendment. See Klitzman, Klitzman & Gallagher v. Krut, 744\n\nF.2d at 961 (criticizing seizures of client files from law firm because government made no\n\neffort to limit seizures of firm’s materials, and thereby “trampl[ed]” on attorney-client\n\nprivilege and work-product protections as to all clients); United States v. Stewart, No. 1:02-\n\ncr-00396, 2002 WL 1300059, at *5, *10 (S.D.N.Y. June 11, 2002) (explaining that search\n\nof lawyer’s office raised Sixth Amendment concerns and appointing special master where\n\ndocuments seized from law firm were likely to contain privileged information relating to\n\ncriminal defendants). The magistrate judge erred in failing to explicitly weigh those\n\nfoundational principles that protect attorney-client relationships.\n\n b.\n\n At this juncture, we emphasize another “serious defect” of the Filter Protocol\n\nchallenged by the Law Firm as subverting attorney-client relationships. See Reply Br. of\n\nAppellant 14 n.4. Specifically, the Filter Protocol prospectively authorized the Filter Team\n\nto contact the Law Firm’s clients ex parte and seek waivers of their attorney-client\n\nprivileges. The Model Rules of Professional Conduct, however, generally bar a lawyer\n\nfrom communicating with a represented party about the subject of the representation\n\nwithout the represented party’s lawyer being present. See Model Rules of Prof’l Conduct\n\nr. 4.2 (Am. Bar Ass’n 1983); 2 Hazard, Jr. et al., supra, § 41.02 (explaining that Rule 4.2\n\n“prevents a lawyer from taking advantage of a lay person”); id. § 41.12 (discussing\n\n 32\n\napplication of Rule 4.2 to prosecutors). Although an exception to that rule can — in the\n\nproper circumstances — be made by a court, any such court order should be predicated on\n\nan individualized assessment of the attorney-client relationship. See Model Rules of Prof’l\n\nConduct r. 4.2; see also United States v. Lopez, 4 F.3d 1455, 1462 (9th Cir. 1993)\n\n(explaining that court must make “informed decision” regarding whether to authorize\n\nlawyer’s communication with represented party). That was not even attempted here, in\n\nthat the Filter Protocol was approved ex parte before the search warrant was executed.\n\n By asking the Law Firm to furnish the Filter Team with a client list — which could\n\nbe used by Filter Team members to directly contact clients and seek privilege waivers\n\nunder the Filter Protocol — the government demonstrated a lack of respect for the attorney-\n\nclient privilege and the Firm’s duty of confidentiality to its clients. In declining to reveal\n\na client list to the Filter Team, the Law Firm relied on its ethical obligations to protect\n\nconfidential and privileged information relating to its clients. See Br. of Appellant 37\n\n(asserting that the government’s request for a client list ignored the proposition that the\n\nLaw Firm is “ethically prohibited from disclosing . . . the identity of clients when the\n\nrelationship remains confidential”); see also Model Rules of Prof’l Conduct r. 1.6(a)\n\n(describing duty of confidentiality). Such information will sometimes include the\n\nexistence of the lawyer-client relationship itself. See In re Grand Jury Subpoena, 204 F.3d\n\n516, 520 (4th Cir. 2000) (recognizing that the attorney-client privilege can “extend to the\n\nclient’s identity”); 1 Hazard, Jr. et al., supra, § 10.12 (collecting cases where client identity\n\nconsidered confidential or privileged). The breach of the duty of confidentiality “is\n\nenforceable by civil remedies as well as through the [attorney] disciplinary process.” See\n\n 33\n\n1 Hazard, Jr. et al., supra, § 10.16, 10-108.1. And a breach of the attorney-client privilege\n\nby an attorney is likewise sanctionable. See id. Indeed, at least one jurisdiction imposes\n\ncriminal penalties for improperly breaching attorney-client privilege. See Tenn. Code Ann.\n\n§ 23-3-107. In short, authorizing the government in ex parte proceedings to directly\n\ncontact any and all clients of the Law Firm is another example of how the Filter Protocol\n\napproved by the magistrate judge undermined attorney-client principles.\n\n 4.\n\n At bottom, the magistrate judge erred in assigning judicial functions to the Filter\n\nTeam, approving the Filter Team and its Protocol in ex parte proceedings without first\n\nascertaining what had been seized in the Law Firm search, and disregarding the\n\nfoundational principles that serve to protect attorney-client relationships. In these\n\ncircumstances, we are satisfied that the magistrate judge (or an appointed special master)\n\n— rather than the Filter Team — must perform the privilege review of the seized materials.\n\nSee Klitzman, Klitzman & Gallagher, 744 F.2d at 962 (recommending appointment of\n\nspecial master in similar circumstances); United States v. Gallego, No. 4:18-cr-01537, slip\n\nop. at 5-6 (D. Ariz. Sept. 6, 2018), ECF No. 65 (appointing a special master “to review the\n\nitems seized from [the] [d]efendant’s law office for privilege and responsiveness to the\n\nsearch warrant”); Cohen, ECF No. 30 (Apr. 27, 2018) (appointing special master to review\n\ndocuments seized from lawyer); Stewart, 2002 WL 1300059, at *10 (appointing special\n\nmaster to perform privilege review of documents seized from office of criminal defense\n\n\n\n\n 34\n\nlawyer). 19 We are therefore satisfied that the Law Firm has demonstrated that it is likely\n\nto succeed on the merits.\n\n C.\n\n In order to prevail on the next injunction factor, the Law Firm is obliged to show\n\nthat the equities weigh in its favor. See Winter, 555 U.S. at 20. And we are satisfied that\n\nthe Law Firm has done so. Specifically, the harm to the Law Firm and its clients that will\n\nbe caused by continuing the Filter Team’s review outweighs any harm to the government\n\nthat might result from the magistrate judge conducting the privilege review of the seized\n\nmaterials. Indeed, we discern no harm to the government in barring the Filter Team from\n\nrummaging through Law Firm materials that are unrelated to the underlying investigations.\n\n In seeking to convince us otherwise, the government maintains that the magistrate\n\njudge’s review of the seized materials will unduly delay the government’s investigations.\n\nAnd the government claims that it has an interest in efficiently investigating criminal\n\nwrongdoing. Although efficient criminal investigations are certainly desirable, we are not\n\npersuaded that the claimed delay in its investigations weighs in the government’s favor.\n\nPut simply, the government chose to proceed by securing a search warrant for the Law\n\nFirm and seeking and obtaining the magistrate judge’s approval of the Filter Protocol. The\n\n\n\n 19\n The government contends on appeal that the Filter Team’s privilege review of the\nseized materials is no different than such a review by a magistrate judge or a court-\nappointed special master. Unlike the Filter Team, however, a magistrate judge and a\nspecial master are judicial officers and neutral arbiters that have no stake in the outcome\nof the privilege decisions. See In re Grand Jury Subpoenas, 454 F.3d at 523 (explaining\ninherent conflict in authorizing filter team to decide privilege claims).\n\n 35\n\ngovernment should have been fully aware that use of a filter team in these circumstances\n\nwas ripe for substantial legal challenges, and should have anticipated that those challenges\n\ncould delay its investigations. 20 And, in any event, delay in the government’s\n\ninvestigations here does not outweigh the harm to the Law Firm and its clients caused by\n\nthe Filter Team’s review. See In re Grand Jury Subpoenas, 454 F.3d at 523-24.\n\n The government also argues that the equities weigh against the Law Firm because\n\nthe Firm waited ten days after the search to file its Injunction Requests. We are\n\nunconvinced, however, that the Law Firm somehow slumbered on its rights. Indeed, the\n\nLaw Firm contested the search and seizures when they were ongoing and — three days\n\nthereafter — dispatched a detailed letter to the United States Attorney objecting to what\n\nhad occurred and what was apparently going on with the Filter Team. The prosecutors\n\nignored that letter, prompting the Law Firm to file its Injunction Requests. We do not fault\n\nthe Law Firm for seeking a negotiated resolution of these important disputes before\n\nrequesting court intervention. And we will not reward the government for ignoring those\n\nefforts. See Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 522 (1947) (“[H]e who\n\nseeks equity must do equity.”). In these circumstances, the Law Firm has convincingly\n\nshown that the equities weigh in its favor.\n\n\n\n\n 20\n Notwithstanding the government’s responsibility for some of the delay about\nwhich it complains, we are nevertheless sensitive to its concerns. Indeed, we have\nexpedited this appeal, and we issued our Interim Order within two days of the oral\nargument.\n\n 36\n\n D.\n\n Finally, the Law Firm is obliged to establish, in order to secure the relief it seeks,\n\nthat “an injunction is in the public interest.” See Winter, 555 U.S. at 20. We are satisfied\n\nthat an award of injunctive relief in these circumstances supports the “strong public\n\ninterest” in the integrity of the judicial system. See United States v. Hasting, 461 U.S. 499,\n\n527 (1983) (Brennan, J., concurring in part and dissenting in part). By creating\n\nappearances of unfairness to the Law Firm clients who are unrelated to the government’s\n\ninvestigation of Client A, the Filter Team and its Protocol contravene the public interest.\n\nSee Gallego, slip op. at 4-6 (recognizing appearances of unfairness inherent in use of filter\n\nteams and appointing special master to review materials seized from law firm); Stewart,\n\n2002 WL 1300059, at *8 (explaining that “it is important that the procedure adopted [for\n\nthe review of seized materials] . . . not only be fair but also appear to be fair”); United\n\nStates v. Neill, 952 F. Supp. 834, 841 n.14 (D.D.C. 1997) (emphasizing that use of filter\n\nteam creates “appearance of unfairness”). For those clients — and to the public at large —\n\nit surely appears, as the Sixth Circuit recognized, that “the government’s fox [has been]\n\nleft in charge of the [Law Firm’s] henhouse.” See In re Grand Jury Subpoenas, 454 F.3d\n\nat 523; see also In re Search Warrant for Law Offices Executed on Mar. 19, 1992, 153\n\nF.R.D. 55, 59 (S.D.N.Y. 1994) (“It is a great leap of faith to expect that members of the\n\ngeneral public would believe any . . . wall [between a filter team and a prosecution team]\n\nwould be impenetrable; this notwithstanding our own trust in the honor of an AUSA.”).\n\n Appearances of unfairness are especially apparent in these proceedings, in that the\n\nFilter Team includes prosecutors employed in the same judicial district where Law Firm\n\n 37\n\nclients “are being investigated by, or are being prosecuted by,” the United States Attorney\n\nfor Maryland. See S.J.A. 66. It would be difficult for reasonable members of the public to\n\nbelieve that Filter Team AUSAs would disregard information in Lawyer A’s emails that\n\nmight be relevant to other criminal inquiries in Maryland. In fact, the government has\n\nnever disclaimed an intention to use the plain-view doctrine in connection with the Filter\n\nTeam’s access to the materials seized from the Law Firm. See United States v. Rumley,\n\n588 F.3d 202, 205 (4th Cir. 2009) (explaining that, under the plain-view doctrine, a law\n\nenforcement officer can make a seizure of an object in plain view if, inter alia, “the object’s\n\nincriminating character is immediately apparent” (internal quotation marks omitted)); cf.\n\nUnited States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1178 (9th Cir. 2010)\n\n(Kozinski, C.J., concurring) (suggesting that, “[w]hen the government wishes to obtain a\n\nwarrant to examine a[n] . . . electronic storage medium to search for certain incriminating\n\nfiles, . . . magistrate judges should insist that the government forswear reliance on the plain-\n\nview doctrine” (citation omitted)). 21\n\n Due to the appearances of unfairness caused by the Filter Team, and in view of the\n\nother problems associated with the Filter Team, it is surprising that the government has so\n\nvigorously supported it. We simply observe that prosecutors have a responsibility to not\n\n\n\n 21\n Even if the Filter Team AUSAs have been instructed to ignore information\nrelating to possible criminal activity by other Law Firm clients in the seized materials, our\nplain view concerns would not be assuaged. The review of such information by the Filter\nTeam AUSAs cannot be undone. Additionally, the IRS and DEA agents on the Filter Team\nhave their own superiors. It may well be difficult for those agents to withhold from their\nsuperiors information about possible crimes potentially identified in the seized materials.\n\n 38\n\nonly see that justice is done, but to also ensure that justice appears to be done. See In re\n\nSearch Warrant for Law Offices, 153 F.R.D. at 59 (“The appearance of [j]ustice must be\n\nserved, as well as the interests of [j]ustice.”). Federal agents and prosecutors rummaging\n\nthrough law firm materials that are protected by attorney-client privilege and the work-\n\nproduct doctrine is at odds with the appearance of justice.\n\n ***\n\n As reflected herein, we are satisfied that the magistrate judge’s authorization of the\n\nFilter Team and the Filter Protocol was improper and that injunctive relief is warranted.\n\nThe district court thus abused its discretion by failing to enjoin the Filter Team’s review of\n\nthe seized materials. 22\n\n\n\n IV.\n\n Pursuant to the foregoing and our Interim Order, we reverse the district court’s\n\nDenial Order and remand for such other and further proceedings as may be appropriate.\n\n REVERSED AND REMANDED\n\n\n\n\n 22\n Although the Law Firm has raised Fourth Amendment contentions, we leave those\nissues to the district court. See Lovelace v. Lee, 472 F.3d 174, 203 (4th Cir. 2006)\n(emphasizing that this Court is “a court of review, not of first view” (internal quotation\nmarks omitted)).\n\n 39\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: In re: Search Warrant\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-10-31\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 19-1730\\n\\n\\nIn re: SEARCH WARRANT ISSUED JUNE 13, 2019\\n____________________________\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n v.\\n\\nUNDER SEAL,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the District of Maryland, at Baltimore.\\nLiam O’Grady, District Judge. (1:19-mj-02155-TCB-1)\\n\\nArgued: September 10, 2019 Decided: October 31, 2019\\n Amended: October 31, 2019\\n\\n\\nBefore GREGORY, Chief Judge, and KING and RUSHING, Circuit Judges.\\n\\n\\nReversed and remanded by published opinion. Judge King wrote the opinion, in which\\nChief Judge Gregory and Judge Rushing joined. Judge Rushing wrote a separate\\nconcurring opinion.\\n\\n\\nARGUED: James Patrick Ulwick, KRAMON & GRAHAM, P.A., Baltimore, Maryland,\\nfor Appellant. Derek Edward Hines, OFFICE OF THE UNITED STATES ATTORNEY,\\nBaltimore, Maryland, for Appellee. ON BRIEF: Steven M. Klepper, Louis P. Malick,\\nKRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellant. Robert K. Hur,\\nUnited States Attorney, Aaron S.J. Zelinsky, Assistant United States Attorney, OFFICE\\nOF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.\\n\\nKING, Circuit Judge:\\n\\n The appellant in these proceedings is a Baltimore law firm (the “Law Firm”) that\\n\\nchallenges the government’s use of a so-called “Filter Team” — created ex parte by a\\n\\nmagistrate judge in the District of Maryland and comprised of federal agents and\\n\\nprosecutors — to inspect privileged attorney-client materials. Those materials were seized\\n\\nfrom the Law Firm in June 2019 during the execution of a search warrant issued by the\\n\\nmagistrate judge. The Law Firm requested that the district court enjoin the Filter Team’s\\n\\nreview of the seized materials, invoking the attorney-client privilege and the work-product\\n\\ndoctrine. When the court denied its request, the Law Firm pursued this appeal. As\\n\\nexplained below, we are satisfied that use of the Filter Team is improper for several\\n\\nreasons, including that, inter alia, the Team’s creation inappropriately assigned judicial\\n\\nfunctions to the executive branch, the Team was approved in ex parte proceedings prior to\\n\\nthe search and seizures, and the use of the Team contravenes foundational principles that\\n\\nprotect attorney-client relationships. We therefore reverse and remand.\\n\\n\\n\\n I.\\n\\n A.\\n\\n 1.\\n\\n For about three years, “Lawyer A,” a partner of the Law Firm, handled the\\n\\nrepresentation of “Client A” in an investigation conducted by federal authorities in\\n\\n\\n\\n\\n 2\\n\\nMaryland. 1 Client A — who is also a Maryland lawyer — was suspected of assisting drug\\n\\ndealers in illicit activities, including money laundering and obstruction of federal\\n\\ninvestigations. According to the government, its investigation of Client A was obstructed\\n\\nby Lawyer A, and the relationship between Lawyer A and Client A triggered an application\\n\\nof the crime-fraud exception to the attorney-client privilege and work-product doctrine. In\\n\\nlight of Lawyer A’s suspected misconduct, the government also initiated an investigation\\n\\nof Lawyer A.\\n\\n As part of those investigative efforts, an IRS agent applied for a warrant to conduct\\n\\na search of the Law Firm’s Baltimore offices. On June 13, 2019, the magistrate judge\\n\\napproved the search warrant application and issued the warrant as requested. Based on her\\n\\nreview of the supporting affidavit of the IRS agent, the judge found probable cause for the\\n\\nsearch of the Law Firm and the seizures of client-related materials concerning Lawyer A’s\\n\\nrepresentation of Client A.\\n\\n 2.\\n\\n Contemporaneously with issuance of the search warrant, the magistrate judge\\n\\nauthorized the Filter Team, which had been proposed to the judge ex parte by the\\n\\nprosecutors in connection with the search warrant application. In so doing, the judge\\n\\nadopted the “Filter Team Practices and Procedures” specified in an attachment to the search\\n\\n\\n\\n\\n 1\\n In seeking to protect the identities of those involved in these proceedings, we use\\nthe nonspecific terms “Law Firm,” “Lawyer A,” and “Client A.” Our use of those terms is\\ngenerally consistent with the record on appeal.\\n\\n 3\\n\\nwarrant application and affidavit (the “Filter Protocol”). See S.J.A. 41-45. 2 The Filter\\n\\nProtocol defined the membership of the Filter Team and established the process for its\\n\\nreview of the materials to be thereafter seized from the Law Firm. Members of the Filter\\n\\nTeam included lawyers from the United States Attorney’s Office in Maryland’s Greenbelt\\n\\nDivision (the “Filter Team AUSAs”); a legal assistant and a paralegal who also worked\\n\\nthere; agents of the IRS and DEA; and forensic examiners. The Filter Team operated in\\n\\none of the two offices of Maryland’s United States Attorney — the Greenbelt office.\\n\\n Pursuant to the Filter Protocol, the Filter Team members were not involved in the\\n\\ninvestigations of Lawyer A and Client A (apart from being Filter Team members). The\\n\\nagents and prosecutors conducting the investigations of Lawyer A and Client A (the\\n\\n“Prosecution Team”) were excluded from the Filter Team. In contrast to the Filter Team\\n\\nAUSAs who were assigned to the Greenbelt office, the Prosecution Team lawyers were\\n\\nassigned to the United States Attorney’s Baltimore office.\\n\\n As for the Filter Team’s process of reviewing attorney-client materials seized from\\n\\nthe Law Firm, the Filter Protocol provided for privilege issues to be handled thusly:\\n\\n • After seizing materials from the Law Firm, the Filter Team would\\n identify and separate privileged and potentially privileged materials\\n from materials that were not privileged. Under the Filter Protocol,\\n privileged materials included “attorney-client information, attorney\\n work product information, and client confidences that have not been\\n waived,” see S.J.A. 43, 45;\\n\\n 2\\n Citations herein to “S.J.A. __” refer to the contents of the Sealed Joint Appendix\\nfiled by the parties in this appeal. The government later sought to supplement the Sealed\\nJoint Appendix by filing an ex parte appendix, the contents of which would be available\\nonly to itself and the Court and were never available to the Law Firm. On September 12,\\n2019, we rejected the filing of the ex parte supplemental appendix.\\n\\n 4\\n\\n • When seized materials were found by the Filter Team to be\\n nonprivileged, the Filter Team AUSAs could forward such materials\\n directly to the Prosecution Team, without the consent of the Law Firm\\n or a court order (the “Privilege Assessment Provision”);\\n\\n • For privileged and potentially privileged materials, the Filter Team\\n would decide whether any such seized materials were “responsive to\\n the search warrant,” id. at 44;\\n\\n • For privileged and potentially privileged materials that were\\n “responsive to the search warrant,” id., the Filter Team AUSAs would\\n place them in one of three categories:\\n\\n 1. Seized materials that were privileged and could not\\n be redacted;\\n\\n 2. Seized materials that were privileged but could be\\n redacted; or\\n\\n 3. Seized materials that were potentially privileged (for\\n example, when the Filter Team identified some\\n possible exception, such as the crime-fraud\\n exception, to a claim of privilege);\\n\\n • After providing copies to counsel for Lawyer A of the seized materials\\n identified as within categories 2 and 3, the Filter Team AUSAs would\\n seek an agreement with counsel for Lawyer A concerning whether\\n those materials could be forwarded to the Prosecution Team; and\\n\\n • If the Filter Team AUSAs and counsel for Lawyer A disagreed on the\\n handling of seized materials, the Filter Team AUSAs would submit\\n such “items to the court for [a] determination regarding privilege\\n and/or proposed redactions of the privileged material,” id.\\n\\n The Filter Protocol also authorized the Filter Team to provide the Prosecution Team\\n\\nwith seized materials if a Filter Team member “obtain[ed] [a] waiver[] of the attorney-\\n\\nclient privilege” by directly contacting the Law Firm client holding the privilege. See\\n\\nS.J.A. 42. Under the Protocol, “[i]f a client waive[d] the attorney-client privilege as to\\n\\n 5\\n\\nfiles, no further filter review of [those] files . . . for attorney-client privileged material [was]\\n\\nrequired.” Id.\\n\\n 3.\\n\\n Five days after the magistrate judge issued the search warrant, on June 18, 2019,\\n\\nfifteen IRS and DEA agents — who were members of the Filter Team — executed the\\n\\nwarrant by conducting a six-hour search of the Law Firm’s offices. Those agents seized\\n\\nvoluminous materials, including certain “confidential, privileged documents” of the Law\\n\\nFirm concerning, inter alia, Lawyer A’s representation of Client A. See S.J.A. 66. For\\n\\nexample, the agents electronically copied and seized the contents of Lawyer A’s iPhone\\n\\nand computer. The electronically seized materials contained all of Lawyer A’s email\\n\\ncorrespondence, including email correspondence related to Client A and numerous other\\n\\nLaw Firm clients. 3 More specifically, Lawyer A’s seized email inbox contained\\n\\napproximately 37,000 emails, of which 62 were from Client A or contained Client A’s\\n\\nsurname. And Lawyer A’s seized email “sent items” folder contained approximately\\n\\n\\n\\n\\n 3\\n The inventory for the return of the search warrant that was filed under seal in the\\ndistrict court describes in very general terms the items seized. See Fed. R. Crim. P.\\n41(f)(1)(B) (requiring officer present during execution of warrant to prepare and verify\\ninventory of property seized). For example, the inventory states that agents performed\\n“extraction[s]” of Lawyer A’s iPhone, of an iPad belonging to the Law Firm, and of a\\nlaptop belonging to a Firm associate. See S.J.A. 21. The inventory also describes the\\nseizures of, inter alia, a laptop, a hard drive, a portable drive, and several compact discs.\\nAdditionally, the inventory describes the seizures of various physical documents, including\\n“handwritten notes” found at the desk of a Law Firm associate, “client notes” found at the\\ndesk of Lawyer A’s assistant, and a redweld folder containing “communications\\nhandwritten and typed” found in Lawyer A’s office. Id. at 22-23.\\n\\n 6\\n\\n15,000 emails, of which 54 had been sent to Client A or contained Client A’s surname. Id.\\n\\nat 80. 4 An “extensive” portion of the seized emails were “from other [Law Firm] attorneys\\n\\nconcerning . . . other attorneys’ clients that have no connection with th[e] investigation[s]”\\n\\nof Lawyer A and Client A. Id. at 66. Notably, some of those Law Firm clients “are being\\n\\ninvestigated by, or are being prosecuted by, the United States Attorney’s Office [for the\\n\\nDistrict of Maryland] for unrelated crimes.” Id. 5\\n\\n During the execution of the search warrant by the IRS and DEA on June 18, 2019,\\n\\nvarious Law Firm partners voiced objections, including to the breadth of the search and\\n\\nseizures. Those objections were made directly to the federal agents conducting the search,\\n\\nand were also made to at least two prosecutors, including a member of the Prosecution\\n\\nTeam. A Law Firm partner specifically requested that the government’s forensic\\n\\n\\n\\n\\n 4\\n Our foregoing explanation of the seizures of Lawyer A’s emails is derived in part\\nfrom the affidavit of an information technology professional filed by the Law Firm in the\\ndistrict court. See S.J.A. 80-81 (affidavit stating that “I electronically reviewed [Lawyer\\nA’s] email folders on the [F]irm’s computer server and determined that (a) [Lawyer A’s]\\nemail inbox contained a total of 37,114 emails with a total size of 9,124,544 KB, of which\\nonly 62 emails with a total size of 21,582 KB were from [Client A] or contained [Client\\nA’s surname]; and (b) [Lawyer A’s] email sent items contained 15,219 emails with a total\\nsize of 2,308,938 KB, of which only 54 emails with a total size of 20,049 KB were sent to\\n[Client A] or contained [Client A’s surname]”). No evidence contradicting that affidavit\\nwas presented to the district court.\\n 5\\n In addition to the seizures by federal agents of thousands of emails and other\\ncommunications between Lawyer A and persons other than Client A, the IRS and DEA\\nagents seized multiple compact discs containing electronic documents that Lawyer A had\\nreceived from lawyers who had previously represented Client A.\\n\\n 7\\n\\nexaminers limit their seizures of Lawyer A’s emails to those that included Client A’s name\\n\\nor other relevant search terms. Those requests were all rejected. 6\\n\\n By letter delivered to the United States Attorney on June 21, 2019, the Law Firm\\n\\nasserted that the search and seizures contravened the Constitution, Federal Rules of\\n\\nCriminal Procedure, and United States Attorneys’ Manual. Additionally, the Law Firm\\n\\nadvised the government that the Firm had a duty “to preserve client confidences and\\n\\nsecrets,” see S.J.A. 71, and that it was “ethically mandated to urge the return of all items\\n\\nseized by the government,” id. at 72. The Law Firm’s letter objected to the use of the Filter\\n\\nTeam and requested that the government return the seized materials so that the Firm could\\n\\nconduct a privilege review — which would have been the process had the government used\\n\\nsubpoenaes duces tecum rather than a search warrant. The Law Firm also requested that\\n\\nthe government not examine any of the seized materials until the Firm had an opportunity\\n\\nto complete its privilege review. Alternatively, the Law Firm asked the government to\\n\\nimmediately submit the seized materials to the magistrate judge or the district court for in\\n\\ncamera inspection. The government never responded to the Law Firm’s letter.\\n\\n\\n\\n 6\\n The facts specified herein with respect to the Law Firm’s objections to the\\nexecution of the search warrant, and the government’s refusal to limit the seizures of\\nLawyer A’s emails, are spelled out in the affidavit of a Law Firm partner that was filed in\\nthe district court. See S.J.A. 67 (affidavit stating that “[o]n June 18, 2019, my law partners\\nand I immediately voiced [the Law Firm’s] objections to the search and seizure, both to\\nagents conducting the search and by phone to Assistant United States Attorneys . . . . I\\nasked the [g]overnment’s forensic examiners to limit the downloading of [Lawyer A’s]\\nemails to those that included [Client A’s surname] or other relevant search terms, but they\\nrefused to do so without explanation”). The government did not rebut the lawyer’s\\naffidavit.\\n\\n 8\\n\\n B.\\n\\n On June 26, 2019, Client A — whose own office had also been searched by federal\\n\\nagents and whose files were seized — moved in the district court for relief from the Filter\\n\\nProtocol, which also applied to that search. The following day, the court ordered that the\\n\\nFilter Team not deliver to the Prosecution Team any materials that were seized from Client\\n\\nA and the Law Firm, pending further order of the court. 7\\n\\n On June 28, 2019, the Law Firm separately moved in the district court for injunctive\\n\\nrelief. More specifically, the Law Firm sought a temporary restraining order and a\\n\\npreliminary injunction, pursuant to Rule 65 of the Federal Rules of Civil Procedure, and\\n\\nthe return of seized property, pursuant to Rule 41(g) of the Federal Rules of Criminal\\n\\nProcedure (collectively, the “Injunction Requests”). On July 1, 2019, the government\\n\\nresponded to and opposed the Law Firm’s Injunction Requests. The Law Firm replied the\\n\\nvery next day.\\n\\n Eight days later, on July 10, 2019, the district court conducted a telephonic hearing\\n\\non the Injunction Requests. 8 During that hearing, the Law Firm’s counsel explained that\\n\\nthe Law Firm had more than twenty lawyers, and he described the Firm’s extensive and\\n\\nongoing law practice in Maryland, including its involvement in a vast amount of criminal\\n\\n\\n 7\\n Because all the district judges in the District of Maryland recused themselves from\\nthese proceedings, a district judge in the Eastern District of Virginia was designated to\\nhandle them. The magistrate judge on this case is also an Eastern District of Virginia judge\\ndesignated for service in the District of Maryland.\\n 8\\n The district court was not available for an earlier hearing due to the extended\\nFourth of July holiday weekend and the court’s schedule.\\n\\n 9\\n\\nand civil litigation and related legal services. Counsel emphasized to the court that Lawyer\\n\\nA’s entire email file had been copied and seized by the federal agents and that the file\\n\\ncontained privileged communications with and between various lawyers and clients of the\\n\\nLaw Firm concerning criminal and civil matters unrelated to the investigations of Lawyer\\n\\nA and Client A. Counsel advised the court that the Law Firm had conducted a search of\\n\\nLawyer A’s emails using Client A’s surname and identified only 116 responsive emails in\\n\\nthe approximately 52,000 emails that were seized from Lawyer A’s email file. The Law\\n\\nFirm’s counsel emphasized his objections to any use of a government filter team and\\n\\nargued that the Filter Protocol approved by the magistrate judge was fatally flawed. He\\n\\nstressed the Filter Protocol’s illegality as to all clients of the Law Firm. Counsel added\\n\\nthat the Filter Team would have access to and would be reviewing seized materials related\\n\\nto Law Firm clients that the Filter Team members could be investigating, or might thereby\\n\\nbecome interested in investigating.\\n\\n The government responded that the Filter Team AUSAs had asked the Law Firm\\n\\nfor a list of clients with pending matters in the United States Attorney’s Office, in order to\\n\\nconfirm that no Filter Team member was involved in such matters. 9 The Law Firm,\\n\\nhowever, declined to provide that information. The government represented that it had no\\n\\nalternative but to seize Lawyer A’s entire email file because an onsite review was\\n\\nimpractical. The government also argued that, if it had provided search terms to the Law\\n\\n\\n 9\\n In addition to a list of Law Firm clients with pending matters in the United States\\nAttorney’s Office, a Filter Team AUSA requested that a Firm partner supply the Filter\\nTeam with a list of all Lawyer A’s “cases.” See S.J.A. 74.\\n\\n 10\\n\\nFirm, those terms would have revealed what the government was searching for, and those\\n\\nrevelations might have allowed Lawyer A to obstruct its investigations. In addition, the\\n\\ngovernment claimed that using search terms might cause the Filter Team to overlook emails\\n\\nrelevant to the investigations.\\n\\n At the conclusion of the telephonic hearing of July 10, 2019, the district court orally\\n\\ndenied the Law Firm’s Injunction Requests, ruling that the Firm had not shown “any\\n\\nlikelihood of irreparable harm.” See S.J.A. 122. The court related that “filter teams can be\\n\\nneutral,” and that this Filter Team was “operating under the [c]ourt’s direction.” Id. at 120.\\n\\nThe court observed that, “absent a finding that there has been some breach of [the\\n\\nprosecutors’] ethical responsibilities and duties in this case, which rarely occurs,” the Filter\\n\\nProtocol was not “inappropriate.” Id. at 121. Additionally, the court related that “having\\n\\nan independent group” of prosecutors review the seized materials did not “create[] great\\n\\nrisk or create[] the appearance of unfairness.” Id. The court said there was no “per se rule\\n\\nthat law firms are to be treated so differently that neutral examiners must be appointed in\\n\\nevery case.” Id. Finally, the court remarked that the Law Firm had “delay[ed] in coming\\n\\nto the [c]ourt,” and stated that the Filter Team had made substantial progress in reviewing\\n\\nthe seized materials. Id. at 122.\\n\\n On July 11, 2019 — the day after the hearing — the district court entered an order\\n\\ndenying the Injunction Requests because the Law Firm had not established that it would\\n\\nsuffer irreparable harm absent injunctive relief. See In re Search of Under Seal, No. 1:19-\\n\\nmj-02155 (D. Md. July 11, 2019), ECF No. 11 (the “Denial Order”). The Denial Order\\n\\nstated, in part:\\n\\n 11\\n\\n In reviewing the search warrant, the [m]agistrate [j]udge knew that the search\\n was to be of [a] law firm[] and imposed appropriate and well-established\\n constraints on the [Filter Team] that would be reviewing the seized\\n documents. There is no inherent conflict in having the seized documents\\n reviewed by [the Filter Team] composed of Assistant United States\\n Attorneys who have no connection to the underlying case or [the Law Firm]\\n and no contact with the [Prosecution Team] on this case. . . . As a result, the\\n [c]ourt finds that the limits in the search warrant and the constraints imposed\\n on the [Filter Team] are such that the appointment of a special master or\\n magistrate judge is not necessary to protect [the Law Firm] or its clients from\\n irreparable harm.\\n\\nId. at 2.\\n\\n Later that day, the Law Firm noted this appeal, pursuant to 28 U.S.C. § 1292(a)(1).\\n\\nThat jurisdictional provision authorizes appellate review of a district court’s decision\\n\\ndenying injunctive relief.\\n\\n On July 17, 2019, after the Law Firm’s appeal was lodged, the district court entered\\n\\nan agreed order modifying the Privilege Assessment Provision of the Filter Protocol.\\n\\nSpecifically, the court altered that Provision to require that the Filter Team’s forwarding of\\n\\nseized materials to the Prosecution Team be first approved by the Law Firm or by the court\\n\\n(the “Modified Privilege Assessment Provision”). Prior to that modification, the Privilege\\n\\nAssessment Provision authorized the Filter Team to deem seized materials nonprivileged\\n\\nand give them directly to the Prosecution Team.\\n\\n C.\\n\\n On July 12, 2019, the Law Firm moved in this Court for an injunction pending\\n\\nappeal. Five days thereafter, on July 17, 2019, we granted the Law Firm some relief,\\n\\ndirecting the government to “cease review of the seized files and forthwith place the files\\n\\n\\n\\n 12\\n\\nin the custody of the [m]agistrate [j]udge to be held under seal pending further order of this\\n\\nCourt.” See ECF No. 39. 10\\n\\n After expediting this appeal and receiving the Law Firm’s opening brief, we directed\\n\\nthe government to specifically address four issues in its brief. Especially pertinent here,\\n\\nwe requested that the government address whether judicial functions had been improperly\\n\\nassigned to the Filter Team.\\n\\n We conducted oral argument in Richmond on September 10, 2019. Two days later,\\n\\non September 12, 2019, we entered an order that reversed “the district court’s denial of the\\n\\nLaw Firm’s request that review of the seized materials be made by the magistrate judge,\\n\\nrather than by the Filter Team.” See ECF No. 72 (the “Interim Order”). Our Interim Order\\n\\nreassigned the Filter Team’s duties and functions to the magistrate judge and gave guidance\\n\\nin that regard. More specifically, we advised the magistrate judge to review all seized\\n\\nmaterials, identify those not related to Client A and return them to the Law Firm, and\\n\\nconduct a privilege evaluation of the remaining materials. As promised in the Interim\\n\\nOrder, we now issue this opinion to explain our rulings in these proceedings. 11\\n\\n\\n 10\\n On July 22, 2019, the government filed with our Court a “Notice of Compliance”\\nwith our directive of July 17, 2019, explaining that the Filter Team had provided the\\nmagistrate judge with all files — both paper and electronic — seized from the Law Firm.\\nSee ECF No. 44. By July 22, 2019, the seized materials had been “substantially reviewed\\nand coded by the Filter Team.” Id. As of that date, the government had not returned any\\nof the seized materials to the Law Firm.\\n 11\\n The government represented at oral argument that it had given the magistrate\\njudge all the Filter Team’s work product that related to the seized materials. And the\\nlawyer asserted that the government’s July 22, 2019 Notice of Compliance so stated. We\\nare not at all certain, however, that the Notice provides such advice. As will be explained,\\n(Continued)\\n 13\\n\\n II.\\n\\n The Supreme Court has described the award of a preliminary injunction as “an\\n\\nextraordinary remedy [that is] never awarded as of right.” See Winter v. Nat. Res. Defense\\n\\nCouncil, Inc., 555 U.S. 7, 24 (2008). To prevail on a request for such preliminary relief,\\n\\nthe plaintiff must establish that (1) it is likely to succeed on the merits, (2) it is likely to\\n\\nsuffer irreparable harm absent the requested preliminary relief, (3) the balance of the\\n\\nequities weighs in its favor, and (4) a preliminary injunction is in the public interest. See\\n\\nCentro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th Cir. 2013) (en banc).\\n\\n When a district court denies a preliminary injunction based on its evaluation of only\\n\\none of the foregoing factors, we review its assessment of that factor for abuse of discretion.\\n\\nSee Fusaro v. Cogan, 930 F.3d 241, 248 (4th Cir. 2019) (explaining abuse of discretion\\n\\nstandard); cf. Henderson ex rel. NLRB v. Bluefield Hosp. Co., 902 F.3d 432, 439 (4th Cir.\\n\\n2018) (recognizing that court can deny preliminary injunction when party fails to satisfy\\n\\nany one of four factors). In that circumstance, however, we must perform our own\\n\\nassessment of the factors not addressed by the district court. See Hobby Lobby Stores, Inc.\\n\\nv. Sebelius, 723 F.3d 1114, 1145 & n.21 (10th Cir. 2013) (en banc). We then evaluate the\\n\\n\\n\\n\\nbecause the Filter Team was performing judicial functions when conducting its review\\npursuant to the Privilege Assessment Provision and the Modified Privilege Assessment\\nProvision, the government is obliged to fully advise the magistrate judge as to the work\\nthat was performed by the Filter Team and to deliver any Filter Team work product to the\\njudge. See Interim Order 2 (“All work product of the Filter Team shall forthwith be\\ndelivered by the [g]overnment to the magistrate judge for filing under seal.”).\\n\\n 14\\n\\ncourt’s “ultimate decision” to deny injunctive relief for abuse of discretion. See Gonzales\\n\\nv. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006).\\n\\n In performing an abuse of discretion review, we assess the district court’s factual\\n\\nfindings for clear error and its legal conclusions de novo. See Fusaro, 930 F.3d at 248. A\\n\\ncourt abuses its discretion in denying preliminary injunctive relief when it “rest[s] its\\n\\ndecision on a clearly erroneous finding of a material fact, or misapprehend[s] the law with\\n\\nrespect to underlying issues in litigation.” See Centro Tepeyac, 722 F.3d at 188 (internal\\n\\nquotation marks omitted). Furthermore, a court “abuses its discretion when it makes an\\n\\nerror of law,” see Koon v. United States, 518 U.S. 81, 100 (1996), or when it ignores\\n\\n“unrebutted, legally significant evidence,” see Alvarez Lagos v. Barr, 927 F.3d 236, 255\\n\\n(4th Cir. 2019).\\n\\n\\n\\n III.\\n\\n In making our assessment of the various injunction issues, we begin with whether\\n\\nthe Law Firm is likely to suffer irreparable harm absent injunctive relief. We proceed in\\n\\nthis manner because the district court’s denial of the Law Firm’s Injunction Requests was\\n\\npredicated solely on the irreparable harm factor of the four-part preliminary injunction test.\\n\\nWe then evaluate the other factors, which the district court did not reach and address. More\\n\\nspecifically, we consider and decide whether the Law Firm has demonstrated a likelihood\\n\\nof success on the merits of its challenge to the Filter Team and its Protocol, whether the\\n\\nbalance of the equities weighs in the Firm’s favor, and whether an award of injunctive relief\\n\\n\\n\\n 15\\n\\nis in the public interest. See Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th\\n\\nCir. 2013) (en banc). 12\\n\\n A.\\n\\n With respect to the irreparable harm factor, the Law Firm is obliged to demonstrate\\n\\nthat it is likely to suffer such harm in the absence of injunctive relief. See Winter v. Nat.\\n\\nRes. Defense Council, Inc., 555 U.S. 7, 20 (2008). The Law Firm maintains that, absent\\n\\nrelief from the Filter Team and its Protocol, federal agents and prosecutors on the Filter\\n\\nTeam will continue their review of “tens of thousands” of privileged materials concerning\\n\\nLaw Firm clients other than Client A. See Br. of Appellant 45. The Law Firm emphasizes\\n\\n(1) that 99.8 percent of the 52,000 emails seized by the government were not from Client\\n\\nA, were not sent to Client A, and did not mention Client A’s surname; and (2) that many\\n\\nof those emails contained privileged information relating to other clients of the Firm,\\n\\nincluding clients who are potential subjects or targets of government investigations. 13\\n\\n 1.\\n\\n In ruling that the Law Firm did not satisfy the irreparable harm factor, the district\\n\\ncourt failed to address the Law Firm’s unrebutted evidence with respect to Lawyer A’s\\n\\n\\n\\n\\n 12\\n Although the district court mentioned the balance of the equities factor during the\\ntelephonic hearing of July 10, 2019, the court did not rely on that factor to deny the\\nInjunction Requests.\\n 13\\n Although the government argues on appeal that the Law Firm’s evidence is not\\naccurate and cannot be relied on, it failed to present any contradictory evidence to the\\ndistrict court. See United States v. Anderson, 481 F.2d 685, 702 n.19 (4th Cir. 1973)\\n(emphasizing importance of building appellate record in district court).\\n\\n 16\\n\\nemails. See Alvarez Lagos v. Barr, 927 F.3d 236, 255 (4th Cir. 2019) (explaining that\\n\\nfailure to address “unrebutted, legally significant evidence” constitutes abuse of\\n\\ndiscretion). That is, the court ignored evidence that less than one percent of the seized\\n\\nemails were from Client A, were to Client A, or mentioned Client A’s surname, and that\\n\\nmany seized emails contained privileged communications and attorney work product\\n\\nconcerning other Law Firm clients. Additionally, the court failed to acknowledge the fact\\n\\nthat some of those communications were from or about clients who “are being investigated\\n\\nby, or are being prosecuted by,” federal prosecutors. See S.J.A. 66. As a result, the court\\n\\ndid not grapple with the harm that is likely to be inflicted on the Law Firm and its clients\\n\\nfrom the Filter Team’s review of many of the seized emails. 14 The court thus abused its\\n\\ndiscretion in that respect.\\n\\n 2.\\n\\n The district court’s failure to consider the Law Firm’s unrebutted evidence\\n\\ncompounded other errors of law that the court made with respect to the irreparable harm\\n\\n\\n\\n 14\\n During the oral argument in this appeal, the government maintained that the Filter\\nTeam is entitled to review materials seized from the Law Firm that are not facially relevant\\nto Client A. The government’s justification for that proposition is that the Filter Team\\nneeds “context” for its privilege determinations. See Oral Argument at 43:20, United States\\nv. Under Seal, No. 19-1730 (4th Cir. Sept. 10, 2019), http://www.ca4.uscourts.gov/oral-\\nargument/listen-to-oral-arguments. According to this “context” argument, the government\\nwas entitled to seize and review documents for which probable cause was lacking.\\nUnsurprisingly, the government has no supporting authority in that regard. See United\\nStates v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1172 (9th Cir. 2010) (en banc)\\n(criticizing government “overreach[]” in seizure of electronic data unsupported by\\nprobable cause), abrogated on other grounds by Hamer v. Neighborhood Hous. Servs. of\\nChi., 138 S. Ct. 13, 16-17 (2017).\\n\\n 17\\n\\nfactor. See Koon v. United States, 518 U.S. 81, 100 (1996) (explaining that a court “by\\n\\ndefinition abuses its discretion when it makes an error of law”). More specifically, the\\n\\ncourt erred by giving short shrift to the important legal principles that protect attorney-\\n\\nclient relationships, which we are compelled to elucidate herein.\\n\\n a.\\n\\n As we know, the attorney-client privilege is “the oldest of the privileges for\\n\\nconfidential communications known to the common law.” See Upjohn Co. v. United\\n\\nStates, 449 U.S. 383, 389 (1981); see also In re Grand Jury Subpoenas, 454 F.3d 511, 519\\n\\n(6th Cir. 2006) (explaining that “[t]he privilege protecting confidential communications\\n\\nbetween an attorney and his client dates back to the Tudor dynasty”). The attorney-client\\n\\nprivilege empowers a client — as the privilege holder — “to refuse to disclose and to\\n\\nprevent any other person from disclosing confidential communications between him and\\n\\nhis attorney.” See Black’s Law Dictionary 129 (6th ed. 1990). And in proceedings such\\n\\nas these, lawyers are obliged to protect the attorney-client privilege to the maximum\\n\\npossible extent on behalf of their clients. See Republic Gear Co. v. Borg-Warner Corp.,\\n\\n381 F.2d 551, 556 (2d Cir. 1967) (recognizing that lawyer has duty to invoke claim of\\n\\nprivilege on client’s behalf); Model Rules of Prof’l Conduct r. 1.6(a), (c) (Am. Bar Ass’n\\n\\n1983) (explaining that lawyer owes duty of confidentiality to client and must prevent\\n\\nunauthorized disclosure of confidential information). That proposition underlies the Law\\n\\nFirm’s uncontested standing to pursue the legal positions it advances in this appeal. See\\n\\nFisher v. United States, 425 U.S. 391, 402 n.8 (1976) (“[I]t is universally accepted that the\\n\\nattorney-client privilege may be raised by the attorney[.]”); In re Grand Jury Proceedings,\\n\\n 18\\n\\n727 F.2d 1352, 1354-55 (4th Cir. 1984) (emphasizing that a lawyer “is entitled to raise [a\\n\\nclaim of] privilege on behalf of his . . . client”).\\n\\n The purpose of the attorney-client privilege is to ensure “full and frank\\n\\ncommunication” between a client and his lawyer and “thereby promote broader public\\n\\ninterests in the observance of law and administration of justice.” See Upjohn Co., 449 U.S.\\n\\nat 389. As the Supreme Court has consistently emphasized, the attorney-client privilege\\n\\nexists because “sound legal advice or advocacy serves public ends and . . . such advice or\\n\\nadvocacy depends upon the lawyer’s being fully informed by the client.” Id.; see also Hunt\\n\\nv. Blackburn, 128 U.S. 464, 470 (1888) (“The rule which places the seal of secrecy upon\\n\\ncommunications between client and attorney is founded upon the necessity, in the interest\\n\\nand administration of justice, of the aid of persons having knowledge of the law and skilled\\n\\nin its practice, which assistance can only be safely and readily availed of when free from\\n\\nthe consequences or the apprehension of disclosure.”).\\n\\n Although the work-product doctrine does not trace as far into history as the attorney-\\n\\nclient privilege, it is no less important. The Supreme Court explicitly recognized and\\n\\nexplained the work-product doctrine more than seventy years ago in its seminal decision\\n\\nin Hickman v. Taylor. See 329 U.S. 495, 510-11 (1947). In Hickman, the Court\\n\\nunderscored that a lawyer must be able to “work with a certain degree of privacy, free from\\n\\nunnecessary intrusion by opposing parties and their counsel.” Id. at 510. Elaborating on\\n\\nthat principle, the Court emphasized that “[p]roper preparation of a client’s case demands\\n\\nthat [a lawyer] assemble information, sift what he considers to be the relevant from the\\n\\nirrelevant facts, prepare his legal theories and plan his strategy without undue and needless\\n\\n 19\\n\\ninterference.” Id. at 511. As the Court warned, absent strong protection for work product,\\n\\n“[i]nefficiency, unfairness and sharp practices would inevitably develop in the giving of\\n\\nlegal advice and in the preparation of cases for trial,” all to the detriment of clients and “the\\n\\ncause of justice.” Id.\\n\\n Thus, the Supreme Court has explicitly approved what it called “a qualified\\n\\nprivilege,” to be held by lawyer and client alike, “for certain materials prepared by an\\n\\nattorney ‘acting for his client in anticipation of litigation.’” See United States v. Nobles,\\n\\n422 U.S. 225, 237-38 (1975) (quoting Hickman, 329 U.S. at 508). That privilege is the\\n\\nwork-product doctrine, which has now been incorporated into the Federal Rules of Civil\\n\\nProcedure, see Fed. R. Civ. P. 26(b)(3), and the Federal Rules of Criminal Procedure, see\\n\\nFed. R. Crim. P. 16(a)(2), (b)(2).\\n\\n There are two types of attorney work product that are within the ambit of the\\n\\ndoctrine: (1) fact work product, which is “a transaction of the factual events involved,”\\n\\nand (2) opinion work product, which “represents the actual thoughts and impressions of\\n\\nthe attorney.” See In re Grand Jury Subpoena, 870 F.3d 312, 316 (4th Cir. 2017) (internal\\n\\nquotation marks omitted). Opinion work product, we have recognized, “enjoys a nearly\\n\\nabsolute immunity” and can be discovered by adverse parties “only in very rare and\\n\\nextraordinary circumstances.” Id. (internal quotation marks omitted). Fact work product\\n\\nis somewhat less protected, and discovery thereof by others may only be had in limited\\n\\ncircumstances, where a party shows “both a substantial need and an inability to secure the\\n\\nsubstantial equivalent of the materials by alternate means without undue hardship.” Id.\\n\\n(internal quotation marks omitted).\\n\\n 20\\n\\n Notably, the attorney-client privilege and the work-product doctrine jointly support\\n\\nthe Sixth Amendment’s guarantee of effective assistance of counsel. See U.S. Const.\\n\\namend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to have the\\n\\nAssistance of Counsel for his defence.”); Strickland v. Washington, 466 U.S. 668, 686\\n\\n(1984) (analyzing Sixth Amendment right to effective assistance of counsel). For example,\\n\\nin assessing the interplay between the attorney-client privilege and the Sixth Amendment,\\n\\nwe have emphasized that “[t]he essence of the Sixth Amendment right to effective\\n\\nassistance of counsel is, indeed, privacy of communication with counsel.” See United\\n\\nStates v. Brugman, 655 F.2d 540, 546 (4th Cir. 1981); cf. DeMassa v. Nunez, 770 F.2d\\n\\n1505, 1507 (9th Cir. 1985) (describing Sixth Amendment as a “source” for the expectation\\n\\nof privacy in attorney-client communications); 1 Geoffrey C. Hazard, Jr. et al., The Law of\\n\\nLawyering § 10.14, 10-91 (4th ed. Supp. 2019) (explaining that “[t]he attorney-client\\n\\nprivilege has ties to the Sixth Amendment”). Absent privacy of communications and the\\n\\n“full and frank” discussions that flow therefrom, a lawyer could be deprived of the\\n\\ninformation necessary to prepare and present his client’s defense. See Upjohn Co., 449\\n\\nU.S. at 389.\\n\\n Similarly, the work-product doctrine fulfills an essential and important role in\\n\\nensuring the Sixth Amendment right to effective assistance of counsel. The Supreme Court\\n\\nhas recognized that the work-product doctrine is vital to “assur[e] the proper functioning\\n\\nof the criminal justice system,” in that it “provid[es] a privileged area within which [a\\n\\nlawyer] can analyze and prepare his client’s case.” See Nobles, 422 U.S. at 238; see also\\n\\nIn re Grand Jury Subpoenas, 454 F.3d at 520 (explaining that “people should be free to\\n\\n 21\\n\\nmake requests of their attorneys without fear, and that their attorneys should be free to\\n\\nconduct research and prepare litigation strategies without fear that these preparations will\\n\\nbe subject to review by outside parties”). Without that “privileged area,” a lawyer’s ability\\n\\nto plan and present his client’s defense will be impaired. See Nobles, 422 U.S. at 238; see\\n\\nalso Hickman, 329 U.S. at 511. 15\\n\\n b.\\n\\n In ruling that the Law Firm had not established a likelihood of irreparable harm, the\\n\\ndistrict court erred as a matter of law by affording insignificant weight to the foregoing\\n\\nprinciples protecting attorney-client relationships. See Upjohn Co., 449 U.S. at 389\\n\\n(emphasizing importance of attorney-client privilege); Nobles, 422 U.S. at 237-38\\n\\n(recognizing significance of protecting lawyer work product); cf. Gunnells v. Healthplan\\n\\nServs., Inc., 348 F.3d 417, 434 (4th Cir. 2003) (explaining that court abuses discretion in\\n\\nignoring applicable legal principles). Crucially, the court failed to recognize that an\\n\\nadverse party’s review of privileged materials seriously injures the privilege holder. See\\n\\nUnited States v. Philip Morris Inc., 314 F.3d 612, 622 (D.C. Cir. 2003) (concluding that a\\n\\nparty had demonstrated the likelihood of irreparable harm predicated on “the general injury\\n\\n\\n\\n 15\\n Although the attorney-client privilege and work-product doctrine are essential\\ncomponents of our adversarial system, neither is absolute. For example, claims of attorney-\\nclient privilege or work-product protection can sometimes be defeated by the crime-fraud\\nexception. See In re Grand Jury Proceedings #5 Empanelled Jan. 28, 2004, 401 F.3d 247,\\n251 (4th Cir. 2005). Put succinctly, “[b]oth the attorney-client and work-product privileges\\nmay be lost . . . when a client gives information to an attorney for the purpose of committing\\nor furthering a crime or fraud.” Id. In these proceedings, the government has invoked that\\nexception as to Client A of Lawyer A.\\n\\n 22\\n\\ncaused by the breach of the attorney-client privilege and the harm resulting from the\\n\\ndisclosure of privileged documents to an adverse party”), abrogated on other grounds by\\n\\nMohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103 (2009); In re Perrigo Co., 128 F.3d\\n\\n430, 437 (6th Cir. 1997) (explaining that “forced disclosure of privileged material may\\n\\nbring about irreparable harm”); Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955,\\n\\n960-61 (3d Cir. 1984) (ruling that law firm had demonstrated likelihood of irreparable harm\\n\\nwhere government seized thousands of files containing privileged information).\\n\\n 3.\\n\\n When the pertinent legal principles are properly applied to the unrefuted evidence,\\n\\nthe Filter Team’s review of the materials seized from the Law Firm was and is injurious to\\n\\nthe Firm and its clients. And that harm is plainly irreparable, in that the Filter Team’s\\n\\nreview of those privileged materials cannot be undone. We are therefore satisfied that the\\n\\nLaw Firm will be irreparably harmed absent an award of injunctive relief against the Filter\\n\\nTeam and its Protocol. 16\\n\\n\\n\\n\\n 16\\n We observe that the Filter Team and its Protocol may inflict other injuries on the\\nLaw Firm. For example, adverse publicity about the search of the Law Firm, the Filter\\nTeam, and its Protocol could make potential clients less likely to seek out and retain the\\nFirm. Additionally, potential and current clients might be reluctant to candidly\\ncommunicate with the Law Firm attorneys because they fear government review of their\\ncommunications and breaches of confidentiality. Consequently, the Law Firm is likely to\\nbe deprived of information necessary to the proper handling of its cases. See Upjohn Co.,\\n449 U.S. at 389 (explaining necessity of “full and frank communication” between client\\nand his lawyer).\\n\\n 23\\n\\n B.\\n\\n Turning to the injunction factors not reached and addressed by the district court, we\\n\\nbegin with the likelihood of success factor. In order to prevail on that factor, the Law Firm\\n\\nmust make a “clear showing” that the Filter Team and its Protocol are legally flawed. See\\n\\nPashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013). Stated differently, the Law Firm is\\n\\nobliged to demonstrate it is likely to succeed on its request that the magistrate judge —\\n\\nrather than the Filter Team — perform the privilege review of the seized materials.\\n\\n In that regard, the Law Firm maintains that the Filter Team and its Protocol are\\n\\nsimply “incompatible with courts’ historical protection of the attorney-client privilege and\\n\\nthe work-product doctrine.” See Br. of Appellant 35. The Law Firm contends that there is\\n\\na clear appearance of — and potential for — improprieties when government agents are\\n\\nauthorized to rummage through attorney-client communications, particularly when less\\n\\nthan one percent of those communications relate to the investigations at issue. And the\\n\\nLaw Firm posits that use of the Filter Team in these circumstances will chill the free flow\\n\\nof information between clients and lawyers. Put simply, the Law Firm maintains that\\n\\njudicial functions are involved in all aspects of assessing and deciding privilege issues.\\n\\nThe Law Firm thus argues that a magistrate judge or a special master must perform those\\n\\nfunctions.\\n\\n As further explained below, we are satisfied that the Law Firm has shown that it is\\n\\nlikely to succeed on the merits of its challenge to the Filter Team and its Protocol. In\\n\\napproving the Filter Team and its Protocol, the magistrate judge made several legal errors\\n\\nby, inter alia: (1) assigning judicial functions to the Filter Team; (2) authorizing the Filter\\n\\n 24\\n\\nTeam and its Protocol in ex parte proceedings that were conducted prior to the search and\\n\\nseizures at the Law Firm; and (3) failing to properly weigh the foundational principles that\\n\\nprotect attorney-client relationships.\\n\\n 1.\\n\\n To start, the magistrate judge — by authorizing the Filter Team and its Protocol —\\n\\nerred in assigning judicial functions to the executive branch. We have recognized that,\\n\\nwhen a dispute arises as to whether a lawyer’s communications or a lawyer’s documents\\n\\nare protected by the attorney-client privilege or work-product doctrine, the resolution of\\n\\nthat dispute is a judicial function. See NLRB v. Interbake Foods, LLC, 637 F.3d 492, 498,\\n\\n500 (4th Cir. 2011) (concluding that, in deciding whether to enforce an administrative\\n\\nsubpoena seeking potentially privileged documents, a court “cannot delegate” an in camera\\n\\nreview of documents to an agency, but must itself decide a claim of privilege); see also In\\n\\nre The City of New York, 607 F.3d 923, 947 (2d Cir. 2010) (observing that evaluating\\n\\nprivilege claim is always a judicial function); In re Grand Jury Proceedings #5 Empanelled\\n\\nJan. 28, 2004, 401 F.3d 247, 256 (4th Cir. 2005) (remanding to district court for in camera\\n\\nreview concerning privileged communications and applicability of crime-fraud exception).\\n\\nIndeed, the Constitution vests “[t]he judicial Power” solely in the federal courts, see U.S.\\n\\nConst. art. III, § 1, which includes “the duty of interpreting and applying” the law, see\\n\\nMassachusetts v. Mellon, 262 U.S. 447, 488 (1923). Put simply, a court is not entitled to\\n\\ndelegate its judicial power and related functions to the executive branch, especially when\\n\\nthe executive branch is an interested party in the pending dispute. See Interbake Foods,\\n\\n637 F.3d at 501 (affirming refusal “to delegate” to an administrative law judge the\\n\\n 25\\n\\njudiciary’s “responsibility to decide the issue of privilege”); NLRB v. Detroit Newspapers,\\n\\n185 F.3d 602, 606 (6th Cir. 1999) (concluding that “district court had the obligation . . . to\\n\\ndetermine whether the subpoenaed documents were protected by some privilege, and had\\n\\nno discretion to delegate that duty”).\\n\\n In these proceedings, the Privilege Assessment Provision of the Filter Protocol\\n\\ncontravened that nondelegation principle. Put succinctly, the Privilege Assessment\\n\\nProvision erroneously authorized the executive branch — that is, the Filter Team — to\\n\\nmake decisions on attorney-client privilege and the work-product doctrine. As our good\\n\\ncolleague Judge Niemeyer recognized in Interbake Foods, a court simply cannot delegate\\n\\nits responsibility to decide privilege issues to another government branch. See 637 F.3d at\\n\\n498, 500-01 (recognizing that court must decide privilege disputes); see also In re The City\\n\\nof New York, 607 F.3d at 947 (observing that evaluating privilege claim is a judicial\\n\\nfunction).\\n\\n To compound that error, the Privilege Assessment Provision delegated judicial\\n\\nfunctions to non-lawyer members of the Filter Team. In other words, the Privilege\\n\\nAssessment Provision authorized paralegals and IRS and DEA agents to designate seized\\n\\ndocuments as nonprivileged, and allowed the Filter Team AUSAs to deliver such\\n\\ndocuments to the Prosecution Team without the approval of the Law Firm or a court order.\\n\\nThe Third Circuit has strongly criticized a similar protocol and explicitly ruled that non-\\n\\nlawyer federal agents could not make privilege determinations. See In re Search of Elec.\\n\\nCommc’ns, 802 F.3d 516, 530 & n.54 (3d Cir. 2015).\\n\\n\\n\\n 26\\n\\n In addition to the separation of powers issues that arise from the Filter Protocol’s\\n\\ndelegation of judicial functions to the Filter Team, there are other apparent legal problems\\n\\ntherewith. There is the possibility that a filter team — even if composed entirely of trained\\n\\nlawyers — will make errors in privilege determinations and in transmitting seized materials\\n\\nto an investigation or prosecution team. On this point, the Sixth Circuit recognized several\\n\\nyears ago that such filter teams present “reasonably foreseeable risks to privilege” and\\n\\n“have been implicated . . . in leaks of confidential information to prosecutors.” See In re\\n\\nGrand Jury Subpoenas, 454 F.3d at 523. As Judge Boggs aptly explained, a filter team\\n\\nmight “have an interest in preserving privilege, but it also possesses a conflicting interest\\n\\nin pursuing the investigation, and . . . some [filter] team attorneys will make mistakes or\\n\\nviolate their ethical obligations. It is thus logical to suppose that [filter] teams pose a\\n\\nserious risk to holders of privilege.” Id.\\n\\n As the Sixth Circuit also emphasized, filter team errors can arise from differences\\n\\nof opinion regarding privilege. See In re Grand Jury Subpoenas, 454 F.3d at 523. In\\n\\nexplaining that problem, the court elaborated that a filter team’s members “might have a\\n\\nmore restrictive view of privilege” than the subject of the search, given their prosecutorial\\n\\ninterests in pursuing the underlying investigations. Id. That “more restrictive view of\\n\\nprivilege” could cause privileged documents to be misclassified and erroneously provided\\n\\nto an investigation or prosecution team. Id.\\n\\n The Sixth Circuit also acknowledged that filter team errors can result from mistakes\\n\\nor neglect, and described one infamous occurrence as follows:\\n\\n\\n\\n 27\\n\\n In United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991), . . . the\\n government’s [filter] team missed a document obviously protected by\\n attorney-client privilege, by turning over tapes of attorney-client\\n conversations to members of the investigating team. This Noriega incident\\n points to an obvious flaw in the [filter] team procedure: the government’s\\n fox is left in charge of the [law firm’s] henhouse, and may err by neglect or\\n malice, as well as by honest differences of opinion.\\n\\nSee In re Grand Jury Subpoenas, 454 F.3d at 523 (emphasis added).\\n\\n Strikingly, the risks to attorney-client privilege and the work-product doctrine that\\n\\nwere identified by the Sixth Circuit have been recently realized in the District of Maryland,\\n\\nfrom which this appeal arises. See United States v. Elbaz, No. 8:18-cr-00157, slip op. at\\n\\n4-6 (D. Md. June 20, 2019), ECF No. 216 (the “Elbaz opinion”). According to the Elbaz\\n\\nopinion, the government’s filter team improperly disclosed thousands of potentially\\n\\nprivileged documents to a prosecution team, which then examined some of the documents.\\n\\nId. Those blunders occurred nearly a year before this Filter Team was authorized by the\\n\\nmagistrate judge. Id. at 3-6. And the Elbaz opinion detailing that filter team’s mistakes\\n\\nwas filed in the District of Maryland on June 20, 2019, just a week after the magistrate\\n\\njudge’s authorization of this Filter Team on June 13, 2019, and three weeks before the\\n\\ndistrict court’s Denial Order of July 11, 2019.\\n\\n In sum, the Filter Protocol improperly delegated judicial functions to the Filter\\n\\nTeam. And the magistrate judge failed to recognize and consider the significant problems\\n\\nwith that delegation, which left the government’s fox in charge of guarding the Law Firm’s\\n\\nhenhouse. See In re Grand Jury Subpoenas, 454 F.3d at 523.\\n\\n\\n\\n\\n 28\\n\\n 2.\\n\\n Relatedly, the magistrate judge erred by prematurely authorizing the Filter Team\\n\\nand its Protocol in ex parte proceedings that it conducted on June 13, 2019, five days before\\n\\nthe search warrant was executed and voluminous seizures were made from the Law Firm. 17\\n\\nFirst, the timing of the judge’s authorization undermined the judge’s ability to exercise\\n\\ndiscretion with respect to the Filter Team and its Protocol, in that the judge could not have\\n\\nbeen fully informed of what was seized from the Law Firm. See James v. Jacobson, 6 F.3d\\n\\n233, 238 (4th Cir. 1993) (emphasizing that court’s exercise of discretion must be\\n\\n“informed”). And the judge may well have rejected the Filter Team and its Protocol if the\\n\\njudge had known (1) that 99.8 percent of the 52,000 seized emails were not from Client A,\\n\\nwere not sent to Client A, and did not mention Client A’s surname; and (2) that many of\\n\\nthose seized emails contained privileged information concerning other clients of the Law\\n\\nFirm. Put simply, the judge should have deferred the decision concerning the proposed\\n\\nFilter Team and its Protocol pending the execution and return of the search warrant.\\n\\n\\n\\n\\n 17\\n Although the Law Firm generally contests the ex parte actions of the government\\nbelow and on appeal, the Firm does not specifically argue that the magistrate judge erred\\nby approving the Filter Team and its Protocol in ex parte proceedings before the search\\nwas conducted. See Br. of Appellant 57; Reply Br. of Appellant 3, 22. We are nevertheless\\nsatisfied that the process by which the authorization was made falls within the Law Firm’s\\nbroad challenge to the Filter Team and its Protocol. Moreover, we are entitled to assess\\nlegal issues that have not been squarely raised when it facilitates the correct resolution of\\nan appeal. See Meyers v. Lamer, 743 F.3d 908, 912 (4th Cir. 2014) (emphasizing that “it\\nis the fundamental province of this Court to decide cases correctly, even if that means\\nconsidering arguments . . . not raised by the parties at all”).\\n\\n 29\\n\\n Second, the magistrate judge should have declined the government’s ex parte\\n\\ninvitation with respect to the Filter Team, and the judge should have conducted adversarial\\n\\nproceedings on whether to authorize the Filter Team and the Filter Protocol. See RSZ\\n\\nHoldings AVV v. PDVSA Petroleo S.A., 506 F.3d 350, 356 (4th Cir. 2007) (emphasizing\\n\\nthat ex parte proceedings are “greatly disfavored”); In re Ingram, 915 F. Supp. 2d 761,\\n\\n763-64 (E.D. La. 2012) (assessing briefing from parties on propriety of filter team). In\\n\\nsuch contested proceedings, the judge could have been fully informed of the relevant\\n\\nbackground on the Law Firm and its clients, as well as the nature of the seized materials.\\n\\nAdditionally, the clients of the Law Firm and their lawyers could have been heard by the\\n\\njudge.\\n\\n In a recent example involving a proposed filter team, federal agents searched the\\n\\noffice of Michael Cohen, a New York City lawyer, and seized privileged materials. See\\n\\nCohen v. United States, No. 1:18-mj-03161 (S.D.N.Y. Apr. 13, 2018), ECF No. 6 at 4, 25.\\n\\nFour days after the search — and before the filter team created by the search warrant had\\n\\nreviewed any of the seized materials — the district court conducted adversarial proceedings\\n\\nconcerning the prosecutor’s proposed use of a filter team. See generally Cohen, ECF No.\\n\\n36 (May 1, 2018). Prior to those proceedings, the court was informed of the materials that\\n\\nhad been seized from Cohen’s office. See Cohen, ECF No. 6 at 18-19. During the\\n\\nproceedings, the court heard from Cohen’s lawyer and the lawyer for Cohen’s primary\\n\\nclient, who each argued against court approval of the filter team request. See Cohen, ECF\\n\\nNo. 36 at 12-16, 30-31.\\n\\n\\n\\n 30\\n\\n The sensible procedures adhered to by the Cohen court demonstrate that, if the\\n\\nmagistrate judge had conducted adversarial proceedings after the search but before\\n\\napproving the Filter Team and its Protocol in this case, the judge would have been fully\\n\\ninformed of the materials that were seized from the Law Firm. The judge would then have\\n\\nheard from the Law Firm’s counsel, and possibly also from the clients of the Firm through\\n\\ntheir lawyers, before the Filter Team reviewed any seized materials. The upshot is that —\\n\\nin failing to conduct adversarial proceedings prior to authorizing the Filter Team and its\\n\\nProtocol — the magistrate judge prematurely granted the ex parte request of the United\\n\\nStates Attorney. 18\\n\\n 3.\\n\\n a.\\n\\n We are also troubled that, in summarily approving the Filter Team and its Protocol,\\n\\nthe magistrate judge — like the district court in thereafter assessing the Injunction Requests\\n\\n— gave no indication that she had weighed any of the important legal principles that protect\\n\\nattorney-client relationships. Put simply, the Filter Protocol authorized government agents\\n\\nand prosecutors to rummage through Lawyer A’s email files. Again, many of the emails\\n\\n\\n\\n 18\\n The process adhered to by the Cohen court is pertinent to these proceedings in\\nseveral material respects. For example, the Cohen filter team did not review any of the\\nseized materials prior to an adversarial hearing and a ruling on the filter team’s propriety.\\nImportantly, the court heard from Cohen’s lawyer and counsel for Cohen’s primary client\\nin those proceedings. The court ultimately rejected the government’s filter team proposal\\nand appointed a special master. See Cohen, ECF No. 30 (Apr. 27, 2018). Notably, the\\nCohen proceedings were conducted more than a year before the magistrate judge’s\\nauthorization of this Filter Team.\\n\\n 31\\n\\nconcerned other clients and other matters. The court’s authorization of such an extensive\\n\\nreview of client communications and lawyer discussions by government agents and\\n\\nprosecutors was made in disregard of the attorney-client privilege, the work-product\\n\\ndoctrine, and the Sixth Amendment. See Klitzman, Klitzman & Gallagher v. Krut, 744\\n\\nF.2d at 961 (criticizing seizures of client files from law firm because government made no\\n\\neffort to limit seizures of firm’s materials, and thereby “trampl[ed]” on attorney-client\\n\\nprivilege and work-product protections as to all clients); United States v. Stewart, No. 1:02-\\n\\ncr-00396, 2002 WL 1300059, at *5, *10 (S.D.N.Y. June 11, 2002) (explaining that search\\n\\nof lawyer’s office raised Sixth Amendment concerns and appointing special master where\\n\\ndocuments seized from law firm were likely to contain privileged information relating to\\n\\ncriminal defendants). The magistrate judge erred in failing to explicitly weigh those\\n\\nfoundational principles that protect attorney-client relationships.\\n\\n b.\\n\\n At this juncture, we emphasize another “serious defect” of the Filter Protocol\\n\\nchallenged by the Law Firm as subverting attorney-client relationships. See Reply Br. of\\n\\nAppellant 14 n.4. Specifically, the Filter Protocol prospectively authorized the Filter Team\\n\\nto contact the Law Firm’s clients ex parte and seek waivers of their attorney-client\\n\\nprivileges. The Model Rules of Professional Conduct, however, generally bar a lawyer\\n\\nfrom communicating with a represented party about the subject of the representation\\n\\nwithout the represented party’s lawyer being present. See Model Rules of Prof’l Conduct\\n\\nr. 4.2 (Am. Bar Ass’n 1983); 2 Hazard, Jr. et al., supra, § 41.02 (explaining that Rule 4.2\\n\\n“prevents a lawyer from taking advantage of a lay person”); id. § 41.12 (discussing\\n\\n 32\\n\\napplication of Rule 4.2 to prosecutors). Although an exception to that rule can — in the\\n\\nproper circumstances — be made by a court, any such court order should be predicated on\\n\\nan individualized assessment of the attorney-client relationship. See Model Rules of Prof’l\\n\\nConduct r. 4.2; see also United States v. Lopez, 4 F.3d 1455, 1462 (9th Cir. 1993)\\n\\n(explaining that court must make “informed decision” regarding whether to authorize\\n\\nlawyer’s communication with represented party). That was not even attempted here, in\\n\\nthat the Filter Protocol was approved ex parte before the search warrant was executed.\\n\\n By asking the Law Firm to furnish the Filter Team with a client list — which could\\n\\nbe used by Filter Team members to directly contact clients and seek privilege waivers\\n\\nunder the Filter Protocol — the government demonstrated a lack of respect for the attorney-\\n\\nclient privilege and the Firm’s duty of confidentiality to its clients. In declining to reveal\\n\\na client list to the Filter Team, the Law Firm relied on its ethical obligations to protect\\n\\nconfidential and privileged information relating to its clients. See Br. of Appellant 37\\n\\n(asserting that the government’s request for a client list ignored the proposition that the\\n\\nLaw Firm is “ethically prohibited from disclosing . . . the identity of clients when the\\n\\nrelationship remains confidential”); see also Model Rules of Prof’l Conduct r. 1.6(a)\\n\\n(describing duty of confidentiality). Such information will sometimes include the\\n\\nexistence of the lawyer-client relationship itself. See In re Grand Jury Subpoena, 204 F.3d\\n\\n516, 520 (4th Cir. 2000) (recognizing that the attorney-client privilege can “extend to the\\n\\nclient’s identity”); 1 Hazard, Jr. et al., supra, § 10.12 (collecting cases where client identity\\n\\nconsidered confidential or privileged). The breach of the duty of confidentiality “is\\n\\nenforceable by civil remedies as well as through the [attorney] disciplinary process.” See\\n\\n 33\\n\\n1 Hazard, Jr. et al., supra, § 10.16, 10-108.1. And a breach of the attorney-client privilege\\n\\nby an attorney is likewise sanctionable. See id. Indeed, at least one jurisdiction imposes\\n\\ncriminal penalties for improperly breaching attorney-client privilege. See Tenn. Code Ann.\\n\\n§ 23-3-107. In short, authorizing the government in ex parte proceedings to directly\\n\\ncontact any and all clients of the Law Firm is another example of how the Filter Protocol\\n\\napproved by the magistrate judge undermined attorney-client principles.\\n\\n 4.\\n\\n At bottom, the magistrate judge erred in assigning judicial functions to the Filter\\n\\nTeam, approving the Filter Team and its Protocol in ex parte proceedings without first\\n\\nascertaining what had been seized in the Law Firm search, and disregarding the\\n\\nfoundational principles that serve to protect attorney-client relationships. In these\\n\\ncircumstances, we are satisfied that the magistrate judge (or an appointed special master)\\n\\n— rather than the Filter Team — must perform the privilege review of the seized materials.\\n\\nSee Klitzman, Klitzman & Gallagher, 744 F.2d at 962 (recommending appointment of\\n\\nspecial master in similar circumstances); United States v. Gallego, No. 4:18-cr-01537, slip\\n\\nop. at 5-6 (D. Ariz. Sept. 6, 2018), ECF No. 65 (appointing a special master “to review the\\n\\nitems seized from [the] [d]efendant’s law office for privilege and responsiveness to the\\n\\nsearch warrant”); Cohen, ECF No. 30 (Apr. 27, 2018) (appointing special master to review\\n\\ndocuments seized from lawyer); Stewart, 2002 WL 1300059, at *10 (appointing special\\n\\nmaster to perform privilege review of documents seized from office of criminal defense\\n\\n\\n\\n\\n 34\\n\\nlawyer). 19 We are therefore satisfied that the Law Firm has demonstrated that it is likely\\n\\nto succeed on the merits.\\n\\n C.\\n\\n In order to prevail on the next injunction factor, the Law Firm is obliged to show\\n\\nthat the equities weigh in its favor. See Winter, 555 U.S. at 20. And we are satisfied that\\n\\nthe Law Firm has done so. Specifically, the harm to the Law Firm and its clients that will\\n\\nbe caused by continuing the Filter Team’s review outweighs any harm to the government\\n\\nthat might result from the magistrate judge conducting the privilege review of the seized\\n\\nmaterials. Indeed, we discern no harm to the government in barring the Filter Team from\\n\\nrummaging through Law Firm materials that are unrelated to the underlying investigations.\\n\\n In seeking to convince us otherwise, the government maintains that the magistrate\\n\\njudge’s review of the seized materials will unduly delay the government’s investigations.\\n\\nAnd the government claims that it has an interest in efficiently investigating criminal\\n\\nwrongdoing. Although efficient criminal investigations are certainly desirable, we are not\\n\\npersuaded that the claimed delay in its investigations weighs in the government’s favor.\\n\\nPut simply, the government chose to proceed by securing a search warrant for the Law\\n\\nFirm and seeking and obtaining the magistrate judge’s approval of the Filter Protocol. The\\n\\n\\n\\n 19\\n The government contends on appeal that the Filter Team’s privilege review of the\\nseized materials is no different than such a review by a magistrate judge or a court-\\nappointed special master. Unlike the Filter Team, however, a magistrate judge and a\\nspecial master are judicial officers and neutral arbiters that have no stake in the outcome\\nof the privilege decisions. See In re Grand Jury Subpoenas, 454 F.3d at 523 (explaining\\ninherent conflict in authorizing filter team to decide privilege claims).\\n\\n 35\\n\\ngovernment should have been fully aware that use of a filter team in these circumstances\\n\\nwas ripe for substantial legal challenges, and should have anticipated that those challenges\\n\\ncould delay its investigations. 20 And, in any event, delay in the government’s\\n\\ninvestigations here does not outweigh the harm to the Law Firm and its clients caused by\\n\\nthe Filter Team’s review. See In re Grand Jury Subpoenas, 454 F.3d at 523-24.\\n\\n The government also argues that the equities weigh against the Law Firm because\\n\\nthe Firm waited ten days after the search to file its Injunction Requests. We are\\n\\nunconvinced, however, that the Law Firm somehow slumbered on its rights. Indeed, the\\n\\nLaw Firm contested the search and seizures when they were ongoing and — three days\\n\\nthereafter — dispatched a detailed letter to the United States Attorney objecting to what\\n\\nhad occurred and what was apparently going on with the Filter Team. The prosecutors\\n\\nignored that letter, prompting the Law Firm to file its Injunction Requests. We do not fault\\n\\nthe Law Firm for seeking a negotiated resolution of these important disputes before\\n\\nrequesting court intervention. And we will not reward the government for ignoring those\\n\\nefforts. See Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 522 (1947) (“[H]e who\\n\\nseeks equity must do equity.”). In these circumstances, the Law Firm has convincingly\\n\\nshown that the equities weigh in its favor.\\n\\n\\n\\n\\n 20\\n Notwithstanding the government’s responsibility for some of the delay about\\nwhich it complains, we are nevertheless sensitive to its concerns. Indeed, we have\\nexpedited this appeal, and we issued our Interim Order within two days of the oral\\nargument.\\n\\n 36\\n\\n D.\\n\\n Finally, the Law Firm is obliged to establish, in order to secure the relief it seeks,\\n\\nthat “an injunction is in the public interest.” See Winter, 555 U.S. at 20. We are satisfied\\n\\nthat an award of injunctive relief in these circumstances supports the “strong public\\n\\ninterest” in the integrity of the judicial system. See United States v. Hasting, 461 U.S. 499,\\n\\n527 (1983) (Brennan, J., concurring in part and dissenting in part). By creating\\n\\nappearances of unfairness to the Law Firm clients who are unrelated to the government’s\\n\\ninvestigation of Client A, the Filter Team and its Protocol contravene the public interest.\\n\\nSee Gallego, slip op. at 4-6 (recognizing appearances of unfairness inherent in use of filter\\n\\nteams and appointing special master to review materials seized from law firm); Stewart,\\n\\n2002 WL 1300059, at *8 (explaining that “it is important that the procedure adopted [for\\n\\nthe review of seized materials] . . . not only be fair but also appear to be fair”); United\\n\\nStates v. Neill, 952 F. Supp. 834, 841 n.14 (D.D.C. 1997) (emphasizing that use of filter\\n\\nteam creates “appearance of unfairness”). For those clients — and to the public at large —\\n\\nit surely appears, as the Sixth Circuit recognized, that “the government’s fox [has been]\\n\\nleft in charge of the [Law Firm’s] henhouse.” See In re Grand Jury Subpoenas, 454 F.3d\\n\\nat 523; see also In re Search Warrant for Law Offices Executed on Mar. 19, 1992, 153\\n\\nF.R.D. 55, 59 (S.D.N.Y. 1994) (“It is a great leap of faith to expect that members of the\\n\\ngeneral public would believe any . . . wall [between a filter team and a prosecution team]\\n\\nwould be impenetrable; this notwithstanding our own trust in the honor of an AUSA.”).\\n\\n Appearances of unfairness are especially apparent in these proceedings, in that the\\n\\nFilter Team includes prosecutors employed in the same judicial district where Law Firm\\n\\n 37\\n\\nclients “are being investigated by, or are being prosecuted by,” the United States Attorney\\n\\nfor Maryland. See S.J.A. 66. It would be difficult for reasonable members of the public to\\n\\nbelieve that Filter Team AUSAs would disregard information in Lawyer A’s emails that\\n\\nmight be relevant to other criminal inquiries in Maryland. In fact, the government has\\n\\nnever disclaimed an intention to use the plain-view doctrine in connection with the Filter\\n\\nTeam’s access to the materials seized from the Law Firm. See United States v. Rumley,\\n\\n588 F.3d 202, 205 (4th Cir. 2009) (explaining that, under the plain-view doctrine, a law\\n\\nenforcement officer can make a seizure of an object in plain view if, inter alia, “the object’s\\n\\nincriminating character is immediately apparent” (internal quotation marks omitted)); cf.\\n\\nUnited States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1178 (9th Cir. 2010)\\n\\n(Kozinski, C.J., concurring) (suggesting that, “[w]hen the government wishes to obtain a\\n\\nwarrant to examine a[n] . . . electronic storage medium to search for certain incriminating\\n\\nfiles, . . . magistrate judges should insist that the government forswear reliance on the plain-\\n\\nview doctrine” (citation omitted)). 21\\n\\n Due to the appearances of unfairness caused by the Filter Team, and in view of the\\n\\nother problems associated with the Filter Team, it is surprising that the government has so\\n\\nvigorously supported it. We simply observe that prosecutors have a responsibility to not\\n\\n\\n\\n 21\\n Even if the Filter Team AUSAs have been instructed to ignore information\\nrelating to possible criminal activity by other Law Firm clients in the seized materials, our\\nplain view concerns would not be assuaged. The review of such information by the Filter\\nTeam AUSAs cannot be undone. Additionally, the IRS and DEA agents on the Filter Team\\nhave their own superiors. It may well be difficult for those agents to withhold from their\\nsuperiors information about possible crimes potentially identified in the seized materials.\\n\\n 38\\n\\nonly see that justice is done, but to also ensure that justice appears to be done. See In re\\n\\nSearch Warrant for Law Offices, 153 F.R.D. at 59 (“The appearance of [j]ustice must be\\n\\nserved, as well as the interests of [j]ustice.”). Federal agents and prosecutors rummaging\\n\\nthrough law firm materials that are protected by attorney-client privilege and the work-\\n\\nproduct doctrine is at odds with the appearance of justice.\\n\\n ***\\n\\n As reflected herein, we are satisfied that the magistrate judge’s authorization of the\\n\\nFilter Team and the Filter Protocol was improper and that injunctive relief is warranted.\\n\\nThe district court thus abused its discretion by failing to enjoin the Filter Team’s review of\\n\\nthe seized materials. 22\\n\\n\\n\\n IV.\\n\\n Pursuant to the foregoing and our Interim Order, we reverse the district court’s\\n\\nDenial Order and remand for such other and further proceedings as may be appropriate.\\n\\n REVERSED AND REMANDED\\n\\n\\n\\n\\n 22\\n Although the Law Firm has raised Fourth Amendment contentions, we leave those\\nissues to the district court. See Lovelace v. Lee, 472 F.3d 174, 203 (4th Cir. 2006)\\n(emphasizing that this Court is “a court of review, not of first view” (internal quotation\\nmarks omitted)).\\n\\n 39\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4578,"cells":{"id":{"kind":"number","value":4666039,"string":"4,666,039"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Stella Morrison v. Layne Walker"},"decision_date":{"kind":"string","value":"2019-10-01"},"docket_number":{"kind":"string","value":"18-40846"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"DON R. WILLETT, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-40846 Document: 00515139246 Page: 1 Date Filed: 10/01/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 18-40846 United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n October 1, 2019\\nSTELLA MORRISON,\\n Lyle W. Cayce\\n Plaintiff–Appellant, Clerk\\n\\n\\nJOHN STEPHEN MORGAN,\\n\\n Appellant,\\n\\nv.\\n\\nLAYNE WALKER; JEFFERSON COUNTY, TEXAS; DEPUTY ANTHONY\\nBARKER; THOMAS MANESS,\\n\\n Defendants–Appellees.\\n\\n\\n Appeals from the United States District Court\\n for the Eastern District of Texas\\n\\n\\nBefore SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.\\nDON R. WILLETT, Circuit Judge:\\n Litigation abuse is nothing new. Since 1813, when James Madison was\\npresident, a one-sentence federal statute has authorized monetary sanctions\\nagainst attorneys who misuse the litigation process. 1 The penalty started off\\nlight. For the first 167 years, lawyers who “vexatiously and unreasonably”\\n\\n\\n\\n\\n 1 Ch. 14, § 3, 3 Stat. 21 (1813). The original statute stated that any person who\\n“multiplied the proceedings in any cause . . . so as to increase costs unreasonably and\\nvexatiously” could be held liable for “any excess of costs so incurred.”\\n\\f Case: 18-40846 Document: 00515139246 Page: 2 Date Filed: 10/01/2019\\n\\n\\n\\n No. 18-40846\\nmultiplied legal proceedings were liable only for excess costs. 2 But since 1980,\\n28 U.S.C. § 1927 has taken a harder line against abusive litigation tactics,\\nbroadening lawyers’ personal financial exposure to include “expenses and\\nattorneys’ fees.” 3 Incentives matter. For more than a generation now, pocket-\\nconscious parties have sought hefty § 1927 sanctions, and docket-conscious\\ncourts have granted them.\\n In this appeal, attorney John Morgan appeals the § 1927 sanctions\\nimposed against him for advancing a meritless, immunity-barred claim against\\nJudge Layne Walker. Reviewing for abuse of discretion, we cannot conclude\\nthat the district court, which was best positioned to assess the propriety of\\nMorgan’s litigation misconduct, erred in sanctioning him under § 1927. We\\nAFFIRM.\\n I\\n In 2006, Stella Morrison represented a criminal defendant, Peter Tran,\\nin a case before Judge Walker. 4 During this proceeding, Judge Walker averred\\nthat Morrison suborned perjury by enticing her client to make a false\\nstatement and then filing that statement with the court. Judge Walker\\nallegedly reported this to the district attorney and to the State Bar of Texas. A\\ngrand jury hearing and State Bar grievance correspondence ensued. 5\\n\\n\\n\\n\\n 2 This modest exposure doubtless explains why, in the 150 years following its\\nenactment, “§ 1927 was invoked in only seven reported cases.” Seth Katsuya Endo, The\\nPropriety of Considering an Attorney’s Ability to Pay Under § 1927, 61 DRAKE L. REV. 291,\\n292–93 (2013).\\n 3 Section 1927 in its current form reads: “Any attorney or other person admitted to\\n\\nconduct cases in any court of the United States or any Territory thereof who so multiples\\nproceedings in any case unreasonably and vexatiously may be required by the court to satisfy\\npersonally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such\\nconduct.”\\n 4 State of Tex. v. Peter Tran, No. 96185 (Tx. Dist. Ct., April 9, 2007).\\n 5 Morrison filed two grievance responses that describe the Peter Tran case and were\\n\\npublicly available.\\n 2\\n\\f Case: 18-40846 Document: 00515139246 Page: 3 Date Filed: 10/01/2019\\n\\n\\n\\n No. 18-40846\\n Seven years later, Morrison, through her attorney Morgan, sued Judge\\nWalker, 6 alleging in part that Judge Walker fabricated the perjury charge\\nagainst her. 7 Although Morrison didn’t specify what prompted Judge Walker’s\\naccusation, she stated it was unrelated to any “pending proceeding lawfully\\nassigned to” Judge Walker’s court. This assertion was critical: If Judge\\nWalker’s allegedly false charge arose from actions taken in his judicial\\ncapacity, he enjoyed judicial immunity. 8\\n A few other details about Morrison’s suit merit mention. Morgan\\nconcedes that the original complaint was light on details, a deficiency he\\nattributes to Morrison’s self-described memory deficits. Also, as supporting\\nevidence, Morrison attached an affidavit by Bailiff Rodney Williams that\\nmentioned Morrison’s 2006 representation of Peter Tran before Judge Walker.\\nMorrison’s complaint also referenced grievance documents that Judge Walker\\nhad filed against her with the State Bar of Texas.\\n Judge Walker filed a motion to dismiss based almost entirely on judicial\\nimmunity. The court granted the motion for most of Morrison’s claims, but it\\ndeclined to dismiss the falsified-perjury claim. The court stated this claim was\\n\\n\\n\\n 6 Morrison’s claims against then-Judge Walker are all predicated by events that\\noccurred while he was a 252nd District Court judge in Jefferson County, Texas. As such, this\\nopinion refers to him simply as Judge Walker.\\n 7 After effective consent, pursuant to 28 U.S.C. § 636(c) and the local rules, two\\n\\nmagistrate judges presided over the Morrison–Walker proceedings, exclusive of appeals. In\\nthis opinion, the magistrate judges’ conclusions and findings will be attributed to the “district\\ncourt” or “court” because the magistrate judges had jurisdiction to enter final judgments. 28\\nU.S.C. § 636(c)(1) (“Upon the consent of the parties, a . . . United States magistrate judge . .\\n. may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of\\njudgment . . . .”).\\n 8 Our 2005 decision in Ballard v. Wall sets forth a four-factor test for determining\\n\\nwhether a judge’s actions were judicial in nature: “(1) whether the precise act complained of\\nis a normal judicial function; (2) whether the acts occurred in the courtroom or appropriate\\nadjunct spaces such as the judge’s chambers; (3) whether the controversy centered around a\\ncase pending before the court; and (4) whether the acts arose directly out of a visit to the\\njudge in his official capacity.” 413 F.3d 510, 515 (5th 2005).\\n 3\\n\\f Case: 18-40846 Document: 00515139246 Page: 4 Date Filed: 10/01/2019\\n\\n\\n\\n No. 18-40846\\nnot patently frivolous and could proceed if Morrison amended her complaint to\\ninclude specific facts showing why judicial immunity was inapplicable. The\\ncourt instructed Morrison to answer seven specific questions in her amended\\ncomplaint, including clarifying where, specifically, the event spurring the\\nperjury charge occurred.\\n In January 2014, Morrison, through her attorney Morgan, filed an\\namended complaint, relying largely on her own testimony. The amended\\ncomplaint partially responded to the court’s questions and doubled-down on\\nthe assertion that Judge Walker’s perjury accusation “had nothing to do with\\na case that was pending or had been adjudicated in Walker’s Court.” In May\\n2014, Morrison filed a second amended complaint, adding additional\\ndefendants, with the same factual contentions.\\n Judge Walker’s response included a transcript from the Peter Tran case.\\nContrary to Morrison’s previous assertions and re-assertions that Judge\\nWalker’s perjury charge was unrelated to any matter in his court, the\\ntranscript proved that to be untrue. It removed any doubt that the falsified-\\nperjury claim arose from Morrison’s representation of Peter Tran in Judge\\nWalker’s court. Days later, Morgan, on Morrison’s behalf, filed a sur-reply,\\npromising to show Morrison the transcript and inform the court of her\\nresponse. Six months passed.\\n In August 2015, the court ordered Morrison to detail the event that led\\nto the perjury charge and state whether it occurred in Judge Walker’s court.\\nMorrison admitted the transcript was accurate. Her falsified-perjury claim\\narose from events in the Peter Tran case and, since Judge Walker presided over\\nthat case, her claim had been barred by judicial immunity the whole time.\\nMorgan filed a motion to dismiss Judge Walker from the lawsuit on August 28,\\n2015.\\n\\n\\n 4\\n\\f Case: 18-40846 Document: 00515139246 Page: 5 Date Filed: 10/01/2019\\n\\n\\n\\n No. 18-40846\\n Judge Walker moved under 28 U.S.C. § 1927 for attorney fees and\\nexpenses totaling $167,232.40. After conducting an extensive hearing where\\nMorrison showed “no memory deficit” regarding the Peter Tran case, the court\\nissued a 28-page order imposing § 1927 sanctions of $29,592.50. The court\\nfound that these sanctions were justified beginning in January 2014 but, in its\\ndiscretion and “choosing to dispense mercy graciously,” only imposed sanctions\\nfor Morgan’s conduct between May 20, 2014 and August 28, 2015. Morgan\\nappealed.\\n II\\n Under § 1927, a federal court may award attorney fees, costs, and\\nexpenses that were “reasonably incurred” because of the attorney’s\\nmisconduct. 9 We review § 1927 sanction awards for abuse of discretion. 10 We\\ndo not substitute our judgment for that of the district court, and we will not\\nalter a sanction award unless the court “award[ed] sanctions based on an\\nerroneous view of the law or on a clearly erroneous assessment of the\\nevidence.” 11\\n Although § 1927 sanctions are discretionary, they cannot be imposed for\\nmere negligence. 12 As the statute makes clear, § 1927 sanctions are reserved\\n\\n\\n\\n 9 28 U.S.C. § 1927 (permitting a court to award “the excess costs, expenses, and\\nattorneys’ fees reasonably incurred because of [the sanctionable] conduct”); see Browning v.\\nKramer, 931 F.2d 340, 346 (5th Cir. 1991) (“[Section 1927] authorizes awards only for actual\\nfees and costs which proscribed conduct has caused.”).\\n 10 Procter & Gamble Co. v. Amway Corp., 280 F.3d 519, 526 (5th Cir. 2002) (citing\\n\\nMercury Air Grp., Inc. v. Mansour, 237 F.3d 542, 549 (5th Cir. 2001)).\\n 11 Id. (citation omitted); Edwards v. Gen. Motors Corp., 153 F.3d 242, 246 (5th Cir.\\n\\n1998); see also Bryant v. Military Dep’t of Miss., 597 F.3d 678, 694 (5th Cir. 2010) (“[A]n abuse\\nof discretion only occurs where no reasonable person could take the view adopted by the trial\\ncourt.”) (citation omitted); Walker v. City of Bogalusa, 168 F.3d 237, 240 (5th Cir. 1999) (“The\\ndistrict court is in the best position to assess the propriety of a party's conduct.”) (citation\\nomitted).\\n 12 See Baulch v. Johns, 70 F.3d 813, 817 (5th Cir. 1995); see also Procter, 280 F.3d at\\n\\n525–26 (citation omitted) (stating that a district court “may” impose § 1927 sanctions if the\\nrequirements are met).\\n 5\\n\\f Case: 18-40846 Document: 00515139246 Page: 6 Date Filed: 10/01/2019\\n\\n\\n\\n No. 18-40846\\nfor situations where counsel “unreasonably” and “vexatiously” multiplies legal\\nproceedings. 13 Conduct is “unreasonable and vexatious” if there is evidence of\\nthe “persistent prosecution of a meritless claim” and of a “reckless disregard of\\nthe duty owed to the court.” 14 An attorney acts with “reckless disregard” of his\\nduty to the court when he, without reasonable inquiry, advances a baseless\\nclaim despite clear evidence undermining his factual contentions. 15\\n For its sanction to be affirmed, the district court must have made\\ndetailed factual findings, including (1) identifying the sanctionable conduct as\\ndistinct from the case’s merits, (2) linking the sanctionable conduct and the\\nsanction’s size, and (3) identifying the legal basis for each sanction. 16\\n III\\n Viewing the district court’s 28 pages of detailed fact-finding and analysis\\nthrough the deferential “abuse of discretion” lens, we hold that the district\\ncourt did not abuse its discretion in levying a § 1927 sanction against Morgan\\nfor his conduct from May 2014 through August 2015.\\n\\n\\n\\n 13 28 U.S.C. § 1927; Procter, 280 F.3d at 525–26. We sometimes require § 1927\\nsanctions be justified by “clear and convincing evidence” that every aspect of the litigation\\nwas meritless. Compare Lawyers Title Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d 848,\\n872 (5th Cir. 2014) and Bryant, 597 F.3d at 694 with Mercury Air Grp., Inc., 237 F.3d at 549\\nand Cambridge Toxicology Grp., Inc. v. Exnicios, 495 F.3d 169, 180 (5th Cir. 2007). But we\\nhave not been clear on when this “clear and convincing” standard should be applied. We’ve\\nexplained that “[t]o shift the entire cost of defense, the claimant must prove, by clear and\\nconvincing evidence, that every facet of the litigation was patently meritless . . . .” Procter,\\n280 F.3d at 526 (emphasis added) (citation omitted); see also Walker, 168 F.3d at 240\\n(requiring the clear and convincing standard to recover “all costs associated with an action”).\\nTherefore, when § 1927 sanctions are shifting only the partial cost of defense—anything less\\nthan “all costs associated with an action”—the clear and convincing standard should not be\\napplied. See Walker, 168 F.3d at 240; Browning, 931 F.2d at 344–45 (distinguishing between\\nawarding partial defensive fees and entire defensive fees). That is the case here.\\n 14 Procter, 280 F.3d at 525–26 (stating that “repeated filings despite warnings from\\n\\nthe court, or other proof of excessive litigiousness” support the imposition of § 1927 sanctions).\\n 15 See FED. R. CIV. P. 11 (imposing a duty on attorneys to reasonably inquire into the\\n\\nevidentiary support for their factual contentions filed with the court); Mercury Air Grp., Inc.,\\n237 F.3d at 548–49; Walker, 168 F.3d at 240.\\n 16 Procter, 280 F.3d at 526; Cambridge Toxicology Grp., 495 F.3d at 180–81.\\n\\n 6\\n\\f Case: 18-40846 Document: 00515139246 Page: 7 Date Filed: 10/01/2019\\n\\n\\n\\n No. 18-40846\\n A\\n It cannot be seriously disputed that Morgan multiplied the proceedings.\\nThe record shows that he repeatedly made filings based only on the meritless\\nfalsified-perjury claim. 17 Nor can it be denied that Morgan’s multiplication of\\nthe proceedings was unreasonable and vexatious. He pursued a baseless claim\\nwith reckless disregard for his duty to the court.\\n The district court found, and the record irrefutably verifies, that\\nMorrison’s claim that Judge Walker fabricated a perjury charge against her\\nwas baseless. As the predicate event was action taken within the scope of Judge\\nWalker’s judicial capacity, it was barred by judicial immunity throughout the\\nlitigation. 18\\n The district court held, as of the January 2014 amended complaint, that\\nMorgan recklessly disregarded his duty to the court because he “failed to\\ncomply with his Rule 11(b) duty” and he “baselessly represented that the\\n[falsified-]perjury claim resulted from conduct in [another judge’s] court.” In\\nsupport, the court stated that a “reasonable lawyer” would have discovered the\\ncomplete lack of factual support for Morrison’s final allegation given Morrison’s\\n“sketchy memory” of her falsified-perjury claim’s details, her clear memory of\\nthe Peter Tran case, the district court’s pointed questions, and the readily\\navailable cache of contradictory evidence.\\n\\n\\n\\n\\n 17 See, e.g., Mercury Air Grp., Inc., 237 F.3d at 549 (finding counsel’s litigation activity,\\nincluding filings, multiplied the proceedings).\\n 18 Id. at 549 (holding the district court did not err in finding a claim meritless when\\n\\nthere was evidence that there “was no suit to pursue”); Walker, 168 F.3d at 240 (finding a\\nclaim “clearly meritless” when there was no evidence of an essential element of the asserted\\nclaim).\\n 7\\n\\f Case: 18-40846 Document: 00515139246 Page: 8 Date Filed: 10/01/2019\\n\\n\\n\\n No. 18-40846\\n A reasonable person could certainly adopt the district court’s view. 19 The\\nrecord is replete with support for the district court’s conclusion that Morgan\\nadvanced a meritless position in reckless disregard of his duty to investigate:\\n 1. Morrison’s “memory deficits” surrounding the falsified-perjury\\n allegation;\\n 2. the lack of supporting evidence for Morrison’s factual\\n contentions;\\n 3. the district court’s unheeded questions;\\n 4. the public grievance-proceeding documents referencing the\\n Peter Tran case;\\n 5. the Williams affidavit referencing the Peter Tran case; and\\n 6. Morrison’s uninhibited recollection of the Peter Tran case\\n displayed at the sanctions hearing. 20\\nGiven the robust factual support for the district court’s holding, it is easy to\\nconclude the court did not abuse its discretion. 21\\n Citing an unpublished case, Vanderhoff, Morgan argues that the district\\ncourt erred because he was entitled to rely on his client’s representations. 22\\nThe nonprecedential Vanderhoff case affords Morgan no help. Here, the\\ndistrict court painstakingly compiled a 28-page factual record justifying its\\naward of § 1927 sanctions. 23 And, unlike in Vanderhoff, it was unreasonable\\n\\n\\n\\n\\n 19 Bryant, 597 F.3d at 694.\\n 20 See Mercury Air Grp., Inc., 237 F.3d at 549 (holding that the district court did not\\nerr in finding unreasonable and vexatious multiplication of the proceedings when counsel\\npursued the “lawsuit in the face of such bald evidence that there was no suit to pursue” and\\ndespite the “lack of extrinsic evidence” to support the claim); F.D.I.C. v. Calhoun, 34 F.3d\\n1291, 1299 (5th Cir. 1994) (stating that when a defense is “so obvious a bar,” Rule 11 requires\\nopposing counsel to reasonably inquire).\\n 21 See Walker, 168 F.3d at 240.\\n 22 344 F. App’x 22, 27–28 (5th Cir. 2009).\\n 23 See Vanderhoff, 344 F. App’x at 27 (“[T]here are no findings of fact . . . to give\\n\\ndeference under clear error review; [the court] simply concluded as a matter of law that [§\\n1927 sanctions were justified] . . . .”).\\n 8\\n\\f Case: 18-40846 Document: 00515139246 Page: 9 Date Filed: 10/01/2019\\n\\n\\n\\n No. 18-40846\\nfor Morgan to rely on his client’s dubious factual allegations when there were\\nglaring red flags that Morgan needed to investigate further. 24\\n Morgan also cites Calhoun, arguing that Judge Walker’s belated\\nmention of the Peter Tran case makes sanctions unwarranted. 25 But in\\nCalhoun, the defendant failed completely to pursue the allegedly obvious\\ndefense. 26 Here, Judge Walker raised judicial immunity in his dispositive\\nmotion to dismiss, highlighting this obvious bar, and Morgan disregarded\\noverwhelming evidence that the bar applied. 27 Morgan’s contentions get marks\\nfor audacity, if not veracity.\\n B\\n We have no quarrel with the district court’s award of Judge Walker’s\\nlegal expenses from May 2014 through August 2015. The court satisfied the\\nProcter factors by (1) finding that the sanctionable conduct was the stubborn\\npursuit of the legally baseless falsified-perjury claim, (2) correlating the\\nsanction’s size to such conduct, and (3) clearly imposing sanctions only under\\n§ 1927. 28 And the record supports that Judge Walker’s “costs, expenses, and\\nattorneys’ fees” incurred between May 20, 2014 and August 28, 2015 had a\\nfinancial nexus with the excess proceedings as they were incurred solely\\nbecause of Morgan’s sanctionable conduct. 29\\n\\n\\n\\n 24 See id. (asserting that counsel can rely on their client until such reliance is\\n“unreasonable or . . . in bad faith”).\\n 25 Calhoun, 34 F.3d at 1299–300 (finding that defendant’s failure to “bring any\\n\\ndispositive motions” was evidence that the plaintiff’s claim was not “so obvious[ly]” barred as\\nto support § 1927 sanctions).\\n 26 Calhoun, 34 F.3d at 1300 (reasoning that, since the defendant did not pursue an\\n\\nallegedly obvious defense, the plaintiff should not be sanctioned for failing to research that\\ndefense as it apparently was not “so obvious and meritorious” as the defendant claimed).\\n 27 Calhoun, 34 F.3d at 1300; Mercury Air Grp., Inc., 237 F.3d at 549.\\n 28 280 F.3d at 526 (requiring specific findings of the three factors for a § 1927 sanction\\n\\naward to be upheld on review).\\n 29 See Browning, 931 F.2d at 344 (“Under § 1927, only those fees and costs associated\\n\\nwith ‘the persistent prosecution of a meritless claim’ may be awarded.”).\\n 9\\n\\f Case: 18-40846 Document: 00515139246 Page: 10 Date Filed: 10/01/2019\\n\\n\\n\\n No. 18-40846\\n Morgan insists the sanctioned amount was erroneous because the\\nawarded legal fees were not “segregated” based on subject matter. For\\nexample, Morgan asserts that the district court could not award Judge Walker\\nlegal fees for his counsel’s “review of briefing[s] that related solely to Morrison’s\\nclaims against other defendants.” But Morgan’s continued maintenance of the\\nbaseless falsified-perjury claim was the only reason Walker remained a\\ndefendant from May 2014 through August 2015. 30 Morgan’s argument thus\\nrings hollow because, without Morgan’s sanctionable conduct, Morrison’s suit\\nagainst Walker would have been dismissed before May 2014, and Walker\\nwould not have incurred any legal expenses during this period. 31\\n * * *\\n Since 1980, federal courts have awarded stiff sanctions under modern\\n§ 1927 to punish the wrongful prolongation of litigation. Here, Morgan\\npersistently pursued a meritless case barred by judicial immunity. The district\\ncourt was best positioned to assess Morgan’s abusive tactics; its sanctions\\naward was not an abuse of discretion; and we AFFIRM.\\n\\n\\n\\n\\n 30Browning, 931 F.2d at 344.\\n 31Id.; see Greer v. Richardson Indep. Sch. Dist., 471 F. App'x 336, 342 (5th Cir. 2012)\\n(affirming non-segregated sanctions when the sanctioned amount was less than the total\\namount of legal fees incurred and the amount was “attributable” to sanctionable conduct).\\n 10\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4443292/\", \"author_raw\": \"DON R. WILLETT, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"SOUTHWICK"},"judge2":{"kind":"string","value":"WILLETT"},"judge3":{"kind":"string","value":"OLDHAM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"SOUTHWICK\": \", Circuit\", \"WILLETT\": \", Circuit\", \"OLDHAM\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4666039/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Stella Morrison v. Layne Walker\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-01\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-40846 Document: 00515139246 Page: 1 Date Filed: 10/01/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 18-40846 United States Court of Appeals\n Fifth Circuit\n\n FILED\n October 1, 2019\nSTELLA MORRISON,\n Lyle W. Cayce\n Plaintiff–Appellant, Clerk\n\n\nJOHN STEPHEN MORGAN,\n\n Appellant,\n\nv.\n\nLAYNE WALKER; JEFFERSON COUNTY, TEXAS; DEPUTY ANTHONY\nBARKER; THOMAS MANESS,\n\n Defendants–Appellees.\n\n\n Appeals from the United States District Court\n for the Eastern District of Texas\n\n\nBefore SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.\nDON R. WILLETT, Circuit Judge:\n Litigation abuse is nothing new. Since 1813, when James Madison was\npresident, a one-sentence federal statute has authorized monetary sanctions\nagainst attorneys who misuse the litigation process. 1 The penalty started off\nlight. For the first 167 years, lawyers who “vexatiously and unreasonably”\n\n\n\n\n 1 Ch. 14, § 3, 3 Stat. 21 (1813). The original statute stated that any person who\n“multiplied the proceedings in any cause . . . so as to increase costs unreasonably and\nvexatiously” could be held liable for “any excess of costs so incurred.”\n\f Case: 18-40846 Document: 00515139246 Page: 2 Date Filed: 10/01/2019\n\n\n\n No. 18-40846\nmultiplied legal proceedings were liable only for excess costs. 2 But since 1980,\n28 U.S.C. § 1927 has taken a harder line against abusive litigation tactics,\nbroadening lawyers’ personal financial exposure to include “expenses and\nattorneys’ fees.” 3 Incentives matter. For more than a generation now, pocket-\nconscious parties have sought hefty § 1927 sanctions, and docket-conscious\ncourts have granted them.\n In this appeal, attorney John Morgan appeals the § 1927 sanctions\nimposed against him for advancing a meritless, immunity-barred claim against\nJudge Layne Walker. Reviewing for abuse of discretion, we cannot conclude\nthat the district court, which was best positioned to assess the propriety of\nMorgan’s litigation misconduct, erred in sanctioning him under § 1927. We\nAFFIRM.\n I\n In 2006, Stella Morrison represented a criminal defendant, Peter Tran,\nin a case before Judge Walker. 4 During this proceeding, Judge Walker averred\nthat Morrison suborned perjury by enticing her client to make a false\nstatement and then filing that statement with the court. Judge Walker\nallegedly reported this to the district attorney and to the State Bar of Texas. A\ngrand jury hearing and State Bar grievance correspondence ensued. 5\n\n\n\n\n 2 This modest exposure doubtless explains why, in the 150 years following its\nenactment, “§ 1927 was invoked in only seven reported cases.” Seth Katsuya Endo, The\nPropriety of Considering an Attorney’s Ability to Pay Under § 1927, 61 DRAKE L. REV. 291,\n292–93 (2013).\n 3 Section 1927 in its current form reads: “Any attorney or other person admitted to\n\nconduct cases in any court of the United States or any Territory thereof who so multiples\nproceedings in any case unreasonably and vexatiously may be required by the court to satisfy\npersonally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such\nconduct.”\n 4 State of Tex. v. Peter Tran, No. 96185 (Tx. Dist. Ct., April 9, 2007).\n 5 Morrison filed two grievance responses that describe the Peter Tran case and were\n\npublicly available.\n 2\n\f Case: 18-40846 Document: 00515139246 Page: 3 Date Filed: 10/01/2019\n\n\n\n No. 18-40846\n Seven years later, Morrison, through her attorney Morgan, sued Judge\nWalker, 6 alleging in part that Judge Walker fabricated the perjury charge\nagainst her. 7 Although Morrison didn’t specify what prompted Judge Walker’s\naccusation, she stated it was unrelated to any “pending proceeding lawfully\nassigned to” Judge Walker’s court. This assertion was critical: If Judge\nWalker’s allegedly false charge arose from actions taken in his judicial\ncapacity, he enjoyed judicial immunity. 8\n A few other details about Morrison’s suit merit mention. Morgan\nconcedes that the original complaint was light on details, a deficiency he\nattributes to Morrison’s self-described memory deficits. Also, as supporting\nevidence, Morrison attached an affidavit by Bailiff Rodney Williams that\nmentioned Morrison’s 2006 representation of Peter Tran before Judge Walker.\nMorrison’s complaint also referenced grievance documents that Judge Walker\nhad filed against her with the State Bar of Texas.\n Judge Walker filed a motion to dismiss based almost entirely on judicial\nimmunity. The court granted the motion for most of Morrison’s claims, but it\ndeclined to dismiss the falsified-perjury claim. The court stated this claim was\n\n\n\n 6 Morrison’s claims against then-Judge Walker are all predicated by events that\noccurred while he was a 252nd District Court judge in Jefferson County, Texas. As such, this\nopinion refers to him simply as Judge Walker.\n 7 After effective consent, pursuant to 28 U.S.C. § 636(c) and the local rules, two\n\nmagistrate judges presided over the Morrison–Walker proceedings, exclusive of appeals. In\nthis opinion, the magistrate judges’ conclusions and findings will be attributed to the “district\ncourt” or “court” because the magistrate judges had jurisdiction to enter final judgments. 28\nU.S.C. § 636(c)(1) (“Upon the consent of the parties, a . . . United States magistrate judge . .\n. may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of\njudgment . . . .”).\n 8 Our 2005 decision in Ballard v. Wall sets forth a four-factor test for determining\n\nwhether a judge’s actions were judicial in nature: “(1) whether the precise act complained of\nis a normal judicial function; (2) whether the acts occurred in the courtroom or appropriate\nadjunct spaces such as the judge’s chambers; (3) whether the controversy centered around a\ncase pending before the court; and (4) whether the acts arose directly out of a visit to the\njudge in his official capacity.” 413 F.3d 510, 515 (5th 2005).\n 3\n\f Case: 18-40846 Document: 00515139246 Page: 4 Date Filed: 10/01/2019\n\n\n\n No. 18-40846\nnot patently frivolous and could proceed if Morrison amended her complaint to\ninclude specific facts showing why judicial immunity was inapplicable. The\ncourt instructed Morrison to answer seven specific questions in her amended\ncomplaint, including clarifying where, specifically, the event spurring the\nperjury charge occurred.\n In January 2014, Morrison, through her attorney Morgan, filed an\namended complaint, relying largely on her own testimony. The amended\ncomplaint partially responded to the court’s questions and doubled-down on\nthe assertion that Judge Walker’s perjury accusation “had nothing to do with\na case that was pending or had been adjudicated in Walker’s Court.” In May\n2014, Morrison filed a second amended complaint, adding additional\ndefendants, with the same factual contentions.\n Judge Walker’s response included a transcript from the Peter Tran case.\nContrary to Morrison’s previous assertions and re-assertions that Judge\nWalker’s perjury charge was unrelated to any matter in his court, the\ntranscript proved that to be untrue. It removed any doubt that the falsified-\nperjury claim arose from Morrison’s representation of Peter Tran in Judge\nWalker’s court. Days later, Morgan, on Morrison’s behalf, filed a sur-reply,\npromising to show Morrison the transcript and inform the court of her\nresponse. Six months passed.\n In August 2015, the court ordered Morrison to detail the event that led\nto the perjury charge and state whether it occurred in Judge Walker’s court.\nMorrison admitted the transcript was accurate. Her falsified-perjury claim\narose from events in the Peter Tran case and, since Judge Walker presided over\nthat case, her claim had been barred by judicial immunity the whole time.\nMorgan filed a motion to dismiss Judge Walker from the lawsuit on August 28,\n2015.\n\n\n 4\n\f Case: 18-40846 Document: 00515139246 Page: 5 Date Filed: 10/01/2019\n\n\n\n No. 18-40846\n Judge Walker moved under 28 U.S.C. § 1927 for attorney fees and\nexpenses totaling $167,232.40. After conducting an extensive hearing where\nMorrison showed “no memory deficit” regarding the Peter Tran case, the court\nissued a 28-page order imposing § 1927 sanctions of $29,592.50. The court\nfound that these sanctions were justified beginning in January 2014 but, in its\ndiscretion and “choosing to dispense mercy graciously,” only imposed sanctions\nfor Morgan’s conduct between May 20, 2014 and August 28, 2015. Morgan\nappealed.\n II\n Under § 1927, a federal court may award attorney fees, costs, and\nexpenses that were “reasonably incurred” because of the attorney’s\nmisconduct. 9 We review § 1927 sanction awards for abuse of discretion. 10 We\ndo not substitute our judgment for that of the district court, and we will not\nalter a sanction award unless the court “award[ed] sanctions based on an\nerroneous view of the law or on a clearly erroneous assessment of the\nevidence.” 11\n Although § 1927 sanctions are discretionary, they cannot be imposed for\nmere negligence. 12 As the statute makes clear, § 1927 sanctions are reserved\n\n\n\n 9 28 U.S.C. § 1927 (permitting a court to award “the excess costs, expenses, and\nattorneys’ fees reasonably incurred because of [the sanctionable] conduct”); see Browning v.\nKramer, 931 F.2d 340, 346 (5th Cir. 1991) (“[Section 1927] authorizes awards only for actual\nfees and costs which proscribed conduct has caused.”).\n 10 Procter & Gamble Co. v. Amway Corp., 280 F.3d 519, 526 (5th Cir. 2002) (citing\n\nMercury Air Grp., Inc. v. Mansour, 237 F.3d 542, 549 (5th Cir. 2001)).\n 11 Id. (citation omitted); Edwards v. Gen. Motors Corp., 153 F.3d 242, 246 (5th Cir.\n\n1998); see also Bryant v. Military Dep’t of Miss., 597 F.3d 678, 694 (5th Cir. 2010) (“[A]n abuse\nof discretion only occurs where no reasonable person could take the view adopted by the trial\ncourt.”) (citation omitted); Walker v. City of Bogalusa, 168 F.3d 237, 240 (5th Cir. 1999) (“The\ndistrict court is in the best position to assess the propriety of a party's conduct.”) (citation\nomitted).\n 12 See Baulch v. Johns, 70 F.3d 813, 817 (5th Cir. 1995); see also Procter, 280 F.3d at\n\n525–26 (citation omitted) (stating that a district court “may” impose § 1927 sanctions if the\nrequirements are met).\n 5\n\f Case: 18-40846 Document: 00515139246 Page: 6 Date Filed: 10/01/2019\n\n\n\n No. 18-40846\nfor situations where counsel “unreasonably” and “vexatiously” multiplies legal\nproceedings. 13 Conduct is “unreasonable and vexatious” if there is evidence of\nthe “persistent prosecution of a meritless claim” and of a “reckless disregard of\nthe duty owed to the court.” 14 An attorney acts with “reckless disregard” of his\nduty to the court when he, without reasonable inquiry, advances a baseless\nclaim despite clear evidence undermining his factual contentions. 15\n For its sanction to be affirmed, the district court must have made\ndetailed factual findings, including (1) identifying the sanctionable conduct as\ndistinct from the case’s merits, (2) linking the sanctionable conduct and the\nsanction’s size, and (3) identifying the legal basis for each sanction. 16\n III\n Viewing the district court’s 28 pages of detailed fact-finding and analysis\nthrough the deferential “abuse of discretion” lens, we hold that the district\ncourt did not abuse its discretion in levying a § 1927 sanction against Morgan\nfor his conduct from May 2014 through August 2015.\n\n\n\n 13 28 U.S.C. § 1927; Procter, 280 F.3d at 525–26. We sometimes require § 1927\nsanctions be justified by “clear and convincing evidence” that every aspect of the litigation\nwas meritless. Compare Lawyers Title Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d 848,\n872 (5th Cir. 2014) and Bryant, 597 F.3d at 694 with Mercury Air Grp., Inc., 237 F.3d at 549\nand Cambridge Toxicology Grp., Inc. v. Exnicios, 495 F.3d 169, 180 (5th Cir. 2007). But we\nhave not been clear on when this “clear and convincing” standard should be applied. We’ve\nexplained that “[t]o shift the entire cost of defense, the claimant must prove, by clear and\nconvincing evidence, that every facet of the litigation was patently meritless . . . .” Procter,\n280 F.3d at 526 (emphasis added) (citation omitted); see also Walker, 168 F.3d at 240\n(requiring the clear and convincing standard to recover “all costs associated with an action”).\nTherefore, when § 1927 sanctions are shifting only the partial cost of defense—anything less\nthan “all costs associated with an action”—the clear and convincing standard should not be\napplied. See Walker, 168 F.3d at 240; Browning, 931 F.2d at 344–45 (distinguishing between\nawarding partial defensive fees and entire defensive fees). That is the case here.\n 14 Procter, 280 F.3d at 525–26 (stating that “repeated filings despite warnings from\n\nthe court, or other proof of excessive litigiousness” support the imposition of § 1927 sanctions).\n 15 See FED. R. CIV. P. 11 (imposing a duty on attorneys to reasonably inquire into the\n\nevidentiary support for their factual contentions filed with the court); Mercury Air Grp., Inc.,\n237 F.3d at 548–49; Walker, 168 F.3d at 240.\n 16 Procter, 280 F.3d at 526; Cambridge Toxicology Grp., 495 F.3d at 180–81.\n\n 6\n\f Case: 18-40846 Document: 00515139246 Page: 7 Date Filed: 10/01/2019\n\n\n\n No. 18-40846\n A\n It cannot be seriously disputed that Morgan multiplied the proceedings.\nThe record shows that he repeatedly made filings based only on the meritless\nfalsified-perjury claim. 17 Nor can it be denied that Morgan’s multiplication of\nthe proceedings was unreasonable and vexatious. He pursued a baseless claim\nwith reckless disregard for his duty to the court.\n The district court found, and the record irrefutably verifies, that\nMorrison’s claim that Judge Walker fabricated a perjury charge against her\nwas baseless. As the predicate event was action taken within the scope of Judge\nWalker’s judicial capacity, it was barred by judicial immunity throughout the\nlitigation. 18\n The district court held, as of the January 2014 amended complaint, that\nMorgan recklessly disregarded his duty to the court because he “failed to\ncomply with his Rule 11(b) duty” and he “baselessly represented that the\n[falsified-]perjury claim resulted from conduct in [another judge’s] court.” In\nsupport, the court stated that a “reasonable lawyer” would have discovered the\ncomplete lack of factual support for Morrison’s final allegation given Morrison’s\n“sketchy memory” of her falsified-perjury claim’s details, her clear memory of\nthe Peter Tran case, the district court’s pointed questions, and the readily\navailable cache of contradictory evidence.\n\n\n\n\n 17 See, e.g., Mercury Air Grp., Inc., 237 F.3d at 549 (finding counsel’s litigation activity,\nincluding filings, multiplied the proceedings).\n 18 Id. at 549 (holding the district court did not err in finding a claim meritless when\n\nthere was evidence that there “was no suit to pursue”); Walker, 168 F.3d at 240 (finding a\nclaim “clearly meritless” when there was no evidence of an essential element of the asserted\nclaim).\n 7\n\f Case: 18-40846 Document: 00515139246 Page: 8 Date Filed: 10/01/2019\n\n\n\n No. 18-40846\n A reasonable person could certainly adopt the district court’s view. 19 The\nrecord is replete with support for the district court’s conclusion that Morgan\nadvanced a meritless position in reckless disregard of his duty to investigate:\n 1. Morrison’s “memory deficits” surrounding the falsified-perjury\n allegation;\n 2. the lack of supporting evidence for Morrison’s factual\n contentions;\n 3. the district court’s unheeded questions;\n 4. the public grievance-proceeding documents referencing the\n Peter Tran case;\n 5. the Williams affidavit referencing the Peter Tran case; and\n 6. Morrison’s uninhibited recollection of the Peter Tran case\n displayed at the sanctions hearing. 20\nGiven the robust factual support for the district court’s holding, it is easy to\nconclude the court did not abuse its discretion. 21\n Citing an unpublished case, Vanderhoff, Morgan argues that the district\ncourt erred because he was entitled to rely on his client’s representations. 22\nThe nonprecedential Vanderhoff case affords Morgan no help. Here, the\ndistrict court painstakingly compiled a 28-page factual record justifying its\naward of § 1927 sanctions. 23 And, unlike in Vanderhoff, it was unreasonable\n\n\n\n\n 19 Bryant, 597 F.3d at 694.\n 20 See Mercury Air Grp., Inc., 237 F.3d at 549 (holding that the district court did not\nerr in finding unreasonable and vexatious multiplication of the proceedings when counsel\npursued the “lawsuit in the face of such bald evidence that there was no suit to pursue” and\ndespite the “lack of extrinsic evidence” to support the claim); F.D.I.C. v. Calhoun, 34 F.3d\n1291, 1299 (5th Cir. 1994) (stating that when a defense is “so obvious a bar,” Rule 11 requires\nopposing counsel to reasonably inquire).\n 21 See Walker, 168 F.3d at 240.\n 22 344 F. App’x 22, 27–28 (5th Cir. 2009).\n 23 See Vanderhoff, 344 F. App’x at 27 (“[T]here are no findings of fact . . . to give\n\ndeference under clear error review; [the court] simply concluded as a matter of law that [§\n1927 sanctions were justified] . . . .”).\n 8\n\f Case: 18-40846 Document: 00515139246 Page: 9 Date Filed: 10/01/2019\n\n\n\n No. 18-40846\nfor Morgan to rely on his client’s dubious factual allegations when there were\nglaring red flags that Morgan needed to investigate further. 24\n Morgan also cites Calhoun, arguing that Judge Walker’s belated\nmention of the Peter Tran case makes sanctions unwarranted. 25 But in\nCalhoun, the defendant failed completely to pursue the allegedly obvious\ndefense. 26 Here, Judge Walker raised judicial immunity in his dispositive\nmotion to dismiss, highlighting this obvious bar, and Morgan disregarded\noverwhelming evidence that the bar applied. 27 Morgan’s contentions get marks\nfor audacity, if not veracity.\n B\n We have no quarrel with the district court’s award of Judge Walker’s\nlegal expenses from May 2014 through August 2015. The court satisfied the\nProcter factors by (1) finding that the sanctionable conduct was the stubborn\npursuit of the legally baseless falsified-perjury claim, (2) correlating the\nsanction’s size to such conduct, and (3) clearly imposing sanctions only under\n§ 1927. 28 And the record supports that Judge Walker’s “costs, expenses, and\nattorneys’ fees” incurred between May 20, 2014 and August 28, 2015 had a\nfinancial nexus with the excess proceedings as they were incurred solely\nbecause of Morgan’s sanctionable conduct. 29\n\n\n\n 24 See id. (asserting that counsel can rely on their client until such reliance is\n“unreasonable or . . . in bad faith”).\n 25 Calhoun, 34 F.3d at 1299–300 (finding that defendant’s failure to “bring any\n\ndispositive motions” was evidence that the plaintiff’s claim was not “so obvious[ly]” barred as\nto support § 1927 sanctions).\n 26 Calhoun, 34 F.3d at 1300 (reasoning that, since the defendant did not pursue an\n\nallegedly obvious defense, the plaintiff should not be sanctioned for failing to research that\ndefense as it apparently was not “so obvious and meritorious” as the defendant claimed).\n 27 Calhoun, 34 F.3d at 1300; Mercury Air Grp., Inc., 237 F.3d at 549.\n 28 280 F.3d at 526 (requiring specific findings of the three factors for a § 1927 sanction\n\naward to be upheld on review).\n 29 See Browning, 931 F.2d at 344 (“Under § 1927, only those fees and costs associated\n\nwith ‘the persistent prosecution of a meritless claim’ may be awarded.”).\n 9\n\f Case: 18-40846 Document: 00515139246 Page: 10 Date Filed: 10/01/2019\n\n\n\n No. 18-40846\n Morgan insists the sanctioned amount was erroneous because the\nawarded legal fees were not “segregated” based on subject matter. For\nexample, Morgan asserts that the district court could not award Judge Walker\nlegal fees for his counsel’s “review of briefing[s] that related solely to Morrison’s\nclaims against other defendants.” But Morgan’s continued maintenance of the\nbaseless falsified-perjury claim was the only reason Walker remained a\ndefendant from May 2014 through August 2015. 30 Morgan’s argument thus\nrings hollow because, without Morgan’s sanctionable conduct, Morrison’s suit\nagainst Walker would have been dismissed before May 2014, and Walker\nwould not have incurred any legal expenses during this period. 31\n * * *\n Since 1980, federal courts have awarded stiff sanctions under modern\n§ 1927 to punish the wrongful prolongation of litigation. Here, Morgan\npersistently pursued a meritless case barred by judicial immunity. The district\ncourt was best positioned to assess Morgan’s abusive tactics; its sanctions\naward was not an abuse of discretion; and we AFFIRM.\n\n\n\n\n 30Browning, 931 F.2d at 344.\n 31Id.; see Greer v. Richardson Indep. Sch. Dist., 471 F. App'x 336, 342 (5th Cir. 2012)\n(affirming non-segregated sanctions when the sanctioned amount was less than the total\namount of legal fees incurred and the amount was “attributable” to sanctionable conduct).\n 10\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Stella Morrison v. Layne Walker\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-01\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-40846 Document: 00515139246 Page: 1 Date Filed: 10/01/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 18-40846 United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n October 1, 2019\\nSTELLA MORRISON,\\n Lyle W. Cayce\\n Plaintiff–Appellant, Clerk\\n\\n\\nJOHN STEPHEN MORGAN,\\n\\n Appellant,\\n\\nv.\\n\\nLAYNE WALKER; JEFFERSON COUNTY, TEXAS; DEPUTY ANTHONY\\nBARKER; THOMAS MANESS,\\n\\n Defendants–Appellees.\\n\\n\\n Appeals from the United States District Court\\n for the Eastern District of Texas\\n\\n\\nBefore SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.\\nDON R. WILLETT, Circuit Judge:\\n Litigation abuse is nothing new. Since 1813, when James Madison was\\npresident, a one-sentence federal statute has authorized monetary sanctions\\nagainst attorneys who misuse the litigation process. 1 The penalty started off\\nlight. For the first 167 years, lawyers who “vexatiously and unreasonably”\\n\\n\\n\\n\\n 1 Ch. 14, § 3, 3 Stat. 21 (1813). The original statute stated that any person who\\n“multiplied the proceedings in any cause . . . so as to increase costs unreasonably and\\nvexatiously” could be held liable for “any excess of costs so incurred.”\\n\\f Case: 18-40846 Document: 00515139246 Page: 2 Date Filed: 10/01/2019\\n\\n\\n\\n No. 18-40846\\nmultiplied legal proceedings were liable only for excess costs. 2 But since 1980,\\n28 U.S.C. § 1927 has taken a harder line against abusive litigation tactics,\\nbroadening lawyers’ personal financial exposure to include “expenses and\\nattorneys’ fees.” 3 Incentives matter. For more than a generation now, pocket-\\nconscious parties have sought hefty § 1927 sanctions, and docket-conscious\\ncourts have granted them.\\n In this appeal, attorney John Morgan appeals the § 1927 sanctions\\nimposed against him for advancing a meritless, immunity-barred claim against\\nJudge Layne Walker. Reviewing for abuse of discretion, we cannot conclude\\nthat the district court, which was best positioned to assess the propriety of\\nMorgan’s litigation misconduct, erred in sanctioning him under § 1927. We\\nAFFIRM.\\n I\\n In 2006, Stella Morrison represented a criminal defendant, Peter Tran,\\nin a case before Judge Walker. 4 During this proceeding, Judge Walker averred\\nthat Morrison suborned perjury by enticing her client to make a false\\nstatement and then filing that statement with the court. Judge Walker\\nallegedly reported this to the district attorney and to the State Bar of Texas. A\\ngrand jury hearing and State Bar grievance correspondence ensued. 5\\n\\n\\n\\n\\n 2 This modest exposure doubtless explains why, in the 150 years following its\\nenactment, “§ 1927 was invoked in only seven reported cases.” Seth Katsuya Endo, The\\nPropriety of Considering an Attorney’s Ability to Pay Under § 1927, 61 DRAKE L. REV. 291,\\n292–93 (2013).\\n 3 Section 1927 in its current form reads: “Any attorney or other person admitted to\\n\\nconduct cases in any court of the United States or any Territory thereof who so multiples\\nproceedings in any case unreasonably and vexatiously may be required by the court to satisfy\\npersonally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such\\nconduct.”\\n 4 State of Tex. v. Peter Tran, No. 96185 (Tx. Dist. Ct., April 9, 2007).\\n 5 Morrison filed two grievance responses that describe the Peter Tran case and were\\n\\npublicly available.\\n 2\\n\\f Case: 18-40846 Document: 00515139246 Page: 3 Date Filed: 10/01/2019\\n\\n\\n\\n No. 18-40846\\n Seven years later, Morrison, through her attorney Morgan, sued Judge\\nWalker, 6 alleging in part that Judge Walker fabricated the perjury charge\\nagainst her. 7 Although Morrison didn’t specify what prompted Judge Walker’s\\naccusation, she stated it was unrelated to any “pending proceeding lawfully\\nassigned to” Judge Walker’s court. This assertion was critical: If Judge\\nWalker’s allegedly false charge arose from actions taken in his judicial\\ncapacity, he enjoyed judicial immunity. 8\\n A few other details about Morrison’s suit merit mention. Morgan\\nconcedes that the original complaint was light on details, a deficiency he\\nattributes to Morrison’s self-described memory deficits. Also, as supporting\\nevidence, Morrison attached an affidavit by Bailiff Rodney Williams that\\nmentioned Morrison’s 2006 representation of Peter Tran before Judge Walker.\\nMorrison’s complaint also referenced grievance documents that Judge Walker\\nhad filed against her with the State Bar of Texas.\\n Judge Walker filed a motion to dismiss based almost entirely on judicial\\nimmunity. The court granted the motion for most of Morrison’s claims, but it\\ndeclined to dismiss the falsified-perjury claim. The court stated this claim was\\n\\n\\n\\n 6 Morrison’s claims against then-Judge Walker are all predicated by events that\\noccurred while he was a 252nd District Court judge in Jefferson County, Texas. As such, this\\nopinion refers to him simply as Judge Walker.\\n 7 After effective consent, pursuant to 28 U.S.C. § 636(c) and the local rules, two\\n\\nmagistrate judges presided over the Morrison–Walker proceedings, exclusive of appeals. In\\nthis opinion, the magistrate judges’ conclusions and findings will be attributed to the “district\\ncourt” or “court” because the magistrate judges had jurisdiction to enter final judgments. 28\\nU.S.C. § 636(c)(1) (“Upon the consent of the parties, a . . . United States magistrate judge . .\\n. may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of\\njudgment . . . .”).\\n 8 Our 2005 decision in Ballard v. Wall sets forth a four-factor test for determining\\n\\nwhether a judge’s actions were judicial in nature: “(1) whether the precise act complained of\\nis a normal judicial function; (2) whether the acts occurred in the courtroom or appropriate\\nadjunct spaces such as the judge’s chambers; (3) whether the controversy centered around a\\ncase pending before the court; and (4) whether the acts arose directly out of a visit to the\\njudge in his official capacity.” 413 F.3d 510, 515 (5th 2005).\\n 3\\n\\f Case: 18-40846 Document: 00515139246 Page: 4 Date Filed: 10/01/2019\\n\\n\\n\\n No. 18-40846\\nnot patently frivolous and could proceed if Morrison amended her complaint to\\ninclude specific facts showing why judicial immunity was inapplicable. The\\ncourt instructed Morrison to answer seven specific questions in her amended\\ncomplaint, including clarifying where, specifically, the event spurring the\\nperjury charge occurred.\\n In January 2014, Morrison, through her attorney Morgan, filed an\\namended complaint, relying largely on her own testimony. The amended\\ncomplaint partially responded to the court’s questions and doubled-down on\\nthe assertion that Judge Walker’s perjury accusation “had nothing to do with\\na case that was pending or had been adjudicated in Walker’s Court.” In May\\n2014, Morrison filed a second amended complaint, adding additional\\ndefendants, with the same factual contentions.\\n Judge Walker’s response included a transcript from the Peter Tran case.\\nContrary to Morrison’s previous assertions and re-assertions that Judge\\nWalker’s perjury charge was unrelated to any matter in his court, the\\ntranscript proved that to be untrue. It removed any doubt that the falsified-\\nperjury claim arose from Morrison’s representation of Peter Tran in Judge\\nWalker’s court. Days later, Morgan, on Morrison’s behalf, filed a sur-reply,\\npromising to show Morrison the transcript and inform the court of her\\nresponse. Six months passed.\\n In August 2015, the court ordered Morrison to detail the event that led\\nto the perjury charge and state whether it occurred in Judge Walker’s court.\\nMorrison admitted the transcript was accurate. Her falsified-perjury claim\\narose from events in the Peter Tran case and, since Judge Walker presided over\\nthat case, her claim had been barred by judicial immunity the whole time.\\nMorgan filed a motion to dismiss Judge Walker from the lawsuit on August 28,\\n2015.\\n\\n\\n 4\\n\\f Case: 18-40846 Document: 00515139246 Page: 5 Date Filed: 10/01/2019\\n\\n\\n\\n No. 18-40846\\n Judge Walker moved under 28 U.S.C. § 1927 for attorney fees and\\nexpenses totaling $167,232.40. After conducting an extensive hearing where\\nMorrison showed “no memory deficit” regarding the Peter Tran case, the court\\nissued a 28-page order imposing § 1927 sanctions of $29,592.50. The court\\nfound that these sanctions were justified beginning in January 2014 but, in its\\ndiscretion and “choosing to dispense mercy graciously,” only imposed sanctions\\nfor Morgan’s conduct between May 20, 2014 and August 28, 2015. Morgan\\nappealed.\\n II\\n Under § 1927, a federal court may award attorney fees, costs, and\\nexpenses that were “reasonably incurred” because of the attorney’s\\nmisconduct. 9 We review § 1927 sanction awards for abuse of discretion. 10 We\\ndo not substitute our judgment for that of the district court, and we will not\\nalter a sanction award unless the court “award[ed] sanctions based on an\\nerroneous view of the law or on a clearly erroneous assessment of the\\nevidence.” 11\\n Although § 1927 sanctions are discretionary, they cannot be imposed for\\nmere negligence. 12 As the statute makes clear, § 1927 sanctions are reserved\\n\\n\\n\\n 9 28 U.S.C. § 1927 (permitting a court to award “the excess costs, expenses, and\\nattorneys’ fees reasonably incurred because of [the sanctionable] conduct”); see Browning v.\\nKramer, 931 F.2d 340, 346 (5th Cir. 1991) (“[Section 1927] authorizes awards only for actual\\nfees and costs which proscribed conduct has caused.”).\\n 10 Procter & Gamble Co. v. Amway Corp., 280 F.3d 519, 526 (5th Cir. 2002) (citing\\n\\nMercury Air Grp., Inc. v. Mansour, 237 F.3d 542, 549 (5th Cir. 2001)).\\n 11 Id. (citation omitted); Edwards v. Gen. Motors Corp., 153 F.3d 242, 246 (5th Cir.\\n\\n1998); see also Bryant v. Military Dep’t of Miss., 597 F.3d 678, 694 (5th Cir. 2010) (“[A]n abuse\\nof discretion only occurs where no reasonable person could take the view adopted by the trial\\ncourt.”) (citation omitted); Walker v. City of Bogalusa, 168 F.3d 237, 240 (5th Cir. 1999) (“The\\ndistrict court is in the best position to assess the propriety of a party's conduct.”) (citation\\nomitted).\\n 12 See Baulch v. Johns, 70 F.3d 813, 817 (5th Cir. 1995); see also Procter, 280 F.3d at\\n\\n525–26 (citation omitted) (stating that a district court “may” impose § 1927 sanctions if the\\nrequirements are met).\\n 5\\n\\f Case: 18-40846 Document: 00515139246 Page: 6 Date Filed: 10/01/2019\\n\\n\\n\\n No. 18-40846\\nfor situations where counsel “unreasonably” and “vexatiously” multiplies legal\\nproceedings. 13 Conduct is “unreasonable and vexatious” if there is evidence of\\nthe “persistent prosecution of a meritless claim” and of a “reckless disregard of\\nthe duty owed to the court.” 14 An attorney acts with “reckless disregard” of his\\nduty to the court when he, without reasonable inquiry, advances a baseless\\nclaim despite clear evidence undermining his factual contentions. 15\\n For its sanction to be affirmed, the district court must have made\\ndetailed factual findings, including (1) identifying the sanctionable conduct as\\ndistinct from the case’s merits, (2) linking the sanctionable conduct and the\\nsanction’s size, and (3) identifying the legal basis for each sanction. 16\\n III\\n Viewing the district court’s 28 pages of detailed fact-finding and analysis\\nthrough the deferential “abuse of discretion” lens, we hold that the district\\ncourt did not abuse its discretion in levying a § 1927 sanction against Morgan\\nfor his conduct from May 2014 through August 2015.\\n\\n\\n\\n 13 28 U.S.C. § 1927; Procter, 280 F.3d at 525–26. We sometimes require § 1927\\nsanctions be justified by “clear and convincing evidence” that every aspect of the litigation\\nwas meritless. Compare Lawyers Title Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d 848,\\n872 (5th Cir. 2014) and Bryant, 597 F.3d at 694 with Mercury Air Grp., Inc., 237 F.3d at 549\\nand Cambridge Toxicology Grp., Inc. v. Exnicios, 495 F.3d 169, 180 (5th Cir. 2007). But we\\nhave not been clear on when this “clear and convincing” standard should be applied. We’ve\\nexplained that “[t]o shift the entire cost of defense, the claimant must prove, by clear and\\nconvincing evidence, that every facet of the litigation was patently meritless . . . .” Procter,\\n280 F.3d at 526 (emphasis added) (citation omitted); see also Walker, 168 F.3d at 240\\n(requiring the clear and convincing standard to recover “all costs associated with an action”).\\nTherefore, when § 1927 sanctions are shifting only the partial cost of defense—anything less\\nthan “all costs associated with an action”—the clear and convincing standard should not be\\napplied. See Walker, 168 F.3d at 240; Browning, 931 F.2d at 344–45 (distinguishing between\\nawarding partial defensive fees and entire defensive fees). That is the case here.\\n 14 Procter, 280 F.3d at 525–26 (stating that “repeated filings despite warnings from\\n\\nthe court, or other proof of excessive litigiousness” support the imposition of § 1927 sanctions).\\n 15 See FED. R. CIV. P. 11 (imposing a duty on attorneys to reasonably inquire into the\\n\\nevidentiary support for their factual contentions filed with the court); Mercury Air Grp., Inc.,\\n237 F.3d at 548–49; Walker, 168 F.3d at 240.\\n 16 Procter, 280 F.3d at 526; Cambridge Toxicology Grp., 495 F.3d at 180–81.\\n\\n 6\\n\\f Case: 18-40846 Document: 00515139246 Page: 7 Date Filed: 10/01/2019\\n\\n\\n\\n No. 18-40846\\n A\\n It cannot be seriously disputed that Morgan multiplied the proceedings.\\nThe record shows that he repeatedly made filings based only on the meritless\\nfalsified-perjury claim. 17 Nor can it be denied that Morgan’s multiplication of\\nthe proceedings was unreasonable and vexatious. He pursued a baseless claim\\nwith reckless disregard for his duty to the court.\\n The district court found, and the record irrefutably verifies, that\\nMorrison’s claim that Judge Walker fabricated a perjury charge against her\\nwas baseless. As the predicate event was action taken within the scope of Judge\\nWalker’s judicial capacity, it was barred by judicial immunity throughout the\\nlitigation. 18\\n The district court held, as of the January 2014 amended complaint, that\\nMorgan recklessly disregarded his duty to the court because he “failed to\\ncomply with his Rule 11(b) duty” and he “baselessly represented that the\\n[falsified-]perjury claim resulted from conduct in [another judge’s] court.” In\\nsupport, the court stated that a “reasonable lawyer” would have discovered the\\ncomplete lack of factual support for Morrison’s final allegation given Morrison’s\\n“sketchy memory” of her falsified-perjury claim’s details, her clear memory of\\nthe Peter Tran case, the district court’s pointed questions, and the readily\\navailable cache of contradictory evidence.\\n\\n\\n\\n\\n 17 See, e.g., Mercury Air Grp., Inc., 237 F.3d at 549 (finding counsel’s litigation activity,\\nincluding filings, multiplied the proceedings).\\n 18 Id. at 549 (holding the district court did not err in finding a claim meritless when\\n\\nthere was evidence that there “was no suit to pursue”); Walker, 168 F.3d at 240 (finding a\\nclaim “clearly meritless” when there was no evidence of an essential element of the asserted\\nclaim).\\n 7\\n\\f Case: 18-40846 Document: 00515139246 Page: 8 Date Filed: 10/01/2019\\n\\n\\n\\n No. 18-40846\\n A reasonable person could certainly adopt the district court’s view. 19 The\\nrecord is replete with support for the district court’s conclusion that Morgan\\nadvanced a meritless position in reckless disregard of his duty to investigate:\\n 1. Morrison’s “memory deficits” surrounding the falsified-perjury\\n allegation;\\n 2. the lack of supporting evidence for Morrison’s factual\\n contentions;\\n 3. the district court’s unheeded questions;\\n 4. the public grievance-proceeding documents referencing the\\n Peter Tran case;\\n 5. the Williams affidavit referencing the Peter Tran case; and\\n 6. Morrison’s uninhibited recollection of the Peter Tran case\\n displayed at the sanctions hearing. 20\\nGiven the robust factual support for the district court’s holding, it is easy to\\nconclude the court did not abuse its discretion. 21\\n Citing an unpublished case, Vanderhoff, Morgan argues that the district\\ncourt erred because he was entitled to rely on his client’s representations. 22\\nThe nonprecedential Vanderhoff case affords Morgan no help. Here, the\\ndistrict court painstakingly compiled a 28-page factual record justifying its\\naward of § 1927 sanctions. 23 And, unlike in Vanderhoff, it was unreasonable\\n\\n\\n\\n\\n 19 Bryant, 597 F.3d at 694.\\n 20 See Mercury Air Grp., Inc., 237 F.3d at 549 (holding that the district court did not\\nerr in finding unreasonable and vexatious multiplication of the proceedings when counsel\\npursued the “lawsuit in the face of such bald evidence that there was no suit to pursue” and\\ndespite the “lack of extrinsic evidence” to support the claim); F.D.I.C. v. Calhoun, 34 F.3d\\n1291, 1299 (5th Cir. 1994) (stating that when a defense is “so obvious a bar,” Rule 11 requires\\nopposing counsel to reasonably inquire).\\n 21 See Walker, 168 F.3d at 240.\\n 22 344 F. App’x 22, 27–28 (5th Cir. 2009).\\n 23 See Vanderhoff, 344 F. App’x at 27 (“[T]here are no findings of fact . . . to give\\n\\ndeference under clear error review; [the court] simply concluded as a matter of law that [§\\n1927 sanctions were justified] . . . .”).\\n 8\\n\\f Case: 18-40846 Document: 00515139246 Page: 9 Date Filed: 10/01/2019\\n\\n\\n\\n No. 18-40846\\nfor Morgan to rely on his client’s dubious factual allegations when there were\\nglaring red flags that Morgan needed to investigate further. 24\\n Morgan also cites Calhoun, arguing that Judge Walker’s belated\\nmention of the Peter Tran case makes sanctions unwarranted. 25 But in\\nCalhoun, the defendant failed completely to pursue the allegedly obvious\\ndefense. 26 Here, Judge Walker raised judicial immunity in his dispositive\\nmotion to dismiss, highlighting this obvious bar, and Morgan disregarded\\noverwhelming evidence that the bar applied. 27 Morgan’s contentions get marks\\nfor audacity, if not veracity.\\n B\\n We have no quarrel with the district court’s award of Judge Walker’s\\nlegal expenses from May 2014 through August 2015. The court satisfied the\\nProcter factors by (1) finding that the sanctionable conduct was the stubborn\\npursuit of the legally baseless falsified-perjury claim, (2) correlating the\\nsanction’s size to such conduct, and (3) clearly imposing sanctions only under\\n§ 1927. 28 And the record supports that Judge Walker’s “costs, expenses, and\\nattorneys’ fees” incurred between May 20, 2014 and August 28, 2015 had a\\nfinancial nexus with the excess proceedings as they were incurred solely\\nbecause of Morgan’s sanctionable conduct. 29\\n\\n\\n\\n 24 See id. (asserting that counsel can rely on their client until such reliance is\\n“unreasonable or . . . in bad faith”).\\n 25 Calhoun, 34 F.3d at 1299–300 (finding that defendant’s failure to “bring any\\n\\ndispositive motions” was evidence that the plaintiff’s claim was not “so obvious[ly]” barred as\\nto support § 1927 sanctions).\\n 26 Calhoun, 34 F.3d at 1300 (reasoning that, since the defendant did not pursue an\\n\\nallegedly obvious defense, the plaintiff should not be sanctioned for failing to research that\\ndefense as it apparently was not “so obvious and meritorious” as the defendant claimed).\\n 27 Calhoun, 34 F.3d at 1300; Mercury Air Grp., Inc., 237 F.3d at 549.\\n 28 280 F.3d at 526 (requiring specific findings of the three factors for a § 1927 sanction\\n\\naward to be upheld on review).\\n 29 See Browning, 931 F.2d at 344 (“Under § 1927, only those fees and costs associated\\n\\nwith ‘the persistent prosecution of a meritless claim’ may be awarded.”).\\n 9\\n\\f Case: 18-40846 Document: 00515139246 Page: 10 Date Filed: 10/01/2019\\n\\n\\n\\n No. 18-40846\\n Morgan insists the sanctioned amount was erroneous because the\\nawarded legal fees were not “segregated” based on subject matter. For\\nexample, Morgan asserts that the district court could not award Judge Walker\\nlegal fees for his counsel’s “review of briefing[s] that related solely to Morrison’s\\nclaims against other defendants.” But Morgan’s continued maintenance of the\\nbaseless falsified-perjury claim was the only reason Walker remained a\\ndefendant from May 2014 through August 2015. 30 Morgan’s argument thus\\nrings hollow because, without Morgan’s sanctionable conduct, Morrison’s suit\\nagainst Walker would have been dismissed before May 2014, and Walker\\nwould not have incurred any legal expenses during this period. 31\\n * * *\\n Since 1980, federal courts have awarded stiff sanctions under modern\\n§ 1927 to punish the wrongful prolongation of litigation. Here, Morgan\\npersistently pursued a meritless case barred by judicial immunity. The district\\ncourt was best positioned to assess Morgan’s abusive tactics; its sanctions\\naward was not an abuse of discretion; and we AFFIRM.\\n\\n\\n\\n\\n 30Browning, 931 F.2d at 344.\\n 31Id.; see Greer v. Richardson Indep. Sch. Dist., 471 F. App'x 336, 342 (5th Cir. 2012)\\n(affirming non-segregated sanctions when the sanctioned amount was less than the total\\namount of legal fees incurred and the amount was “attributable” to sanctionable conduct).\\n 10\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4579,"cells":{"id":{"kind":"number","value":4666464,"string":"4,666,464"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Kenneth McMillen v. New Caney Indep Sch Dist"},"decision_date":{"kind":"string","value":"2019-10-02"},"docket_number":{"kind":"string","value":"18-20420"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before BARKSDALE, STEWART, and COSTA, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"GREGG COSTA, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-20420 Document: 00515142943 Page: 1 Date Filed: 10/02/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n October 2, 2019\\n No. 18-20420\\n Lyle W. Cayce\\n Clerk\\nCHRISTOPHER EDWARD MCMILLEN, an Incapacitated Person\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nNEW CANEY INDEPENDENT SCHOOL DISTRICT,\\n\\n Defendant - Appellee\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore BARKSDALE, STEWART, and COSTA, Circuit Judges.\\nGREGG COSTA, Circuit Judge:\\n In exchange for federal funding of special education services, schools\\nmust provide a “free appropriate public education” to students with physical\\nor mental disabilities. 20 U.S.C. § 1412(a)(1)(A). As part of that deal, the\\nIndividual with Disabilities Education Act (IDEA) requires administrative\\nprocedures to address disputes about a disabled student’s education. If those\\nprocedures do not fix the problem, parents may file a lawsuit to assert their\\nchildren’s rights. But the IDEA requires exhaustion of the administrative\\nprocess before a suit may be filed over the denial of a free appropriate public\\neducation. See id. § 1415(i)(2)(A). The exhaustion requirement is not limited\\nto suits enforcing the IDEA. It applies to suits under any laws that “seek[]\\nrelief that is also available under” the IDEA. Id. § 1415(l).\\n\\f Case: 18-20420 Document: 00515142943 Page: 2 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\n We must decide whether the exhaustion requirement applies to this suit\\nseeking damages under the Rehabilitation Act and section 1983 for a student’s\\nexpulsion from high school. In answering that question, we decide for the first\\ntime in our circuit whether the IDEA’s exhaustion requirement applies when\\nthe plaintiff seeks a remedy that the IDEA does not supply.\\n I.\\n Because this suit was dismissed at the pleading stage, we assume the\\nfollowing allegations to be true. Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.\\n2009.\\n Chris McMillen was enrolled in New Caney Independent School District\\nfrom age 4 (pre-kindergarten) until early in his junior year of high school.\\nDuring those years, the district developed and implemented an individualized\\neducation program (IEP) for McMillen, who had been diagnosed with autism\\nspectrum disorder, emotional disturbance, and central-auditory-processing\\ndisorder. The program successfully managed his behavioral challenges for\\nseveral years.\\n McMillen’s behavior worsened during his sophomore year to the point\\nthat he was threatening to harm himself and others daily. The committee\\noverseeing McMillen’s IEP met three times that year. By the middle of the\\nyear, McMillen was placed in the district’s Pass Program, which is for students\\nwho “have demonstrated either serious emotional disturbance or behavior\\ndisorders” and have “not responded to less intrusive interventions.”\\n Despite the problems during McMillen’s sophomore year, the district\\nreturned him to the regular school setting for his junior year. His IEP for his\\njunior year abandoned measures, like participation in the Pass Program, that\\nhad proven successful. McMillen’s parents complained about the changes, but\\nNew Caney refused to amend his IEP. The new plan was “woefully inadequate\\n\\n\\n 2\\n\\f Case: 18-20420 Document: 00515142943 Page: 3 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\nand intentionally indifferent” to McMillen’s needs.\\n McMillen’s return to the traditional classroom put him in Margaret\\nHudman’s English class. Hudman tried to “save” McMillen, in two senses of\\nthe word. She encouraged McMillen to take herbal supplements that she\\nthought could cure his autism. She also tried to convert McMillen to\\nChristianity, believing that if he converted his disabilities would be cured.\\n About a month into the school year, Hudman gave up and tried to have\\nMcMillen expelled. She collected material that McMillen wrote during class\\nand their informal sessions which, taken out of context, made McMillen appear\\ndangerous. Hudman emailed these materials to school administrators, who\\nreferred the matter to the school’s police department. The police arrested and\\ncharged McMillen with the felony of making a terroristic threat. Following\\nMcMillen’s arrest, the district determined that he should attend an alternative\\ncampus.\\n McMillen’s parents eventually accepted an offer from the county\\nattorney to drop the felony charge in exchange for their agreeing to never\\nreturn McMillen to the school district. McMillen’s parents believed that\\naccepting the deal was the only option and ceased all efforts to return him to\\nNew Caney ISD.\\n This lawsuit followed. The original complaint asserted claims under the\\nIDEA as well as the Constitution and Texas law. But neither McMillen nor\\nhis parents, who were suing on McMillen’s behalf before he reached 18,\\ncompleted the IDEA administrative process (they only invoked some\\npreliminary procedures early on to challenge McMillen’s amended IEP). After\\nthe school district raised this failure to exhaust as a ground for dismissal,\\nMcMillen amended his complaint to remove the IDEA claim. The relevant\\ncomplaint is his fourth try, which asserts a Rehabilitation Act claim and an\\nequal protection claim under section 1983. Defendants again sought dismissal\\n\\n 3\\n\\f Case: 18-20420 Document: 00515142943 Page: 4 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\non, among other grounds, failure to exhaust. The district court granted the\\nmotion.\\n II.\\n A.\\n States receiving IDEA funding must maintain certain procedures to\\nresolve disputes over the adequacy of a covered student’s education. 20 U.S.C.\\n§ 1415(a). The procedures include: (1) the opportunity for any party to file a\\ncomplaint, which forces a local education agency to hold a preliminary meeting\\nto resolve the complaint, id. § 1415(b)(6), (f)(1)(B)(i); (2) an impartial “due\\nprocess hearing” to resolve the complaint, which a local or state education\\nagency conducts, id. § 1415(f); and (3) mediation to resolve the complaint, at\\nthe state’s expense. Id. § 1415(e)(1), (e)(2)(D). A party not satisfied with the\\nresult of the administrative process may bring an IDEA claim in federal court.\\nId. § 1415(i)(2).\\n In its original form, the IDEA was the “exclusive avenue” for enforcing a\\ndisabled student’s right to an adequate education. See Smith v. Robinson, 468\\nU.S. 992, 1009 (1984). So a plaintiff seeking educational accommodations for\\na disabled student could not sue under other laws that protect the disabled,\\nsuch as the Rehabilitation Act. Id. at 1009, 1021. But soon after the Supreme\\nCourt interpreted the law that way, Congress charted a different course. Fry\\nv. Napoleon Cmty. Sch., 137 S. Ct. 743, 750 (2017) (citing Handicapped\\nChildren’s Protection Act of 1986, Pub. L. No. 99-372, 100 Stat. 796 (1986)). It\\ntook the following middle ground: IDEA does not displace other laws that may\\nhelp disabled children receive an education, but parties must try the IDEA’s\\nadministrative process first. Id. In other words, a plaintiff may invoke any\\nfederal law to support a disabled student’s claim for an adequate education;\\nthe plaintiff just must first exhaust under the IDEA.\\n\\n\\n 4\\n\\f Case: 18-20420 Document: 00515142943 Page: 5 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\n The statute allowing non-IDEA claims but only after exhaustion of the\\nIDEA procedures provides:\\n Nothing in this chapter shall be construed to restrict or limit the\\n rights, procedures, and remedies available under the Constitution,\\n the Americans with Disabilities Act of 1990, title V of the\\n Rehabilitation Act of 1973, or other Federal laws protecting the\\n rights of children with disabilities, except that before the filing of\\n a civil action under such laws seeking relief that is also available\\n under this subchapter, the procedures under subsections (f) and\\n (g) shall be exhausted to the same extent as would be required had\\n the action been brought under this subchapter.\\n\\n20 U.S.C. § 1415(l). Because McMillen did not exhaust the IDEA procedures,\\nhis suit asserting other federal claims must be dismissed if it “seek[s] relief\\nthat is also available under” the IDEA.\\n B.\\n The Supreme Court recently provided guidance to help us determine\\nwhen a suit seeks relief available under the IDEA. It does so when the plaintiff\\nseeks to remedy the deprivation of the free appropriate public education that\\nthe IDEA guarantees. Fry, 137 S. Ct. at 752. The IDEA achieves its goal by\\nproviding instruction and related services tailored to the child’s unique needs.\\nId. at 755. So complaints that a school did not adopt a plan individualized to\\nthe student’s needs sound in the IDEA. In determining whether a plaintiff\\nseeks relief available under the IDEA, we focus on the substance of the\\ncomplaint, rather than the “labels and terms” the plaintiff uses. Id.\\n But both the substance and language of McMillen’s complaint reveal that\\nhe is challenging the denial of a free appropriate public education. McMillen\\ntreats the failure of his 2015−16 IEP as the precipitating event for all that\\nfollowed his junior year. The IEP was the district “giving up on Chris”;\\n“abandon[ing] what had been working”; exhibiting “negligence, professional\\nnegligence and misjudgment, deliberate indifference, and malice towards\\n\\n 5\\n\\f Case: 18-20420 Document: 00515142943 Page: 6 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\nChris”; and “was nothing more than Defendant New Caney ISD and the IEP\\nTeam proverbially throwing up their hands and declaring we are tired of\\ndealing with Chris-Twelve years of putting up with him is enough.” The central\\nfailing of the IEP is that it removed McMillen from the Pass Program, which\\n“was ‘designed to work with students who have demonstrated either serious\\nemotional disturbance or behavior disorders,’ . . . and return[ed] him to the care\\nof professionals [who] had already proven their inability to manage Chris’s\\nDisabilities.” The IEP thus was the reason McMillen was in the English class\\nwhere he lasted only about a month before the behavior problems that resulted\\nin the criminal charge. And who was responsible for the problems with the\\nIEP? The “ARD Committee”—more IDEA lingo meaning the Admission,\\nReview, and Dismissal Committee that Texas schools use to develop and\\napprove IEPs. See 19 TEX. ADMIN. CODE § 89.1050.\\n The complaint does not just allege failures to comply with the IDEA\\nwhen formulating the IEP before McMillen’s junior year. McMillen alleges\\nthat when the district decided to send him to an alternative school, it failed to\\n“hold an MDR.” That is yet another term from the IDEA and its regulations\\nmeaning the manifestation determination review that is required when\\ndiscipline results in a disabled student’s removal from the school for more than\\nten consecutive days. 34 C.F.R. § 300.530(c), (e). Such reviews determine\\nwhether the conduct was a manifestation of the student’s disability, in which\\ncase the student should receive additional support to address the behavior\\nproblems. Id. § 300.530(e), (f).\\n There is even more in the complaint that focuses on failures to provide a\\nfree appropriate public education, but these examples provide a strong flavor\\nof the allegations that are laden with IDEA terminology. Those allegations\\nblame what happened to McMillen on the district’s failures to comply with the\\nIDEA.\\n\\n 6\\n\\f Case: 18-20420 Document: 00515142943 Page: 7 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\n Because the face of a complaint will not always make it apparent\\nwhether a non-IDEA claim is still challenging the denial of a free appropriate\\npublic education, the Supreme Court suggested two questions that will help\\ndistinguish such claims from those asserting general disability discrimination.\\nFry, 137 S. Ct. at 756. “First, could the plaintiff have brought essentially the\\nsame claim if the alleged conduct had occurred at a public facility that was not\\na school?” Id. Second, could an adult (a teacher, for example) have brought\\nessentially the same claim against the school? Id.; see also Reyes v. Manor\\nIndep. Sch. Dist., 850 F.3d 251, 256−57 (5th Cir. 2017) (drawing on Fry’s two\\nquestions). If the answer to both questions is yes—it was in Fry for the student\\nsuing to have a service dog with her at school—then the plaintiff is not seeking\\nrelief available under the IDEA and need not exhaust. Fry, 137 S. Ct. at 758.\\n McMillen argues that the answer to both Fry questions is also yes for his\\nsuit challenging his removal from the district. He compares his situation to a\\npublic library’s excluding a disabled person, who would have Rehabilitation\\nAct and equal protection claims for discrimination. So too, he contends, would\\na disabled adult be able to sue if a school denied the person access to the school.\\nBut describing his lawsuit as the denial of access to the school facility\\ncharacterizes it too generally. See Nelson v. Charles City Cmty. Sch. Dist., 900\\nF.3d 587, 592 (8th Cir. 2018) (explaining that a plaintiff answered the Fry\\nquestions at too high a “level of generality” by framing the denial of a request\\nto enroll in online learning in a different school district as a “broken promise\\nof non-discriminatory access”). McMillen’s view would mean that any case\\nchallenging the suspension, transfer, or expulsion of a disabled student would\\navoid the IDEA’s exhaustion requirement—after all, such discipline denies\\naccess to a school—even though the IDEA regulations provide a hearing for\\nthose very situations. See 34 C.F.R. § 300.530(c), (e). A more specific\\ndescription of this lawsuit would include what McMillen identifies as the\\n\\n 7\\n\\f Case: 18-20420 Document: 00515142943 Page: 8 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\ncontributing factor to his expulsion: the failure of the school to provide an\\neducation tailored to his needs that would have, among other things, prevented\\nMcMillen from being in Hudman’s English class in the first place. That is a\\nclaim that McMillen would not have against the public library, nor one that a\\nteacher would have against the school.\\n If any doubt remains that this lawsuit is about the denial of the\\neducation that the IDEA promises, there are two other signs. That McMillen\\nfirst alleged violations of the IDEA in federal court “before switching\\nmidstream” on learning of an exhaustion defense indicates that his amended\\ncomplaint is still seeking to enforce the IDEA. Cf. Fry, 137 S. Ct. at 757\\n(observing that a plaintiff’s invoking the IDEA administrative procedures\\nbefore abandoning them is a “sign that the gravamen of a suit is the denial” of\\na free public education). And in trying to fix another problem with his earlier\\npleadings—the failure to identify a policy that might render the district liable\\nunder section 1983—McMillen again revealed that this case is really about\\nfailures to comply with the IDEA. For proof of the district’s “policy,” McMillen\\ncites a Department of Education report concluding that Texas public schools\\n“suppress” the number of students eligible for special education services and\\nthe IDEA services they receive.\\n We thus conclude that McMillen’s lawsuit challenges New Caney ISD’s\\nfailure to provide him with the free appropriate public education that the IDEA\\npromised him.\\n C.\\n But determining what injury McMillen seeks to remedy is only half of\\nthe question that we must decide. McMillen argues that the IDEA’s\\nexhaustion requirement applies only when the remedy that a plaintiff seeks is\\navailable under the IDEA. Because his lawsuit seeks damages, McMillen\\ncontends the exhaustion requirement does not apply. In addressing this\\n\\n 8\\n\\f Case: 18-20420 Document: 00515142943 Page: 9 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\nargument, both sides accept its premise—that damages are not available under\\nthe IDEA. The issue is not that simple. The IDEA allows equitable monetary\\nrewards, such as reimbursement of expenses like private school tuition a\\nfamily unnecessarily incurred in the past to provide special education services.\\n20 U.S.C. § 1412(a)(10)(C)(ii); Spring Branch Indep. Sch. Dist. v. O.W., 2019\\nWL 4401142, at *13 (5th Cir. Sept. 16, 2019). It also allows for “compensatory\\nawards,” which “are designed to provide ‘services prospectively to compensate\\nfor a past deficient program.’” Spring Branch, 2019 WL 4401142, at *13\\n(quoting Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1280 (11th Cir.\\n2008) (awarding a student the option of multi-sensory reading and tutor\\nservices, and a dedicated special education teacher or reimbursement for\\nprivate school tuition)). But McMillen’s suit does not seek awards tied to the\\ncost of providing him with an adequate education. He instead seeks damages\\nfor injuries like emotional distress, 1 and such traditional compensatory\\ndamages are not available under the IDEA. Fry, 137 S. Ct. at 752 n.4.\\n We thus must address a question most circuits have answered but this\\none has not: whether the exhaustion requirement applies when a plaintiff is\\nseeking remedies not available under the IDEA. 2 The Supreme Court declined\\nto answer the question in Fry. 137 S. Ct. at 752 n.4. Most circuits hold that\\nthe IDEA requires plaintiffs who were denied a free appropriate public\\neducation to exhaust regardless of the remedy they seek. See Z.G. v. Pamlico\\n\\n\\n\\n 1 McMillen’s complaint also seeks punitive damages. But punitive damages are not\\navailable under the Rehabilitation Act, Barnes v. Gorman, 536 U.S. 181, 189−190 (2002), or\\nagainst a governmental entity for constitutional violations, City of Newport v. Fact Concerts,\\nInc., 453 U.S. 247, 268, 271 (1981).\\n 2 Doe v. East Baton Rouge Parish School Board, 121 F.3d 705, 705 (5th Cir. 1997) (per\\n\\ncuriam), a brief and unpublished opinion, affirmed the dismissal of a constitutional claim for\\ndamages because the plaintiff failed to exhaust IDEA procedures. A later case stated that\\n“demanding monetary damages—which are unavailable under the IDEA—does not\\nautomatically remove a claim from the IDEA’s ambit,” Stewart v. Waco Indep. Sch. Dist., 711\\nF.3d 513, 527 (5th Cir. 2013), but that opinion was vacated, 599 F. App’x. 534 (5th Cir. 2013).\\n 9\\n\\f Case: 18-20420 Document: 00515142943 Page: 10 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\nCty. Pub. Sch. Bd. of Educ., 744 F. App’x. 769, 777 n.14 (4th Cir. 2018);\\nBatchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 276 (3d Cir. 2014); J.B.\\nex rel. Bailey v. Avilla R-XIII Sch. Dist., 721 F.3d 588, 595 (8th Cir. 2013);\\nPolera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478,\\n487−88 (2d Cir. 2002); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 64 (1st\\nCir. 2002); Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1068 (10th Cir.\\n2002); Charlie F. ex rel. Neil F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d\\n989, 991−92 (7th Cir. 1996); N.B. ex rel. D.G. v. Alachua Cty. Sch. Bd., 84 F.3d\\n1376, 1379 (11th Cir. 1996); but see Payne v. Peninsula Sch. Dist., 653 F.3d\\n863, 876−77 (9th Cir. 2011) (en banc) (requiring exhaustion when a plaintiff\\nsought an IDEA remedy or its functional equivalent, such as money to pay for\\nprivate school or tutoring, but not when seeking other damages), overruled on\\nother grounds by Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc). 3\\n The question may be a closer one than the circuit scorecard suggests.\\nAlthough McMillen does not advance it, 4 there is a textualist case that a claim\\ndoes not “seek relief that is also available” under the IDEA if the plaintiff\\ncannot seek the same remedy under the IDEA. After all, the ordinary meaning\\nof “relief” in the legal setting is remedy. Relief, WEBSTER’S THIRD NEW\\nINTERNATIONAL DICTIONARY (3d ed. 2002) (defining relief as a “legal remedy or\\nredress”). Indeed, the words define each other in the leading legal dictionary.\\nSee BLACK’S LAW DICTIONARY (9th ed. 2009) (stating that “relief” is “also\\ntermed remedy”); id. (defining “remedy” in part as “legal or equitable relief”).\\nThe Solicitor General took this textualist approach in Fry, arguing that\\n\\n\\n 3 The Sixth Circuit did not require exhaustion for a student who had graduated\\nbecause the IDEA procedures could no longer provide him any relief. Covington v. Knox Cty.\\nSch. Sys., 205 F.3d 912, 917−18 (6th Cir. 2000). But it indicated it would follow the majority\\napproach outside that unusual situation, “disagree[ing] that the plaintiff’s damages claim\\nalone excuses her from exhausting her administrative remedies.” Id. at 916.\\n 4 When interpreting a statute, we are not bound by the interpretations “that the\\n\\nparties advocate.” See Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1353 (2015).\\n 10\\n\\f Case: 18-20420 Document: 00515142943 Page: 11 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\nexhaustion is not required “[w]hen a plaintiff seeks only compensatory\\ndamages under a non-IDEA statute.” Brief for the United States as Amicus\\nCuriae at 18, Fry, 137 S. Ct. at 743. And the IDEA uses “relief” not just in its\\nexhaustion provision, but also when listing the remedies available under the\\nstatute. 20 U.S.C. § 1415(i)(2)(C)(iii). Reading those provisions in sync would\\nfurther support the view that “relief” means remedy.\\n But as we have noted, most courts read the statute differently. They\\nread “relief available” under the IDEA “to mean relief for the events, condition,\\nor consequences of which the person complains, not necessarily relief of the\\nkind the person prefers.” Charlie F., 98 F.3d at 991–92. According to this view,\\nbecause the IDEA can remedy the failure to provide a blind student with a\\nreader by giving her one, a suit seeking damages for such a failure must first\\nexhaust the IDEA’s administrative procedures. Id. at 992.\\n We agree that such an approach is necessary to enforce the statutory\\nscheme, under which “educational professionals are supposed to have at least\\nthe first crack at formulating a plan to overcome the consequences of\\neducational shortfalls.” Id. Allowing a plaintiff complaining about the denial\\nof a free appropriate public education to avoid exhaustion “merely by tacking\\non a request for money damages” would subvert the procedures Congress\\ndesigned for prompt resolution of these disputes. Polera, 288 F.3d at 487−88;\\naccord N.B. ex rel. D.G., 84 F.3d at 1379. The statutory preference is to solve\\nthese disputes by providing the student with her promised education, not by\\nawarding damages years after the problem arises in the classroom. Polera,\\n288 F.3d at 490.\\n Most other circuits addressed this issue pre-Fry. Although Fry did not\\nanswer this question, its broader reasoning on the exhaustion requirement\\ntends to support the majority view. Interpreting the IDEA to prevent parties\\nfrom circumventing the scheme that Congress established in section 1415(l)\\n\\n 11\\n\\f Case: 18-20420 Document: 00515142943 Page: 12 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\nthrough clever pleading was central to Fry. 137 S. Ct. at 755. And the\\nSupreme Court’s test for exhaustion—whether the lawsuit seeks a free\\nappropriate public education—comports with reading “relief” to focus on the\\nconduct the plaintiff complains about. Id. at 752.\\n We therefore hold that the IDEA’s exhaustion requirement applies to\\nplaintiffs who seek damages for the denial of a free appropriate public\\neducation. Because McMillen did not first seek relief through the IDEA\\nadministrative process, this lawsuit was properly dismissed.\\n ***\\n The judgment is AFFIRMED.\\n\\n\\n\\n\\n 12\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4443717/\", \"author_raw\": \"GREGG COSTA, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"BARKSDALE"},"judge2":{"kind":"string","value":"STEWART"},"judge3":{"kind":"string","value":"COSTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"BARKSDALE\": \", Circuit\", \"STEWART\": \", Circuit\", \"COSTA\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4666464/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Kenneth McMillen v. New Caney Indep Sch Dist\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-02\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-20420 Document: 00515142943 Page: 1 Date Filed: 10/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n October 2, 2019\n No. 18-20420\n Lyle W. Cayce\n Clerk\nCHRISTOPHER EDWARD MCMILLEN, an Incapacitated Person\n\n Plaintiff - Appellant\n\nv.\n\nNEW CANEY INDEPENDENT SCHOOL DISTRICT,\n\n Defendant - Appellee\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore BARKSDALE, STEWART, and COSTA, Circuit Judges.\nGREGG COSTA, Circuit Judge:\n In exchange for federal funding of special education services, schools\nmust provide a “free appropriate public education” to students with physical\nor mental disabilities. 20 U.S.C. § 1412(a)(1)(A). As part of that deal, the\nIndividual with Disabilities Education Act (IDEA) requires administrative\nprocedures to address disputes about a disabled student’s education. If those\nprocedures do not fix the problem, parents may file a lawsuit to assert their\nchildren’s rights. But the IDEA requires exhaustion of the administrative\nprocess before a suit may be filed over the denial of a free appropriate public\neducation. See id. § 1415(i)(2)(A). The exhaustion requirement is not limited\nto suits enforcing the IDEA. It applies to suits under any laws that “seek[]\nrelief that is also available under” the IDEA. Id. § 1415(l).\n\f Case: 18-20420 Document: 00515142943 Page: 2 Date Filed: 10/02/2019\n\n\n No. 18-20420\n\n We must decide whether the exhaustion requirement applies to this suit\nseeking damages under the Rehabilitation Act and section 1983 for a student’s\nexpulsion from high school. In answering that question, we decide for the first\ntime in our circuit whether the IDEA’s exhaustion requirement applies when\nthe plaintiff seeks a remedy that the IDEA does not supply.\n I.\n Because this suit was dismissed at the pleading stage, we assume the\nfollowing allegations to be true. Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.\n2009.\n Chris McMillen was enrolled in New Caney Independent School District\nfrom age 4 (pre-kindergarten) until early in his junior year of high school.\nDuring those years, the district developed and implemented an individualized\neducation program (IEP) for McMillen, who had been diagnosed with autism\nspectrum disorder, emotional disturbance, and central-auditory-processing\ndisorder. The program successfully managed his behavioral challenges for\nseveral years.\n McMillen’s behavior worsened during his sophomore year to the point\nthat he was threatening to harm himself and others daily. The committee\noverseeing McMillen’s IEP met three times that year. By the middle of the\nyear, McMillen was placed in the district’s Pass Program, which is for students\nwho “have demonstrated either serious emotional disturbance or behavior\ndisorders” and have “not responded to less intrusive interventions.”\n Despite the problems during McMillen’s sophomore year, the district\nreturned him to the regular school setting for his junior year. His IEP for his\njunior year abandoned measures, like participation in the Pass Program, that\nhad proven successful. McMillen’s parents complained about the changes, but\nNew Caney refused to amend his IEP. The new plan was “woefully inadequate\n\n\n 2\n\f Case: 18-20420 Document: 00515142943 Page: 3 Date Filed: 10/02/2019\n\n\n No. 18-20420\n\nand intentionally indifferent” to McMillen’s needs.\n McMillen’s return to the traditional classroom put him in Margaret\nHudman’s English class. Hudman tried to “save” McMillen, in two senses of\nthe word. She encouraged McMillen to take herbal supplements that she\nthought could cure his autism. She also tried to convert McMillen to\nChristianity, believing that if he converted his disabilities would be cured.\n About a month into the school year, Hudman gave up and tried to have\nMcMillen expelled. She collected material that McMillen wrote during class\nand their informal sessions which, taken out of context, made McMillen appear\ndangerous. Hudman emailed these materials to school administrators, who\nreferred the matter to the school’s police department. The police arrested and\ncharged McMillen with the felony of making a terroristic threat. Following\nMcMillen’s arrest, the district determined that he should attend an alternative\ncampus.\n McMillen’s parents eventually accepted an offer from the county\nattorney to drop the felony charge in exchange for their agreeing to never\nreturn McMillen to the school district. McMillen’s parents believed that\naccepting the deal was the only option and ceased all efforts to return him to\nNew Caney ISD.\n This lawsuit followed. The original complaint asserted claims under the\nIDEA as well as the Constitution and Texas law. But neither McMillen nor\nhis parents, who were suing on McMillen’s behalf before he reached 18,\ncompleted the IDEA administrative process (they only invoked some\npreliminary procedures early on to challenge McMillen’s amended IEP). After\nthe school district raised this failure to exhaust as a ground for dismissal,\nMcMillen amended his complaint to remove the IDEA claim. The relevant\ncomplaint is his fourth try, which asserts a Rehabilitation Act claim and an\nequal protection claim under section 1983. Defendants again sought dismissal\n\n 3\n\f Case: 18-20420 Document: 00515142943 Page: 4 Date Filed: 10/02/2019\n\n\n No. 18-20420\n\non, among other grounds, failure to exhaust. The district court granted the\nmotion.\n II.\n A.\n States receiving IDEA funding must maintain certain procedures to\nresolve disputes over the adequacy of a covered student’s education. 20 U.S.C.\n§ 1415(a). The procedures include: (1) the opportunity for any party to file a\ncomplaint, which forces a local education agency to hold a preliminary meeting\nto resolve the complaint, id. § 1415(b)(6), (f)(1)(B)(i); (2) an impartial “due\nprocess hearing” to resolve the complaint, which a local or state education\nagency conducts, id. § 1415(f); and (3) mediation to resolve the complaint, at\nthe state’s expense. Id. § 1415(e)(1), (e)(2)(D). A party not satisfied with the\nresult of the administrative process may bring an IDEA claim in federal court.\nId. § 1415(i)(2).\n In its original form, the IDEA was the “exclusive avenue” for enforcing a\ndisabled student’s right to an adequate education. See Smith v. Robinson, 468\nU.S. 992, 1009 (1984). So a plaintiff seeking educational accommodations for\na disabled student could not sue under other laws that protect the disabled,\nsuch as the Rehabilitation Act. Id. at 1009, 1021. But soon after the Supreme\nCourt interpreted the law that way, Congress charted a different course. Fry\nv. Napoleon Cmty. Sch., 137 S. Ct. 743, 750 (2017) (citing Handicapped\nChildren’s Protection Act of 1986, Pub. L. No. 99-372, 100 Stat. 796 (1986)). It\ntook the following middle ground: IDEA does not displace other laws that may\nhelp disabled children receive an education, but parties must try the IDEA’s\nadministrative process first. Id. In other words, a plaintiff may invoke any\nfederal law to support a disabled student’s claim for an adequate education;\nthe plaintiff just must first exhaust under the IDEA.\n\n\n 4\n\f Case: 18-20420 Document: 00515142943 Page: 5 Date Filed: 10/02/2019\n\n\n No. 18-20420\n\n The statute allowing non-IDEA claims but only after exhaustion of the\nIDEA procedures provides:\n Nothing in this chapter shall be construed to restrict or limit the\n rights, procedures, and remedies available under the Constitution,\n the Americans with Disabilities Act of 1990, title V of the\n Rehabilitation Act of 1973, or other Federal laws protecting the\n rights of children with disabilities, except that before the filing of\n a civil action under such laws seeking relief that is also available\n under this subchapter, the procedures under subsections (f) and\n (g) shall be exhausted to the same extent as would be required had\n the action been brought under this subchapter.\n\n20 U.S.C. § 1415(l). Because McMillen did not exhaust the IDEA procedures,\nhis suit asserting other federal claims must be dismissed if it “seek[s] relief\nthat is also available under” the IDEA.\n B.\n The Supreme Court recently provided guidance to help us determine\nwhen a suit seeks relief available under the IDEA. It does so when the plaintiff\nseeks to remedy the deprivation of the free appropriate public education that\nthe IDEA guarantees. Fry, 137 S. Ct. at 752. The IDEA achieves its goal by\nproviding instruction and related services tailored to the child’s unique needs.\nId. at 755. So complaints that a school did not adopt a plan individualized to\nthe student’s needs sound in the IDEA. In determining whether a plaintiff\nseeks relief available under the IDEA, we focus on the substance of the\ncomplaint, rather than the “labels and terms” the plaintiff uses. Id.\n But both the substance and language of McMillen’s complaint reveal that\nhe is challenging the denial of a free appropriate public education. McMillen\ntreats the failure of his 2015−16 IEP as the precipitating event for all that\nfollowed his junior year. The IEP was the district “giving up on Chris”;\n“abandon[ing] what had been working”; exhibiting “negligence, professional\nnegligence and misjudgment, deliberate indifference, and malice towards\n\n 5\n\f Case: 18-20420 Document: 00515142943 Page: 6 Date Filed: 10/02/2019\n\n\n No. 18-20420\n\nChris”; and “was nothing more than Defendant New Caney ISD and the IEP\nTeam proverbially throwing up their hands and declaring we are tired of\ndealing with Chris-Twelve years of putting up with him is enough.” The central\nfailing of the IEP is that it removed McMillen from the Pass Program, which\n“was ‘designed to work with students who have demonstrated either serious\nemotional disturbance or behavior disorders,’ . . . and return[ed] him to the care\nof professionals [who] had already proven their inability to manage Chris’s\nDisabilities.” The IEP thus was the reason McMillen was in the English class\nwhere he lasted only about a month before the behavior problems that resulted\nin the criminal charge. And who was responsible for the problems with the\nIEP? The “ARD Committee”—more IDEA lingo meaning the Admission,\nReview, and Dismissal Committee that Texas schools use to develop and\napprove IEPs. See 19 TEX. ADMIN. CODE § 89.1050.\n The complaint does not just allege failures to comply with the IDEA\nwhen formulating the IEP before McMillen’s junior year. McMillen alleges\nthat when the district decided to send him to an alternative school, it failed to\n“hold an MDR.” That is yet another term from the IDEA and its regulations\nmeaning the manifestation determination review that is required when\ndiscipline results in a disabled student’s removal from the school for more than\nten consecutive days. 34 C.F.R. § 300.530(c), (e). Such reviews determine\nwhether the conduct was a manifestation of the student’s disability, in which\ncase the student should receive additional support to address the behavior\nproblems. Id. § 300.530(e), (f).\n There is even more in the complaint that focuses on failures to provide a\nfree appropriate public education, but these examples provide a strong flavor\nof the allegations that are laden with IDEA terminology. Those allegations\nblame what happened to McMillen on the district’s failures to comply with the\nIDEA.\n\n 6\n\f Case: 18-20420 Document: 00515142943 Page: 7 Date Filed: 10/02/2019\n\n\n No. 18-20420\n\n Because the face of a complaint will not always make it apparent\nwhether a non-IDEA claim is still challenging the denial of a free appropriate\npublic education, the Supreme Court suggested two questions that will help\ndistinguish such claims from those asserting general disability discrimination.\nFry, 137 S. Ct. at 756. “First, could the plaintiff have brought essentially the\nsame claim if the alleged conduct had occurred at a public facility that was not\na school?” Id. Second, could an adult (a teacher, for example) have brought\nessentially the same claim against the school? Id.; see also Reyes v. Manor\nIndep. Sch. Dist., 850 F.3d 251, 256−57 (5th Cir. 2017) (drawing on Fry’s two\nquestions). If the answer to both questions is yes—it was in Fry for the student\nsuing to have a service dog with her at school—then the plaintiff is not seeking\nrelief available under the IDEA and need not exhaust. Fry, 137 S. Ct. at 758.\n McMillen argues that the answer to both Fry questions is also yes for his\nsuit challenging his removal from the district. He compares his situation to a\npublic library’s excluding a disabled person, who would have Rehabilitation\nAct and equal protection claims for discrimination. So too, he contends, would\na disabled adult be able to sue if a school denied the person access to the school.\nBut describing his lawsuit as the denial of access to the school facility\ncharacterizes it too generally. See Nelson v. Charles City Cmty. Sch. Dist., 900\nF.3d 587, 592 (8th Cir. 2018) (explaining that a plaintiff answered the Fry\nquestions at too high a “level of generality” by framing the denial of a request\nto enroll in online learning in a different school district as a “broken promise\nof non-discriminatory access”). McMillen’s view would mean that any case\nchallenging the suspension, transfer, or expulsion of a disabled student would\navoid the IDEA’s exhaustion requirement—after all, such discipline denies\naccess to a school—even though the IDEA regulations provide a hearing for\nthose very situations. See 34 C.F.R. § 300.530(c), (e). A more specific\ndescription of this lawsuit would include what McMillen identifies as the\n\n 7\n\f Case: 18-20420 Document: 00515142943 Page: 8 Date Filed: 10/02/2019\n\n\n No. 18-20420\n\ncontributing factor to his expulsion: the failure of the school to provide an\neducation tailored to his needs that would have, among other things, prevented\nMcMillen from being in Hudman’s English class in the first place. That is a\nclaim that McMillen would not have against the public library, nor one that a\nteacher would have against the school.\n If any doubt remains that this lawsuit is about the denial of the\neducation that the IDEA promises, there are two other signs. That McMillen\nfirst alleged violations of the IDEA in federal court “before switching\nmidstream” on learning of an exhaustion defense indicates that his amended\ncomplaint is still seeking to enforce the IDEA. Cf. Fry, 137 S. Ct. at 757\n(observing that a plaintiff’s invoking the IDEA administrative procedures\nbefore abandoning them is a “sign that the gravamen of a suit is the denial” of\na free public education). And in trying to fix another problem with his earlier\npleadings—the failure to identify a policy that might render the district liable\nunder section 1983—McMillen again revealed that this case is really about\nfailures to comply with the IDEA. For proof of the district’s “policy,” McMillen\ncites a Department of Education report concluding that Texas public schools\n“suppress” the number of students eligible for special education services and\nthe IDEA services they receive.\n We thus conclude that McMillen’s lawsuit challenges New Caney ISD’s\nfailure to provide him with the free appropriate public education that the IDEA\npromised him.\n C.\n But determining what injury McMillen seeks to remedy is only half of\nthe question that we must decide. McMillen argues that the IDEA’s\nexhaustion requirement applies only when the remedy that a plaintiff seeks is\navailable under the IDEA. Because his lawsuit seeks damages, McMillen\ncontends the exhaustion requirement does not apply. In addressing this\n\n 8\n\f Case: 18-20420 Document: 00515142943 Page: 9 Date Filed: 10/02/2019\n\n\n No. 18-20420\n\nargument, both sides accept its premise—that damages are not available under\nthe IDEA. The issue is not that simple. The IDEA allows equitable monetary\nrewards, such as reimbursement of expenses like private school tuition a\nfamily unnecessarily incurred in the past to provide special education services.\n20 U.S.C. § 1412(a)(10)(C)(ii); Spring Branch Indep. Sch. Dist. v. O.W., 2019\nWL 4401142, at *13 (5th Cir. Sept. 16, 2019). It also allows for “compensatory\nawards,” which “are designed to provide ‘services prospectively to compensate\nfor a past deficient program.’” Spring Branch, 2019 WL 4401142, at *13\n(quoting Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1280 (11th Cir.\n2008) (awarding a student the option of multi-sensory reading and tutor\nservices, and a dedicated special education teacher or reimbursement for\nprivate school tuition)). But McMillen’s suit does not seek awards tied to the\ncost of providing him with an adequate education. He instead seeks damages\nfor injuries like emotional distress, 1 and such traditional compensatory\ndamages are not available under the IDEA. Fry, 137 S. Ct. at 752 n.4.\n We thus must address a question most circuits have answered but this\none has not: whether the exhaustion requirement applies when a plaintiff is\nseeking remedies not available under the IDEA. 2 The Supreme Court declined\nto answer the question in Fry. 137 S. Ct. at 752 n.4. Most circuits hold that\nthe IDEA requires plaintiffs who were denied a free appropriate public\neducation to exhaust regardless of the remedy they seek. See Z.G. v. Pamlico\n\n\n\n 1 McMillen’s complaint also seeks punitive damages. But punitive damages are not\navailable under the Rehabilitation Act, Barnes v. Gorman, 536 U.S. 181, 189−190 (2002), or\nagainst a governmental entity for constitutional violations, City of Newport v. Fact Concerts,\nInc., 453 U.S. 247, 268, 271 (1981).\n 2 Doe v. East Baton Rouge Parish School Board, 121 F.3d 705, 705 (5th Cir. 1997) (per\n\ncuriam), a brief and unpublished opinion, affirmed the dismissal of a constitutional claim for\ndamages because the plaintiff failed to exhaust IDEA procedures. A later case stated that\n“demanding monetary damages—which are unavailable under the IDEA—does not\nautomatically remove a claim from the IDEA’s ambit,” Stewart v. Waco Indep. Sch. Dist., 711\nF.3d 513, 527 (5th Cir. 2013), but that opinion was vacated, 599 F. App’x. 534 (5th Cir. 2013).\n 9\n\f Case: 18-20420 Document: 00515142943 Page: 10 Date Filed: 10/02/2019\n\n\n No. 18-20420\n\nCty. Pub. Sch. Bd. of Educ., 744 F. App’x. 769, 777 n.14 (4th Cir. 2018);\nBatchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 276 (3d Cir. 2014); J.B.\nex rel. Bailey v. Avilla R-XIII Sch. Dist., 721 F.3d 588, 595 (8th Cir. 2013);\nPolera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478,\n487−88 (2d Cir. 2002); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 64 (1st\nCir. 2002); Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1068 (10th Cir.\n2002); Charlie F. ex rel. Neil F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d\n989, 991−92 (7th Cir. 1996); N.B. ex rel. D.G. v. Alachua Cty. Sch. Bd., 84 F.3d\n1376, 1379 (11th Cir. 1996); but see Payne v. Peninsula Sch. Dist., 653 F.3d\n863, 876−77 (9th Cir. 2011) (en banc) (requiring exhaustion when a plaintiff\nsought an IDEA remedy or its functional equivalent, such as money to pay for\nprivate school or tutoring, but not when seeking other damages), overruled on\nother grounds by Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc). 3\n The question may be a closer one than the circuit scorecard suggests.\nAlthough McMillen does not advance it, 4 there is a textualist case that a claim\ndoes not “seek relief that is also available” under the IDEA if the plaintiff\ncannot seek the same remedy under the IDEA. After all, the ordinary meaning\nof “relief” in the legal setting is remedy. Relief, WEBSTER’S THIRD NEW\nINTERNATIONAL DICTIONARY (3d ed. 2002) (defining relief as a “legal remedy or\nredress”). Indeed, the words define each other in the leading legal dictionary.\nSee BLACK’S LAW DICTIONARY (9th ed. 2009) (stating that “relief” is “also\ntermed remedy”); id. (defining “remedy” in part as “legal or equitable relief”).\nThe Solicitor General took this textualist approach in Fry, arguing that\n\n\n 3 The Sixth Circuit did not require exhaustion for a student who had graduated\nbecause the IDEA procedures could no longer provide him any relief. Covington v. Knox Cty.\nSch. Sys., 205 F.3d 912, 917−18 (6th Cir. 2000). But it indicated it would follow the majority\napproach outside that unusual situation, “disagree[ing] that the plaintiff’s damages claim\nalone excuses her from exhausting her administrative remedies.” Id. at 916.\n 4 When interpreting a statute, we are not bound by the interpretations “that the\n\nparties advocate.” See Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1353 (2015).\n 10\n\f Case: 18-20420 Document: 00515142943 Page: 11 Date Filed: 10/02/2019\n\n\n No. 18-20420\n\nexhaustion is not required “[w]hen a plaintiff seeks only compensatory\ndamages under a non-IDEA statute.” Brief for the United States as Amicus\nCuriae at 18, Fry, 137 S. Ct. at 743. And the IDEA uses “relief” not just in its\nexhaustion provision, but also when listing the remedies available under the\nstatute. 20 U.S.C. § 1415(i)(2)(C)(iii). Reading those provisions in sync would\nfurther support the view that “relief” means remedy.\n But as we have noted, most courts read the statute differently. They\nread “relief available” under the IDEA “to mean relief for the events, condition,\nor consequences of which the person complains, not necessarily relief of the\nkind the person prefers.” Charlie F., 98 F.3d at 991–92. According to this view,\nbecause the IDEA can remedy the failure to provide a blind student with a\nreader by giving her one, a suit seeking damages for such a failure must first\nexhaust the IDEA’s administrative procedures. Id. at 992.\n We agree that such an approach is necessary to enforce the statutory\nscheme, under which “educational professionals are supposed to have at least\nthe first crack at formulating a plan to overcome the consequences of\neducational shortfalls.” Id. Allowing a plaintiff complaining about the denial\nof a free appropriate public education to avoid exhaustion “merely by tacking\non a request for money damages” would subvert the procedures Congress\ndesigned for prompt resolution of these disputes. Polera, 288 F.3d at 487−88;\naccord N.B. ex rel. D.G., 84 F.3d at 1379. The statutory preference is to solve\nthese disputes by providing the student with her promised education, not by\nawarding damages years after the problem arises in the classroom. Polera,\n288 F.3d at 490.\n Most other circuits addressed this issue pre-Fry. Although Fry did not\nanswer this question, its broader reasoning on the exhaustion requirement\ntends to support the majority view. Interpreting the IDEA to prevent parties\nfrom circumventing the scheme that Congress established in section 1415(l)\n\n 11\n\f Case: 18-20420 Document: 00515142943 Page: 12 Date Filed: 10/02/2019\n\n\n No. 18-20420\n\nthrough clever pleading was central to Fry. 137 S. Ct. at 755. And the\nSupreme Court’s test for exhaustion—whether the lawsuit seeks a free\nappropriate public education—comports with reading “relief” to focus on the\nconduct the plaintiff complains about. Id. at 752.\n We therefore hold that the IDEA’s exhaustion requirement applies to\nplaintiffs who seek damages for the denial of a free appropriate public\neducation. Because McMillen did not first seek relief through the IDEA\nadministrative process, this lawsuit was properly dismissed.\n ***\n The judgment is AFFIRMED.\n\n\n\n\n 12\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Kenneth McMillen v. New Caney Indep Sch Dist\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-02\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-20420 Document: 00515142943 Page: 1 Date Filed: 10/02/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n October 2, 2019\\n No. 18-20420\\n Lyle W. Cayce\\n Clerk\\nCHRISTOPHER EDWARD MCMILLEN, an Incapacitated Person\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nNEW CANEY INDEPENDENT SCHOOL DISTRICT,\\n\\n Defendant - Appellee\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore BARKSDALE, STEWART, and COSTA, Circuit Judges.\\nGREGG COSTA, Circuit Judge:\\n In exchange for federal funding of special education services, schools\\nmust provide a “free appropriate public education” to students with physical\\nor mental disabilities. 20 U.S.C. § 1412(a)(1)(A). As part of that deal, the\\nIndividual with Disabilities Education Act (IDEA) requires administrative\\nprocedures to address disputes about a disabled student’s education. If those\\nprocedures do not fix the problem, parents may file a lawsuit to assert their\\nchildren’s rights. But the IDEA requires exhaustion of the administrative\\nprocess before a suit may be filed over the denial of a free appropriate public\\neducation. See id. § 1415(i)(2)(A). The exhaustion requirement is not limited\\nto suits enforcing the IDEA. It applies to suits under any laws that “seek[]\\nrelief that is also available under” the IDEA. Id. § 1415(l).\\n\\f Case: 18-20420 Document: 00515142943 Page: 2 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\n We must decide whether the exhaustion requirement applies to this suit\\nseeking damages under the Rehabilitation Act and section 1983 for a student’s\\nexpulsion from high school. In answering that question, we decide for the first\\ntime in our circuit whether the IDEA’s exhaustion requirement applies when\\nthe plaintiff seeks a remedy that the IDEA does not supply.\\n I.\\n Because this suit was dismissed at the pleading stage, we assume the\\nfollowing allegations to be true. Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.\\n2009.\\n Chris McMillen was enrolled in New Caney Independent School District\\nfrom age 4 (pre-kindergarten) until early in his junior year of high school.\\nDuring those years, the district developed and implemented an individualized\\neducation program (IEP) for McMillen, who had been diagnosed with autism\\nspectrum disorder, emotional disturbance, and central-auditory-processing\\ndisorder. The program successfully managed his behavioral challenges for\\nseveral years.\\n McMillen’s behavior worsened during his sophomore year to the point\\nthat he was threatening to harm himself and others daily. The committee\\noverseeing McMillen’s IEP met three times that year. By the middle of the\\nyear, McMillen was placed in the district’s Pass Program, which is for students\\nwho “have demonstrated either serious emotional disturbance or behavior\\ndisorders” and have “not responded to less intrusive interventions.”\\n Despite the problems during McMillen’s sophomore year, the district\\nreturned him to the regular school setting for his junior year. His IEP for his\\njunior year abandoned measures, like participation in the Pass Program, that\\nhad proven successful. McMillen’s parents complained about the changes, but\\nNew Caney refused to amend his IEP. The new plan was “woefully inadequate\\n\\n\\n 2\\n\\f Case: 18-20420 Document: 00515142943 Page: 3 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\nand intentionally indifferent” to McMillen’s needs.\\n McMillen’s return to the traditional classroom put him in Margaret\\nHudman’s English class. Hudman tried to “save” McMillen, in two senses of\\nthe word. She encouraged McMillen to take herbal supplements that she\\nthought could cure his autism. She also tried to convert McMillen to\\nChristianity, believing that if he converted his disabilities would be cured.\\n About a month into the school year, Hudman gave up and tried to have\\nMcMillen expelled. She collected material that McMillen wrote during class\\nand their informal sessions which, taken out of context, made McMillen appear\\ndangerous. Hudman emailed these materials to school administrators, who\\nreferred the matter to the school’s police department. The police arrested and\\ncharged McMillen with the felony of making a terroristic threat. Following\\nMcMillen’s arrest, the district determined that he should attend an alternative\\ncampus.\\n McMillen’s parents eventually accepted an offer from the county\\nattorney to drop the felony charge in exchange for their agreeing to never\\nreturn McMillen to the school district. McMillen’s parents believed that\\naccepting the deal was the only option and ceased all efforts to return him to\\nNew Caney ISD.\\n This lawsuit followed. The original complaint asserted claims under the\\nIDEA as well as the Constitution and Texas law. But neither McMillen nor\\nhis parents, who were suing on McMillen’s behalf before he reached 18,\\ncompleted the IDEA administrative process (they only invoked some\\npreliminary procedures early on to challenge McMillen’s amended IEP). After\\nthe school district raised this failure to exhaust as a ground for dismissal,\\nMcMillen amended his complaint to remove the IDEA claim. The relevant\\ncomplaint is his fourth try, which asserts a Rehabilitation Act claim and an\\nequal protection claim under section 1983. Defendants again sought dismissal\\n\\n 3\\n\\f Case: 18-20420 Document: 00515142943 Page: 4 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\non, among other grounds, failure to exhaust. The district court granted the\\nmotion.\\n II.\\n A.\\n States receiving IDEA funding must maintain certain procedures to\\nresolve disputes over the adequacy of a covered student’s education. 20 U.S.C.\\n§ 1415(a). The procedures include: (1) the opportunity for any party to file a\\ncomplaint, which forces a local education agency to hold a preliminary meeting\\nto resolve the complaint, id. § 1415(b)(6), (f)(1)(B)(i); (2) an impartial “due\\nprocess hearing” to resolve the complaint, which a local or state education\\nagency conducts, id. § 1415(f); and (3) mediation to resolve the complaint, at\\nthe state’s expense. Id. § 1415(e)(1), (e)(2)(D). A party not satisfied with the\\nresult of the administrative process may bring an IDEA claim in federal court.\\nId. § 1415(i)(2).\\n In its original form, the IDEA was the “exclusive avenue” for enforcing a\\ndisabled student’s right to an adequate education. See Smith v. Robinson, 468\\nU.S. 992, 1009 (1984). So a plaintiff seeking educational accommodations for\\na disabled student could not sue under other laws that protect the disabled,\\nsuch as the Rehabilitation Act. Id. at 1009, 1021. But soon after the Supreme\\nCourt interpreted the law that way, Congress charted a different course. Fry\\nv. Napoleon Cmty. Sch., 137 S. Ct. 743, 750 (2017) (citing Handicapped\\nChildren’s Protection Act of 1986, Pub. L. No. 99-372, 100 Stat. 796 (1986)). It\\ntook the following middle ground: IDEA does not displace other laws that may\\nhelp disabled children receive an education, but parties must try the IDEA’s\\nadministrative process first. Id. In other words, a plaintiff may invoke any\\nfederal law to support a disabled student’s claim for an adequate education;\\nthe plaintiff just must first exhaust under the IDEA.\\n\\n\\n 4\\n\\f Case: 18-20420 Document: 00515142943 Page: 5 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\n The statute allowing non-IDEA claims but only after exhaustion of the\\nIDEA procedures provides:\\n Nothing in this chapter shall be construed to restrict or limit the\\n rights, procedures, and remedies available under the Constitution,\\n the Americans with Disabilities Act of 1990, title V of the\\n Rehabilitation Act of 1973, or other Federal laws protecting the\\n rights of children with disabilities, except that before the filing of\\n a civil action under such laws seeking relief that is also available\\n under this subchapter, the procedures under subsections (f) and\\n (g) shall be exhausted to the same extent as would be required had\\n the action been brought under this subchapter.\\n\\n20 U.S.C. § 1415(l). Because McMillen did not exhaust the IDEA procedures,\\nhis suit asserting other federal claims must be dismissed if it “seek[s] relief\\nthat is also available under” the IDEA.\\n B.\\n The Supreme Court recently provided guidance to help us determine\\nwhen a suit seeks relief available under the IDEA. It does so when the plaintiff\\nseeks to remedy the deprivation of the free appropriate public education that\\nthe IDEA guarantees. Fry, 137 S. Ct. at 752. The IDEA achieves its goal by\\nproviding instruction and related services tailored to the child’s unique needs.\\nId. at 755. So complaints that a school did not adopt a plan individualized to\\nthe student’s needs sound in the IDEA. In determining whether a plaintiff\\nseeks relief available under the IDEA, we focus on the substance of the\\ncomplaint, rather than the “labels and terms” the plaintiff uses. Id.\\n But both the substance and language of McMillen’s complaint reveal that\\nhe is challenging the denial of a free appropriate public education. McMillen\\ntreats the failure of his 2015−16 IEP as the precipitating event for all that\\nfollowed his junior year. The IEP was the district “giving up on Chris”;\\n“abandon[ing] what had been working”; exhibiting “negligence, professional\\nnegligence and misjudgment, deliberate indifference, and malice towards\\n\\n 5\\n\\f Case: 18-20420 Document: 00515142943 Page: 6 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\nChris”; and “was nothing more than Defendant New Caney ISD and the IEP\\nTeam proverbially throwing up their hands and declaring we are tired of\\ndealing with Chris-Twelve years of putting up with him is enough.” The central\\nfailing of the IEP is that it removed McMillen from the Pass Program, which\\n“was ‘designed to work with students who have demonstrated either serious\\nemotional disturbance or behavior disorders,’ . . . and return[ed] him to the care\\nof professionals [who] had already proven their inability to manage Chris’s\\nDisabilities.” The IEP thus was the reason McMillen was in the English class\\nwhere he lasted only about a month before the behavior problems that resulted\\nin the criminal charge. And who was responsible for the problems with the\\nIEP? The “ARD Committee”—more IDEA lingo meaning the Admission,\\nReview, and Dismissal Committee that Texas schools use to develop and\\napprove IEPs. See 19 TEX. ADMIN. CODE § 89.1050.\\n The complaint does not just allege failures to comply with the IDEA\\nwhen formulating the IEP before McMillen’s junior year. McMillen alleges\\nthat when the district decided to send him to an alternative school, it failed to\\n“hold an MDR.” That is yet another term from the IDEA and its regulations\\nmeaning the manifestation determination review that is required when\\ndiscipline results in a disabled student’s removal from the school for more than\\nten consecutive days. 34 C.F.R. § 300.530(c), (e). Such reviews determine\\nwhether the conduct was a manifestation of the student’s disability, in which\\ncase the student should receive additional support to address the behavior\\nproblems. Id. § 300.530(e), (f).\\n There is even more in the complaint that focuses on failures to provide a\\nfree appropriate public education, but these examples provide a strong flavor\\nof the allegations that are laden with IDEA terminology. Those allegations\\nblame what happened to McMillen on the district’s failures to comply with the\\nIDEA.\\n\\n 6\\n\\f Case: 18-20420 Document: 00515142943 Page: 7 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\n Because the face of a complaint will not always make it apparent\\nwhether a non-IDEA claim is still challenging the denial of a free appropriate\\npublic education, the Supreme Court suggested two questions that will help\\ndistinguish such claims from those asserting general disability discrimination.\\nFry, 137 S. Ct. at 756. “First, could the plaintiff have brought essentially the\\nsame claim if the alleged conduct had occurred at a public facility that was not\\na school?” Id. Second, could an adult (a teacher, for example) have brought\\nessentially the same claim against the school? Id.; see also Reyes v. Manor\\nIndep. Sch. Dist., 850 F.3d 251, 256−57 (5th Cir. 2017) (drawing on Fry’s two\\nquestions). If the answer to both questions is yes—it was in Fry for the student\\nsuing to have a service dog with her at school—then the plaintiff is not seeking\\nrelief available under the IDEA and need not exhaust. Fry, 137 S. Ct. at 758.\\n McMillen argues that the answer to both Fry questions is also yes for his\\nsuit challenging his removal from the district. He compares his situation to a\\npublic library’s excluding a disabled person, who would have Rehabilitation\\nAct and equal protection claims for discrimination. So too, he contends, would\\na disabled adult be able to sue if a school denied the person access to the school.\\nBut describing his lawsuit as the denial of access to the school facility\\ncharacterizes it too generally. See Nelson v. Charles City Cmty. Sch. Dist., 900\\nF.3d 587, 592 (8th Cir. 2018) (explaining that a plaintiff answered the Fry\\nquestions at too high a “level of generality” by framing the denial of a request\\nto enroll in online learning in a different school district as a “broken promise\\nof non-discriminatory access”). McMillen’s view would mean that any case\\nchallenging the suspension, transfer, or expulsion of a disabled student would\\navoid the IDEA’s exhaustion requirement—after all, such discipline denies\\naccess to a school—even though the IDEA regulations provide a hearing for\\nthose very situations. See 34 C.F.R. § 300.530(c), (e). A more specific\\ndescription of this lawsuit would include what McMillen identifies as the\\n\\n 7\\n\\f Case: 18-20420 Document: 00515142943 Page: 8 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\ncontributing factor to his expulsion: the failure of the school to provide an\\neducation tailored to his needs that would have, among other things, prevented\\nMcMillen from being in Hudman’s English class in the first place. That is a\\nclaim that McMillen would not have against the public library, nor one that a\\nteacher would have against the school.\\n If any doubt remains that this lawsuit is about the denial of the\\neducation that the IDEA promises, there are two other signs. That McMillen\\nfirst alleged violations of the IDEA in federal court “before switching\\nmidstream” on learning of an exhaustion defense indicates that his amended\\ncomplaint is still seeking to enforce the IDEA. Cf. Fry, 137 S. Ct. at 757\\n(observing that a plaintiff’s invoking the IDEA administrative procedures\\nbefore abandoning them is a “sign that the gravamen of a suit is the denial” of\\na free public education). And in trying to fix another problem with his earlier\\npleadings—the failure to identify a policy that might render the district liable\\nunder section 1983—McMillen again revealed that this case is really about\\nfailures to comply with the IDEA. For proof of the district’s “policy,” McMillen\\ncites a Department of Education report concluding that Texas public schools\\n“suppress” the number of students eligible for special education services and\\nthe IDEA services they receive.\\n We thus conclude that McMillen’s lawsuit challenges New Caney ISD’s\\nfailure to provide him with the free appropriate public education that the IDEA\\npromised him.\\n C.\\n But determining what injury McMillen seeks to remedy is only half of\\nthe question that we must decide. McMillen argues that the IDEA’s\\nexhaustion requirement applies only when the remedy that a plaintiff seeks is\\navailable under the IDEA. Because his lawsuit seeks damages, McMillen\\ncontends the exhaustion requirement does not apply. In addressing this\\n\\n 8\\n\\f Case: 18-20420 Document: 00515142943 Page: 9 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\nargument, both sides accept its premise—that damages are not available under\\nthe IDEA. The issue is not that simple. The IDEA allows equitable monetary\\nrewards, such as reimbursement of expenses like private school tuition a\\nfamily unnecessarily incurred in the past to provide special education services.\\n20 U.S.C. § 1412(a)(10)(C)(ii); Spring Branch Indep. Sch. Dist. v. O.W., 2019\\nWL 4401142, at *13 (5th Cir. Sept. 16, 2019). It also allows for “compensatory\\nawards,” which “are designed to provide ‘services prospectively to compensate\\nfor a past deficient program.’” Spring Branch, 2019 WL 4401142, at *13\\n(quoting Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1280 (11th Cir.\\n2008) (awarding a student the option of multi-sensory reading and tutor\\nservices, and a dedicated special education teacher or reimbursement for\\nprivate school tuition)). But McMillen’s suit does not seek awards tied to the\\ncost of providing him with an adequate education. He instead seeks damages\\nfor injuries like emotional distress, 1 and such traditional compensatory\\ndamages are not available under the IDEA. Fry, 137 S. Ct. at 752 n.4.\\n We thus must address a question most circuits have answered but this\\none has not: whether the exhaustion requirement applies when a plaintiff is\\nseeking remedies not available under the IDEA. 2 The Supreme Court declined\\nto answer the question in Fry. 137 S. Ct. at 752 n.4. Most circuits hold that\\nthe IDEA requires plaintiffs who were denied a free appropriate public\\neducation to exhaust regardless of the remedy they seek. See Z.G. v. Pamlico\\n\\n\\n\\n 1 McMillen’s complaint also seeks punitive damages. But punitive damages are not\\navailable under the Rehabilitation Act, Barnes v. Gorman, 536 U.S. 181, 189−190 (2002), or\\nagainst a governmental entity for constitutional violations, City of Newport v. Fact Concerts,\\nInc., 453 U.S. 247, 268, 271 (1981).\\n 2 Doe v. East Baton Rouge Parish School Board, 121 F.3d 705, 705 (5th Cir. 1997) (per\\n\\ncuriam), a brief and unpublished opinion, affirmed the dismissal of a constitutional claim for\\ndamages because the plaintiff failed to exhaust IDEA procedures. A later case stated that\\n“demanding monetary damages—which are unavailable under the IDEA—does not\\nautomatically remove a claim from the IDEA’s ambit,” Stewart v. Waco Indep. Sch. Dist., 711\\nF.3d 513, 527 (5th Cir. 2013), but that opinion was vacated, 599 F. App’x. 534 (5th Cir. 2013).\\n 9\\n\\f Case: 18-20420 Document: 00515142943 Page: 10 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\nCty. Pub. Sch. Bd. of Educ., 744 F. App’x. 769, 777 n.14 (4th Cir. 2018);\\nBatchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 276 (3d Cir. 2014); J.B.\\nex rel. Bailey v. Avilla R-XIII Sch. Dist., 721 F.3d 588, 595 (8th Cir. 2013);\\nPolera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478,\\n487−88 (2d Cir. 2002); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 64 (1st\\nCir. 2002); Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1068 (10th Cir.\\n2002); Charlie F. ex rel. Neil F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d\\n989, 991−92 (7th Cir. 1996); N.B. ex rel. D.G. v. Alachua Cty. Sch. Bd., 84 F.3d\\n1376, 1379 (11th Cir. 1996); but see Payne v. Peninsula Sch. Dist., 653 F.3d\\n863, 876−77 (9th Cir. 2011) (en banc) (requiring exhaustion when a plaintiff\\nsought an IDEA remedy or its functional equivalent, such as money to pay for\\nprivate school or tutoring, but not when seeking other damages), overruled on\\nother grounds by Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc). 3\\n The question may be a closer one than the circuit scorecard suggests.\\nAlthough McMillen does not advance it, 4 there is a textualist case that a claim\\ndoes not “seek relief that is also available” under the IDEA if the plaintiff\\ncannot seek the same remedy under the IDEA. After all, the ordinary meaning\\nof “relief” in the legal setting is remedy. Relief, WEBSTER’S THIRD NEW\\nINTERNATIONAL DICTIONARY (3d ed. 2002) (defining relief as a “legal remedy or\\nredress”). Indeed, the words define each other in the leading legal dictionary.\\nSee BLACK’S LAW DICTIONARY (9th ed. 2009) (stating that “relief” is “also\\ntermed remedy”); id. (defining “remedy” in part as “legal or equitable relief”).\\nThe Solicitor General took this textualist approach in Fry, arguing that\\n\\n\\n 3 The Sixth Circuit did not require exhaustion for a student who had graduated\\nbecause the IDEA procedures could no longer provide him any relief. Covington v. Knox Cty.\\nSch. Sys., 205 F.3d 912, 917−18 (6th Cir. 2000). But it indicated it would follow the majority\\napproach outside that unusual situation, “disagree[ing] that the plaintiff’s damages claim\\nalone excuses her from exhausting her administrative remedies.” Id. at 916.\\n 4 When interpreting a statute, we are not bound by the interpretations “that the\\n\\nparties advocate.” See Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1353 (2015).\\n 10\\n\\f Case: 18-20420 Document: 00515142943 Page: 11 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\nexhaustion is not required “[w]hen a plaintiff seeks only compensatory\\ndamages under a non-IDEA statute.” Brief for the United States as Amicus\\nCuriae at 18, Fry, 137 S. Ct. at 743. And the IDEA uses “relief” not just in its\\nexhaustion provision, but also when listing the remedies available under the\\nstatute. 20 U.S.C. § 1415(i)(2)(C)(iii). Reading those provisions in sync would\\nfurther support the view that “relief” means remedy.\\n But as we have noted, most courts read the statute differently. They\\nread “relief available” under the IDEA “to mean relief for the events, condition,\\nor consequences of which the person complains, not necessarily relief of the\\nkind the person prefers.” Charlie F., 98 F.3d at 991–92. According to this view,\\nbecause the IDEA can remedy the failure to provide a blind student with a\\nreader by giving her one, a suit seeking damages for such a failure must first\\nexhaust the IDEA’s administrative procedures. Id. at 992.\\n We agree that such an approach is necessary to enforce the statutory\\nscheme, under which “educational professionals are supposed to have at least\\nthe first crack at formulating a plan to overcome the consequences of\\neducational shortfalls.” Id. Allowing a plaintiff complaining about the denial\\nof a free appropriate public education to avoid exhaustion “merely by tacking\\non a request for money damages” would subvert the procedures Congress\\ndesigned for prompt resolution of these disputes. Polera, 288 F.3d at 487−88;\\naccord N.B. ex rel. D.G., 84 F.3d at 1379. The statutory preference is to solve\\nthese disputes by providing the student with her promised education, not by\\nawarding damages years after the problem arises in the classroom. Polera,\\n288 F.3d at 490.\\n Most other circuits addressed this issue pre-Fry. Although Fry did not\\nanswer this question, its broader reasoning on the exhaustion requirement\\ntends to support the majority view. Interpreting the IDEA to prevent parties\\nfrom circumventing the scheme that Congress established in section 1415(l)\\n\\n 11\\n\\f Case: 18-20420 Document: 00515142943 Page: 12 Date Filed: 10/02/2019\\n\\n\\n No. 18-20420\\n\\nthrough clever pleading was central to Fry. 137 S. Ct. at 755. And the\\nSupreme Court’s test for exhaustion—whether the lawsuit seeks a free\\nappropriate public education—comports with reading “relief” to focus on the\\nconduct the plaintiff complains about. Id. at 752.\\n We therefore hold that the IDEA’s exhaustion requirement applies to\\nplaintiffs who seek damages for the denial of a free appropriate public\\neducation. Because McMillen did not first seek relief through the IDEA\\nadministrative process, this lawsuit was properly dismissed.\\n ***\\n The judgment is AFFIRMED.\\n\\n\\n\\n\\n 12\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4580,"cells":{"id":{"kind":"number","value":4666893,"string":"4,666,893"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Sierra Club v. EPA"},"decision_date":{"kind":"string","value":"2019-10-03"},"docket_number":{"kind":"string","value":"18-60116"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before SMITH, WIENER, and ELROD, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"WIENER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-60116 Document: 00515144673 Page: 1 Date Filed: 10/03/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n October 3, 2019\\n No. 18-60116\\n Lyle W. Cayce\\n Clerk\\nSIERRA CLUB; NATIONAL PARKS CONSERVATION ASSOCIATION;\\nENTERGY LOUISIANA, L.L.C.,\\n\\n Petitioners\\n\\nv.\\n\\nUNITED STATES ENVIRONMENTAL PROTECTION AGENCY; ANDREW\\nWHEELER, Administrator, United States Environmental Protection Agency,\\n\\n Respondents\\n\\n\\n\\n On Petitions for Review of Final Administrative Action\\n of the United States Environmental Protection Agency\\n\\n\\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\\nWIENER, Circuit Judge:\\n In a December 21, 2017 Final Rule (“the Final Rule”), the United States\\nEnvironmental Protection Agency (“the EPA”) approved Louisiana’s state\\nimplementation plan (“SIP”) for controlling regional haze. Louisiana’s regional\\nhaze SIP had two alleged problems. First, the SIP used an outdated air-\\npollution model called “CALPUFF” to measure the visibility impacts of\\npowerplant emissions. Second, the SIP included a sparse explanation for how\\nLouisiana weighed five mandatory statutory factors in determining the Best\\nAvailable Retrofit Technology (“BART”) for controlling emissions at Unit 6 of\\nthe Roy S. Nelson powerplant (“Nelson”). Despite the EPA’s knowledge of these\\n\\f Case: 18-60116 Document: 00515144673 Page: 2 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nproblems, it determined that Louisiana had fulfilled its obligations under the\\nClean Air Act.\\n We consider two petitions for review of the Final Rule. One is from\\nPetitioners-Appellants Sierra Club and National Parks Conservation\\nAssociation (collectively, “Environmental Petitioners”). The other is from\\nPetitioner-Appellant Entergy Louisiana, L.L.C., the owner of the Nelson\\npowerplant, and Cleco Power, L.L.C., an intervenor in this case (collectively,\\n“Industry Petitioners”).\\n Environmental Petitioners maintain that Louisiana’s SIP does too little\\nto curb regional haze at federally protected areas. They contend that (1)\\nLouisiana’s determination that “low-sulfur coal” was the BART for the Nelson\\npowerplant was deficient in several respects and (2) the EPA acted arbitrarily\\nand capriciously in approving Louisiana’s SIP because it knew about those\\ndeficiencies.\\n In contrast, Industry Petitioners insist that Louisiana’s SIP\\noverestimates the amount of pollution that their powerplants produce. In their\\nchallenge to the EPA’s approval of Louisiana’s “subject to BART”\\ndeterminations, Industry Petitioners object to Louisiana’s and the EPA’s use\\nof the “CALPUFF” model, which they maintain relies on several flawed\\ntechnical assumptions.\\n We deny Industry Petitioners’ petition. We afford “significant deference”\\nto agency decisions involving analysis of scientific data within the agency’s\\ntechnical expertise. The EPA’s selection of a model to measure air pollution\\nlevels is precisely that type of decision. The EPA therefore did not act\\n 2\\n\\f Case: 18-60116 Document: 00515144673 Page: 3 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\narbitrarily and capriciously in relying on the CALPUFF model to approve\\nLouisiana’s “subject to BART” determinations.\\n Although Environmental Petitioners’ challenge presents a closer\\nquestion, we deny that petition as well. Louisiana’s explanation of its BART\\ndetermination for Nelson omitted two of the five mandatory factors and failed\\nto compare—or even set out—the numbers for the costs and benefits of the\\ncontrol options Louisiana considered. Louisiana also failed to explain how its\\ndecision accounted for the EPA-submitted analyses that pointed out\\nsubstantial flaws in other analyses in the administrative record. But applying\\nthe deferential standards of the Administrative Procedures Act to the facts of\\nthis case, we hold that the EPA’s approval of Louisiana’s SIP was not arbitrary\\nand capricious.\\n The petitions for review are denied.\\n I. BACKGROUND\\n This case addresses the EPA’s approval of Louisiana’s SIP for controlling\\nregional haze. The Clean Air Act “requires the states and the federal\\ngovernment to set and seek to achieve targets for visibility in protected\\nnational parks and wildlife areas by modifying regulations that control air\\npollutants in ambient air.” 1 Under the Act, the federal government identifies\\nair pollutants and sets standards, and the states have “the primary\\nresponsibility” for implementing those standards through SIPs. 2 After a state\\n\\n\\n 1 Texas v. EPA, 829 F.3d 405, 411 (5th Cir. 2016) (citing 42 U.S.C. §§ 71410, 7491,\\n7492(e)(2)).\\n 2 Id. (citation omitted).\\n\\n 3\\n\\f Case: 18-60116 Document: 00515144673 Page: 4 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nsubmits its SIP, the EPA reviews the SIP for compliance with the Clean Air\\nAct.\\n Powerplants that emit sulfur dioxide (“SO2”) and oxides of nitrogen\\n(“NOx”) contribute to regional haze in protected federal areas. 3 Louisiana has\\nfive powerplants that cause or contribute to visibility impairments in such\\nareas. 4 Since 2008, Louisiana has revised its SIP several times and established\\nemission controls at some of those powerplants. In October 2017, Louisiana\\nsubmitted its final SIP revisions, which addressed, inter alia, emission controls\\nat Unit 6 of the Nelson powerplant.\\n On December 21, 2017, the EPA promulgated a final rule approving\\nLouisiana’s SIP. 82 Fed. Reg. 60,520 (Dec. 21, 2017) (“the Final Rule”). The two\\npetitions for review of the Final Rule address the EPA’s approval of (1)\\nLouisiana’s determination that Nelson and two units at the Cleco-owned\\nBrame Energy Center (“Brame”) are subject to BART for controlling emissions,\\n(2) Louisiana’s selection of low-sulfur coal as BART for controlling SO2\\nemissions at Nelson, and (3) Louisiana’s reasonable progress goals and long-\\nterm strategy.\\n Environmental Petitioners first address Louisiana’s BART\\ndetermination for Nelson. They contend that the Louisiana Department of\\n\\n\\n\\n 3Id. Regional haze is a “visibility impairment that is produced by a multitude of\\nsources and activities that are located across a broad geographic area and emit fine\\nparticulates . . . and their precursors.” 77 Fed. Reg. 42,834, 42,837 (July 20, 2012) (describing\\nregional haze and the history of regional haze regulation).\\n 4 See 82 Fed. Reg. 22,936, 22,942 (May 19, 2017).\\n\\n 4\\n\\f Case: 18-60116 Document: 00515144673 Page: 5 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nEnvironmental Quality (“LDEQ”) erred in three ways: (1) determining that\\nlow-sulfur coal was BART for Nelson, despite the EPA-submitted analyses that\\ncontradicted the analyses in the record, (2) failing to provide a rational basis\\nfor rejecting a more effective pollution control, and (3) not complying with the\\nBART guidelines or considering all the mandatory BART factors.\\n Environmental Petitioners next object to the Final Rule’s approval of\\nLouisiana’s long-term strategy and reasonable progress goals. They maintain\\nthat Louisiana’s 2017 SIP revisions did not fulfill the state’s obligations to\\nrevise and resubmit its long-term strategy and reasonable progress goals after\\nthe EPA disapproved that strategy and those goals in 2012. Louisiana’s 2017\\nSIP revisions did not impose additional controls at non-BART “reasonable\\nprogress” sources and did not address the state’s reasonable progress goals or\\nlong-term strategy for achieving natural visibility conditions. According to\\nEnvironmental Petitioners, the EPA improperly overlooked these omissions\\nwhen it approved Louisiana’s SIP.\\n Environmental Petitioners object to the type of BART control Louisiana\\nimplemented. Industry Petitioners, in contrast, object to Louisiana’s\\ndetermination that Nelson and Brame are subject to BART at all. Industry\\nPetitioners challenge the technical assumptions underlying the modeling\\nmethods on which Louisiana and the EPA relied. Louisiana relied on the\\n“CALPUFF” model, and the EPA relied on both the CALPUFF and the “CAMx”\\nmodels. According to Industry Petitioners, the CALPUFF model overstates the\\nvisibility effects of powerplant emissions. They also maintain that the EPA\\n\\n\\n 5\\n\\f Case: 18-60116 Document: 00515144673 Page: 6 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nexceeded its authority by using its own CAMx modeling to support Louisiana’s\\nmodeling results.\\n Each petitioner in this case is also a respondent-intervenor. The\\nEnvironmental Petitioners, in addition to petitioning for review of some parts\\nof the Final Rule, also intervened and filed a responsive brief opposing\\nIndustry Petitioners’ petition. Likewise, Industry Petitioners, in addition to\\npetitioning for review of some parts of the Final Rule, also intervened and filed\\na responsive brief opposing Environmental Petitioners’ petition.\\n The EPA responded to both petitions, insisting that the Final Rule\\nshould be approved in full. The LDEQ filed an amicus brief supporting the\\nEPA’s position.\\nA. Statutory and Regulatory Framework\\n This case is governed by the Clean Air Act and the regulations\\nimplementing it. In 1977, “in response to a growing awareness that visibility\\nwas rapidly deteriorating in many places, such as wilderness areas and\\nnational parks,” Congress amended the Act by enacting § 169A. 5\\n That amendment established as a national goal “the prevention of any\\nfuture, and the remedying of any existing, impairment in visibility in\\nmandatory class I Federal areas which impairment results from manmade air\\npollution.” 6 Protected class I Federal areas include “all (1) international parks,\\n(2) national wilderness areas which exceed 5,000 acres in size, (3) national\\n\\n\\n\\n 5 North Dakota v. EPA, 730 F.3d 750, 755 (8th Cir. 2013) (internal quotation omitted).\\n 6 42 U.S.C. § 7491.\\n 6\\n\\f Case: 18-60116 Document: 00515144673 Page: 7 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nmemorial parks which exceed 5,000 acres in size, and (4) national parks which\\nexceed 6,000 acres in size.” 7 Louisiana’s Breton National Wildlife Refuge and\\nthe Caney Creek Wilderness Area in southwest Arkansas are the protected\\nClass I Federal areas at issue here. 8\\n The Clean Air Act is “an experiment in cooperative federalism,” in which\\nthe federal government identifies pollutants and sets visibility targets, and the\\nstates implement those standards though SIPs. 9 The Act directed the EPA to\\nissue regulations requiring: (1) that states submit SIPs to the EPA, (2) the\\ninstallation of the “best available retrofit technology, as determined by the\\nState . . . for controlling emissions” at specified air-pollution sources, and (3)\\nthat each state adopt a long-term strategy “for making reasonable progress”\\ntoward the national visibility goal. 10\\n Based on the Act’s directive, the EPA promulgated the Regional Haze\\nRule in 1999. 11 “The Regional Haze Rule established the guidelines for state\\ncompliance with the air visibility requirements of [the Clean Air Act].” 12 In\\n2005, the EPA revised that Rule and issued the BART guidelines, which set\\nout the process for states to establish BART emissions limitations. 13\\n\\n\\n\\n 7 Id. § 7472(a).\\n 8 77 Fed. Reg. 11,839, 11,845 (Feb. 28, 2012).\\n 9 Texas, 829 F.3d at 411.\\n 10 42 U.S.C. § 7491(b)(2)(A)–(B). The EPA has stated that the national visibility goal\\n\\nis “to attain natural visibility conditions by the year 2064.” 40 C.F.R. § 51.308(d)(1)(i)(B).\\n 11 64 Fed. Reg. 35,714 (July 1, 1999); 40 C.F.R. § 51.308 (“Regional Haze Rule”).\\n 12 Texas, 829 F.3d at 412.\\n 13 70 Fed. Reg. 39,104 (July 6, 2005) (“BART Rule”); 40 C.F.R. Part 51, App. Y (“BART\\n\\nGuidelines”).\\n 7\\n\\f Case: 18-60116 Document: 00515144673 Page: 8 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n The Clean Air Act and the Regional Haze Rule impose five requirements\\nfor SIPs:\\n For each affected wilderness and national park, the plan must: (1)\\n set “reasonable progress goals” toward achieving natural visibility\\n conditions that ensure improvements in visibility on the most\\n impaired days over the period of the implementation plan; (2)\\n calculate baseline visibility and natural visibility conditions; (3)\\n devise a long-term strategy with enforceable emissions limitations,\\n compliance schedules, and other measures necessary to achieve\\n the reasonable progress goals; (4) develop a monitoring strategy\\n for measuring and reporting visibility; and (5) list the best\\n available retrofit technology . . . that emission sources in the state\\n will have to adopt to achieve the visibility goals, along with a\\n schedule for implementing BART. 14\\n\\n After a state submits its SIP to the EPA, the agency reviews the SIP for\\ncompliance with the Clean Air Act. If the EPA determines that a SIP does not\\ncomply with the Act, it must promulgate a “Federal implementation plan” that\\nfixes the SIP’s shortcomings, unless the state corrects the deficiency. 15 The\\nEPA’s role is confined “to the ministerial function of reviewing SIPs for\\nconsistency with the Act’s requirements.” 16\\n The parties focus on two of the Clean Air Act’s and Regional Haze Rule’s\\nrequirements: (1) the BART emission limits and (2) the reasonable progress\\ngoals and long-term strategy that each state must implement.\\n\\n\\n 14 Texas, 829 F.3d at 412 (citing 40 C.F.R. § 51.308(d), (e)).\\n 15 42 U.S.C. § 7410(k)(3), (c)(1). Because the EPA approved Louisiana’s SIP, there is\\nno Federal implementation plan at issue here.\\n 16 Texas, 829 F.3d at 411 (quoting Luminant Generation Co. v. EPA, 675 F.3d 917, 921\\n\\n(5th Cir. 2012)).\\n 8\\n\\f Case: 18-60116 Document: 00515144673 Page: 9 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n 1. BART Emission Limits\\n The Regional Haze Rule defines BART as “an emission limitation based\\non the degree of reduction achievable through the application of the best\\nsystem of continuous emission reduction for each pollutant which is emitted by\\nan existing stationary facility.” 17 The BART process has three steps. First, a\\nstate must identify all “BART-eligible sources.” Second, it must determine\\nwhich of those BART-eligible sources are “subject to BART.” Third, for each\\nsource that is “subject to BART,” the state must make a “BART determination”\\nby analyzing and selecting the appropriate emission control for that source. 18\\n Step one is identifying all “BART-eligible sources.” That definition\\nincludes all stationary facilities that (1) were in existence before August 7,\\n1977 but were not in operation before August 7, 1962, (2) have “the potential\\nto emit 250 tons per year or more of any visibility-impairing air pollutant,” and\\n(3) fall within one of 26 listed source categories. 19 The parties agree that Nelson\\nand Brame satisfy these requirements and are “BART-eligible” sources.\\n Step two is making “subject to BART” determinations. The state must\\ndetermine which of the BART-eligible sources emit air pollutants that “may\\nreasonably be anticipated to cause or contribute to any impairment of\\nvisibility” in a Class I area. 20 The key words are “cause” and “contribute to.”\\n\\n\\n\\n 1740 C.F.R. § 51.301.\\n 18BART Guidelines, 40 C.F.R. Part 51, App. Y at I.F; see also Util. Air Regulatory Grp.\\nv. EPA, 471 F.3d 1333, 1335–36 (D.C. Cir. 2006) (explaining the process).\\n 19 40 C.F.R. § 51.301.\\n 20 Id.\\n\\n 9\\n\\f Case: 18-60116 Document: 00515144673 Page: 10 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nSources that a state determines may reasonably be anticipated to “cause” or\\n“contribute to” visibility impairment at a protected area are “subject to\\nBART.” 21 Under the BART Guidelines, a 1.0 deciview 22 change from an\\nindividual source “causes” visibility impairment, whereas a 0.5 deciview\\nchange from an individual source “contributes to” impairment. 23 In some\\ninstances, states may set a lower threshold for sources that “contribute to”\\nvisibility impairment. 24\\n At the “subject to BART” screening step, states have discretion to either\\n(a) determine that all BART-eligible sources are “subject to BART” via\\n“collective attribution” or (b) conduct individualized testing to determine that\\na source, or a group of sources, is exempt from BART. 25 Here, Louisiana opted\\nfor the second option.\\n\\n\\n\\n\\n 21 Id.\\n 22 Visibility impairments are measured in deciviews. A deciview “is the unit of\\nmeasurement on the deciview index scale for quantifying in a standard manner human\\nperceptions of visibility.” 40 C.F.R. § 51.301. “A higher deciview measurement indicates more\\nhaze and less visibility. . . . A single deciview is around the increment that the average person\\ncan perceive with the naked eye.” Texas, 829 F.3d at 413 n.2.\\n 23 BART Rule, 70 Fed. Reg. at 39,120 (“[W]e are clarifying that for purposes of\\n\\ndetermining which sources are subject to BART, States should consider a 1.0 deciview change\\nor more from an individual source to ‘cause’ visibility impairment, and a change of 0.5\\ndeciviews to ‘contribute’ to impairment.”). For a fuller background on the “cause” or\\n“contribute” distinction, see id. at 39,117–39,122.\\n 24 Id. at 39,120–39,121 (“In a regulatory context, we believe that a State’s decision as\\n\\nto an appropriate threshold for contribution could depend upon the number of sources\\naffecting a class I area.”).\\n 25 BART Guidelines, 40 C.F.R. Pt. 51, App. Y at III.\\n\\n 10\\n\\f Case: 18-60116 Document: 00515144673 Page: 11 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n The third step is the “BART determination,” in which a state must\\nidentify the appropriate emission control for each “subject to BART” source. 26\\nAt each such source, the state must consider five statutory factors: (1) the costs\\nof compliance, (2) the energy and nonair quality environmental impacts of\\ncompliance, (3) any existing pollution control technology in use at the source,\\n(4) the remaining useful life of the source, and (5) the degree of improvement\\nin visibility which may reasonably be anticipated to result from the use of such\\ntechnology. 27\\n For powerplants with generating capacities greater than 750 megawatts,\\nlike those at issue here, a state’s BART determination must comply with the\\nBART guidelines, 28 which provide step-by-step instructions for making BART\\ndeterminations. 29 In contrast, at the BART-eligibility and “subject to BART”\\nsteps, the BART guidelines are advisory only. 30\\n 2. Reasonable Progress Goals and Long-Term Strategy\\n The Regional Haze Rule requires a state to “establish goals (expressed\\nin deciviews) that provide for reasonable progress towards achieving natural\\nvisibility conditions” for each Class I area within that state. 31 The process and\\nconsiderations for calculating these goals are as follows:\\n\\n\\n\\n 26Id. at IV.\\n 2742 U.S.C. § 7491(g)(2); Regional Haze Rule, 40 C.F.R. § 308(e)(1)(ii)(A) .\\n 28 Regional Haze Rule, 40 C.F.R. § 51.308(e)(1)(ii)(B); 42 U.S.C. § 7491(b)(2); see also\\n\\n77 Fed. Reg. 11,839, 11,849 (Feb. 28, 2012).\\n 29 See BART Guidelines, 40 C.F.R. Part 51, App. Y § IV.\\n 30 Util. Air Regulatory Grp., 471 F.3d at 1338–39.\\n 31 40 C.F.R. § 51.308(d)(1).\\n\\n 11\\n\\f Case: 18-60116 Document: 00515144673 Page: 12 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n A state begins by calculating the steady linear rate of decreasing\\n emissions that would achieve natural visibility in the covered\\n wildernesses and national parks by the year 2064. 40 C.F.R.\\n § 51.308. If a state determines that the linear rate would result in\\n unreasonable regulations, it must propose an alternative set of\\n reasonable progress goals and demonstrate both that the linear\\n rate is unreasonable and that the alternative goals are reasonable.\\n Id. § 51.308(d)(1)(ii). The Clean Air Act and the Regional Haze\\n Rule require a state to consider four factors when setting\\n reasonable progress goals: “the costs of compliance, the time\\n necessary for compliance, and the energy and nonair quality\\n environmental impacts of compliance, and the remaining useful\\n life of any existing source subject to such requirements.” 42 U.S.C.\\n § 7491(g)(1); see also 40 C.F.R. § 51.308(d)(1)(i)(A) (repeating the\\n factors listed in § 7491(g)(1)). 32\\n\\nThe evaluation of the four statutory factors is often referred to as a “‘four-factor\\nanalysis’ or ‘reasonable progress analysis.’” 33\\n In addition to setting reasonable progress goals, a state must establish a\\n“long-term strategy” to make reasonable progress toward achieving natural\\nvisibility conditions. 34 This strategy must include “enforceable emissions\\nlimitations, compliance schedules, and other measures necessary to achieve\\nthe reasonable progress goals.” 35 As part of its long-term strategy, a state may\\nimpose additional emission reduction measures at sources that are not “subject\\nto BART.” 36 Sources that are regulated through the reasonable progress\\n\\n\\n 32 Texas, 829 F.3d at 412–13.\\n 33 81 Fed. Reg. 66,332, 66,360 (Sept. 27, 2016).\\n 34 40 C.F.R. § 51.308(d)(3).\\n 35 Id.; see 42 U.S.C. § 7491(b)(2)(A).\\n 36 40 C.F.R. § 51.308(d)(3).\\n\\n 12\\n\\f Case: 18-60116 Document: 00515144673 Page: 13 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\ngoals—rather than through BART—are referred to as “reasonable progress\\nsources.” 37\\nB. Factual Background\\n The procedural history of this case began when Louisiana submitted its\\nregional haze SIP to the EPA in 2008. Since then, Louisiana has revised and\\nresubmitted its SIP many times. Louisiana submitted its final SIP revisions in\\nOctober 2017, and the EPA approved Louisiana’s SIP in its December 2017\\nFinal Rule. 38\\n 1. Louisiana’s 2008 Submittal\\n Louisiana submitted a SIP for addressing regional haze in June 2008. In\\nthat SIP, Louisiana relied on an emissions-trading program called the Clean\\nAir Interstate Rule (“CAIR”) to satisfy its BART, reasonable-progress, and\\nlong-term strategy obligations. The EPA reviewed that SIP in two separate\\nactions in 2012. 39\\n The first such action, a national rulemaking, was based on a D.C. Circuit\\ndecision that (1) held that states could not rely on CAIR to satisfy their BART\\nobligations and (2) remanded CAIR to the EPA. 40 In that national rulemaking,\\nthe EPA finalized a “limited disapproval” of Louisiana’s SIP because it had\\nrelied on CAIR. 41\\n\\n\\n 37 Id.\\n 38 See Final Rule, 82 Fed. Reg. at 60,521–60,522 (“Our Previous Actions”).\\n 39 See 82 Fed. Reg. 32,294, 32,295 (July 13, 2017) (detailing the procedural history).\\n 40 See North Carolina v. EPA, 531 F.3d 896, 930 (D.C. Cir. 2008), reh’g granted in part,\\n\\n550 F.3d 1176 (D.C. Cir. 2008).\\n 41 77 Fed. Reg. 33,642, 33,643 (June 7, 2012).\\n\\n 13\\n\\f Case: 18-60116 Document: 00515144673 Page: 14 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n The second such action “partially disapproved” Louisiana’s SIP\\nsubmission based on issues other than, and “go[ing beyond],” the SIP’s reliance\\non CAIR. In addition to this “partial disapproval” of particular parts of\\nLouisiana’s SIP, that action also included a “partial limited approval” of other\\nparts of the SIP.\\n The “partial limited approval” part of that action was based on the EPA’s\\nconclusion that specified parts of the SIP, “as a whole, strengthen[ed] the\\nState’s SIP.” 42 Although the EPA concluded that some of the SIP provisions—\\nincluding Louisiana’s reasonable progress goals and long-term strategy—did\\nnot comply with the Clean Air Act, those noncompliant provisions were\\nincluded in the partial limited approval. 43\\n In the “partial disapproval” part of that action, the EPA disapproved the\\nparts of the SIP related to CAIR, including the BART analyses for non-electric\\ngenerating unit (“EGU”) sources 44 and the BART determinations for four\\nspecific non-EGU sources. 45 Those deficiencies are not at issue here.\\n A definitional note: Limited approvals and partial approvals are\\ndifferent. If a submittal does not meet all of the Act’s requirements, but a\\n“separable” part does meet those requirements, a “partial approval may be\\n\\n\\n 42 77 Fed. Reg. 39,425, 39,426 (July 3, 2012) (“2012 Final Rule”).\\n 43 See id.\\n 44 “[T]he term ‘electric generating unit’ or ‘EGU’ is used to mean a solid fuel-fired\\n\\nsteam generating unit that serves a generator that produces electricity for sale to the electric\\ngrid.” EPA Whitepaper on Available and Emerging Technologies for Reducing Greenhouse\\nGas Emissions from Coal-Fired Electric Generating Units (Oct. 2010),\\nhttps://www.epa.gov/sites/production/files/2015-12/documents/electricgeneration.pdf.\\n 45 2012 Final Rule, 77 Fed. Reg. at 39,426.\\n\\n 14\\n\\f Case: 18-60116 Document: 00515144673 Page: 15 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nused to approve that part of the submittal and disapprove the remainder.” 46 In\\ncontrast, if parts of a submittal do not meet the Clean Air Act’s requirements,\\nbut “the submittal as a whole” has a “strengthening effect” on the SIP, the EPA\\nmay use a “limited approval” to enact the entire submittal. 47 The practical\\ndifference is\\n that under a limited approval the EPA’s approval action goes to\\n the entire [submittal]. In other words, although portions of a\\n [submittal] prevent the EPA from finding that the [submittal]\\n meets a certain requirement of the Act, the EPA believes that the\\n [submittal], as a whole, strengthens the SIP. Therefore, the EPA\\n approves the entire [submittal]--even those portions that prohibit\\n full approval. Likewise, when the EPA issues the limited\\n disapproval, the disapproval applies to the entire [submittal] as\\n failing to meet a specific requirement of the Act. The [submittal]\\n remains a part of the [enforceable] SIP, however, under the limited\\n disapproval, because the [submittal] strengthens the SIP. The\\n disapproval only applies to whether the submittal meets a specific\\n requirement of the Act and does not affect incorporation of the rule\\n into the approved, federally enforceable SIP. 48\\n\\nIn short, in a partial approval, the approved parts of the submittal go into effect\\nand the disapproved parts do not. In a limited approval, the entire part that is\\n“limitedly” approved—including the provisions within that part that do not\\n\\n\\n\\n\\n 46 Processing of State Implementation Plan Revisions at 2, the EPA Memorandum\\nfrom John Calcagni (July 9, 1992), https://www.epa.gov/sites/production/files/2015-\\n07/documents/procsip.pdf.\\n 47 Id. at 2–3.\\n 48 Id. at 3.\\n\\n 15\\n\\f Case: 18-60116 Document: 00515144673 Page: 16 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\ncomply with the Clean Air Act—goes into effect and are incorporated into the\\napproved SIP.\\n As a result of the partial disapproval, the EPA was required to\\npromulgate a federal implementation plan within two years of that\\ndisapproval, unless it approved a corrected state plan. 49 The EPA did not\\npromulgate a federal plan or approve a corrected state plan within that\\ntimeframe. Based on that, the Sierra Club sued the EPA, and a federal district\\ncourt entered a consent decree requiring the EPA to issue a federal plan or\\napprove a corrected state plan by December 15, 2017. 50\\n 2. Louisiana’s 2017 Revisions and the EPA’s Approval\\n To bring its SIP into compliance, Louisiana revised its SIP to, among\\nother things, address BART for the Nelson and Brame powerplants. Nelson\\nand Brame are two of the largest sources of SO2 and NOx emissions in\\nLouisiana, are “BART-eligible,” and have generating capacities greater than\\n750 megawatts. 51\\n In August 2016, Louisiana submitted a partial plan addressing BART at\\n“non-EGU” sources. The EPA proposed to approve that partial plan in October\\n2016 and finalized the approval in the December 2017 Final Rule. 52 The\\napproval of that partial plan is not at issue here.\\n\\n\\n 49 42 U.S.C. § 7410(c)(1).\\n 50 See Notice of Modification of Consent Decree, Sierra Club v. Pruitt, No. 15-cv-01555-\\nJEB (D.D.C. Mar. 13, 2017).\\n 51 Final Rule, 82 Fed. Reg. at 60,525–26.\\n 52 81 Fed. Reg. 74,750 (Oct. 27, 2016) (proposed rulemaking); Final Rule, 82 Fed. Reg.\\n\\nat 60,522 (“[W]e are finalizing that approval here.”).\\n 16\\n\\f Case: 18-60116 Document: 00515144673 Page: 17 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n In February 2017, Louisiana submitted a revised plan addressing BART\\nfor EGU sources, including Nelson and Brame. In June 2017, Louisiana revised\\nits SIP to make a BART determination for Nelson. Louisiana revised its SIP\\nagain in October 2017. The EPA’s December 2017 Final Rule explains the\\nrelevant procedural history as follows:\\n On June 20, 2017, LDEQ submitted a SIP revision for parallel\\n processing related to Entergy’s Nelson facility. On July 13, 2017,\\n we proposed to approve this SIP revision along with the remaining\\n portion of the February 2017 SIP revision that addressed BART\\n for the Nelson facility. Specifically, we proposed to approve the\\n LDEQ BART determinations for Nelson Units 6 and 4, and the\\n Unit 4 auxiliary boiler, and the [administrative order on consent]\\n that makes the emission limits that represent BART permanent\\n and enforceable for the purposes of regional haze. We also solicited\\n comment with respect to any information that would support or\\n refute the costs in Entergy’s evaluation of SO2 controls for Unit 6.\\n On June 21, 2017, Entergy submitted a comment to LDEQ on its\\n proposed SIP revision requesting a three-year compliance deadline\\n to achieve the proposed SO2 BART limit for Nelson Unit 6.\\n Entergy’s letter explained that the company has coal contracts in\\n place for the next three years, so the revised compliance date would\\n provide the company sufficient time to transition to new mines\\n with lower sulfur coal. Additionally, Entergy stated that it did not\\n have the necessary equipment to blend varying fuel supplies. On\\n August 24, 2017, we received a letter from LDEQ explaining their\\n intent to revise the compliance date in the SIP revision for Nelson\\n Unit 6 based on Entergy’s comment letter. On September 26, 2017,\\n we supplemented our proposed approval of the SO2 BART\\n determination for Nelson by proposing to approve the three-year\\n compliance date. On October 26, 2017, we received LDEQ’s final\\n SIP revision addressing Nelson, including a final [administrative\\n order of consent] with emission limits and a SO2 compliance date\\n\\n 17\\n\\f Case: 18-60116 Document: 00515144673 Page: 18 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n three years from the effective date of the EPA’s final approval of\\n the SIP revision. 53\\n\\n In the October 2017 SIP revisions, Louisiana (1) determined that Nelson\\nand Brame were “subject to BART” and (2) determined that low-sulfur coal was\\nBART for controlling SO2 emissions at Nelson.\\n In reaching those conclusions, Louisiana considered analyses submitted\\nby Entergy, Cleco, and the EPA. The analyses submitted by the parties\\naddressed: (1) the modeling methods for making “subject to BART”\\ndeterminations and (2) the potential control options for BART at Nelson. The\\nEPA’s analyses contradicted and sharply criticized significant parts of\\nEntergy’s and Cleco’s analyses. The LDEQ included all the analyses as\\nappendices to its revised SIP.\\n i. The “Subject to BART” Determinations\\n The LDEQ concluded that Nelson and Brame were “subject to BART.”\\nThe department reached that conclusion based on dispersion modeling that\\nestablished that those powerplants produced emissions that surpassed the 0.5\\ndeciview threshold for “contributing to” visibility impairment at the Breton\\nNational Wilderness Area and the Caney Creek Wilderness Area.\\n The LDEQ relied on the “CALPUFF” model, which “predicts 24-hour\\naverage pollutant concentrations based on source emissions and how they\\ndisperse in the atmosphere” and converts those concentrations to daily\\n\\n\\n\\n\\n 53 82 Fed. Reg. at 60,522.\\n 18\\n\\f Case: 18-60116 Document: 00515144673 Page: 19 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\ndeciview effects. 54 The BART guidelines provide that a state may “use\\nCALPUFF or other appropriate model to estimate visibility impacts from a\\nsingle source at a Class I area.” 55 When the EPA promulgated those guidelines\\nin 2005, CALPUFF was “the best regulatory modeling application currently\\navailable for predicting a single source’s contribution to visibility impairment\\nand [was then] the only EPA-approved model for use in estimating single\\nsource pollutant concentrations resulting from the long range transport of\\nprimary pollutants.” 56 Although the EPA has recently removed CALPUFF as\\na “preferred” model for other air-quality modeling applications under the Clean\\nAir Act, CALPUFF remains a recommended model for making “subject-to-\\nBART” and BART emission control determinations. 57\\n Both Entergy’s and the EPA’s CALPUFF modeling showed that Nelson\\nand Brame each had a greater than 0.5 deciview impact on visibility\\nimpairment at Breton and Caney Creek. Entergy, however, submitted reports\\nshowing that CALPUFF’s reliance on flawed assumptions imposed a too-high\\nmargin of error.\\n In addition to conducting CALPUFF modeling, Entergy and the EPA\\nconducted another type of modeling called “CAMx.” Entergy and the EPA\\nsubmitted their CAMx analyses to the LDEQ.\\n\\n\\n 54 See BART Rule, 70 Fed. Reg. at 39,122 (describing the CALPUFF model in detail).\\n 55 BART Guidelines, 40 C.F.R. Part 51, App. Y, III.A.3.\\n 56 Id.\\n 57 82 Fed. Reg. 5,182, 5,196 (Jan. 17, 2017) (“[T]his final action does not affect the\\n\\nEPA’s recommendation that states use CALPUFF to determine the applicability and level of\\nbest available retrofit technology in regional haze implementation plans.”).\\n 19\\n\\f Case: 18-60116 Document: 00515144673 Page: 20 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n The EPA’s CAMx modeling showed that Nelson and Brame exceeded the\\n0.5 deciview threshold. In contrast, Entergy’s CAMx modeling showed that\\nthose powerplants’ emissions did not exceed the 0.5 deciview threshold. The\\nEPA, however, concluded that Entergy’s CAMx modeling “was not conducted\\nin accordance with the BART Guidelines and d[id] not properly assess\\nmaximum baseline impacts, so [the EPA] consider[ed] this CAMx modeling\\nprovided by Entergy to be invalid for supporting a determination of minimal\\nvisibility impacts.” 58\\n When the LDEQ reviewed the models that the parties had submitted, it\\nstated that it did “not have the expertise with which to review those [CAMx]\\nmodel runs,” and instead relied only on the CALPUFF modeling. The LDEQ\\ndid, however, include the CAMx analyses as appendices to its revised SIP.\\n ii. BART Determinations for Brame and Nelson\\n Louisiana’s revised SIP also made BART determinations for Brame and\\nNelson. For the two Brame units, the LDEQ determined that “no additional\\ncontrols constitute[d] BART.” The LDEQ reached that determination based on\\nthose units’ existing controls. At one of those units, BART was satisfied via the\\nunit’s earlier conversion from coal to natural gas. The other unit satisfied its\\nBART obligations based on an earlier dry sorbent injection installation. 59\\n For Nelson, the LDEQ changed its BART determination between the\\nFebruary 2017 revision and the June and October 2017 revisions. In the\\n\\n\\n 82 Fed. Reg. at 32,299.\\n 58\\n\\n Cleco does not challenge the LDEQ’s determination about the BART controls at the\\n 59\\n\\nBrame units; it challenges only the determination that the units are “subject to BART.”\\n 20\\n\\f Case: 18-60116 Document: 00515144673 Page: 21 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nFebruary 2017 SIP revision, the LDEQ concluded that no additional controls\\nwere necessary for Nelson to satisfy BART. Although the LDEQ stated that\\n“low sulfur coal presents the most feasible control based on economics and\\nimpacts to visibility,” it also stated that it “believe[d] that the visibility\\nimprovement that would be achieved through the installation and operation of\\ncontrols at each of the Nelson units would be negligible, therefore the facility’s\\nexisting controls satisfy the BART requirements and no further controls are\\nnecessary.”\\n In its June 2017 SIP revision, however, the LDEQ changed course and\\ndetermined that low-sulfur coal was BART for controlling SO2 at Nelson. The\\nOctober 2017 SIP revision retained that determination and extended the\\ncompliance date for BART at Nelson by three years.\\n In the October 2017 SIP revision, the LDEQ stated that it evaluated four\\ndifferent technologies for reducing emissions at Nelson: (1) low-sulfur coal, (2)\\ndry sorbent injection (“DSI”), (3) dry flue-gas desulfurization (“FGD”), or a “dry\\nscrubber,” and (4) wet FGD, or a “wet scrubber.” The LDEQ stated its\\nreasoning for selecting low-sulfur coal as BART at Nelson as follows:\\n In the Entergy BART five-factor SO2 analysis for the Unit 6\\n Boiler, a number of emission reduction controls were reviewed.\\n The reviewed controls included the use of a lower sulfur coal, DSI,\\n enhanced DSI, dry flue-gas desulfurization (FGD) and wet FGD.\\n LDEQ has reviewed and weighed the five factors carefully; after a\\n review of the information that Entergy and EPA provided, LDEQ\\n has concluded that the appropriate BART for this facility is to\\n establish an emission limit of .6 lbs/MMBtu based on a 30 day\\n rolling average as defined in the AOC (see Appendix D). While\\n additional visibility benefits may be available through the use of\\n 21\\n\\f Case: 18-60116 Document: 00515144673 Page: 22 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n FGD, the lower sulfur coal option results in visibility benefits at a\\n lower annual cost. Along with the extra cost, FGD use results in\\n additional waste spent due to spent reagent and has some power\\n demands to run the equipment. LDEQ believes, at present, that\\n the use of lower sulfur coal presents the appropriate SO2 control\\n based on consideration of economics, energy impacts, non-air\\n quality environmental impacts, and impacts to visibility.\\n\\n iii. Long-Term Strategy and Reasonable Progress Goals\\n\\n Louisiana’s revised SIP did not specifically set out a long-term strategy\\nor impose emission controls at additional “reasonable progress sources.”\\nNeither did it evaluate the four “reasonable progress factors” for determining\\nwhether any non-BART reasonable progress sources should be controlled.\\n 3. The EPA’s Approval of Louisiana’s SIP\\n The EPA proposed two separate rules to approve Louisiana’s revised\\nSIP. In May 2017, the EPA issued a proposed rule to approve the entire\\nFebruary 2017 SIP revision except for the part about Nelson, on which the EPA\\ndeferred action. 60 This rulemaking included an approval of Louisiana’s “subject\\nto BART” determination for Brame. 61\\n In June 2017, Louisiana revised its SIP by changing its previous “no\\nfurther controls” BART determination for Nelson to require the use of low-\\nsulfur coal. In a July 2017 rulemaking (“the Proposed Rule”), the EPA proposed\\nto approve the remaining part of Louisiana’s SIP addressing Nelson. 62 The\\n\\n\\n\\n 60 82 Fed. Reg. 22,936 (May 19, 2017).\\n 61 Id. at 22,942–22,943.\\n 62 Proposed Rule, 82 Fed. Reg. 32,294, 32,300 (July 13, 2017).\\n\\n 22\\n\\f Case: 18-60116 Document: 00515144673 Page: 23 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nProposed Rule (1) agreed with the LDEQ that Nelson was “subject to BART”\\nand (2) stated that the LDEQ had adequately analyzed the five mandatory\\nBART factors. 63 But the Proposed Rule also criticized several aspects of the\\nSIP revision, including Entergy’s modeling, cost estimates, and supporting\\ndocumentation. The Proposed Rule stated that the EPA performed its own\\nmodeling and analyses to correct those errors. 64\\n After the EPA issued the Proposed Rule, Louisiana submitted a letter to\\nthe EPA explaining the state’s intention to extend the compliance date in its\\ndraft SIP for Nelson by three years. In response to that letter, the EPA\\nsupplemented the Proposed Rule to reflect such change. 65\\n Louisiana revised its SIP again in October 2017. As discussed above, that\\nrevision extended the date for Nelson to comply with BART by three years. The\\nEPA finalized its proposed approval of all of Louisiana’s SIP revisions when it\\nissued the Final Rule on December 21, 2017. 66\\n The Environmental and Industry Petitioners timely petitioned for\\nreview of the Final Rule. On the same day that this case was filed, the\\nEnvironmental Petitioners also filed an administrative petition for\\nreconsideration of the Final Rule. This court stayed the case pending the EPA’s\\n\\n\\n\\n\\n 63 Id. at 32,296–32,297.\\n 64 Id. at 32,297–32,298.\\n 65 82 Fed. Reg. 44,753 (Sept. 26, 2017).\\n 66 Final Rule, 82 Fed. Reg. 60,520 (Dec. 21, 2017).\\n\\n 23\\n\\f Case: 18-60116 Document: 00515144673 Page: 24 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\ndecision on the administrative petition, then lifted the stay after the EPA\\ndenied that petition. 67\\n II. STANDARD OF REVIEW\\n We review the EPA’s approval of Louisiana’s regional haze SIP under\\nthe standards set out in the Administrative Procedure Act (“APA”), which\\nrequire us to set aside an agency action that is “arbitrary, capricious, an abuse\\nof discretion, or otherwise not in accordance with law.” 68 An action is arbitrary\\nand capricious “if the agency has relied on factors which Congress has not\\nintended it to consider, entirely failed to consider an important aspect of the\\nproblem, offered an explanation for its decision that runs counter to the\\nevidence before the agency, or is so implausible that it could not be ascribed to\\na difference in view or the product of agency expertise.” 69\\n The arbitrary and capricious standard is “narrow,” and we must “be\\nmindful not to substitute [our] judgment for that of the agency.” 70 We “must\\nalso ensure that the agency ‘examined the relevant data and articulated a\\nsatisfactory explanation for its action.’” 71 “We consider whether the decision\\n\\n\\n\\n 67 See EPA’s Response to Reconsideration Petition, https://www.regulations.gov/\\ncontentStreamer?documentId=EPA-R06-OAR-2016-0520-0011&contentType=pdf. Although\\nwe take notice of the administrative petition for reconsideration and the EPA’s response to\\nit, our review of the Final Rule “is limited to the record before the agency at the time of its\\ndecision.” Luminant, 675 F.3d at 925 (quotation omitted).\\n 68 5 U.S.C. § 706(2)(A).\\n 69 Tex. Oil & Gas Ass’n v. EPA, 161 F.3d 923, 933 (5th Cir. 1998) (quoting Motor\\n\\nVehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)).\\n 70 10 Ring Precision, Inc. v. Jones, 722 F.3d 711, 723 (5th Cir. 2013) (quoting Motor\\n\\nVehicle Mfrs. Ass’n, 463 U.S. at 43).\\n 71 Id. (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).\\n\\n 24\\n\\f Case: 18-60116 Document: 00515144673 Page: 25 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nwas based on a consideration of the relevant factors and whether there has\\nbeen a clear error of judgment.” 72\\n Additionally, federal agencies “are required to engage in ‘reasoned\\ndecisionmaking.’” 73 The agency’s process must be “logical and rational,” and its\\ndecision “is lawful only if it rests ‘on a consideration of the relevant factors.’” 74\\nThe agency must “articulate a satisfactory explanation for its action including\\na ‘rational connection between the facts found and the choice made.’” 75 Under\\nthis standard, courts have vacated agency decisions that created “unexplained\\ninconsistencies in the rulemaking record.” 76\\n Under the Clean Air Act’s structure of cooperative federalism, Louisiana\\nis the entity considering “relevant factors,” and the EPA’s role is confined to\\nensuring that Louisiana’s determinations complied with the Clean Air Act. 77\\nUnder this structure, we review whether the EPA was arbitrary and capricious\\nin approving Louisiana’s compliance with the Act.\\n\\n\\n\\n 72 Id. (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).\\n 73 Michigan v. EPA, 135 S. Ct. 2699, 2706 (2015) (quoting Allentown Mack Sales &\\nServ., Inc. v. NLRB, 622 U.S. 359, 374 (1998)).\\n 74 Id. (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).\\n 75 Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (quoting Burlington Truck Lines v. United\\n\\nStates, 371 U.S. 156, 168 (1962)).\\n 76 U.S. Sugar Corp. v. EPA, 830 F.3d 579, 651 (D.C. Cir. 2016); see id. at 650 (collecting\\n\\nD.C. Circuit authority and stating “[t]his court has ‘often declined to affirm an agency\\ndecision if there are unexplained inconsistencies in the final rule’” (citation omitted)); Gulf\\nPower Co. v. FERC, 983 F.2d 1095, 1101 (D.C. Cir. 1993) (“[W]hen an agency takes\\ninconsistent positions . . . it must explain its reasoning.); Gen. Chem. Corp. v. United States,\\n817 F.2d 844, 846 (D.C. Cir. 1987) (holding agency action to be arbitrary because its analysis\\nwas “internally inconsistent and inadequately explained”).\\n 77 See Texas, 829 F.3d at 411.\\n\\n 25\\n\\f Case: 18-60116 Document: 00515144673 Page: 26 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n III. ANALYSIS\\n As a threshold matter, Industry Petitioners and Environmental\\nPetitioners have standing. Industry Petitioners’ standing is based on Entergy’s\\nand Cleco’s ownership of the powerplants at issue. Environmental Petitioners\\nhave standing because one of the Sierra Club’s members submitted a\\ndeclaration adequately asserting that (1) he regularly visits the national parks\\nin question, (2) he has concrete plans to return in the future, and (3) regional\\nhaze affects his visibility. Although the declarations submitted by the National\\nParks Conservation Association do not appear to give it standing in this case,\\n“one party with standing is sufficient to satisfy Article III’s case-or-controversy\\nrequirement.” 78\\n Each petition raises two major issues. Environmental Petitioners\\nchallenge the EPA’s approval of (1) Louisiana’s selection of low-sulfur coal as\\nBART for controlling SO2 emissions at Nelson and (2) Louisiana’s reasonable\\nprogress goals and long-term strategy.\\n Industry Petitioners challenge the EPA’s approval of Louisiana’s\\n“subject to BART” determinations at Nelson and Brame. They contend that (1)\\nthe CALPUFF modeling that Louisiana relied on was technically flawed; (2)\\nthe CAMx modeling, on which the EPA relied but Louisiana did not, was\\ntechnically flawed; and (3) even if the CAMx modeling were not technically\\n\\n\\n\\n\\n 78Brackeen v. Bernhardt, 937 F.3d 406, 421 (5th Cir. 2019) (quoting Rumsfeld v.\\nForum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 53 n.2 (2006)).\\n 26\\n\\f Case: 18-60116 Document: 00515144673 Page: 27 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nflawed, the EPA should not have considered it because Louisiana expressly did\\nnot consider it.\\n We address each issue in turn.\\nA. The Environmental Petitioners’ Petition\\n The first part of Environmental Petitioners’ challenge addresses the\\nEPA’s approval of Louisiana’s determination that low-sulfur coal was BART\\nfor Nelson. The second part of their challenge addresses the EPA’s approval of\\nLouisiana’s long-term strategy and reasonable progress goals.\\n We deny Environmental Petitioners’ petition, and we explain our\\nreasons below.\\n 1. The EPA’s Approval of the BART Determination for Nelson\\n In its October 2017 SIP revision, Louisiana selected low-sulfur coal as\\nBART for controlling SO2 emissions at Nelson. The LDEQ explained its\\ndetermination as follows:\\n In the Entergy BART five-factor SO2 analysis for the Unit 6\\n Boiler, a number of emission reduction controls were reviewed.\\n The reviewed controls included the use of a lower sulfur coal, DSI,\\n enhanced DSI, dry flue-gas desulfurization (FGD) and wet FGD.\\n LDEQ has reviewed and weighed the five factors carefully; after a\\n review of the information that Entergy and EPA provided, LDEQ\\n has concluded that the appropriate BART for this facility is to\\n establish an emission limit of .6 lbs/MMBtu based on a 30 day\\n rolling average as defined in the AOC (see Appendix D). While\\n additional visibility benefits may be available through the use of\\n FGD, the lower sulfur coal option results in visibility benefits at a\\n lower annual cost. Along with the extra cost, FGD use results in\\n additional waste spent due to spent reagent and has some power\\n demands to run the equipment. LDEQ believes, at present, that\\n 27\\n\\f Case: 18-60116 Document: 00515144673 Page: 28 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n the use of lower sulfur coal presents the appropriate SO2 control\\n based on consideration of economics, energy impacts, non-air\\n quality environmental impacts, and impacts to visibility.\\n\\n Environmental Petitioners contend that the EPA’s approval of this\\ndetermination was arbitrary and capricious for three reasons. First,\\nLouisiana’s selection of low-sulfur coal as BART at Nelson was inconsistent\\nwith the evidence that the state considered. Second, Louisiana did not provide\\na “rational basis” for rejecting more effective pollution controls. Third, in its\\nBART determination, Louisiana did not weigh the Clean Air Act’s factors in\\ncompliance with the mandatory BART guidelines.\\n i. The Evidence Louisiana Considered\\n According to Environmental Petitioners, Louisiana’s BART\\ndetermination rested solely on analysis by Nelson’s owner, Entergy.\\nEnvironmental Petitioners point out that the EPA was “unable to verify any of\\nthe company’s costs” because those costs were based on a proprietary database\\nto which the EPA was not given access. 79 Similarly, the EPA could not verify\\nEntergy’s modeling analyses because Entergy did not provide the “inputs” that\\nwere used in the modeling.\\n For the parts of Entergy’s analyses that the EPA did review, the EPA\\nconcluded that Entergy’s cost and visibility analyses, on which Louisiana\\nrelied, had many errors, including: (1) implementing improper costs, (2)\\ninflated contingency estimates, and (3) modeling errors. The EPA pointed out\\n\\n\\n\\n 79 Proposed Rule, 82 Fed. Reg. at 39,432.\\n 28\\n\\f Case: 18-60116 Document: 00515144673 Page: 29 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nthese errors in the Proposed Rule: (1) “Entergy’s control cost estimates\\nincluded costs not allowed under our Control Cost Manual (e.g., escalation\\nduring construction and owner’s costs)”; (2) “Entergy also assumed a\\ncontingency of 25%, which we note is unusually high”; and (3) “Entergy’s\\nCALPUFF modeling included errors in its estimates of sulfuric acid and PM\\nemissions.” 80\\n After noting these perceived errors, the EPA submitted its own BART\\nanalyses that reached markedly different cost-effectiveness estimates for each\\nproposed control option at Nelson. The following table compares the EPA’s and\\nEntergy’s cost-effectiveness calculations, in cost per ton of pollutant removed,\\nfor each control option.\\n Cost-Effectiveness Comparison 81\\n Technology Entergy’s Calculation the EPA’s Calculation\\n Low-sulfur coal $597 $2,957\\n DSI $5,611 $3,578 - $4,302\\n Wet scrubber $4,413 $2,743\\n Dry scrubber (SDA) $4,536 $2,706\\n\\n Most striking is the difference between the EPA’s and Entergy’s\\ncalculations for low-sulfur coal. Entergy estimated that low-sulfur coal would\\ncost $597 per ton of pollution removed; the EPA estimated that it would cost\\n$2,957 per ton. Entergy’s estimate for what the parties agree would be the most\\n\\n\\n 80Proposed Rule, 82 Fed. Reg. at 32,298–32,299.\\n 81The Proposed Rule contains a thorough narrative discussion of the EPA’s analyses\\nand the problems with Entergy’s analyses. 82 Fed. Reg. at 32,298–32,299.\\n 29\\n\\f Case: 18-60116 Document: 00515144673 Page: 30 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\neffective option—a dry scrubber—was significantly higher than the EPA’s\\nestimate. Entergy’s estimate was $4,536 per ton of pollution removed; the\\nEPA’s was $2,706 per ton.\\n Similarly, the EPA’s conclusions about the visibility improvements for\\neach option differed from Entergy’s conclusions. In the Proposed Rule, the EPA\\nexplained that the differences resulted from Entergy’s model’s failure to follow\\nthe BART guidelines. 82 The following chart compares the visibility\\nimprovement calculations (in deciviews) for each control option.\\n Expected Visibility Improvement Comparison for Caney Creek\\n Technology Trinity Consultants’ the EPA’s Calculation\\n Calculation\\n Low-sulfur coal 0.164 0.411\\n DSI 0.302 0.511\\n Dry scrubber (SDA) 0.355 0.831\\n\\n According to Environmental Petitioners, Louisiana’s reliance on\\nEntergy’s analyses—which the EPA’s analyses concluded overestimated the\\ncosts and underestimated the benefits of more effective pollution controls—was\\nirrational. After the EPA informed Louisiana of those errors, that state\\nreached the same BART determination. In its SIP revision, Louisiana did not\\nacknowledge the EPA’s criticisms and did not attempt to reconcile the\\n\\n\\n 82 82 Fed. Reg. at 32,299 (“As we discuss above and in the CAMx Modeling TSD,\\nEntergy also provided additional screening modeling results using CAMx to support its\\nconclusion that visibility impacts from Unit 6 are minimal. However, this modeling was not\\nconducted in accordance with the BART Guidelines and does not properly assess maximum\\nbaseline impacts, so we consider this CAMx modeling provided by Entergy to be invalid for\\nsupporting a determination of minimal visibility impacts.”).\\n 30\\n\\f Case: 18-60116 Document: 00515144673 Page: 31 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nconflicting the EPA and Entergy analyses. Environmental Petitioners insist\\nthat Louisiana’s failure to explain why its decision remained unchanged after\\nreviewing the EPA’s contradictory analyses created an “unexplained\\ninconsistenc[y] in the rulemaking record” that made the EPA’s approval\\narbitrary and capricious. 83\\n The EPA does not defend these discrepancies. In its brief, it concedes\\nthat the agency “was aware of these errors when it approved the SIP,”\\nacknowledges that the SIP revision contained “a number of errors,” and\\ndescribes Entergy’s submissions as “Entergy’s faulty analyses.”\\n The EPA contends that, despite these errors, Louisiana “may, to the\\nextent supported by the record as a whole, reach the same conclusion both\\nbefore and after reviewing a particular set of information.” 84 The EPA points\\nto the fact that its own analyses were in the record and that the LDEQ included\\nthose analyses in an appendix to the revised SIP. The EPA insists that, based\\non the agency’s earlier review of the “entirety of” Louisiana’s SIP submission,\\nLouisiana considered all the information in its October 2017 SIP submission,\\nweighed that information in arriving at its final BART determination, and\\nexplained the reasons for its decision.\\n Industry Respondents defend the analyses they submitted to the LDEQ\\nand insist that those analyses adequately supported Louisiana’s BART\\ndetermination. They criticize the analyses that the EPA submitted to the\\n\\n\\n 83U.S. Sugar Corp, 830 F.3d 579 at 651.\\n 84See 42 U.S.C. § 7410(k)(3) (“[the EPA] shall approve such submittal as a whole if it\\nmeets all of the applicable requirements of [the Act].”).\\n 31\\n\\f Case: 18-60116 Document: 00515144673 Page: 32 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nLDEQ and challenge the EPA’s earlier determination that their analyses failed\\nto comply with the BART guidelines.\\n Environmental Petitioners have the better arguments on this point.\\nEntergy and the EPA reached significantly different conclusions about the\\ncosts and visibility improvements of each emission control. But after the EPA\\nsubmitted analyses pointing out flaws in Entergy’s analysis, the LDEQ did not\\ndiscuss the EPA-identified errors, and it reached the same BART\\ndetermination for Nelson as it did before the EPA identified mistakes. Given\\nthe EPA’s analysis showing that Entergy significantly underestimated the cost\\nof low-sulfur coal and overestimated the cost of a scrubber, Louisiana’s failure\\nto address or reconcile the conflicting analyses appears to create an\\n“unexplained inconsistenc[y]” in the rulemaking record. 85 Although that\\nshortcoming in Louisiana’s SIP is worthy of careful scrutiny, it does not fully\\nresolve the matter.\\n ii. Rational Explanation for Rejecting a More Effective\\n Control\\n Environmental Petitioners next contend that Louisiana did not provide\\na rational explanation for rejecting a more effective pollution control at Nelson.\\nThey point to the EPA’s past actions that reviewed BART determinations for\\nwhether the costs and visibility benefits of a determination were within the\\nrange of the EPA’s prior BART determinations. 86 They also cite the BART\\n\\n\\n\\n 85See U.S. Sugar Corp., 830 F.3d at 651.\\n 86See 82 Fed. Reg. 912,938 (Jan. 4, 2017) (“[T]he cost-effectiveness of all of the controls\\nthat form the basis of our proposed BART determinations are within a range found to be\\n 32\\n\\f Case: 18-60116 Document: 00515144673 Page: 33 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nguidelines, which recommend that “[a] reasonable range would be a range that\\nis consistent with the range of cost effectiveness values used in other similar\\npermit decisions over a period of time.” 87\\n The LDEQ’s SIP revisions did not provide cost-effectiveness numbers for\\nany of the control options it considered. Based on the LDEQ’s failure to include\\nthose numbers in its SIP, the EPA was not able to compare the instant BART\\ndetermination with the EPA’s previously approved BART determinations.\\nAccording to Environmental Petitioners, this lack of a comparison to prior\\nEPA-approved BART determinations amounts to an “unexplained deviation\\nfrom past practice.” 88\\n To bolster this argument, Environmental Petitioners compared the\\nEPA’s cost-effectiveness numbers for a scrubber with all of the EPA’s prior\\nBART determinations. Environmental Petitioners included a graph of those\\nresults, which shows that the cost-effectiveness numbers for a scrubber align\\nwith the EPA’s prior BART decisions.\\n The EPA responds that, although in other actions it has stated that\\ncomparisons to prior BART determinations are helpful, the BART guidelines\\ndo not require such comparisons. The EPA points to the Final Rule’s\\nstatements explaining that BART determinations depend on the unique\\n\\n\\n\\n\\nacceptable in other case.”); 80 Fed. Reg. 18,944, 18,952 (Apr. 8, 2015) (“[T]he cost effectiveness\\n. . . is within the range of what we consider to be cost-effective for BART.”).\\n 87 BART Guidelines, 40 C.F.R. part 51, App. Y § IV.D.4.f.\\n 88 See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125–26 (2016); WildEarth\\n\\nGuardians v. EPA, 770 F.3d 919, 941 (10th Cir. 2014).\\n 33\\n\\f Case: 18-60116 Document: 00515144673 Page: 34 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\ncircumstances of each source and that “[s]ome variation is to be expected\\nbecause SIP actions are highly fact-dependent.” 89 The EPA also cites several\\ncases holding that states have broad authority to weigh the statutory factors\\nand to pick appropriate emission controls. 90\\n The EPA has the better argument on this point. Louisiana has the\\nauthority to select the appropriate BART emission control. The fact that a\\nscrubber more closely aligns with the EPA’s prior BART determinations did\\nnot preclude Louisiana from choosing low-sulfur coal instead. The guideline\\nthat Environmental Petitioners cite does not require that BART\\ndeterminations align with the EPA’s prior BART determinations:\\n You should provide documentation of any unusual circumstances\\n that exist for the source that would lead to cost-effectiveness\\n estimates that would exceed that for recent retrofits. This is\\n especially important in cases where recent retrofits have cost-\\n effectiveness values that are within what has been considered a\\n reasonable range, but your analysis concludes that costs for the\\n source being analyzed are not considered reasonable. (A\\n reasonable range would be a range that is consistent with the\\n range of cost effectiveness values used in other similar permit\\n decisions over a period of time.) 91\\n\\n Although the parties do not explain how low-sulfur coal compares to the\\nEPA’s prior BART determinations, the record is devoid of any “unusual\\n\\n\\n\\n 89 82 Fed. Reg. at 60,534–60,535.\\n 90 See Oklahoma v. EPA, 723 F.3d 1201, 1209 (10th Cir. 2013) (“[S]tates ha[ve] broad\\nauthority to weigh the statutory factors and make BART determinations.”); see also Ariz. ex\\nrel. Darwin v. EPA, 852 F.3d 1148, 1161 (9th Cir. 2017).\\n 91 BART Guidelines, 40 C.F.R. part 51, App. Y § IV.D.4.f.\\n\\n 34\\n\\f Case: 18-60116 Document: 00515144673 Page: 35 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\ncircumstances” indicating that low-sulfur coal’s cost-effectiveness estimates\\nare out of line with prior BART determinations. Therefore, the guideline\\naddressing “similar permit decisions over a period of time” does not apply here.\\n iii. Weighing the Statutory Factors and Compliance with\\n the BART Guidelines\\n In making a BART determination, a state “shall take into consideration”\\nfive factors: (1) the costs of compliance, (2) the energy and nonair quality\\nenvironmental impacts of compliance, (3) any existing pollution control\\ntechnology in use at the source, (4) the remaining useful life of the source, and\\n(5) the degree of improvement in visibility that may reasonably be anticipated\\nto result from the use of such technology. 92 States have discretion as to “the\\nweight and significance” of each factor, as well as the appropriate emission\\ncontrol that qualifies as BART at a given source. 93\\n In addition to considering those statutory factors, for powerplants with\\ngenerating capacities greater than 750 megawatts, like Nelson and Brame, the\\nstate’s BART determination “shall be determined pursuant to [the BART]\\nguidelines.” 94 The BART guidelines state:\\n From the alternatives you evaluated . . . we recommend you\\n develop a chart (or charts) displaying for each of the alternatives:\\n\\n (1) Expected emission rate . . . ;\\n\\n\\n 92 42 U.S.C. § 7491(g)(2).\\n 93 BART Rule, 70 Fed. Reg. at 39,123; see Oklahoma, 723 F.3d at 1209 (“[S]tates ha[ve]\\nbroad authority to weigh the statutory factors and make BART determinations.”).\\n 94 42 U.S.C. § 7491 (b)(2)(B); see 40 C.F.R. § 51.308(e)(1)(ii)(B). In its brief, the EPA\\n\\nconcedes that the BART Guidelines are mandatory at this step.\\n 35\\n\\f Case: 18-60116 Document: 00515144673 Page: 36 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n (2) Emissions performance level . . . ;\\n (3) Expected emissions reductions . . . ;\\n (4) Costs of compliance—total annualized costs ($), cost\\n effectiveness ($/ton), and incremental cost effectiveness\\n ($/ton), and/or any other cost-effectiveness measures (such\\n as $/deciview);\\n (5) Energy impacts;\\n (6) Non-air quality environmental impacts; and\\n (7) Modeled visibility impacts. 95\\n\\n ....\\n You have discretion to determine the order in which you should\\n evaluate control options for BART. Whatever the order in which\\n you choose to evaluate options, you should always (1) display the\\n options evaluated; (2) identify the average and incremental costs\\n of each option; (3) consider the energy and non-air quality\\n environmental impacts of each option; (4) consider the remaining\\n useful life; and (5) consider the modeled visibility impacts. You\\n should provide a justification for adopting the technology that you\\n select as the “best” level of control, including an explanation of the\\n CAA factors that led you to choose that option over other control\\n levels. 96\\n\\n The LDEQ’s explanation of its determination that low-sulfur coal was\\nBART for Nelson states:\\n In the Entergy BART five-factor SO2 analysis for the Unit 6\\n Boiler, a number of emission reduction controls were reviewed.\\n The reviewed controls included the use of a lower sulfur coal, DSI,\\n enhanced DSI, dry flue-gas desulfurization (FGD) and wet FGD.\\n LDEQ has reviewed and weighed the five factors carefully; after a\\n review of the information that Entergy and EPA provided, LDEQ\\n\\n 95 BART Guidelines, 40 C.F.R. part 51, App. Y § IV.E.1 (emphasis added).\\n 96 Id. (emphasis added).\\n 36\\n\\f Case: 18-60116 Document: 00515144673 Page: 37 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n has concluded that the appropriate BART for this facility is to\\n establish an emission limit of .6 lbs/MMBtu based on a 30 day\\n rolling average as defined in the AOC (see Appendix D). While\\n additional visibility benefits may be available through the use of\\n FGD, the lower sulfur coal option results in visibility benefits at a\\n lower annual cost. Along with the extra cost, FGD use results in\\n additional waste spent due to spent reagent and has some power\\n demands to run the equipment. LDEQ believes, at present, that\\n the use of lower sulfur coal presents the appropriate SO2 control\\n based on consideration of economics, energy impacts, non-air\\n quality environmental impacts, and impacts to visibility.\\n\\n In the 2017 Final Rule, the EPA approved this explanation as compliant\\nwith the Clean Air Act. The Final Rule relied on the language in the revised\\nSIP, which states that “LDEQ has weighed the five factors carefully” and\\nreached its decision “after a review of both Entergy’s and the EPA’s\\ninformation.” 97 Referring to this statement, the Final Rule concludes:\\n This indicates that the State reviewed the information it received\\n from both Entergy and the EPA, and thus had adequate\\n information upon which to base its determination. After reviewing\\n the relevant information contained in LDEQ’s SIP, we determined\\n that the State’s SIP meets the requirements of the Act and the\\n applicable regulations and guidance. 98\\n\\n Environmental Petitioners challenge the EPA’s approval of the LDEQ’s\\nexplanation of its BART determination. Those Petitioners contend that,\\nbecause the LDEQ failed to discuss how it weighed each statutory factor, it did\\nnot comply with the BART guidelines and therefore did not satisfy its\\n\\n\\n 97 Final Rule, 82 Fed. Reg. at 60,532.\\n 98 Id.\\n 37\\n\\f Case: 18-60116 Document: 00515144673 Page: 38 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nobligations under the Clean Air Act. They point to the LDEQ’s failure to\\nevaluate (1) the existing pollution controls at Nelson, (2) the remaining useful\\nlife of Nelson, (3) the cost-effectiveness of pollution controls, and (4) the\\nvisibility benefits of pollution controls.\\n In response, the EPA concedes that Louisiana “could have expanded its\\ndiscussion of its decisionmaking process.” The EPA nonetheless maintains that\\nit “determined that the path Louisiana took in weighing the five factors and\\nreaching its BART determination could be reasonably discerned from the\\nrecord before it.” The EPA’s and Industry Respondents’ arguments focus on the\\nfact that Entergy’s and the EPA’s analyses—which were included as\\nappendices to the SIP revisions—did the appropriate analysis and considered\\nall the factors.\\n Environmental Petitioners are correct that the LDEQ’s explanation did\\nnot discuss the Clean Air Act’s factors of (1) the existing controls at Nelson, (2)\\nNelson’s remaining useful life, or (3) the BART guidelines factor of “cost-\\neffectiveness.”\\n On the “existing control” factor, the LDEQ’s failure to discuss the\\nexisting controls at Nelson highlights a factual dispute between the parties.\\nEnvironmental Petitioners maintain that low-sulfur coal is already in use at\\nNelson and has been since 2015. The EPA’s June 2017 technical support\\ndocument states that “beginning in the Spring of 2015, Entergy began\\npurchasing coals with lower sulfur contents that occur in a tighter range in\\ncomparison to those purchased in the past.”\\n\\n\\n 38\\n\\f Case: 18-60116 Document: 00515144673 Page: 39 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n Regarding the “remaining useful life” factor, the LDEQ’s explanation of\\nits BART determination does not mention or address that factor. Neither does\\nthe LDEQ’s explanation mention “cost-effectiveness.” The BART guidelines\\nrequire states to consider the cost-effectiveness of potential control options. 99\\nThose guidelines define that term as follows:\\n Cost-effectiveness, in general, is a criterion used to assess the\\n potential for achieving an objective in the most economical way.\\n For purposes of air pollutant analysis, “effectiveness” is measured\\n in terms of annualized control costs. We recommend two types of\\n cost-effectiveness calculations - average cost effectiveness, and\\n incremental cost effectiveness.\\n ...\\n Average cost effectiveness means the total annualized costs of\\n control divided by annual emissions reductions (the difference\\n between baseline annual emissions and the estimate of emissions\\n after controls), using the following formula . . . . 100\\n\\n Louisiana’s explanation mentions “annual cost” but does not mention\\n“cost-effectiveness.” As the BART guidelines explain, annual cost and cost-\\neffectiveness are different: Annual cost is the annualized capital cost for a\\ncontrol; cost-effectiveness is the annual cost of a control divided by the annual\\nemissions reductions of that control. In general, the least effective control\\ntechnology will almost always have the lowest absolute (or annual) cost. In\\ncontrast, the most effective control technology will often have the highest\\n\\n\\n\\n\\n 99 See BART Guidelines, 40 C.F.R. part 51, App. Y § IV.D.4.b; see also id. § IV.E.1.\\n 100 Id. § IV.D.4.(b)–(c).\\n 39\\n\\f Case: 18-60116 Document: 00515144673 Page: 40 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nabsolute (or annual) cost. 101 Based on this distinction, the BART guidelines\\nimpose cost-effectiveness, i.e., the cost per ton of pollution removed—instead of\\nannual cost—as the relevant consideration.\\n * * *\\n The Clean Air Act requires states to consider five statutory factors when\\nmaking a BART determination. The EPA then must approve or disapprove\\nthat determination. Our role is to decide whether the EPA was arbitrary and\\ncapricious in approving Louisiana’s SIP.\\n The LDEQ’s key statements on this issue are that (1) it “reviewed and\\nweighed the five factors carefully,” (2) it reached its decision after “review[ing]\\n. . . the information that Entergy and EPA provided,” and (3) the “lower sulfur\\ncoal option results in visibility benefits at a lower annual cost.”\\n The LDEQ’s short explanation is lacking in several respects. It did not\\n(1) provide numbers supporting its conclusions, (2) address or reconcile the\\nEPA’s criticism of Entergy’s analyses, (3) compare the costs or benefits of each\\ncontrol option, or (4) discuss Nelson’s existing controls, remaining useful life,\\nor the cost-efficiency of the potential control options. The EPA’s and Industry\\nRespondents’ primary contention is that because Entergy and the EPA did the\\nappropriate analysis and weighed the statutory factors—and the LDEQ said it\\nreviewed those analyses and included them as appendices—the LDEQ\\nappropriately weighed the factors. The parties’ briefing on how Louisiana\\nweighed the factors focuses almost entirely on the analyses that the EPA and\\n\\n\\n 101 See Proposed Rule, 82 Fed. Reg. at 32,298–32,299.\\n 40\\n\\f Case: 18-60116 Document: 00515144673 Page: 41 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nEntergy submitted. None of the briefs, however, cite any place in the record in\\nwhich the LDEQ discusses all five statutory factors.\\n Moreover, the parties rely on the LDEQ’s statement that it considered\\nthe analyses that Entergy and the EPA provided before making its\\ndetermination, as well as the fact that those analyses were included as\\nappendices to the SIP revisions. But the LDEQ expressly disavowed\\n“agree[ing] with,” “adopt[ing],” or “incorporat[ing]” any of Entergy’s or the\\nEPA’s calculations in its revised SIP:\\n LDEQ submits these comments in response to certain statements\\n in the preamble [of the 2017 Proposed Rule] that matters were\\n “adopted and incorporated” into the LDEQ SIP revision. LDEQ\\n places all documents and information submitted to it in connection\\n with the development of the SIP in an administrative record . . . .\\n However, placement in the record does not indicate that LDEQ\\n agrees with or has “adopted” positions, conclusions, or decisions,\\n nor has “incorporated” them into the SIP revision submitted to the\\n EPA. The final SIP document and any enforceable conditions\\n included therein encompass the final decision by LDEQ.\\n\\nBased on this express disavowal, we cannot conclude that the analyses Entergy\\nand the EPA submitted to the LDEQ were incorporated into the terms of\\nLouisiana’s revised SIP.\\n And, in contrast to the BART guidelines’ detailed instructions for making\\na BART determination, the LDEQ’s explanation of its BART determination for\\nNelson provides hardly any details. The guidelines recommend “always”\\nidentifying the average and incremental costs of each option, but the LDEQ\\nprovided neither specific numbers supporting that decision nor a comparison\\n\\n 41\\n\\f Case: 18-60116 Document: 00515144673 Page: 42 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nof the costs and estimated visibility benefits for each control option. Unlike the\\ndetailed analyses that the EPA and Entergy submitted—which did provide cost\\nand pollution-control estimates for each control option—the LDEQ simply\\nstated that low-sulfur coal had an unspecified “lower annual cost.”\\n Despite these shortcomings, we conclude that the EPA’s approval of\\nLouisiana’s BART determination was not arbitrary and capricious. 102 The\\nstandard of review is narrow and highly deferential. Our review is limited to\\n“whether the decision was based on a consideration of the relevant factors and\\nwhether there has been a clear error of judgment.” 103\\n There was a plethora of record evidence—the analyses that Entergy\\nsubmitted to the LDEQ—to support the BART determination. There was also\\nconsiderable record evidence—the analyses that the EPA submitted—\\nundermining that determination. The LDEQ stated that (1) it considered both\\nof these analyses when it made its BART determination and (2) it “reviewed\\nand weighed the five factors carefully.” Although the LDEQ could have offered\\na more thorough explanation of its reasoning, its assurance that it weighed the\\nfive factors carefully indicates that its decision “rest[ed] ‘on a consideration of\\nthe relevant factors’” 104 and that the agency did not “entirely fail[] to consider\\n\\n\\n\\n\\n 102 We note that this would be a much easier case if the LDEQ had (a) explained the\\nweight it afforded to any of the five factors, (b) expressly compared the costs of each option,\\nor (c) simply reproduced Entergy’s charts and numbers in the revised SIP.\\n 103 10 Ring Precision, Inc., 722 F.3d at 723 (quoting Motor Vehicle Mfrs. Ass’n, 463\\n\\nU.S. at 43).\\n 104 Michigan, 135 S. Ct. at 2706 (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).\\n\\n 42\\n\\f Case: 18-60116 Document: 00515144673 Page: 43 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nan important aspect of the problem.” 105 The EPA’s approval of that\\ndetermination was not arbitrary and capricious. 106\\n 2. Louisiana’s Long-Term Strategy and Reasonable Progress\\n Goals\\n The second part of Environmental Petitioners’ challenge is to the EPA’s\\napproval of Louisiana’s long-term strategy and reasonable-progress goals. The\\nClean Air Act requires states to adopt long-term strategies “for making\\nreasonable progress” toward the national visibility goal. 107 Louisiana’s 2008\\nSIP included reasonable progress goals and a long-term strategy, but the 2017\\nSIP revisions did not.\\n Environmental Petitioners contend that the 2017 SIP revisions did not\\ncomply with the Act because they did not address Louisiana’s long-term\\n\\n\\n\\n 105 Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43.\\n 106 Environmental Petitioners cite no authority, and we are aware of no authority,\\ndemanding that Louisiana prefer the EPA’s analyses to those provided by industry. Indeed,\\nin a highly technical area such as cost-effectiveness of various control options, a private firm\\nmay well provide more accurate data inputs regarding a specific proposal at the specific plant\\nit operates. To take one example, the EPA and Entergy disagreed about the cost-effectiveness\\nof low-sulfur coal. Entergy calculated it to cost $597 per ton of pollutant removed while the\\nEPA calculated $2,957 per ton. That discrepancy was based on Entergy’s reliance on\\nproprietary data, its contingency value, and its consideration of costs that the EPA does not\\nallow in its control cost manual. See 82 Fed. Reg. at 32,298. The technical analyses used\\ndifferent approaches and presented different strengths and weaknesses. Louisiana\\nscrutinized Entergy’s analysis and chose to embrace it. It was free to do so. A state has “wide\\ndiscretion” in formulating its SIP and “may select whatever mix of control devices it desires”\\nso long as national standards are met. Union Elec. Co. v. EPA, 427 U.S. 246, 250, 266 (1976).\\nThat is why Congress tied the EPA’s hands during SIP approval: “the Administrator shall\\napprove such submittal as a whole if it meets all of the applicable requirements of this\\nchapter.” 42 U.S.C. § 7410(k)(3) (emphasis added).\\n 107 42 U.S.C. § 7491(b)(2)(A)–(B).\\n\\n 43\\n\\f Case: 18-60116 Document: 00515144673 Page: 44 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nstrategy, set out reasonable progress goals, or impose emission controls at any\\nadditional “reasonable progress sources,” such as the Dolet Hills powerplant.\\nDolet Hills, which is the largest single source of SO2 emissions in Louisiana, is\\na non-BART-eligible EGU powerplant that could be subject to emissions\\ncontrols as a reasonable progress source.\\n The EPA points to its actions in 2012 on this issue, including a proposed\\nrule and a final rule (“the 2012 Proposed Rule” and “the 2012 Final Rule”),\\nwhich included a “partial disapproval” and “partial limited approval” of\\nLouisiana’s 2008 SIP. 108 It insists that Louisiana’s reasonable progress goals\\nand long-term-strategy obligations were approved as part of the 2012 Final\\nRule’s “partial limited approval.” According to the EPA, the 2012 resolution of\\nthis issue time-bars the Environmental Petitioners challenge.\\n The EPA is correct. Louisiana was not required to re-do its reasonable\\nprogress analysis or re-evaluate the reasonable progress sources because that\\npart of its 2008 SIP was approved and made effective by the 2012 Final Rule.\\nThe 2012 Final Rule “finaliz[ed] a partial limited approval and a partial\\ndisapproval of a revision to the Louisiana SIP submitted . . . on June 13,\\n2008.” 109\\n We resolve this issue based on the distinction between “partial” and\\n“limited” approvals. A “limited approval” is used when some parts of a SIP do\\nnot meet the Clean Air Act’s requirements, but the EPA concludes that “the\\n\\n\\n 108 77 Fed. Reg. 11,839, 11,840 (Feb. 28, 2012) (“2012 Proposed Rule”); 2012 Final\\nRule, 77 Fed. Reg. at 39,425.\\n 109 2012 Final Rule, 77 Fed. Reg. at 39,426.\\n\\n 44\\n\\f Case: 18-60116 Document: 00515144673 Page: 45 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nsubmittal as a whole” has a “strengthening effect” on the SIP. 110 In a “limited\\napproval,” the provisions of a SIP that are “limitedly approved,” including any\\nprovisions that do not comply with the Act, are incorporated into the SIP and\\ngo into effect. In contrast, in a “partial approval/disapproval,” the partially\\napproved parts of a submittal go into effect, and the disapproved parts do not.\\n The 2012 Final Rule contained a “partial limited approval” and a “partial\\ndisapproval.” This sentence from the Final Rule addresses the parts of the SIP\\nthat were included in the “limited approval”:\\n EPA grants a partial limited approval of the LA RH SIP\\n submittal for meeting the requirements of: 51.308(d), for the core\\n requirements for regional haze SIPs, except for the requirements\\n of 51.308(d)(3); 51.308(f), for the commitment to submit\\n comprehensive periodic revisions of regional haze SIPs; 51.308(g),\\n for the commitment to submit periodic reports describing progress\\n towards the reasonable progress goals (RPGs); 51.308(h), for the\\n commitment to conduct periodic determinations of the adequacy of\\n the existing regional haze SIP; and 51.308(i), for coordination with\\n state and Federal Land Managers. 111\\n\\n All provisions of the 2008 SIP referenced in this sentence were “limitedly\\napproved,” including the provisions after “except,” which did not meet the Act’s\\nrequirements. Through this “partial limited approval,” the EPA concluded that\\nall of the provisions referenced in that sentence would take effect because the\\nsubmittal “as a whole . . . strengthen[ed] the Louisiana SIP” and the EPA did\\n\\n\\n 110 Processing of State Implementation Plan Revisions at 2–3, the EPA Memorandum\\nfrom John Calcagni (July 9, 1992), https://www.epa.gov/sites/production/files/2015-\\n07/documents/procsip.pdf.\\n 111 2012 Final Rule, 77 Fed. Reg. at 39,426.\\n\\n 45\\n\\f Case: 18-60116 Document: 00515144673 Page: 46 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nnot specifically “address[] [them in the] partial disapproval.” 112 Those\\nreferenced provisions therefore became effective when the EPA issued the 2012\\nFinal Rule.\\n The following sentence in the 2012 Final Rule addresses the provisions\\nof the SIP that were “partially disapproved”:\\n However, . . . the EPA is also partially disapproving the LA\\n RH SIP submittal because it does not include fully approvable\\n measures for meeting the requirements of 40 CFR 51.308(d)(3),\\n long-term strategy for regional haze as it relies on deficient non-\\n EGU BART analyses; and 51.308(e), BART requirements for\\n regional haze visibility impairment with respect to emissions of\\n visibility impairing pollutants from four non-EGUs. 113\\n\\n Because the provisions referenced in this sentence were “partially\\ndisapproved,” they did not go into effect when the EPA issued the 2012 Final\\nRule. So, after the EPA issued the 2012 Final Rule, Louisiana was required to\\nre-do only the parts of its SIP referenced in that partial disapproval. Those\\nwere (1) the parts of 2008 SIP’s long-term strategy that “relie[d] on deficient\\nnon-EGU BART analyses” and (2) the parts of the 2008 SIP’s long-term\\nstrategy that involved BART requirements “from four non-EGUs.” These were\\nthe only two provisions that did not go into effect and needed to be remedied\\nby Louisiana.\\n Other than these two deficiencies, the 2012 Final Rule “result[ed] in\\napproval of all of the remaining elements of Louisiana’s [2008 Regional Haze]\\n\\n\\n 112 Id. at 39,425.\\n 113 Id. at 39,426.\\n 46\\n\\f Case: 18-60116 Document: 00515144673 Page: 47 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nSIP.” 114 That included Louisiana’s reasonable progress analysis and long-term\\nstrategy.\\n Environmental Petitioners focus on one of the EPA’s responses to a\\ncomment. In the first part of that response, the EPA elaborates on the partial\\ndisapproval and identifies the two deficiencies that Louisiana needed to\\naddress in its SIP revisions.\\n [1] Louisiana must submit and the EPA must approve a\\n revised SIP submittal to address . . . BART for EGUs to cure the\\n deficiencies in the SIP resulting from the remand of CAIR. . . . [2]\\n Louisiana must also submit revisions sufficient to cure the\\n deficiencies in the non-EGU BART determinations. 115\\n\\n Environmental Petitioners rely on a different sentence in that response\\nto contend that Louisiana was required to re-do its evaluation of the non-BART\\npowerplants that qualify as reasonable progress sources. They point to this\\nsentence in the EPA’s response: “Louisiana must consider whether EGUs\\npreviously covered by the CAIR, whether subject to BART or not, should be\\ncontrolled to ensure reasonable progress to meet the State’s long-term\\nstrategies.” 116 However, in context, that sentence simply restates Louisiana’s\\noverall obligations under the Clean Air Act. The response reads in full as\\nfollows:\\n We have evaluated the LA RH SIP submittal as a whole and\\n at this time we are taking final action on all elements of the LA\\n RH SIP submittal that were not addressed in the national Better-\\n\\n 114 Id. at 39,426.\\n 115 Id. at 39,427.\\n 116 Id.\\n\\n 47\\n\\f Case: 18-60116 Document: 00515144673 Page: 48 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n than-BART rule. Louisiana must consider whether EGUs\\n previously covered by the CAIR, whether subject to BART or not,\\n should be controlled to ensure reasonable progress to meet the\\n State’s long-term strategies. However, insofar as Louisiana’s LTS\\n and RPGs are affected by the remand of CAIR, those issues are\\n addressed in the national Better-than-BART rulemaking and are\\n outside the scope of this action on the remainder of the LA RH SIP.\\n Also, the CAA expressly provides authority to the EPA to partially\\n approve and partially disapprove a SIP revision. 42 U.S.C.\\n 7410(k)(3). The EPA has adopted the partial approval approach\\n numerous times in SIP actions across the nation over the last\\n twenty years. Partial approval and partial disapproval is\\n appropriate here because the EPA has determined that a portion\\n of Louisiana’s RH SIP meets regional haze requirements and a\\n portion of it does not. . . . Therefore, Louisiana must submit and\\n the EPA must approve a revised SIP submittal to address both\\n NOX and SO2 BART for EGUs to cure the deficiencies in the SIP\\n resulting from the remand of CAIR. Louisiana may elect to rely on\\n the Transport Rule for NOX BART for EGUs in that\\n submittal. However, because Louisiana is not covered under the\\n Transport Rule for SO2, the State must submit source-specific\\n SO2 BART evaluations for the subject-to-BART EGUs in\\n Louisiana. As discussed further in our responses to several\\n comments below, Louisiana must also submit revisions sufficient\\n to cure the deficiencies in the non-EGU BART determinations. 117\\n\\n This context, including the lack of an express directive to “submit” a new\\nlong-term strategy or to impose controls at additional reasonable progress\\nsources, confirms that the 2012 Final Rule approved Louisiana’s reasonable\\nprogress goals and selection of reasonable progress sources. Additionally, the\\n\\n\\n\\n 117 2012 Final Rule, 77 Fed. Reg. at 39,427 (emphasis added).\\n 48\\n\\f Case: 18-60116 Document: 00515144673 Page: 49 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n2012 Final Rule does not mention the single source Louisiana identified as a\\nreasonable progress source, Big Cajun II. In three separate parts of the 2012\\nFinal Rule, the EPA identifies the partially disapproved parts and directs\\nLouisiana to address only those provisions. 118 If the EPA had intended to\\ndisapprove Louisiana’s reasonable progress goals, long-term strategy, or\\nidentification of reasonable progress sources in this response, it would have\\nincluded those provisions of the 2008 SIP in the “partial disapproval” sentence.\\n Because Louisiana’s reasonable progress goals, long-term strategy, and\\nevaluation of reasonable progress sources were included in the 2012 Final\\nRule’s “partial limited approval” of Louisiana’s 2008 SIP, we reject\\nEnvironmental Petitioners’ challenge on this issue.\\n ii. Notice and Comment\\n Environmental Petitioners alternatively claim that the EPA violated the\\nAPA’s notice and comment requirements.\\n Under the APA, “notice of proposed rulemaking shall be published in the\\nFederal Register,” and “shall be accompanied by a statement of its basis and\\npurpose. . . . The statement of basis and purpose shall include a summary of .\\n. . the major legal interpretations and policy considerations underlying the\\nproposed rule.” 119\\n Environmental Petitioners contend that the EPA did not include its\\nreasoning addressing Louisiana’s reasonable progress analysis in the July\\n\\n\\n\\n 118 Id. at 39,426–39,427, 39,435.\\n 119 42 U.S.C. § 7607(d)(3).\\n 49\\n\\f Case: 18-60116 Document: 00515144673 Page: 50 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n2017 Proposed Rule. They assert that the EPA’s inclusion of additional\\nreasoning on that issue in the December 2017 Final Rule amounted to a “major\\nlegal interpretation.”\\n In the 2017 Proposed Rule, the EPA did not discuss Louisiana’s\\nreasonable progress analysis, long-term strategy, or evaluation of reasonable\\nprogress sources. Environmental Petitioners commented on the 2017 Proposed\\nRule’s failure to address Louisiana’s reasonable progress analysis and long-\\nterm strategy, and the EPA responded to that comment in the 2017 Final Rule.\\nIn its response to Environmental Petitioners’ comments on the 2017 Final\\nRule, the EPA directed Environmental Petitioners to the 2012 Final Rule. The\\nagency explained that it had already approved Louisiana’s reasonable progress\\nanalysis, long-term strategy, and evaluation of reasonable progress sources. 120\\n We conclude that this explanation is not a major legal interpretation or\\npolicy consideration underlying the 2017 Proposed Rule that required\\nadditional notice and comment. Rather, it is merely a response to a comment\\nthat pointed the Environmental Petitioners to the agency’s earlier resolution\\nof the issue in the 2012 Final Rule.\\n * * *\\n In short, the EPA’s 2012 Final Rule, which “limitedly approved” most of\\nLouisiana’s 2008 SIP, did not require Louisiana to re-do its reasonable\\nprogress goals or its long-term strategy in its 2017 SIP revisions. Neither did\\n\\n\\n\\n\\n 120 See 82 Fed. Reg. at 60,539–60,540.\\n 50\\n\\f Case: 18-60116 Document: 00515144673 Page: 51 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nthe EPA’s response to Environmental Petitioners’ 2017 comment “reopen” the\\nissue 121 or violate the APA’s notice and comment provision.\\n Environmental Petitioners’ petition is denied.\\nB. The Industry Petitioners’ Petition\\n In contrast to Environmental Petitioners’ challenge to Louisiana’s\\nselection of emission controls to satisfy BART (step three of the BART\\nanalysis), Industry Petitioners challenge Louisiana’s determinations that\\nNelson and Brame are “subject to BART” at all (step two of the BART analysis).\\nIndustry Petitioners object to the EPA’s approval of Louisiana’s “subject to\\nBART” determinations, which relied on the “CALPUFF” model. They also\\nchallenge the EPA’s reliance on its own “CAMx” modeling (on which Louisiana\\ndid not rely) to approve Louisiana’s SIP.\\n The Clean Air Act states that a source is “subject to BART” if it “emits\\nany air pollutant which may reasonably be anticipated to cause or contribute\\nto any impairment of visibility” in a Class I area. 122 Under the BART\\nguidelines, a 1.0 deciview change from an individual source “causes” visibility\\nimpairment, whereas a 0.5 deciview change from an individual source\\n“contributes” to visibility impairment. 123 Under some circumstances, states\\n\\n\\n\\n\\n 121 See West Virginia v. EPA, 362 F.3d 861, 872 (D.C. Cir. 2004) (“‘[W]hether an agency\\nhas in fact reopened an issue, explicitly or implicitly,’ depends on the ‘entire context of the\\nrulemaking including all relevant proposals and reactions of the agency.’” (citation omitted)).\\n 122 42 U.S.C. § 7491(b)(2)(A).\\n 123 BART Rule, 70 Fed. Reg. at 39,120.\\n\\n 51\\n\\f Case: 18-60116 Document: 00515144673 Page: 52 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nmay set a lower threshold for sources that “contribute” to visibility\\nimpairment. 124\\n In the BART guidelines, the EPA adopted CALPUFF as the preferred\\nmodel for making “subject to BART” determinations. 125 The EPA recently\\nremoved CALPUFF as a “preferred” model for other air-quality modeling\\napplications under the Clean Air Act, but retained CALPUFF as a preferred\\nmodel for making “subject-to-BART” determinations. 126\\n The LDEQ reviewed CALPUFF and CAMx modeling results that\\nEntergy, Cleco, and the EPA submitted to the department. In the LDEQ’s\\nFebruary and June 2017 SIP revisions, it determined that Nelson and two\\nunits at Brame were “subject to BART.” Louisiana relied on CALPUFF\\nmodeling to determine that Nelson and Brame exceeded the 0.5 deciview\\nthreshold. The LDEQ acknowledged, but did not rely on, the CAMx modeling\\nthat the parties submitted. The LDEQ stated that it did “not have the expertise\\nwith which to review [the CAMx] model runs.” And, in its amicus brief, the\\nLDEQ states that it still does not have the technical expertise to review CAMx\\nmodeling.\\n\\n\\n\\n\\n 124 Id. at 39,120–39,121.\\n 125 BART Guidelines, 40 C.F.R. part 51, App. Y, III.A.3. See 69 Fed. Reg. 25,184, 25,194\\n(May 5, 2004) (“We are proposing that a CALPUFF assessment of an individual source be\\nused as the preferred approach for determining whether a BART-eligible source may be\\nexempt from BART.”).\\n 126 82 Fed. Reg. 5,182, 5,196 (Jan. 17, 2017) (“[T]his final action does not affect the\\n\\nEPA’s recommendation that states use CALPUFF to determine the applicability and level of\\nbest available retrofit technology in regional haze implementation plans.”).\\n 52\\n\\f Case: 18-60116 Document: 00515144673 Page: 53 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n In a May 2017 proposed rule, the EPA proposed to approve the “subject\\nto BART” determination for Brame. 127 In the July 2017 Proposed Rule, it\\nproposed to approve Louisiana’s “subject to BART” and BART\\ndeterminations. 128 Industry Petitioners submitted comments on those\\nproposed rules (1) objecting to the LDEQ’s reliance on CALPUFF and (2)\\ncriticizing the EPA’s reliance on its own CAMx modeling. In the instant 2017\\nFinal Rule, the EPA responded to those comments and approved the LDEQ’s\\ndetermination that Nelson and Brame have visibility effects greater than 0.5\\ndeciviews at Class I areas and are therefore “subject to BART.” 129\\n Here, Industry Petitioners contend that the EPA’s approval of\\nLouisiana’s “subject to BART” determinations at Nelson and Brame was\\narbitrary and capricious. The EPA and Environmental Respondents respond\\nthat we lack jurisdiction to consider Industry Petitioners’ challenge. They also\\ninsist that (1) Louisiana permissibly relied on the CALPUFF model in making\\nits BART determination and (2) the EPA was not arbitrary and capricious in\\nconsidering its own CAMx modeling.\\n As we shall explain in greater detail, we conclude that (1) we have\\njurisdiction and (2) the EPA’s approval of Louisiana’s reliance on the\\nCALPUFF model was not arbitrary and capricious.\\n\\n\\n\\n\\n 127 82 Fed. Reg. 22,936, 22,941 (May 19, 2017).\\n 128 82 Fed. Reg. 32,294, 32,296 (July 13, 2017).\\n 129 Final Rule, 82 Fed. Reg. at 60,520; id. at 60,525–60,526 (response to comments on\\n\\nmodeling).\\n 53\\n\\f Case: 18-60116 Document: 00515144673 Page: 54 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n 1. Jurisdiction\\n a. Environmental Respondents’ Jurisdictional Arguments\\n Environmental Respondents contend that parts of Industry Petitioners’\\nchallenge address the 2005 BART guidelines rather than the 2017 Final Rule.\\nEnvironmental Respondents assert that this court lacks jurisdiction over the\\nparts of the Industry Petitioners’ claim that address CALPUFF’s use of 24-\\nhour actual emissions and natural background conditions. According to\\nEnvironmental Respondents, these are complaints about the policies\\nunderlying the 2005 BART guidelines, policies to which the EPA responded\\nwhen it promulgated those guidelines. According to Environmental\\nRespondents, these concerns should have been raised (1) in the D.C. Circuit\\nand (2) within 60 days after those guidelines were published in the Federal\\nRegister. 130\\n Environmental Respondents liken this case to American Road &\\nTransportation Builders Ass’n v. EPA, 705 F.3d 453 (D.C. Cir. 2013), in which\\nthe D.C. Circuit considered a challenge to the EPA’s approval of a state’s SIP\\nin 2011. In that case, the EPA’s approval of a SIP relied on a rule that the\\nagency had issued in 1994. 131 The petitioner did not claim that the state had\\nmisapplied the EPA’s rule; rather, it contended that the policies announced in\\nthe 1994 rule were unlawful. 132 Because that challenge was to the 1994 rule—\\nrather than to the 2011 SIP approval—the D.C. Circuit concluded that it lacked\\n\\n\\n 130 42 U.S.C. § 7607(b)(1).\\n 131 705 F.3d at 454–55.\\n 132 Id. at 456.\\n\\n 54\\n\\f Case: 18-60116 Document: 00515144673 Page: 55 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\njurisdiction because the challenge was time-barred under the Clean Air Act’s\\n60-day period for filing petitions for review. 133\\n Environmental Respondents maintain that Industry Petitioners’ claims\\nobjecting to CALPUFF’s assumptions are similarly time-barred. They note\\nthat Industry Petitioners have an alternative route to recourse under the\\nClean Air Act’s provision that provides for reconsideration of a rule if a\\npetitioner can demonstrate that it was impracticable to raise an issue during\\nthe public comment period. 134\\n The jurisdictional issue here is similar to the one that the D.C. Circuit\\nconsidered in American Road & Transportation Builders. That court held that\\nthe petitioner’s challenge was to the underlying the EPA rule rather than to\\nthe EPA’s later approval of a SIP based on the standards set out in that\\nunderlying rule. The D.C. Circuit dismissed that challenge to a SIP approval\\nbecause it was “duplicative of arguments the agency had already rejected”\\nmany years earlier. 135 The court explained that “[t]here would be no pressure\\nto challenge regulations within the 60-day period after their promulgation if\\nany petitioner could simply wait to test the substance of those regulations once\\nthe EPA applies them, for example, in an approval of a state SIP revision—as\\n[the petitioner] has attempted to do here.” 136\\n\\n\\n\\n\\n 133 Id. at 458.\\n 134 See 42 U.S.C. § 7607(d)(7)(B).\\n 135 Am. Road & Transportation Builders Ass’n, 705 F.3d at 456.\\n 136 Id. at 458.\\n\\n 55\\n\\f Case: 18-60116 Document: 00515144673 Page: 56 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n Similarly, in the instant petition for review, Industry Petitioners\\nchallenge the CALPUFF model based on its use of 24-hour actual emissions\\nand natural background conditions. The EPA expressly rejected these\\narguments when it adopted CALPUFF as the preferred model at the time in\\n2005 that it issued the BART guidelines. 137\\n But, unlike American Road & Transportation Builders, the BART\\nguidelines at issue here recommend—but do not require—that states use\\nCALPUFF. 138 Louisiana could have picked a different model. Because Industry\\nPetitioners challenge Louisiana’s choice to use CALPUFF modeling instead of\\na different model, Industry Petitioners’ challenge is properly viewed as a\\nchallenge to the application of the BART guidelines rather than a challenge to\\nthe those guidelines themselves. Louisiana had the option to pick a different\\nmodel, so the parts of Industry Petitioners’ challenge addressing CALPUFF’s\\nflaws are not barred by the Clean Air Act’s 60-day statute of limitations.\\n b. The EPA’s Jurisdictional Arguments\\n The EPA maintains that, after actively participating in Louisiana’s SIP-\\ndevelopment process, the Industry Petitioners should have sought judicial\\n\\n\\n\\n\\n 137 BART Guidelines, 40 C.F.R. part 51, App. Y III.A.3 (“We recommend that States\\nuse the 24 hour average actual emission rate from the highest emitting day of the\\nmeteorological period modeled.”).\\n 138 BART Rule, 70 Fed. Reg. at 39,123 (“The use of other models and techniques to\\n\\nestimate if a source causes or contributes to visibility impairment may be considered by the\\nState, and the BART guidelines preserve a State’s ability to use other models.”).\\n 56\\n\\f Case: 18-60116 Document: 00515144673 Page: 57 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nreview of Louisiana’s modeling decisions in state court based on a Louisiana\\nstatute that allows for review of state rules and regulations. 139\\n This argument is unavailing. Industry Petitioners challenge the EPA’s\\napproval of Louisiana’s SIP, not the underlying state action. Although\\nIndustry Petitioners might also have been able to challenge Louisiana’s\\nprocess for developing its SIP in state court, the Clean Air Act expressly\\nprovides Industry Petitioners the opportunity to petition this court for review\\nof the EPA’s actions. 140\\n 2. CALPUFF Modeling\\n “A reviewing court must be ‘most deferential’ to the agency where, as\\nhere, its decision is based upon its evaluation of complex scientific data within\\nits technical expertise.” 141 And “because ‘a model is meant to simplify reality\\nin order to make it tractable,’ it is no criticism of a model ‘that it does not fit\\nevery application perfectly.’” 142\\n\\n\\n\\n 139See La. R.S. § 49:963(a)(1)).\\n 14042 U.S.C. § 7607(b)(1).\\n 141 BCCA Appeal Grp. v. EPA, 355 F.3d 817, 824 (5th Cir. 2003) (quoting Baltimore\\n\\nGas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983)). The D.C. Circuit, setting out a similar\\nstandard, has described this as “extreme deference”:\\n [W]e will “give an extreme degree of deference to the agency when it is\\n evaluating scientific data within its technical expertise.” . . . Furthermore, “we\\n must defer to the agency’s decision on how to balance the cost and complexity\\n of a more elaborate model against the oversimplification of a simpler model.”\\n . . . We will “reverse only if the model is so oversimplified that the agency’s\\n conclusions from it are unreasonable.”\\nWest Virginia, 362 F.3d at 871 (citations omitted).\\n 142 Ass’n of Battery Recyclers, Inc. v. EPA, 308 F.3d 1047, 1063 (D.C. Cir. 2000) (citation\\n\\nomitted).\\n 57\\n\\f Case: 18-60116 Document: 00515144673 Page: 58 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n Despite the significant deference we afford to decisions involving\\nanalysis of scientific data within an agency’s technical expertise, Industry\\nPetitioners maintain that the EPA’s approval of Louisiana’s CALPUFF\\nmodeling was arbitrary and capricious. They first point to CALPUFF’s\\nshortcomings as a model, including that it (1) is unreliable at predicting\\nvisibility impacts at locations farther than 300 km from an emission source, (2)\\ntends to overestimate visibility impacts, (3) uses “overly simplistic”\\nassumptions, and (4) has a high margin of error. They next contend that the\\nEPA’s reliance on its own CAMx modeling was improper because the Clean Air\\nAct does not give the EPA authority to cure a deficient SIP. Finally, even\\nassuming that the EPA could rely on its own CAMx modeling, Industry\\nPetitioners take issue with technical flaws in the EPA’s CAMx modeling,\\nincluding that model’s: (1) use of “24-hour maximum emission rates” instead\\nof “actual emission rates,” (2) reliance on “absolute maximum modeled\\nconcentrations” instead of “relative response factors,” and (3) deficient\\nperformance on a “model performance evaluation.”\\n i. Distance Limitations\\n Industry Petitioners contend that the CALPUFF model used at Nelson\\nand Brame exceeded that model’s distance limitations and was inconsistent\\nwith the EPA’s prior determination that CALPUFF is unreliable when\\nassessing visibility impacts from sources more than 300 km from a Class I\\n\\n\\n\\n\\n 58\\n\\f Case: 18-60116 Document: 00515144673 Page: 59 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\narea. 143 Nelson is 425 km from Breton and 460 km from Caney Creek; Brame\\nis 422 km from Breton and 352 km from Caney Creek.\\n Industry Petitioners cite a 1998 statement from the EPA’s Interagency\\nWorkgroup on Air Quality Modeling (“IWAQM”) that “there are serious\\nconceptual concerns with the use of puff dispersion [models like CALPUFF] for\\nvery long-range transport (300 km and beyond).” In a 2003 final rule, IWAQM\\nconcluded that the “CALPUFF dispersion model . . . performed in a reasonable\\nmanner . . . so long as the transport distance was limited to less than\\n300km.” 144 According to Industry Petitioners, because CALPUFF does not\\nperform “in a reasonable manner” at distances greater than 300 km, CALPUFF\\nmay not be used to determine that sources at such distances may “reasonably\\nbe anticipated” to cause or contribute to visibility impairment.\\n Industry Petitioners next point to several regional haze actions in which\\nthe EPA has stated that it has concerns about using CALPUFF at distances\\ngreater than 300 km. They rely on the Arkansas Regional Haze Federal\\nImplementation Plan, the New Mexico Regional Haze SIP, and the EPA’s\\nstatement defending its reliance on CAMx for Texas’s and Oklahoma’s regional\\nhaze SIPs. 145\\n\\n\\n 143 Industry Petitioners raise the same concerns they raised in their comments on the\\nProposed Rule.\\n 144 68 Fed. Reg. 18,458 (Apr. 15, 2003).\\n 145 Arkansas Regional Haze Federal Implementation Plan, 81 Fed. Reg. 66,332, 66,394\\n\\n(Sept. 27, 2016) (“[T]here are concerns in using CALPUFF for modeling impacts at distances\\nmuch greater than 300 km from the source . . . .”); New Mexico Regional Haze SIP, 79 Fed.\\nReg. 60,978, 60,983 (Oct. 9, 2014) (“CALPUFF results are less reliable at distances greater\\nthan 300 km.”).\\n 59\\n\\f Case: 18-60116 Document: 00515144673 Page: 60 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n Industry Petitioners describe these statements and criticisms of\\nCALPUFF as indicative of the EPA’s failure to follow its own guidance and\\npast practice. They contend that the Final Rule does not provide a rational\\nexplanation for this departure. And, although the EPA has stated that\\nCALPUFF is permissible at sources farther than 300 km “with some additional\\nconsiderations” such as stack height or size of emissions, Industry Petitioners\\nmaintain that the EPA did not address these “additional considerations” at\\nNelson and Brame.\\n The EPA responds that Industry Petitioners overstate and oversimplify\\nthe BART guidelines and the EPA’s prior actions. The EPA insists, contrary to\\nIndustry Petitioners’ assertions, that it has never stated that: (1) CALPUFF\\nshould not be used to model visibility impacts more than 300 km from the\\nemissions source, (2) CALPUFF is unable to reliably predict visibility impacts\\nat distances greater than 300 km, or (3) CALPUFF is “unreliable” and does not\\nperform in a reasonable manner. The EPA also contends that Industry\\nPetitioners’ reliance on statements from IWAQM is misplaced, arguing that\\nIWAQM’s statements (1) set out guidelines for air quality models under the\\nClean Air Act for purposes other than regional haze analyses and (2) were\\nissued in 1998 and 2003, before the EPA issued the BART guidelines in 2005.\\n The EPA explains that CALPUFF has been used at distances greater\\nthan 300 km, citing South Dakota’s CALPUFF modeling for sources farther\\nthan 400 km, and Nebraska’s CALPUFF modeling for sources between 300 and\\n\\n\\n\\n 60\\n\\f Case: 18-60116 Document: 00515144673 Page: 61 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n600 km. 146 In the EPA’s “Modeling Response to Comments” document, it stated\\nthat “the EPA and [Federal Land Managers] have utilized CALPUFF results\\nin a number of different situations when the range was between 300–450 km\\nor more.” 147\\n The EPA also points out that historically, “the use of CALPUFF was\\ngenerally acceptable at 300 km or greater for larger emissions sources with\\nelevated stacks.” In its Modeling Response to Comments document, the EPA\\nexpressly stated that Nelson and Brame are “larger emissions sources with\\nelevated stacks.” Nelson has three BART-eligible electric generating units that\\nhave a combined 1200 megawatts of production capacity, 148 and Brame has two\\nBART-eligible electric generating units with a combined output of 963\\nmegawatts. 149 The EPA’s CALPUFF analysis estimated that both Nelson and\\nBrame exceeded the 1.0 deciview threshold for “causing” visibility impairment.\\nThese high visibility numbers for Nelson and Brame align with the EPA’s\\nstatement in the BART Rule that it anticipated “that most of these plants are\\npredicted to have much higher maximum impacts” than 1.0 deciviews. 150\\n Finally, the EPA maintains that its own CAMx modeling provided\\nadditional support for the CALPUFF model’s results. The EPA’s CAMx\\n\\n\\n\\n 146 Final Rule, 82 Fed. Reg. at 60,525 n.39.\\n 147 See Final Rule, 82 Fed. Reg. at 60,525 (“As discussed in the Modeling RTC\\ndocument, EPA and FLM representatives have utilized CALPUFF results in a number of\\ndifferent situations when the range was between 300-450 km or more.”).\\n 148 Final Rule, 82 Fed. Reg. at 60,522, 60,533.\\n 149 82 Fed. Reg. at 22,944.\\n 150 BART Rule, 70 Fed. Reg. at 39,123.\\n\\n 61\\n\\f Case: 18-60116 Document: 00515144673 Page: 62 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nmodeling showed visibility impairments at Caney Creek from Nelson as high\\nas 2.22 deciviews and from Brame as high as 2.83 deciviews. 151 According to\\nthe EPA, such large visibility-impact numbers provide additional support for\\nthe CALPUFF model’s results.\\n We conclude that, although the EPA has “a higher confidence level” in\\nCALPUFF modeling at distances under than 300 km, the agency did not act\\narbitrarily and capriciously by using that model at Nelson and Brame. Even\\nthough Nelson and Brame are farther than 300 km from the protected areas\\nat issue here, the use of CALPUFF modeling aligns with the EPA’s acceptance\\nof CALPUFF at longer distances for powerplants with larger emissions sources\\nwith elevated stacks like Nelson and Brame. 152\\n ii. The EPA’s January 2017 Action\\n Industry Petitioners focus on the EPA’s January 2017 action, which\\nremoved CALPUFF as the preferred model for long-range air quality\\nassessments. For those assessments, the EPA concluded that photochemical\\n\\n\\n\\n 151 Final Rule, 82 Fed. Reg. at 60,526 (“Entergy Nelson has a maximum modeled\\nimpact of 2.22 dv at Caney Creek, with 31 days out of the 365 days modeled exceeding 0.5 dv,\\nand 9 days exceeding 1.0 dv. Similarly, Cleco Brame has a maximum modeled impact of 2.833\\ndv at Caney Creek, with 30 days out of a maximum 365 days modeled exceeding 0.5 dv and\\n10 days exceeding 1.0 dv.”).\\n 152 Our opinion should not be read to countenance the reliability or accuracy of the\\n\\nCALPUFF model in general. Although the EPA maintains that it recommends that states\\ncontinue to use CALPUFF modeling for “subject to BART” determinations based on\\n“consistency across and within states in the regional haze program” and because most of the\\nmodeling for this planning period has already been completed, there is reason to question the\\nEPA’s recommendation that states continue using a model that it appears to know is not\\nreliable when used at distances such as those involved here.\\n 62\\n\\f Case: 18-60116 Document: 00515144673 Page: 63 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\ngrid models like CAMx “are generally most appropriate . . . because they\\nprovide a spatially and temporally dynamic realistic chemical and physical\\nenvironment for plume growth and chemical transformation.” 153 Industry\\nPetitioners maintain that the EPA’s 2017 action confirms that states should\\nrely on CAMx rather than CALPUFF when making BART determinations,\\nbecause it more realistically simulates the processes involved in haze\\nformation.\\n The EPA’s January 2017 action, however, does not support Industry\\nPetitioners’ arguments. The EPA removed CALPUFF as a preferred model for\\nother types of Clean Air Act analyses, but the agency expressly confirmed that\\nCALPUFF remains a recommended option for BART determinations. “[T]his\\nfinal action does not affect the EPA’s recommendation that states use\\nCALPUFF to determine the applicability and level of best available retrofit\\ntechnology in regional haze implementation plans.” 154\\n But the EPA retained CALPUFF as a preferred model for BART\\ndeterminations because of concerns about consistency between the states’\\nBART determinations:\\n The proposed changes to the Guideline do not affect the EPA’s\\n recommendation in the 2005 BART Guidelines to use CALPUFF\\n in the BART determination process. Given that the overwhelming\\n majority of BART determinations have been made using\\n CALPUFF, we consider it appropriate for states (or the EPA) to\\n continue to use this application for the remaining assessments\\n\\n 153 80 Fed. Reg. 45,340, 45,349 (July 29, 2015), finalized at 82 Fed. Reg. 5,182 (Jan.\\n17, 2017).\\n 154 82 Fed. Reg. at 5,196.\\n 63\\n\\f Case: 18-60116 Document: 00515144673 Page: 64 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n under the current Guideline with approved protocols. This\\n approach assures consistency across and within states in the\\n regional haze program. In addition, in many instances, the\\n modeling of visibility impacts has already been completed even\\n though the BART determination process is not yet done. Allowing\\n states to continue to rely on CALPUFF avoids additional time and\\n expense in developing a new assessment of visibility impacts for a\\n SIP initially due in 2007. 155\\n\\n Because CALPUFF remains the BART guidelines’ recommended model,\\nthe January 2017 action does not undermine the use of CALPUFF for BART\\ndeterminations. Rather, the EPA’s explanations about (1) consistency between\\nstates, (2) that most of the modeling for this planning period has already been\\ncompleted, and (3) avoiding the “additional time and expense in developing a\\nnew assessment” support the use of that model here.\\n iii. Overestimation Bias\\n Industry Petitioners next object to several technical assumptions\\nunderlying the CALPUFF model. The most significant of these is CALPUFF’s\\nsimulation of the transformation of SO2 and NOx emissions into visibility-\\nimpairing sulfates and nitrates. CALPUFF’s simplistic handling of chemical\\nprocesses can result in “a systematic bias in the estimated concentrations and\\nvisibility impacts,” in other words, an “overestimation bias.” When compared\\nwith “real-world measurements,” CALPUFF overpredicts the contribution of\\nnitrates to visibility impairment. According to Industry Petitioners, a\\ncomparison between the “real-world” impairment data and the CALPUFF\\n\\n\\n 155 80 Fed. Reg. at 45,350.\\n 64\\n\\f Case: 18-60116 Document: 00515144673 Page: 65 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nmodeling results shows that the CALPUFF modeling here overestimated\\nnitrate contributions “by nearly 500%.”\\n Industry Petitioners cite 2005 guidelines from the Central Regional Air\\nPlanning Association (“CENRAP”) warning that CALPUFF’s overestimation\\nbias may lead to “unwarranted and excessive control of emissions from some\\nsources.” 156 They maintain that the EPA has not articulated a satisfactory\\nexplanation for ignoring the technical shortcomings in the CALPUFF model. 157\\n In defending its use of CALPUFF here, the EPA emphasizes the policy\\nconsiderations underlying the BART guidelines. When the EPA proposed the\\nBART guidelines that recommended CALPUFF as the preferred model, some\\ncommenters objected on the same grounds raised here: CALPUFF is unreliable\\nat long distances, relies on simplified assumptions, and overpredicts visibility\\nimpairment. 158 The EPA responded to those criticisms by describing\\nCALPUFF as a “conservative” screening model and stating that “conservatism\\nis needed because the purpose of the [subject to BART] test [is] solely to\\ndetermine if a closer look is needed.” 159 At this “screening” step, the EPA\\nemphasized that models should capture the “maximum” or “worst case”\\npotential impacts of a source. 160\\n\\n\\n 156 See Alpine Geophysics, LLC, CENRAP BART Modeling Guidelines, at 3–8 (Dec.\\n15, 2005).\\n 15710 Ring Precision, Inc., 722 F.3d at 723.\\n 158BART Rule, 70 Fed. Reg. at 39,126.\\n 159 Id. at 39,123 (“[the EPA] understand[s] the concerns of commenters that the\\n\\nchemistry modules of the CALPUFF model are less advanced than some of the more recent\\natmospheric chemistry simulations.”).\\n 160 Id. at 39,123, 39,126.\\n\\n 65\\n\\f Case: 18-60116 Document: 00515144673 Page: 66 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n We conclude that the BART guidelines accounted for this\\n“overestimation” bias. Those guidelines explain the assumptions underlying\\nthe CALPUFF model, including the use of “the 98th percentile visibility\\nimpairment rather than the highest daily impact,” which was meant to\\n“exclude roughly 7 days per year from consideration” and “minimiz[e] the\\nlikelihood that the highest modeled visibility impacts might be caused by\\nunusual meteorology or conservative assumptions in the model.” As the EPA\\nexplained in the analysis it submitted to the LDEQ, it “made the decision to\\nconsider the less conservative 98th percentile primarily because the chemistry\\nmodules in the CALPUFF model are simplified and likely to provide\\nconservative (higher) results for peak impacts.”\\n iv. Margin of Error\\n Entergy submitted analyses to the EPA that purported to demonstrate\\nthat Nelson’s CALPUFF-predicted visibility impacts at Caney Creek and\\nBreton fell within CALPUFF’s margin of error. According to Industry\\nPetitioners, its margin of error at Caney Creek is 1.38 deciviews, and its\\nmargin of error at Breton is 1.25 deciviews. So, based on Entergy’s CALPUFF\\nmodeling analysis that calculated Nelson’s baseline visibility impact at 0.703\\ndeciviews at Caney Creek and 0.77 deciviews at Breton, the Entergy-calculated\\nmargin of error for CALPUFF would put Nelson below the 0.5 deciview “subject\\nto BART” threshold.\\n Entergy submitted comments on this issue, relying on a Ninth Circuit\\ndecision, National Parks Conservation Ass’n v. EPA, 788 F.3d 1134, 1146–47\\n(9th Cir. 2015), in which the court concluded that the EPA did not\\n 66\\n\\f Case: 18-60116 Document: 00515144673 Page: 67 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n“meaningfully address” a comment about model-predicted visibility\\nimprovements that were within a model’s margin of error. 161 There, the federal\\nimplementation plan for Montana sought to implement a control that\\nCALPUFF predicted would improve visibility by only 0.085 deciview. 162 A\\ncommenter maintained that “an improvement of 0.085 deciview [was] ‘beyond\\nthe CALPUFF model’s ability to predict with any confidence.’” 163 The EPA\\nresponded to that comment, but the court concluded that the response did “not\\nmeaningfully address [the] comment” because it did not “also suffice as a\\nreasoned response regarding how CALPUFF could be relied upon to predict an\\nimprovement of as little as 0.085 deciviews when PPL offered reasons to think\\nthat doing so was outside the model’s capabilities.” 164\\n Entergy submitted its “margin of error” comments, which compared that\\ncase to this one. The EPA addressed Entergy’s comments in its November 2017\\nModeling Response to Comments document.\\n Industry Petitioners contend that the EPA’s response to Entergy’s\\ncomments did not adequately respond to the margin of error issue and\\n\\n\\n\\n\\n 161 722 F.3d at 1146–47.\\n 162 Id. Notably, this small number is significantly smaller than the baseline impact\\nvalues at issue here, which are above 1 deciview for both facilities.\\n 163 Nat’l Parks Conservation Ass’n, 788 F.3d at 1146–47.\\n 164 Id. One judge on that panel separately concurred to emphasize the procedural focus\\n\\nof the court’s holding. “I write separately to underline my understanding that . . . we are not\\nimpugning the EPA’s use of the CALPUFF model generally. Instead we are requiring a\\nsufficiently reasoned response to a particular comment regarding CALPUFF’s usefulness in\\nthese specific circumstances.” Id. at 1149 (Berzon, J., concurring).\\n 67\\n\\f Case: 18-60116 Document: 00515144673 Page: 68 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\ntherefore failed to fulfill the agency’s procedural obligation to consider\\nsignificant comments made by the public.\\n The EPA responded to this “margin of error” comment as follows:\\n The commenter mischaracterizes the Ninth Circuit decision\\n regarding the “margin of error” of the model. The commenter\\n suggests that the Court agreed that the anticipated visibility\\n benefits in that case were within the margin of error of the model.\\n This is incorrect. The Ninth Circuit decision did not rule on any\\n specific issue related to CALPUFF. Rather, the court ruled on a\\n procedural error that the EPA did not respond to the comment\\n received regarding the CALPUFF margin of error in its\\n rulemaking as required under the law. Here and elsewhere in our\\n previous response to comments we address a very similar comment\\n with respect to CALPUFF modeling for Arkansas sources, as well\\n as the commenter’s analysis claiming to estimate the “margin of\\n error.”\\n\\n We responded to comments concerning a very similar “margin of\\n error” analysis in our response to comments and final action for\\n Regional Haze in Arkansas. The Trinity analysis discussed in the\\n comment above purports to calculate a “margin of error” of the\\n CALPUFF modeling for Entergy Nelson. In general, the\\n commenter’s analysis adds CALPUFF model results for a specific\\n source or sources with CAMx model results and compares this\\n value to visibility conditions derived from monitored data at each\\n Class I area. This analysis is flawed for many reasons as discussed\\n in detail in our Arkansas RTC document that discusses a similar\\n analysis performed for Entergy Lake Catherine and fails to\\n provide any assessment of the ability of the CALPUFF model to\\n evaluate visibility impacts or the degree of visibility improvement\\n that may be expected from available control technology to inform\\n BART and reasonable progress evaluations. Whether or not the\\n modeled visibility impacts or benefits lie below this calculated\\n “margin of error” is immaterial to any assessment of whether or\\n 68\\n\\f Case: 18-60116 Document: 00515144673 Page: 69 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n not the visibility impairment or benefits from controls can\\n reasonably be anticipated to occur. We note that the commenter\\n did not provide any spreadsheets or detailed calculations to\\n support this analysis, therefore we were unable to fully review and\\n respond to the individual calculations or specific methodology\\n underlying the presented values in the commenter’s summary\\n report and comments.\\n\\n As discussed elsewhere in this document, we are confident that\\n CALPUFF distinguishes, comparatively, the relative contributions\\n from sources such that the differences in source configurations,\\n sizes, emission rates, and visibility impacts are well-reflected in\\n the model results. We agree with LDEQ that the CALPUFF model\\n followed the reviewed protocol is an appropriate tool to evaluate\\n visibility impacts and benefits to inform a BART determination.\\n\\n Furthermore, our CAMx modeling of coal-fired sources included in\\n the LA RH SIP (see Appendix F) further supports the conclusion\\n that the Entergy Nelson and Cleco Brame sources are subject to\\n BART.\\n\\n This explanation is fulsome. In it, the EPA (1) cited its responses on the\\nsame issue in the Arkansas and Texas federal implementation plans (which\\nare in the administrative record here), (2) disagreed with the commenter’s\\ninterpretation of National Parks Conservation Ass’n, (3) criticized the\\ncommenter’s “calculated margin of error” methodology, (4) disagreed with the\\ncommenter’s method of combining results from two different models, and (5)\\nnoted the commenter’s failure to provide the underlying data. Although\\nIndustry Petitioners might not agree with the conclusion that the EPA\\nreached, the EPA “meaningfully respond[ed]” to the substance of the comment.\\n * * *\\n 69\\n\\f Case: 18-60116 Document: 00515144673 Page: 70 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n In short, Industry Petitioners contend that CALPUFF uses\\noversimplified and unrealistic assumptions. The EPA agrees in part, but\\ninsists that those assumptions are based on reasoned policy decisions.\\n Given the conflicting technical contentions, we defer to the EPA’s\\napproval of Louisiana’s reliance on the CALPUFF model. The EPA’s selection\\nof modeling methods to measure visibility impacts is exactly the type of\\ndecision for which “significant deference” is appropriate. 165 Although\\nCALPUFF has documented flaws, (1) the BART guidelines continue to\\nrecommend that model for these determinations, 166 (2) the EPA has recently\\ndirected states to use that model, 167 and (3) it “has been used for almost every\\nsingle-source BART analysis in the country.”\\n We defer to the EPA’s approval of Louisiana’s reliance on the CALPUFF\\nmodel. Industry Petitioners have not carried their “considerable burden” to\\novercome the “presumption of regularity” that we afford to “the EPA’s choice\\nof analytical methodology.” 168 Because a model “is meant to simplify reality in\\norder to make it tractable,” and need not “fit every application perfectly,” 169 we\\n\\n\\n\\n\\n 165 See Appalachian Power Co. v. EPA, 135 F.3d 791, 802 (D.C. Cir. 1998) (“Statistical\\nanalysis is perhaps the prime example of those areas of technical wilderness into which\\njudicial expeditions are best limited to ascertaining the lay of the land.”).\\n 166 BART Guidelines, 40 C.F.R. part 51, App. Y, III.A.3.\\n 167 82 Fed. Reg. 5,182, 5,196 (Jan. 17, 2017) (“[T]his final action does not affect the\\n\\nEPA’s recommendation that states use CALPUFF to determine the applicability and level of\\nbest available retrofit technology in regional haze implementation plans.”).\\n 168 BCCA Appeal Grp., 355 F.3d at 832\\n 169 Ass’n of Battery Recyclers, 308 F.3d at 1063.\\n\\n 70\\n\\f Case: 18-60116 Document: 00515144673 Page: 71 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nhold that the EPA’s reliance on the CALPUFF model was not arbitrary and\\ncapricious.\\n Moreover, the Clean Air Act’s structure gives states the primary\\nresponsibility for implementing the federal standards. The EPA’s role is to\\nreview the states’ plans for compliance with the Act’s requirements. Within\\nthose respective roles, “the States may submit implementation plans more\\nstringent than federal law requires,” and the EPA “must approve such plans if\\nthey meet the minimum requirements” of the Clean Air Act. 170 At this “subject\\nto BART” stage—the purpose of which is to determine which of the BART-\\neligible sources warrant a “closer look” 171—Louisiana’s reliance on a modeling\\nmethod that tends to be overinclusive would result in a SIP that is more\\nstringent than the federal requirements. The EPA’s approval of such a SIP\\nwould be well within the agency’s role to ensure the SIP “meet[s] the minimum\\nrequirements” of the Clean Air Act. 172\\n 3. Challenge to the EPA’s CAMx Modeling\\n We have concluded that the EPA’s reliance on the CALPUFF model was\\nnot arbitrary and capricious, so we need not address Industry Petitioners’\\ncontentions about the EPA’s use of CAMx modeling.\\n\\n\\n\\n\\n 170 Union Elec. Co., 427 U.S. at 265; see 42 U.S.C. § 7410(k)(3) (“[the EPA] shall\\napprove [a SIP] submittal as a whole if it meets all of the applicable requirements of this\\nchapter.”).\\n 171 BART Rule, 70 Fed. Reg. at 39,127.\\n 172 Union Elec. Co., 427 U.S. at 265.\\n\\n 71\\n\\fCase: 18-60116 Document: 00515144673 Page: 72 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n IV. CONCLUSION\\n For the foregoing reasons, the petitions for review are DENIED.\\n\\n\\n\\n\\n 72\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4444146/\", \"author_raw\": \"WIENER, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"SMITH"},"judge2":{"kind":"string","value":"WIENER"},"judge3":{"kind":"string","value":"ELROD"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"SMITH\": \", Circuit\", \"WIENER\": \", Circuit\", \"ELROD\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4666893/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Sierra Club v. EPA\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-03\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-60116 Document: 00515144673 Page: 1 Date Filed: 10/03/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n October 3, 2019\n No. 18-60116\n Lyle W. Cayce\n Clerk\nSIERRA CLUB; NATIONAL PARKS CONSERVATION ASSOCIATION;\nENTERGY LOUISIANA, L.L.C.,\n\n Petitioners\n\nv.\n\nUNITED STATES ENVIRONMENTAL PROTECTION AGENCY; ANDREW\nWHEELER, Administrator, United States Environmental Protection Agency,\n\n Respondents\n\n\n\n On Petitions for Review of Final Administrative Action\n of the United States Environmental Protection Agency\n\n\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\nWIENER, Circuit Judge:\n In a December 21, 2017 Final Rule (“the Final Rule”), the United States\nEnvironmental Protection Agency (“the EPA”) approved Louisiana’s state\nimplementation plan (“SIP”) for controlling regional haze. Louisiana’s regional\nhaze SIP had two alleged problems. First, the SIP used an outdated air-\npollution model called “CALPUFF” to measure the visibility impacts of\npowerplant emissions. Second, the SIP included a sparse explanation for how\nLouisiana weighed five mandatory statutory factors in determining the Best\nAvailable Retrofit Technology (“BART”) for controlling emissions at Unit 6 of\nthe Roy S. Nelson powerplant (“Nelson”). Despite the EPA’s knowledge of these\n\f Case: 18-60116 Document: 00515144673 Page: 2 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nproblems, it determined that Louisiana had fulfilled its obligations under the\nClean Air Act.\n We consider two petitions for review of the Final Rule. One is from\nPetitioners-Appellants Sierra Club and National Parks Conservation\nAssociation (collectively, “Environmental Petitioners”). The other is from\nPetitioner-Appellant Entergy Louisiana, L.L.C., the owner of the Nelson\npowerplant, and Cleco Power, L.L.C., an intervenor in this case (collectively,\n“Industry Petitioners”).\n Environmental Petitioners maintain that Louisiana’s SIP does too little\nto curb regional haze at federally protected areas. They contend that (1)\nLouisiana’s determination that “low-sulfur coal” was the BART for the Nelson\npowerplant was deficient in several respects and (2) the EPA acted arbitrarily\nand capriciously in approving Louisiana’s SIP because it knew about those\ndeficiencies.\n In contrast, Industry Petitioners insist that Louisiana’s SIP\noverestimates the amount of pollution that their powerplants produce. In their\nchallenge to the EPA’s approval of Louisiana’s “subject to BART”\ndeterminations, Industry Petitioners object to Louisiana’s and the EPA’s use\nof the “CALPUFF” model, which they maintain relies on several flawed\ntechnical assumptions.\n We deny Industry Petitioners’ petition. We afford “significant deference”\nto agency decisions involving analysis of scientific data within the agency’s\ntechnical expertise. The EPA’s selection of a model to measure air pollution\nlevels is precisely that type of decision. The EPA therefore did not act\n 2\n\f Case: 18-60116 Document: 00515144673 Page: 3 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\narbitrarily and capriciously in relying on the CALPUFF model to approve\nLouisiana’s “subject to BART” determinations.\n Although Environmental Petitioners’ challenge presents a closer\nquestion, we deny that petition as well. Louisiana’s explanation of its BART\ndetermination for Nelson omitted two of the five mandatory factors and failed\nto compare—or even set out—the numbers for the costs and benefits of the\ncontrol options Louisiana considered. Louisiana also failed to explain how its\ndecision accounted for the EPA-submitted analyses that pointed out\nsubstantial flaws in other analyses in the administrative record. But applying\nthe deferential standards of the Administrative Procedures Act to the facts of\nthis case, we hold that the EPA’s approval of Louisiana’s SIP was not arbitrary\nand capricious.\n The petitions for review are denied.\n I. BACKGROUND\n This case addresses the EPA’s approval of Louisiana’s SIP for controlling\nregional haze. The Clean Air Act “requires the states and the federal\ngovernment to set and seek to achieve targets for visibility in protected\nnational parks and wildlife areas by modifying regulations that control air\npollutants in ambient air.” 1 Under the Act, the federal government identifies\nair pollutants and sets standards, and the states have “the primary\nresponsibility” for implementing those standards through SIPs. 2 After a state\n\n\n 1 Texas v. EPA, 829 F.3d 405, 411 (5th Cir. 2016) (citing 42 U.S.C. §§ 71410, 7491,\n7492(e)(2)).\n 2 Id. (citation omitted).\n\n 3\n\f Case: 18-60116 Document: 00515144673 Page: 4 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nsubmits its SIP, the EPA reviews the SIP for compliance with the Clean Air\nAct.\n Powerplants that emit sulfur dioxide (“SO2”) and oxides of nitrogen\n(“NOx”) contribute to regional haze in protected federal areas. 3 Louisiana has\nfive powerplants that cause or contribute to visibility impairments in such\nareas. 4 Since 2008, Louisiana has revised its SIP several times and established\nemission controls at some of those powerplants. In October 2017, Louisiana\nsubmitted its final SIP revisions, which addressed, inter alia, emission controls\nat Unit 6 of the Nelson powerplant.\n On December 21, 2017, the EPA promulgated a final rule approving\nLouisiana’s SIP. 82 Fed. Reg. 60,520 (Dec. 21, 2017) (“the Final Rule”). The two\npetitions for review of the Final Rule address the EPA’s approval of (1)\nLouisiana’s determination that Nelson and two units at the Cleco-owned\nBrame Energy Center (“Brame”) are subject to BART for controlling emissions,\n(2) Louisiana’s selection of low-sulfur coal as BART for controlling SO2\nemissions at Nelson, and (3) Louisiana’s reasonable progress goals and long-\nterm strategy.\n Environmental Petitioners first address Louisiana’s BART\ndetermination for Nelson. They contend that the Louisiana Department of\n\n\n\n 3Id. Regional haze is a “visibility impairment that is produced by a multitude of\nsources and activities that are located across a broad geographic area and emit fine\nparticulates . . . and their precursors.” 77 Fed. Reg. 42,834, 42,837 (July 20, 2012) (describing\nregional haze and the history of regional haze regulation).\n 4 See 82 Fed. Reg. 22,936, 22,942 (May 19, 2017).\n\n 4\n\f Case: 18-60116 Document: 00515144673 Page: 5 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nEnvironmental Quality (“LDEQ”) erred in three ways: (1) determining that\nlow-sulfur coal was BART for Nelson, despite the EPA-submitted analyses that\ncontradicted the analyses in the record, (2) failing to provide a rational basis\nfor rejecting a more effective pollution control, and (3) not complying with the\nBART guidelines or considering all the mandatory BART factors.\n Environmental Petitioners next object to the Final Rule’s approval of\nLouisiana’s long-term strategy and reasonable progress goals. They maintain\nthat Louisiana’s 2017 SIP revisions did not fulfill the state’s obligations to\nrevise and resubmit its long-term strategy and reasonable progress goals after\nthe EPA disapproved that strategy and those goals in 2012. Louisiana’s 2017\nSIP revisions did not impose additional controls at non-BART “reasonable\nprogress” sources and did not address the state’s reasonable progress goals or\nlong-term strategy for achieving natural visibility conditions. According to\nEnvironmental Petitioners, the EPA improperly overlooked these omissions\nwhen it approved Louisiana’s SIP.\n Environmental Petitioners object to the type of BART control Louisiana\nimplemented. Industry Petitioners, in contrast, object to Louisiana’s\ndetermination that Nelson and Brame are subject to BART at all. Industry\nPetitioners challenge the technical assumptions underlying the modeling\nmethods on which Louisiana and the EPA relied. Louisiana relied on the\n“CALPUFF” model, and the EPA relied on both the CALPUFF and the “CAMx”\nmodels. According to Industry Petitioners, the CALPUFF model overstates the\nvisibility effects of powerplant emissions. They also maintain that the EPA\n\n\n 5\n\f Case: 18-60116 Document: 00515144673 Page: 6 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nexceeded its authority by using its own CAMx modeling to support Louisiana’s\nmodeling results.\n Each petitioner in this case is also a respondent-intervenor. The\nEnvironmental Petitioners, in addition to petitioning for review of some parts\nof the Final Rule, also intervened and filed a responsive brief opposing\nIndustry Petitioners’ petition. Likewise, Industry Petitioners, in addition to\npetitioning for review of some parts of the Final Rule, also intervened and filed\na responsive brief opposing Environmental Petitioners’ petition.\n The EPA responded to both petitions, insisting that the Final Rule\nshould be approved in full. The LDEQ filed an amicus brief supporting the\nEPA’s position.\nA. Statutory and Regulatory Framework\n This case is governed by the Clean Air Act and the regulations\nimplementing it. In 1977, “in response to a growing awareness that visibility\nwas rapidly deteriorating in many places, such as wilderness areas and\nnational parks,” Congress amended the Act by enacting § 169A. 5\n That amendment established as a national goal “the prevention of any\nfuture, and the remedying of any existing, impairment in visibility in\nmandatory class I Federal areas which impairment results from manmade air\npollution.” 6 Protected class I Federal areas include “all (1) international parks,\n(2) national wilderness areas which exceed 5,000 acres in size, (3) national\n\n\n\n 5 North Dakota v. EPA, 730 F.3d 750, 755 (8th Cir. 2013) (internal quotation omitted).\n 6 42 U.S.C. § 7491.\n 6\n\f Case: 18-60116 Document: 00515144673 Page: 7 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nmemorial parks which exceed 5,000 acres in size, and (4) national parks which\nexceed 6,000 acres in size.” 7 Louisiana’s Breton National Wildlife Refuge and\nthe Caney Creek Wilderness Area in southwest Arkansas are the protected\nClass I Federal areas at issue here. 8\n The Clean Air Act is “an experiment in cooperative federalism,” in which\nthe federal government identifies pollutants and sets visibility targets, and the\nstates implement those standards though SIPs. 9 The Act directed the EPA to\nissue regulations requiring: (1) that states submit SIPs to the EPA, (2) the\ninstallation of the “best available retrofit technology, as determined by the\nState . . . for controlling emissions” at specified air-pollution sources, and (3)\nthat each state adopt a long-term strategy “for making reasonable progress”\ntoward the national visibility goal. 10\n Based on the Act’s directive, the EPA promulgated the Regional Haze\nRule in 1999. 11 “The Regional Haze Rule established the guidelines for state\ncompliance with the air visibility requirements of [the Clean Air Act].” 12 In\n2005, the EPA revised that Rule and issued the BART guidelines, which set\nout the process for states to establish BART emissions limitations. 13\n\n\n\n 7 Id. § 7472(a).\n 8 77 Fed. Reg. 11,839, 11,845 (Feb. 28, 2012).\n 9 Texas, 829 F.3d at 411.\n 10 42 U.S.C. § 7491(b)(2)(A)–(B). The EPA has stated that the national visibility goal\n\nis “to attain natural visibility conditions by the year 2064.” 40 C.F.R. § 51.308(d)(1)(i)(B).\n 11 64 Fed. Reg. 35,714 (July 1, 1999); 40 C.F.R. § 51.308 (“Regional Haze Rule”).\n 12 Texas, 829 F.3d at 412.\n 13 70 Fed. Reg. 39,104 (July 6, 2005) (“BART Rule”); 40 C.F.R. Part 51, App. Y (“BART\n\nGuidelines”).\n 7\n\f Case: 18-60116 Document: 00515144673 Page: 8 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n The Clean Air Act and the Regional Haze Rule impose five requirements\nfor SIPs:\n For each affected wilderness and national park, the plan must: (1)\n set “reasonable progress goals” toward achieving natural visibility\n conditions that ensure improvements in visibility on the most\n impaired days over the period of the implementation plan; (2)\n calculate baseline visibility and natural visibility conditions; (3)\n devise a long-term strategy with enforceable emissions limitations,\n compliance schedules, and other measures necessary to achieve\n the reasonable progress goals; (4) develop a monitoring strategy\n for measuring and reporting visibility; and (5) list the best\n available retrofit technology . . . that emission sources in the state\n will have to adopt to achieve the visibility goals, along with a\n schedule for implementing BART. 14\n\n After a state submits its SIP to the EPA, the agency reviews the SIP for\ncompliance with the Clean Air Act. If the EPA determines that a SIP does not\ncomply with the Act, it must promulgate a “Federal implementation plan” that\nfixes the SIP’s shortcomings, unless the state corrects the deficiency. 15 The\nEPA’s role is confined “to the ministerial function of reviewing SIPs for\nconsistency with the Act’s requirements.” 16\n The parties focus on two of the Clean Air Act’s and Regional Haze Rule’s\nrequirements: (1) the BART emission limits and (2) the reasonable progress\ngoals and long-term strategy that each state must implement.\n\n\n 14 Texas, 829 F.3d at 412 (citing 40 C.F.R. § 51.308(d), (e)).\n 15 42 U.S.C. § 7410(k)(3), (c)(1). Because the EPA approved Louisiana’s SIP, there is\nno Federal implementation plan at issue here.\n 16 Texas, 829 F.3d at 411 (quoting Luminant Generation Co. v. EPA, 675 F.3d 917, 921\n\n(5th Cir. 2012)).\n 8\n\f Case: 18-60116 Document: 00515144673 Page: 9 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n 1. BART Emission Limits\n The Regional Haze Rule defines BART as “an emission limitation based\non the degree of reduction achievable through the application of the best\nsystem of continuous emission reduction for each pollutant which is emitted by\nan existing stationary facility.” 17 The BART process has three steps. First, a\nstate must identify all “BART-eligible sources.” Second, it must determine\nwhich of those BART-eligible sources are “subject to BART.” Third, for each\nsource that is “subject to BART,” the state must make a “BART determination”\nby analyzing and selecting the appropriate emission control for that source. 18\n Step one is identifying all “BART-eligible sources.” That definition\nincludes all stationary facilities that (1) were in existence before August 7,\n1977 but were not in operation before August 7, 1962, (2) have “the potential\nto emit 250 tons per year or more of any visibility-impairing air pollutant,” and\n(3) fall within one of 26 listed source categories. 19 The parties agree that Nelson\nand Brame satisfy these requirements and are “BART-eligible” sources.\n Step two is making “subject to BART” determinations. The state must\ndetermine which of the BART-eligible sources emit air pollutants that “may\nreasonably be anticipated to cause or contribute to any impairment of\nvisibility” in a Class I area. 20 The key words are “cause” and “contribute to.”\n\n\n\n 1740 C.F.R. § 51.301.\n 18BART Guidelines, 40 C.F.R. Part 51, App. Y at I.F; see also Util. Air Regulatory Grp.\nv. EPA, 471 F.3d 1333, 1335–36 (D.C. Cir. 2006) (explaining the process).\n 19 40 C.F.R. § 51.301.\n 20 Id.\n\n 9\n\f Case: 18-60116 Document: 00515144673 Page: 10 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nSources that a state determines may reasonably be anticipated to “cause” or\n“contribute to” visibility impairment at a protected area are “subject to\nBART.” 21 Under the BART Guidelines, a 1.0 deciview 22 change from an\nindividual source “causes” visibility impairment, whereas a 0.5 deciview\nchange from an individual source “contributes to” impairment. 23 In some\ninstances, states may set a lower threshold for sources that “contribute to”\nvisibility impairment. 24\n At the “subject to BART” screening step, states have discretion to either\n(a) determine that all BART-eligible sources are “subject to BART” via\n“collective attribution” or (b) conduct individualized testing to determine that\na source, or a group of sources, is exempt from BART. 25 Here, Louisiana opted\nfor the second option.\n\n\n\n\n 21 Id.\n 22 Visibility impairments are measured in deciviews. A deciview “is the unit of\nmeasurement on the deciview index scale for quantifying in a standard manner human\nperceptions of visibility.” 40 C.F.R. § 51.301. “A higher deciview measurement indicates more\nhaze and less visibility. . . . A single deciview is around the increment that the average person\ncan perceive with the naked eye.” Texas, 829 F.3d at 413 n.2.\n 23 BART Rule, 70 Fed. Reg. at 39,120 (“[W]e are clarifying that for purposes of\n\ndetermining which sources are subject to BART, States should consider a 1.0 deciview change\nor more from an individual source to ‘cause’ visibility impairment, and a change of 0.5\ndeciviews to ‘contribute’ to impairment.”). For a fuller background on the “cause” or\n“contribute” distinction, see id. at 39,117–39,122.\n 24 Id. at 39,120–39,121 (“In a regulatory context, we believe that a State’s decision as\n\nto an appropriate threshold for contribution could depend upon the number of sources\naffecting a class I area.”).\n 25 BART Guidelines, 40 C.F.R. Pt. 51, App. Y at III.\n\n 10\n\f Case: 18-60116 Document: 00515144673 Page: 11 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n The third step is the “BART determination,” in which a state must\nidentify the appropriate emission control for each “subject to BART” source. 26\nAt each such source, the state must consider five statutory factors: (1) the costs\nof compliance, (2) the energy and nonair quality environmental impacts of\ncompliance, (3) any existing pollution control technology in use at the source,\n(4) the remaining useful life of the source, and (5) the degree of improvement\nin visibility which may reasonably be anticipated to result from the use of such\ntechnology. 27\n For powerplants with generating capacities greater than 750 megawatts,\nlike those at issue here, a state’s BART determination must comply with the\nBART guidelines, 28 which provide step-by-step instructions for making BART\ndeterminations. 29 In contrast, at the BART-eligibility and “subject to BART”\nsteps, the BART guidelines are advisory only. 30\n 2. Reasonable Progress Goals and Long-Term Strategy\n The Regional Haze Rule requires a state to “establish goals (expressed\nin deciviews) that provide for reasonable progress towards achieving natural\nvisibility conditions” for each Class I area within that state. 31 The process and\nconsiderations for calculating these goals are as follows:\n\n\n\n 26Id. at IV.\n 2742 U.S.C. § 7491(g)(2); Regional Haze Rule, 40 C.F.R. § 308(e)(1)(ii)(A) .\n 28 Regional Haze Rule, 40 C.F.R. § 51.308(e)(1)(ii)(B); 42 U.S.C. § 7491(b)(2); see also\n\n77 Fed. Reg. 11,839, 11,849 (Feb. 28, 2012).\n 29 See BART Guidelines, 40 C.F.R. Part 51, App. Y § IV.\n 30 Util. Air Regulatory Grp., 471 F.3d at 1338–39.\n 31 40 C.F.R. § 51.308(d)(1).\n\n 11\n\f Case: 18-60116 Document: 00515144673 Page: 12 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n A state begins by calculating the steady linear rate of decreasing\n emissions that would achieve natural visibility in the covered\n wildernesses and national parks by the year 2064. 40 C.F.R.\n § 51.308. If a state determines that the linear rate would result in\n unreasonable regulations, it must propose an alternative set of\n reasonable progress goals and demonstrate both that the linear\n rate is unreasonable and that the alternative goals are reasonable.\n Id. § 51.308(d)(1)(ii). The Clean Air Act and the Regional Haze\n Rule require a state to consider four factors when setting\n reasonable progress goals: “the costs of compliance, the time\n necessary for compliance, and the energy and nonair quality\n environmental impacts of compliance, and the remaining useful\n life of any existing source subject to such requirements.” 42 U.S.C.\n § 7491(g)(1); see also 40 C.F.R. § 51.308(d)(1)(i)(A) (repeating the\n factors listed in § 7491(g)(1)). 32\n\nThe evaluation of the four statutory factors is often referred to as a “‘four-factor\nanalysis’ or ‘reasonable progress analysis.’” 33\n In addition to setting reasonable progress goals, a state must establish a\n“long-term strategy” to make reasonable progress toward achieving natural\nvisibility conditions. 34 This strategy must include “enforceable emissions\nlimitations, compliance schedules, and other measures necessary to achieve\nthe reasonable progress goals.” 35 As part of its long-term strategy, a state may\nimpose additional emission reduction measures at sources that are not “subject\nto BART.” 36 Sources that are regulated through the reasonable progress\n\n\n 32 Texas, 829 F.3d at 412–13.\n 33 81 Fed. Reg. 66,332, 66,360 (Sept. 27, 2016).\n 34 40 C.F.R. § 51.308(d)(3).\n 35 Id.; see 42 U.S.C. § 7491(b)(2)(A).\n 36 40 C.F.R. § 51.308(d)(3).\n\n 12\n\f Case: 18-60116 Document: 00515144673 Page: 13 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\ngoals—rather than through BART—are referred to as “reasonable progress\nsources.” 37\nB. Factual Background\n The procedural history of this case began when Louisiana submitted its\nregional haze SIP to the EPA in 2008. Since then, Louisiana has revised and\nresubmitted its SIP many times. Louisiana submitted its final SIP revisions in\nOctober 2017, and the EPA approved Louisiana’s SIP in its December 2017\nFinal Rule. 38\n 1. Louisiana’s 2008 Submittal\n Louisiana submitted a SIP for addressing regional haze in June 2008. In\nthat SIP, Louisiana relied on an emissions-trading program called the Clean\nAir Interstate Rule (“CAIR”) to satisfy its BART, reasonable-progress, and\nlong-term strategy obligations. The EPA reviewed that SIP in two separate\nactions in 2012. 39\n The first such action, a national rulemaking, was based on a D.C. Circuit\ndecision that (1) held that states could not rely on CAIR to satisfy their BART\nobligations and (2) remanded CAIR to the EPA. 40 In that national rulemaking,\nthe EPA finalized a “limited disapproval” of Louisiana’s SIP because it had\nrelied on CAIR. 41\n\n\n 37 Id.\n 38 See Final Rule, 82 Fed. Reg. at 60,521–60,522 (“Our Previous Actions”).\n 39 See 82 Fed. Reg. 32,294, 32,295 (July 13, 2017) (detailing the procedural history).\n 40 See North Carolina v. EPA, 531 F.3d 896, 930 (D.C. Cir. 2008), reh’g granted in part,\n\n550 F.3d 1176 (D.C. Cir. 2008).\n 41 77 Fed. Reg. 33,642, 33,643 (June 7, 2012).\n\n 13\n\f Case: 18-60116 Document: 00515144673 Page: 14 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n The second such action “partially disapproved” Louisiana’s SIP\nsubmission based on issues other than, and “go[ing beyond],” the SIP’s reliance\non CAIR. In addition to this “partial disapproval” of particular parts of\nLouisiana’s SIP, that action also included a “partial limited approval” of other\nparts of the SIP.\n The “partial limited approval” part of that action was based on the EPA’s\nconclusion that specified parts of the SIP, “as a whole, strengthen[ed] the\nState’s SIP.” 42 Although the EPA concluded that some of the SIP provisions—\nincluding Louisiana’s reasonable progress goals and long-term strategy—did\nnot comply with the Clean Air Act, those noncompliant provisions were\nincluded in the partial limited approval. 43\n In the “partial disapproval” part of that action, the EPA disapproved the\nparts of the SIP related to CAIR, including the BART analyses for non-electric\ngenerating unit (“EGU”) sources 44 and the BART determinations for four\nspecific non-EGU sources. 45 Those deficiencies are not at issue here.\n A definitional note: Limited approvals and partial approvals are\ndifferent. If a submittal does not meet all of the Act’s requirements, but a\n“separable” part does meet those requirements, a “partial approval may be\n\n\n 42 77 Fed. Reg. 39,425, 39,426 (July 3, 2012) (“2012 Final Rule”).\n 43 See id.\n 44 “[T]he term ‘electric generating unit’ or ‘EGU’ is used to mean a solid fuel-fired\n\nsteam generating unit that serves a generator that produces electricity for sale to the electric\ngrid.” EPA Whitepaper on Available and Emerging Technologies for Reducing Greenhouse\nGas Emissions from Coal-Fired Electric Generating Units (Oct. 2010),\nhttps://www.epa.gov/sites/production/files/2015-12/documents/electricgeneration.pdf.\n 45 2012 Final Rule, 77 Fed. Reg. at 39,426.\n\n 14\n\f Case: 18-60116 Document: 00515144673 Page: 15 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nused to approve that part of the submittal and disapprove the remainder.” 46 In\ncontrast, if parts of a submittal do not meet the Clean Air Act’s requirements,\nbut “the submittal as a whole” has a “strengthening effect” on the SIP, the EPA\nmay use a “limited approval” to enact the entire submittal. 47 The practical\ndifference is\n that under a limited approval the EPA’s approval action goes to\n the entire [submittal]. In other words, although portions of a\n [submittal] prevent the EPA from finding that the [submittal]\n meets a certain requirement of the Act, the EPA believes that the\n [submittal], as a whole, strengthens the SIP. Therefore, the EPA\n approves the entire [submittal]--even those portions that prohibit\n full approval. Likewise, when the EPA issues the limited\n disapproval, the disapproval applies to the entire [submittal] as\n failing to meet a specific requirement of the Act. The [submittal]\n remains a part of the [enforceable] SIP, however, under the limited\n disapproval, because the [submittal] strengthens the SIP. The\n disapproval only applies to whether the submittal meets a specific\n requirement of the Act and does not affect incorporation of the rule\n into the approved, federally enforceable SIP. 48\n\nIn short, in a partial approval, the approved parts of the submittal go into effect\nand the disapproved parts do not. In a limited approval, the entire part that is\n“limitedly” approved—including the provisions within that part that do not\n\n\n\n\n 46 Processing of State Implementation Plan Revisions at 2, the EPA Memorandum\nfrom John Calcagni (July 9, 1992), https://www.epa.gov/sites/production/files/2015-\n07/documents/procsip.pdf.\n 47 Id. at 2–3.\n 48 Id. at 3.\n\n 15\n\f Case: 18-60116 Document: 00515144673 Page: 16 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\ncomply with the Clean Air Act—goes into effect and are incorporated into the\napproved SIP.\n As a result of the partial disapproval, the EPA was required to\npromulgate a federal implementation plan within two years of that\ndisapproval, unless it approved a corrected state plan. 49 The EPA did not\npromulgate a federal plan or approve a corrected state plan within that\ntimeframe. Based on that, the Sierra Club sued the EPA, and a federal district\ncourt entered a consent decree requiring the EPA to issue a federal plan or\napprove a corrected state plan by December 15, 2017. 50\n 2. Louisiana’s 2017 Revisions and the EPA’s Approval\n To bring its SIP into compliance, Louisiana revised its SIP to, among\nother things, address BART for the Nelson and Brame powerplants. Nelson\nand Brame are two of the largest sources of SO2 and NOx emissions in\nLouisiana, are “BART-eligible,” and have generating capacities greater than\n750 megawatts. 51\n In August 2016, Louisiana submitted a partial plan addressing BART at\n“non-EGU” sources. The EPA proposed to approve that partial plan in October\n2016 and finalized the approval in the December 2017 Final Rule. 52 The\napproval of that partial plan is not at issue here.\n\n\n 49 42 U.S.C. § 7410(c)(1).\n 50 See Notice of Modification of Consent Decree, Sierra Club v. Pruitt, No. 15-cv-01555-\nJEB (D.D.C. Mar. 13, 2017).\n 51 Final Rule, 82 Fed. Reg. at 60,525–26.\n 52 81 Fed. Reg. 74,750 (Oct. 27, 2016) (proposed rulemaking); Final Rule, 82 Fed. Reg.\n\nat 60,522 (“[W]e are finalizing that approval here.”).\n 16\n\f Case: 18-60116 Document: 00515144673 Page: 17 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n In February 2017, Louisiana submitted a revised plan addressing BART\nfor EGU sources, including Nelson and Brame. In June 2017, Louisiana revised\nits SIP to make a BART determination for Nelson. Louisiana revised its SIP\nagain in October 2017. The EPA’s December 2017 Final Rule explains the\nrelevant procedural history as follows:\n On June 20, 2017, LDEQ submitted a SIP revision for parallel\n processing related to Entergy’s Nelson facility. On July 13, 2017,\n we proposed to approve this SIP revision along with the remaining\n portion of the February 2017 SIP revision that addressed BART\n for the Nelson facility. Specifically, we proposed to approve the\n LDEQ BART determinations for Nelson Units 6 and 4, and the\n Unit 4 auxiliary boiler, and the [administrative order on consent]\n that makes the emission limits that represent BART permanent\n and enforceable for the purposes of regional haze. We also solicited\n comment with respect to any information that would support or\n refute the costs in Entergy’s evaluation of SO2 controls for Unit 6.\n On June 21, 2017, Entergy submitted a comment to LDEQ on its\n proposed SIP revision requesting a three-year compliance deadline\n to achieve the proposed SO2 BART limit for Nelson Unit 6.\n Entergy’s letter explained that the company has coal contracts in\n place for the next three years, so the revised compliance date would\n provide the company sufficient time to transition to new mines\n with lower sulfur coal. Additionally, Entergy stated that it did not\n have the necessary equipment to blend varying fuel supplies. On\n August 24, 2017, we received a letter from LDEQ explaining their\n intent to revise the compliance date in the SIP revision for Nelson\n Unit 6 based on Entergy’s comment letter. On September 26, 2017,\n we supplemented our proposed approval of the SO2 BART\n determination for Nelson by proposing to approve the three-year\n compliance date. On October 26, 2017, we received LDEQ’s final\n SIP revision addressing Nelson, including a final [administrative\n order of consent] with emission limits and a SO2 compliance date\n\n 17\n\f Case: 18-60116 Document: 00515144673 Page: 18 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n three years from the effective date of the EPA’s final approval of\n the SIP revision. 53\n\n In the October 2017 SIP revisions, Louisiana (1) determined that Nelson\nand Brame were “subject to BART” and (2) determined that low-sulfur coal was\nBART for controlling SO2 emissions at Nelson.\n In reaching those conclusions, Louisiana considered analyses submitted\nby Entergy, Cleco, and the EPA. The analyses submitted by the parties\naddressed: (1) the modeling methods for making “subject to BART”\ndeterminations and (2) the potential control options for BART at Nelson. The\nEPA’s analyses contradicted and sharply criticized significant parts of\nEntergy’s and Cleco’s analyses. The LDEQ included all the analyses as\nappendices to its revised SIP.\n i. The “Subject to BART” Determinations\n The LDEQ concluded that Nelson and Brame were “subject to BART.”\nThe department reached that conclusion based on dispersion modeling that\nestablished that those powerplants produced emissions that surpassed the 0.5\ndeciview threshold for “contributing to” visibility impairment at the Breton\nNational Wilderness Area and the Caney Creek Wilderness Area.\n The LDEQ relied on the “CALPUFF” model, which “predicts 24-hour\naverage pollutant concentrations based on source emissions and how they\ndisperse in the atmosphere” and converts those concentrations to daily\n\n\n\n\n 53 82 Fed. Reg. at 60,522.\n 18\n\f Case: 18-60116 Document: 00515144673 Page: 19 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\ndeciview effects. 54 The BART guidelines provide that a state may “use\nCALPUFF or other appropriate model to estimate visibility impacts from a\nsingle source at a Class I area.” 55 When the EPA promulgated those guidelines\nin 2005, CALPUFF was “the best regulatory modeling application currently\navailable for predicting a single source’s contribution to visibility impairment\nand [was then] the only EPA-approved model for use in estimating single\nsource pollutant concentrations resulting from the long range transport of\nprimary pollutants.” 56 Although the EPA has recently removed CALPUFF as\na “preferred” model for other air-quality modeling applications under the Clean\nAir Act, CALPUFF remains a recommended model for making “subject-to-\nBART” and BART emission control determinations. 57\n Both Entergy’s and the EPA’s CALPUFF modeling showed that Nelson\nand Brame each had a greater than 0.5 deciview impact on visibility\nimpairment at Breton and Caney Creek. Entergy, however, submitted reports\nshowing that CALPUFF’s reliance on flawed assumptions imposed a too-high\nmargin of error.\n In addition to conducting CALPUFF modeling, Entergy and the EPA\nconducted another type of modeling called “CAMx.” Entergy and the EPA\nsubmitted their CAMx analyses to the LDEQ.\n\n\n 54 See BART Rule, 70 Fed. Reg. at 39,122 (describing the CALPUFF model in detail).\n 55 BART Guidelines, 40 C.F.R. Part 51, App. Y, III.A.3.\n 56 Id.\n 57 82 Fed. Reg. 5,182, 5,196 (Jan. 17, 2017) (“[T]his final action does not affect the\n\nEPA’s recommendation that states use CALPUFF to determine the applicability and level of\nbest available retrofit technology in regional haze implementation plans.”).\n 19\n\f Case: 18-60116 Document: 00515144673 Page: 20 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n The EPA’s CAMx modeling showed that Nelson and Brame exceeded the\n0.5 deciview threshold. In contrast, Entergy’s CAMx modeling showed that\nthose powerplants’ emissions did not exceed the 0.5 deciview threshold. The\nEPA, however, concluded that Entergy’s CAMx modeling “was not conducted\nin accordance with the BART Guidelines and d[id] not properly assess\nmaximum baseline impacts, so [the EPA] consider[ed] this CAMx modeling\nprovided by Entergy to be invalid for supporting a determination of minimal\nvisibility impacts.” 58\n When the LDEQ reviewed the models that the parties had submitted, it\nstated that it did “not have the expertise with which to review those [CAMx]\nmodel runs,” and instead relied only on the CALPUFF modeling. The LDEQ\ndid, however, include the CAMx analyses as appendices to its revised SIP.\n ii. BART Determinations for Brame and Nelson\n Louisiana’s revised SIP also made BART determinations for Brame and\nNelson. For the two Brame units, the LDEQ determined that “no additional\ncontrols constitute[d] BART.” The LDEQ reached that determination based on\nthose units’ existing controls. At one of those units, BART was satisfied via the\nunit’s earlier conversion from coal to natural gas. The other unit satisfied its\nBART obligations based on an earlier dry sorbent injection installation. 59\n For Nelson, the LDEQ changed its BART determination between the\nFebruary 2017 revision and the June and October 2017 revisions. In the\n\n\n 82 Fed. Reg. at 32,299.\n 58\n\n Cleco does not challenge the LDEQ’s determination about the BART controls at the\n 59\n\nBrame units; it challenges only the determination that the units are “subject to BART.”\n 20\n\f Case: 18-60116 Document: 00515144673 Page: 21 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nFebruary 2017 SIP revision, the LDEQ concluded that no additional controls\nwere necessary for Nelson to satisfy BART. Although the LDEQ stated that\n“low sulfur coal presents the most feasible control based on economics and\nimpacts to visibility,” it also stated that it “believe[d] that the visibility\nimprovement that would be achieved through the installation and operation of\ncontrols at each of the Nelson units would be negligible, therefore the facility’s\nexisting controls satisfy the BART requirements and no further controls are\nnecessary.”\n In its June 2017 SIP revision, however, the LDEQ changed course and\ndetermined that low-sulfur coal was BART for controlling SO2 at Nelson. The\nOctober 2017 SIP revision retained that determination and extended the\ncompliance date for BART at Nelson by three years.\n In the October 2017 SIP revision, the LDEQ stated that it evaluated four\ndifferent technologies for reducing emissions at Nelson: (1) low-sulfur coal, (2)\ndry sorbent injection (“DSI”), (3) dry flue-gas desulfurization (“FGD”), or a “dry\nscrubber,” and (4) wet FGD, or a “wet scrubber.” The LDEQ stated its\nreasoning for selecting low-sulfur coal as BART at Nelson as follows:\n In the Entergy BART five-factor SO2 analysis for the Unit 6\n Boiler, a number of emission reduction controls were reviewed.\n The reviewed controls included the use of a lower sulfur coal, DSI,\n enhanced DSI, dry flue-gas desulfurization (FGD) and wet FGD.\n LDEQ has reviewed and weighed the five factors carefully; after a\n review of the information that Entergy and EPA provided, LDEQ\n has concluded that the appropriate BART for this facility is to\n establish an emission limit of .6 lbs/MMBtu based on a 30 day\n rolling average as defined in the AOC (see Appendix D). While\n additional visibility benefits may be available through the use of\n 21\n\f Case: 18-60116 Document: 00515144673 Page: 22 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n FGD, the lower sulfur coal option results in visibility benefits at a\n lower annual cost. Along with the extra cost, FGD use results in\n additional waste spent due to spent reagent and has some power\n demands to run the equipment. LDEQ believes, at present, that\n the use of lower sulfur coal presents the appropriate SO2 control\n based on consideration of economics, energy impacts, non-air\n quality environmental impacts, and impacts to visibility.\n\n iii. Long-Term Strategy and Reasonable Progress Goals\n\n Louisiana’s revised SIP did not specifically set out a long-term strategy\nor impose emission controls at additional “reasonable progress sources.”\nNeither did it evaluate the four “reasonable progress factors” for determining\nwhether any non-BART reasonable progress sources should be controlled.\n 3. The EPA’s Approval of Louisiana’s SIP\n The EPA proposed two separate rules to approve Louisiana’s revised\nSIP. In May 2017, the EPA issued a proposed rule to approve the entire\nFebruary 2017 SIP revision except for the part about Nelson, on which the EPA\ndeferred action. 60 This rulemaking included an approval of Louisiana’s “subject\nto BART” determination for Brame. 61\n In June 2017, Louisiana revised its SIP by changing its previous “no\nfurther controls” BART determination for Nelson to require the use of low-\nsulfur coal. In a July 2017 rulemaking (“the Proposed Rule”), the EPA proposed\nto approve the remaining part of Louisiana’s SIP addressing Nelson. 62 The\n\n\n\n 60 82 Fed. Reg. 22,936 (May 19, 2017).\n 61 Id. at 22,942–22,943.\n 62 Proposed Rule, 82 Fed. Reg. 32,294, 32,300 (July 13, 2017).\n\n 22\n\f Case: 18-60116 Document: 00515144673 Page: 23 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nProposed Rule (1) agreed with the LDEQ that Nelson was “subject to BART”\nand (2) stated that the LDEQ had adequately analyzed the five mandatory\nBART factors. 63 But the Proposed Rule also criticized several aspects of the\nSIP revision, including Entergy’s modeling, cost estimates, and supporting\ndocumentation. The Proposed Rule stated that the EPA performed its own\nmodeling and analyses to correct those errors. 64\n After the EPA issued the Proposed Rule, Louisiana submitted a letter to\nthe EPA explaining the state’s intention to extend the compliance date in its\ndraft SIP for Nelson by three years. In response to that letter, the EPA\nsupplemented the Proposed Rule to reflect such change. 65\n Louisiana revised its SIP again in October 2017. As discussed above, that\nrevision extended the date for Nelson to comply with BART by three years. The\nEPA finalized its proposed approval of all of Louisiana’s SIP revisions when it\nissued the Final Rule on December 21, 2017. 66\n The Environmental and Industry Petitioners timely petitioned for\nreview of the Final Rule. On the same day that this case was filed, the\nEnvironmental Petitioners also filed an administrative petition for\nreconsideration of the Final Rule. This court stayed the case pending the EPA’s\n\n\n\n\n 63 Id. at 32,296–32,297.\n 64 Id. at 32,297–32,298.\n 65 82 Fed. Reg. 44,753 (Sept. 26, 2017).\n 66 Final Rule, 82 Fed. Reg. 60,520 (Dec. 21, 2017).\n\n 23\n\f Case: 18-60116 Document: 00515144673 Page: 24 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\ndecision on the administrative petition, then lifted the stay after the EPA\ndenied that petition. 67\n II. STANDARD OF REVIEW\n We review the EPA’s approval of Louisiana’s regional haze SIP under\nthe standards set out in the Administrative Procedure Act (“APA”), which\nrequire us to set aside an agency action that is “arbitrary, capricious, an abuse\nof discretion, or otherwise not in accordance with law.” 68 An action is arbitrary\nand capricious “if the agency has relied on factors which Congress has not\nintended it to consider, entirely failed to consider an important aspect of the\nproblem, offered an explanation for its decision that runs counter to the\nevidence before the agency, or is so implausible that it could not be ascribed to\na difference in view or the product of agency expertise.” 69\n The arbitrary and capricious standard is “narrow,” and we must “be\nmindful not to substitute [our] judgment for that of the agency.” 70 We “must\nalso ensure that the agency ‘examined the relevant data and articulated a\nsatisfactory explanation for its action.’” 71 “We consider whether the decision\n\n\n\n 67 See EPA’s Response to Reconsideration Petition, https://www.regulations.gov/\ncontentStreamer?documentId=EPA-R06-OAR-2016-0520-0011&contentType=pdf. Although\nwe take notice of the administrative petition for reconsideration and the EPA’s response to\nit, our review of the Final Rule “is limited to the record before the agency at the time of its\ndecision.” Luminant, 675 F.3d at 925 (quotation omitted).\n 68 5 U.S.C. § 706(2)(A).\n 69 Tex. Oil & Gas Ass’n v. EPA, 161 F.3d 923, 933 (5th Cir. 1998) (quoting Motor\n\nVehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)).\n 70 10 Ring Precision, Inc. v. Jones, 722 F.3d 711, 723 (5th Cir. 2013) (quoting Motor\n\nVehicle Mfrs. Ass’n, 463 U.S. at 43).\n 71 Id. (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).\n\n 24\n\f Case: 18-60116 Document: 00515144673 Page: 25 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nwas based on a consideration of the relevant factors and whether there has\nbeen a clear error of judgment.” 72\n Additionally, federal agencies “are required to engage in ‘reasoned\ndecisionmaking.’” 73 The agency’s process must be “logical and rational,” and its\ndecision “is lawful only if it rests ‘on a consideration of the relevant factors.’” 74\nThe agency must “articulate a satisfactory explanation for its action including\na ‘rational connection between the facts found and the choice made.’” 75 Under\nthis standard, courts have vacated agency decisions that created “unexplained\ninconsistencies in the rulemaking record.” 76\n Under the Clean Air Act’s structure of cooperative federalism, Louisiana\nis the entity considering “relevant factors,” and the EPA’s role is confined to\nensuring that Louisiana’s determinations complied with the Clean Air Act. 77\nUnder this structure, we review whether the EPA was arbitrary and capricious\nin approving Louisiana’s compliance with the Act.\n\n\n\n 72 Id. (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).\n 73 Michigan v. EPA, 135 S. Ct. 2699, 2706 (2015) (quoting Allentown Mack Sales &\nServ., Inc. v. NLRB, 622 U.S. 359, 374 (1998)).\n 74 Id. (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).\n 75 Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (quoting Burlington Truck Lines v. United\n\nStates, 371 U.S. 156, 168 (1962)).\n 76 U.S. Sugar Corp. v. EPA, 830 F.3d 579, 651 (D.C. Cir. 2016); see id. at 650 (collecting\n\nD.C. Circuit authority and stating “[t]his court has ‘often declined to affirm an agency\ndecision if there are unexplained inconsistencies in the final rule’” (citation omitted)); Gulf\nPower Co. v. FERC, 983 F.2d 1095, 1101 (D.C. Cir. 1993) (“[W]hen an agency takes\ninconsistent positions . . . it must explain its reasoning.); Gen. Chem. Corp. v. United States,\n817 F.2d 844, 846 (D.C. Cir. 1987) (holding agency action to be arbitrary because its analysis\nwas “internally inconsistent and inadequately explained”).\n 77 See Texas, 829 F.3d at 411.\n\n 25\n\f Case: 18-60116 Document: 00515144673 Page: 26 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n III. ANALYSIS\n As a threshold matter, Industry Petitioners and Environmental\nPetitioners have standing. Industry Petitioners’ standing is based on Entergy’s\nand Cleco’s ownership of the powerplants at issue. Environmental Petitioners\nhave standing because one of the Sierra Club’s members submitted a\ndeclaration adequately asserting that (1) he regularly visits the national parks\nin question, (2) he has concrete plans to return in the future, and (3) regional\nhaze affects his visibility. Although the declarations submitted by the National\nParks Conservation Association do not appear to give it standing in this case,\n“one party with standing is sufficient to satisfy Article III’s case-or-controversy\nrequirement.” 78\n Each petition raises two major issues. Environmental Petitioners\nchallenge the EPA’s approval of (1) Louisiana’s selection of low-sulfur coal as\nBART for controlling SO2 emissions at Nelson and (2) Louisiana’s reasonable\nprogress goals and long-term strategy.\n Industry Petitioners challenge the EPA’s approval of Louisiana’s\n“subject to BART” determinations at Nelson and Brame. They contend that (1)\nthe CALPUFF modeling that Louisiana relied on was technically flawed; (2)\nthe CAMx modeling, on which the EPA relied but Louisiana did not, was\ntechnically flawed; and (3) even if the CAMx modeling were not technically\n\n\n\n\n 78Brackeen v. Bernhardt, 937 F.3d 406, 421 (5th Cir. 2019) (quoting Rumsfeld v.\nForum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 53 n.2 (2006)).\n 26\n\f Case: 18-60116 Document: 00515144673 Page: 27 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nflawed, the EPA should not have considered it because Louisiana expressly did\nnot consider it.\n We address each issue in turn.\nA. The Environmental Petitioners’ Petition\n The first part of Environmental Petitioners’ challenge addresses the\nEPA’s approval of Louisiana’s determination that low-sulfur coal was BART\nfor Nelson. The second part of their challenge addresses the EPA’s approval of\nLouisiana’s long-term strategy and reasonable progress goals.\n We deny Environmental Petitioners’ petition, and we explain our\nreasons below.\n 1. The EPA’s Approval of the BART Determination for Nelson\n In its October 2017 SIP revision, Louisiana selected low-sulfur coal as\nBART for controlling SO2 emissions at Nelson. The LDEQ explained its\ndetermination as follows:\n In the Entergy BART five-factor SO2 analysis for the Unit 6\n Boiler, a number of emission reduction controls were reviewed.\n The reviewed controls included the use of a lower sulfur coal, DSI,\n enhanced DSI, dry flue-gas desulfurization (FGD) and wet FGD.\n LDEQ has reviewed and weighed the five factors carefully; after a\n review of the information that Entergy and EPA provided, LDEQ\n has concluded that the appropriate BART for this facility is to\n establish an emission limit of .6 lbs/MMBtu based on a 30 day\n rolling average as defined in the AOC (see Appendix D). While\n additional visibility benefits may be available through the use of\n FGD, the lower sulfur coal option results in visibility benefits at a\n lower annual cost. Along with the extra cost, FGD use results in\n additional waste spent due to spent reagent and has some power\n demands to run the equipment. LDEQ believes, at present, that\n 27\n\f Case: 18-60116 Document: 00515144673 Page: 28 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n the use of lower sulfur coal presents the appropriate SO2 control\n based on consideration of economics, energy impacts, non-air\n quality environmental impacts, and impacts to visibility.\n\n Environmental Petitioners contend that the EPA’s approval of this\ndetermination was arbitrary and capricious for three reasons. First,\nLouisiana’s selection of low-sulfur coal as BART at Nelson was inconsistent\nwith the evidence that the state considered. Second, Louisiana did not provide\na “rational basis” for rejecting more effective pollution controls. Third, in its\nBART determination, Louisiana did not weigh the Clean Air Act’s factors in\ncompliance with the mandatory BART guidelines.\n i. The Evidence Louisiana Considered\n According to Environmental Petitioners, Louisiana’s BART\ndetermination rested solely on analysis by Nelson’s owner, Entergy.\nEnvironmental Petitioners point out that the EPA was “unable to verify any of\nthe company’s costs” because those costs were based on a proprietary database\nto which the EPA was not given access. 79 Similarly, the EPA could not verify\nEntergy’s modeling analyses because Entergy did not provide the “inputs” that\nwere used in the modeling.\n For the parts of Entergy’s analyses that the EPA did review, the EPA\nconcluded that Entergy’s cost and visibility analyses, on which Louisiana\nrelied, had many errors, including: (1) implementing improper costs, (2)\ninflated contingency estimates, and (3) modeling errors. The EPA pointed out\n\n\n\n 79 Proposed Rule, 82 Fed. Reg. at 39,432.\n 28\n\f Case: 18-60116 Document: 00515144673 Page: 29 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nthese errors in the Proposed Rule: (1) “Entergy’s control cost estimates\nincluded costs not allowed under our Control Cost Manual (e.g., escalation\nduring construction and owner’s costs)”; (2) “Entergy also assumed a\ncontingency of 25%, which we note is unusually high”; and (3) “Entergy’s\nCALPUFF modeling included errors in its estimates of sulfuric acid and PM\nemissions.” 80\n After noting these perceived errors, the EPA submitted its own BART\nanalyses that reached markedly different cost-effectiveness estimates for each\nproposed control option at Nelson. The following table compares the EPA’s and\nEntergy’s cost-effectiveness calculations, in cost per ton of pollutant removed,\nfor each control option.\n Cost-Effectiveness Comparison 81\n Technology Entergy’s Calculation the EPA’s Calculation\n Low-sulfur coal $597 $2,957\n DSI $5,611 $3,578 - $4,302\n Wet scrubber $4,413 $2,743\n Dry scrubber (SDA) $4,536 $2,706\n\n Most striking is the difference between the EPA’s and Entergy’s\ncalculations for low-sulfur coal. Entergy estimated that low-sulfur coal would\ncost $597 per ton of pollution removed; the EPA estimated that it would cost\n$2,957 per ton. Entergy’s estimate for what the parties agree would be the most\n\n\n 80Proposed Rule, 82 Fed. Reg. at 32,298–32,299.\n 81The Proposed Rule contains a thorough narrative discussion of the EPA’s analyses\nand the problems with Entergy’s analyses. 82 Fed. Reg. at 32,298–32,299.\n 29\n\f Case: 18-60116 Document: 00515144673 Page: 30 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\neffective option—a dry scrubber—was significantly higher than the EPA’s\nestimate. Entergy’s estimate was $4,536 per ton of pollution removed; the\nEPA’s was $2,706 per ton.\n Similarly, the EPA’s conclusions about the visibility improvements for\neach option differed from Entergy’s conclusions. In the Proposed Rule, the EPA\nexplained that the differences resulted from Entergy’s model’s failure to follow\nthe BART guidelines. 82 The following chart compares the visibility\nimprovement calculations (in deciviews) for each control option.\n Expected Visibility Improvement Comparison for Caney Creek\n Technology Trinity Consultants’ the EPA’s Calculation\n Calculation\n Low-sulfur coal 0.164 0.411\n DSI 0.302 0.511\n Dry scrubber (SDA) 0.355 0.831\n\n According to Environmental Petitioners, Louisiana’s reliance on\nEntergy’s analyses—which the EPA’s analyses concluded overestimated the\ncosts and underestimated the benefits of more effective pollution controls—was\nirrational. After the EPA informed Louisiana of those errors, that state\nreached the same BART determination. In its SIP revision, Louisiana did not\nacknowledge the EPA’s criticisms and did not attempt to reconcile the\n\n\n 82 82 Fed. Reg. at 32,299 (“As we discuss above and in the CAMx Modeling TSD,\nEntergy also provided additional screening modeling results using CAMx to support its\nconclusion that visibility impacts from Unit 6 are minimal. However, this modeling was not\nconducted in accordance with the BART Guidelines and does not properly assess maximum\nbaseline impacts, so we consider this CAMx modeling provided by Entergy to be invalid for\nsupporting a determination of minimal visibility impacts.”).\n 30\n\f Case: 18-60116 Document: 00515144673 Page: 31 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nconflicting the EPA and Entergy analyses. Environmental Petitioners insist\nthat Louisiana’s failure to explain why its decision remained unchanged after\nreviewing the EPA’s contradictory analyses created an “unexplained\ninconsistenc[y] in the rulemaking record” that made the EPA’s approval\narbitrary and capricious. 83\n The EPA does not defend these discrepancies. In its brief, it concedes\nthat the agency “was aware of these errors when it approved the SIP,”\nacknowledges that the SIP revision contained “a number of errors,” and\ndescribes Entergy’s submissions as “Entergy’s faulty analyses.”\n The EPA contends that, despite these errors, Louisiana “may, to the\nextent supported by the record as a whole, reach the same conclusion both\nbefore and after reviewing a particular set of information.” 84 The EPA points\nto the fact that its own analyses were in the record and that the LDEQ included\nthose analyses in an appendix to the revised SIP. The EPA insists that, based\non the agency’s earlier review of the “entirety of” Louisiana’s SIP submission,\nLouisiana considered all the information in its October 2017 SIP submission,\nweighed that information in arriving at its final BART determination, and\nexplained the reasons for its decision.\n Industry Respondents defend the analyses they submitted to the LDEQ\nand insist that those analyses adequately supported Louisiana’s BART\ndetermination. They criticize the analyses that the EPA submitted to the\n\n\n 83U.S. Sugar Corp, 830 F.3d 579 at 651.\n 84See 42 U.S.C. § 7410(k)(3) (“[the EPA] shall approve such submittal as a whole if it\nmeets all of the applicable requirements of [the Act].”).\n 31\n\f Case: 18-60116 Document: 00515144673 Page: 32 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nLDEQ and challenge the EPA’s earlier determination that their analyses failed\nto comply with the BART guidelines.\n Environmental Petitioners have the better arguments on this point.\nEntergy and the EPA reached significantly different conclusions about the\ncosts and visibility improvements of each emission control. But after the EPA\nsubmitted analyses pointing out flaws in Entergy’s analysis, the LDEQ did not\ndiscuss the EPA-identified errors, and it reached the same BART\ndetermination for Nelson as it did before the EPA identified mistakes. Given\nthe EPA’s analysis showing that Entergy significantly underestimated the cost\nof low-sulfur coal and overestimated the cost of a scrubber, Louisiana’s failure\nto address or reconcile the conflicting analyses appears to create an\n“unexplained inconsistenc[y]” in the rulemaking record. 85 Although that\nshortcoming in Louisiana’s SIP is worthy of careful scrutiny, it does not fully\nresolve the matter.\n ii. Rational Explanation for Rejecting a More Effective\n Control\n Environmental Petitioners next contend that Louisiana did not provide\na rational explanation for rejecting a more effective pollution control at Nelson.\nThey point to the EPA’s past actions that reviewed BART determinations for\nwhether the costs and visibility benefits of a determination were within the\nrange of the EPA’s prior BART determinations. 86 They also cite the BART\n\n\n\n 85See U.S. Sugar Corp., 830 F.3d at 651.\n 86See 82 Fed. Reg. 912,938 (Jan. 4, 2017) (“[T]he cost-effectiveness of all of the controls\nthat form the basis of our proposed BART determinations are within a range found to be\n 32\n\f Case: 18-60116 Document: 00515144673 Page: 33 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nguidelines, which recommend that “[a] reasonable range would be a range that\nis consistent with the range of cost effectiveness values used in other similar\npermit decisions over a period of time.” 87\n The LDEQ’s SIP revisions did not provide cost-effectiveness numbers for\nany of the control options it considered. Based on the LDEQ’s failure to include\nthose numbers in its SIP, the EPA was not able to compare the instant BART\ndetermination with the EPA’s previously approved BART determinations.\nAccording to Environmental Petitioners, this lack of a comparison to prior\nEPA-approved BART determinations amounts to an “unexplained deviation\nfrom past practice.” 88\n To bolster this argument, Environmental Petitioners compared the\nEPA’s cost-effectiveness numbers for a scrubber with all of the EPA’s prior\nBART determinations. Environmental Petitioners included a graph of those\nresults, which shows that the cost-effectiveness numbers for a scrubber align\nwith the EPA’s prior BART decisions.\n The EPA responds that, although in other actions it has stated that\ncomparisons to prior BART determinations are helpful, the BART guidelines\ndo not require such comparisons. The EPA points to the Final Rule’s\nstatements explaining that BART determinations depend on the unique\n\n\n\n\nacceptable in other case.”); 80 Fed. Reg. 18,944, 18,952 (Apr. 8, 2015) (“[T]he cost effectiveness\n. . . is within the range of what we consider to be cost-effective for BART.”).\n 87 BART Guidelines, 40 C.F.R. part 51, App. Y § IV.D.4.f.\n 88 See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125–26 (2016); WildEarth\n\nGuardians v. EPA, 770 F.3d 919, 941 (10th Cir. 2014).\n 33\n\f Case: 18-60116 Document: 00515144673 Page: 34 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\ncircumstances of each source and that “[s]ome variation is to be expected\nbecause SIP actions are highly fact-dependent.” 89 The EPA also cites several\ncases holding that states have broad authority to weigh the statutory factors\nand to pick appropriate emission controls. 90\n The EPA has the better argument on this point. Louisiana has the\nauthority to select the appropriate BART emission control. The fact that a\nscrubber more closely aligns with the EPA’s prior BART determinations did\nnot preclude Louisiana from choosing low-sulfur coal instead. The guideline\nthat Environmental Petitioners cite does not require that BART\ndeterminations align with the EPA’s prior BART determinations:\n You should provide documentation of any unusual circumstances\n that exist for the source that would lead to cost-effectiveness\n estimates that would exceed that for recent retrofits. This is\n especially important in cases where recent retrofits have cost-\n effectiveness values that are within what has been considered a\n reasonable range, but your analysis concludes that costs for the\n source being analyzed are not considered reasonable. (A\n reasonable range would be a range that is consistent with the\n range of cost effectiveness values used in other similar permit\n decisions over a period of time.) 91\n\n Although the parties do not explain how low-sulfur coal compares to the\nEPA’s prior BART determinations, the record is devoid of any “unusual\n\n\n\n 89 82 Fed. Reg. at 60,534–60,535.\n 90 See Oklahoma v. EPA, 723 F.3d 1201, 1209 (10th Cir. 2013) (“[S]tates ha[ve] broad\nauthority to weigh the statutory factors and make BART determinations.”); see also Ariz. ex\nrel. Darwin v. EPA, 852 F.3d 1148, 1161 (9th Cir. 2017).\n 91 BART Guidelines, 40 C.F.R. part 51, App. Y § IV.D.4.f.\n\n 34\n\f Case: 18-60116 Document: 00515144673 Page: 35 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\ncircumstances” indicating that low-sulfur coal’s cost-effectiveness estimates\nare out of line with prior BART determinations. Therefore, the guideline\naddressing “similar permit decisions over a period of time” does not apply here.\n iii. Weighing the Statutory Factors and Compliance with\n the BART Guidelines\n In making a BART determination, a state “shall take into consideration”\nfive factors: (1) the costs of compliance, (2) the energy and nonair quality\nenvironmental impacts of compliance, (3) any existing pollution control\ntechnology in use at the source, (4) the remaining useful life of the source, and\n(5) the degree of improvement in visibility that may reasonably be anticipated\nto result from the use of such technology. 92 States have discretion as to “the\nweight and significance” of each factor, as well as the appropriate emission\ncontrol that qualifies as BART at a given source. 93\n In addition to considering those statutory factors, for powerplants with\ngenerating capacities greater than 750 megawatts, like Nelson and Brame, the\nstate’s BART determination “shall be determined pursuant to [the BART]\nguidelines.” 94 The BART guidelines state:\n From the alternatives you evaluated . . . we recommend you\n develop a chart (or charts) displaying for each of the alternatives:\n\n (1) Expected emission rate . . . ;\n\n\n 92 42 U.S.C. § 7491(g)(2).\n 93 BART Rule, 70 Fed. Reg. at 39,123; see Oklahoma, 723 F.3d at 1209 (“[S]tates ha[ve]\nbroad authority to weigh the statutory factors and make BART determinations.”).\n 94 42 U.S.C. § 7491 (b)(2)(B); see 40 C.F.R. § 51.308(e)(1)(ii)(B). In its brief, the EPA\n\nconcedes that the BART Guidelines are mandatory at this step.\n 35\n\f Case: 18-60116 Document: 00515144673 Page: 36 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n (2) Emissions performance level . . . ;\n (3) Expected emissions reductions . . . ;\n (4) Costs of compliance—total annualized costs ($), cost\n effectiveness ($/ton), and incremental cost effectiveness\n ($/ton), and/or any other cost-effectiveness measures (such\n as $/deciview);\n (5) Energy impacts;\n (6) Non-air quality environmental impacts; and\n (7) Modeled visibility impacts. 95\n\n ....\n You have discretion to determine the order in which you should\n evaluate control options for BART. Whatever the order in which\n you choose to evaluate options, you should always (1) display the\n options evaluated; (2) identify the average and incremental costs\n of each option; (3) consider the energy and non-air quality\n environmental impacts of each option; (4) consider the remaining\n useful life; and (5) consider the modeled visibility impacts. You\n should provide a justification for adopting the technology that you\n select as the “best” level of control, including an explanation of the\n CAA factors that led you to choose that option over other control\n levels. 96\n\n The LDEQ’s explanation of its determination that low-sulfur coal was\nBART for Nelson states:\n In the Entergy BART five-factor SO2 analysis for the Unit 6\n Boiler, a number of emission reduction controls were reviewed.\n The reviewed controls included the use of a lower sulfur coal, DSI,\n enhanced DSI, dry flue-gas desulfurization (FGD) and wet FGD.\n LDEQ has reviewed and weighed the five factors carefully; after a\n review of the information that Entergy and EPA provided, LDEQ\n\n 95 BART Guidelines, 40 C.F.R. part 51, App. Y § IV.E.1 (emphasis added).\n 96 Id. (emphasis added).\n 36\n\f Case: 18-60116 Document: 00515144673 Page: 37 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n has concluded that the appropriate BART for this facility is to\n establish an emission limit of .6 lbs/MMBtu based on a 30 day\n rolling average as defined in the AOC (see Appendix D). While\n additional visibility benefits may be available through the use of\n FGD, the lower sulfur coal option results in visibility benefits at a\n lower annual cost. Along with the extra cost, FGD use results in\n additional waste spent due to spent reagent and has some power\n demands to run the equipment. LDEQ believes, at present, that\n the use of lower sulfur coal presents the appropriate SO2 control\n based on consideration of economics, energy impacts, non-air\n quality environmental impacts, and impacts to visibility.\n\n In the 2017 Final Rule, the EPA approved this explanation as compliant\nwith the Clean Air Act. The Final Rule relied on the language in the revised\nSIP, which states that “LDEQ has weighed the five factors carefully” and\nreached its decision “after a review of both Entergy’s and the EPA’s\ninformation.” 97 Referring to this statement, the Final Rule concludes:\n This indicates that the State reviewed the information it received\n from both Entergy and the EPA, and thus had adequate\n information upon which to base its determination. After reviewing\n the relevant information contained in LDEQ’s SIP, we determined\n that the State’s SIP meets the requirements of the Act and the\n applicable regulations and guidance. 98\n\n Environmental Petitioners challenge the EPA’s approval of the LDEQ’s\nexplanation of its BART determination. Those Petitioners contend that,\nbecause the LDEQ failed to discuss how it weighed each statutory factor, it did\nnot comply with the BART guidelines and therefore did not satisfy its\n\n\n 97 Final Rule, 82 Fed. Reg. at 60,532.\n 98 Id.\n 37\n\f Case: 18-60116 Document: 00515144673 Page: 38 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nobligations under the Clean Air Act. They point to the LDEQ’s failure to\nevaluate (1) the existing pollution controls at Nelson, (2) the remaining useful\nlife of Nelson, (3) the cost-effectiveness of pollution controls, and (4) the\nvisibility benefits of pollution controls.\n In response, the EPA concedes that Louisiana “could have expanded its\ndiscussion of its decisionmaking process.” The EPA nonetheless maintains that\nit “determined that the path Louisiana took in weighing the five factors and\nreaching its BART determination could be reasonably discerned from the\nrecord before it.” The EPA’s and Industry Respondents’ arguments focus on the\nfact that Entergy’s and the EPA’s analyses—which were included as\nappendices to the SIP revisions—did the appropriate analysis and considered\nall the factors.\n Environmental Petitioners are correct that the LDEQ’s explanation did\nnot discuss the Clean Air Act’s factors of (1) the existing controls at Nelson, (2)\nNelson’s remaining useful life, or (3) the BART guidelines factor of “cost-\neffectiveness.”\n On the “existing control” factor, the LDEQ’s failure to discuss the\nexisting controls at Nelson highlights a factual dispute between the parties.\nEnvironmental Petitioners maintain that low-sulfur coal is already in use at\nNelson and has been since 2015. The EPA’s June 2017 technical support\ndocument states that “beginning in the Spring of 2015, Entergy began\npurchasing coals with lower sulfur contents that occur in a tighter range in\ncomparison to those purchased in the past.”\n\n\n 38\n\f Case: 18-60116 Document: 00515144673 Page: 39 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n Regarding the “remaining useful life” factor, the LDEQ’s explanation of\nits BART determination does not mention or address that factor. Neither does\nthe LDEQ’s explanation mention “cost-effectiveness.” The BART guidelines\nrequire states to consider the cost-effectiveness of potential control options. 99\nThose guidelines define that term as follows:\n Cost-effectiveness, in general, is a criterion used to assess the\n potential for achieving an objective in the most economical way.\n For purposes of air pollutant analysis, “effectiveness” is measured\n in terms of annualized control costs. We recommend two types of\n cost-effectiveness calculations - average cost effectiveness, and\n incremental cost effectiveness.\n ...\n Average cost effectiveness means the total annualized costs of\n control divided by annual emissions reductions (the difference\n between baseline annual emissions and the estimate of emissions\n after controls), using the following formula . . . . 100\n\n Louisiana’s explanation mentions “annual cost” but does not mention\n“cost-effectiveness.” As the BART guidelines explain, annual cost and cost-\neffectiveness are different: Annual cost is the annualized capital cost for a\ncontrol; cost-effectiveness is the annual cost of a control divided by the annual\nemissions reductions of that control. In general, the least effective control\ntechnology will almost always have the lowest absolute (or annual) cost. In\ncontrast, the most effective control technology will often have the highest\n\n\n\n\n 99 See BART Guidelines, 40 C.F.R. part 51, App. Y § IV.D.4.b; see also id. § IV.E.1.\n 100 Id. § IV.D.4.(b)–(c).\n 39\n\f Case: 18-60116 Document: 00515144673 Page: 40 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nabsolute (or annual) cost. 101 Based on this distinction, the BART guidelines\nimpose cost-effectiveness, i.e., the cost per ton of pollution removed—instead of\nannual cost—as the relevant consideration.\n * * *\n The Clean Air Act requires states to consider five statutory factors when\nmaking a BART determination. The EPA then must approve or disapprove\nthat determination. Our role is to decide whether the EPA was arbitrary and\ncapricious in approving Louisiana’s SIP.\n The LDEQ’s key statements on this issue are that (1) it “reviewed and\nweighed the five factors carefully,” (2) it reached its decision after “review[ing]\n. . . the information that Entergy and EPA provided,” and (3) the “lower sulfur\ncoal option results in visibility benefits at a lower annual cost.”\n The LDEQ’s short explanation is lacking in several respects. It did not\n(1) provide numbers supporting its conclusions, (2) address or reconcile the\nEPA’s criticism of Entergy’s analyses, (3) compare the costs or benefits of each\ncontrol option, or (4) discuss Nelson’s existing controls, remaining useful life,\nor the cost-efficiency of the potential control options. The EPA’s and Industry\nRespondents’ primary contention is that because Entergy and the EPA did the\nappropriate analysis and weighed the statutory factors—and the LDEQ said it\nreviewed those analyses and included them as appendices—the LDEQ\nappropriately weighed the factors. The parties’ briefing on how Louisiana\nweighed the factors focuses almost entirely on the analyses that the EPA and\n\n\n 101 See Proposed Rule, 82 Fed. Reg. at 32,298–32,299.\n 40\n\f Case: 18-60116 Document: 00515144673 Page: 41 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nEntergy submitted. None of the briefs, however, cite any place in the record in\nwhich the LDEQ discusses all five statutory factors.\n Moreover, the parties rely on the LDEQ’s statement that it considered\nthe analyses that Entergy and the EPA provided before making its\ndetermination, as well as the fact that those analyses were included as\nappendices to the SIP revisions. But the LDEQ expressly disavowed\n“agree[ing] with,” “adopt[ing],” or “incorporat[ing]” any of Entergy’s or the\nEPA’s calculations in its revised SIP:\n LDEQ submits these comments in response to certain statements\n in the preamble [of the 2017 Proposed Rule] that matters were\n “adopted and incorporated” into the LDEQ SIP revision. LDEQ\n places all documents and information submitted to it in connection\n with the development of the SIP in an administrative record . . . .\n However, placement in the record does not indicate that LDEQ\n agrees with or has “adopted” positions, conclusions, or decisions,\n nor has “incorporated” them into the SIP revision submitted to the\n EPA. The final SIP document and any enforceable conditions\n included therein encompass the final decision by LDEQ.\n\nBased on this express disavowal, we cannot conclude that the analyses Entergy\nand the EPA submitted to the LDEQ were incorporated into the terms of\nLouisiana’s revised SIP.\n And, in contrast to the BART guidelines’ detailed instructions for making\na BART determination, the LDEQ’s explanation of its BART determination for\nNelson provides hardly any details. The guidelines recommend “always”\nidentifying the average and incremental costs of each option, but the LDEQ\nprovided neither specific numbers supporting that decision nor a comparison\n\n 41\n\f Case: 18-60116 Document: 00515144673 Page: 42 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nof the costs and estimated visibility benefits for each control option. Unlike the\ndetailed analyses that the EPA and Entergy submitted—which did provide cost\nand pollution-control estimates for each control option—the LDEQ simply\nstated that low-sulfur coal had an unspecified “lower annual cost.”\n Despite these shortcomings, we conclude that the EPA’s approval of\nLouisiana’s BART determination was not arbitrary and capricious. 102 The\nstandard of review is narrow and highly deferential. Our review is limited to\n“whether the decision was based on a consideration of the relevant factors and\nwhether there has been a clear error of judgment.” 103\n There was a plethora of record evidence—the analyses that Entergy\nsubmitted to the LDEQ—to support the BART determination. There was also\nconsiderable record evidence—the analyses that the EPA submitted—\nundermining that determination. The LDEQ stated that (1) it considered both\nof these analyses when it made its BART determination and (2) it “reviewed\nand weighed the five factors carefully.” Although the LDEQ could have offered\na more thorough explanation of its reasoning, its assurance that it weighed the\nfive factors carefully indicates that its decision “rest[ed] ‘on a consideration of\nthe relevant factors’” 104 and that the agency did not “entirely fail[] to consider\n\n\n\n\n 102 We note that this would be a much easier case if the LDEQ had (a) explained the\nweight it afforded to any of the five factors, (b) expressly compared the costs of each option,\nor (c) simply reproduced Entergy’s charts and numbers in the revised SIP.\n 103 10 Ring Precision, Inc., 722 F.3d at 723 (quoting Motor Vehicle Mfrs. Ass’n, 463\n\nU.S. at 43).\n 104 Michigan, 135 S. Ct. at 2706 (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).\n\n 42\n\f Case: 18-60116 Document: 00515144673 Page: 43 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nan important aspect of the problem.” 105 The EPA’s approval of that\ndetermination was not arbitrary and capricious. 106\n 2. Louisiana’s Long-Term Strategy and Reasonable Progress\n Goals\n The second part of Environmental Petitioners’ challenge is to the EPA’s\napproval of Louisiana’s long-term strategy and reasonable-progress goals. The\nClean Air Act requires states to adopt long-term strategies “for making\nreasonable progress” toward the national visibility goal. 107 Louisiana’s 2008\nSIP included reasonable progress goals and a long-term strategy, but the 2017\nSIP revisions did not.\n Environmental Petitioners contend that the 2017 SIP revisions did not\ncomply with the Act because they did not address Louisiana’s long-term\n\n\n\n 105 Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43.\n 106 Environmental Petitioners cite no authority, and we are aware of no authority,\ndemanding that Louisiana prefer the EPA’s analyses to those provided by industry. Indeed,\nin a highly technical area such as cost-effectiveness of various control options, a private firm\nmay well provide more accurate data inputs regarding a specific proposal at the specific plant\nit operates. To take one example, the EPA and Entergy disagreed about the cost-effectiveness\nof low-sulfur coal. Entergy calculated it to cost $597 per ton of pollutant removed while the\nEPA calculated $2,957 per ton. That discrepancy was based on Entergy’s reliance on\nproprietary data, its contingency value, and its consideration of costs that the EPA does not\nallow in its control cost manual. See 82 Fed. Reg. at 32,298. The technical analyses used\ndifferent approaches and presented different strengths and weaknesses. Louisiana\nscrutinized Entergy’s analysis and chose to embrace it. It was free to do so. A state has “wide\ndiscretion” in formulating its SIP and “may select whatever mix of control devices it desires”\nso long as national standards are met. Union Elec. Co. v. EPA, 427 U.S. 246, 250, 266 (1976).\nThat is why Congress tied the EPA’s hands during SIP approval: “the Administrator shall\napprove such submittal as a whole if it meets all of the applicable requirements of this\nchapter.” 42 U.S.C. § 7410(k)(3) (emphasis added).\n 107 42 U.S.C. § 7491(b)(2)(A)–(B).\n\n 43\n\f Case: 18-60116 Document: 00515144673 Page: 44 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nstrategy, set out reasonable progress goals, or impose emission controls at any\nadditional “reasonable progress sources,” such as the Dolet Hills powerplant.\nDolet Hills, which is the largest single source of SO2 emissions in Louisiana, is\na non-BART-eligible EGU powerplant that could be subject to emissions\ncontrols as a reasonable progress source.\n The EPA points to its actions in 2012 on this issue, including a proposed\nrule and a final rule (“the 2012 Proposed Rule” and “the 2012 Final Rule”),\nwhich included a “partial disapproval” and “partial limited approval” of\nLouisiana’s 2008 SIP. 108 It insists that Louisiana’s reasonable progress goals\nand long-term-strategy obligations were approved as part of the 2012 Final\nRule’s “partial limited approval.” According to the EPA, the 2012 resolution of\nthis issue time-bars the Environmental Petitioners challenge.\n The EPA is correct. Louisiana was not required to re-do its reasonable\nprogress analysis or re-evaluate the reasonable progress sources because that\npart of its 2008 SIP was approved and made effective by the 2012 Final Rule.\nThe 2012 Final Rule “finaliz[ed] a partial limited approval and a partial\ndisapproval of a revision to the Louisiana SIP submitted . . . on June 13,\n2008.” 109\n We resolve this issue based on the distinction between “partial” and\n“limited” approvals. A “limited approval” is used when some parts of a SIP do\nnot meet the Clean Air Act’s requirements, but the EPA concludes that “the\n\n\n 108 77 Fed. Reg. 11,839, 11,840 (Feb. 28, 2012) (“2012 Proposed Rule”); 2012 Final\nRule, 77 Fed. Reg. at 39,425.\n 109 2012 Final Rule, 77 Fed. Reg. at 39,426.\n\n 44\n\f Case: 18-60116 Document: 00515144673 Page: 45 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nsubmittal as a whole” has a “strengthening effect” on the SIP. 110 In a “limited\napproval,” the provisions of a SIP that are “limitedly approved,” including any\nprovisions that do not comply with the Act, are incorporated into the SIP and\ngo into effect. In contrast, in a “partial approval/disapproval,” the partially\napproved parts of a submittal go into effect, and the disapproved parts do not.\n The 2012 Final Rule contained a “partial limited approval” and a “partial\ndisapproval.” This sentence from the Final Rule addresses the parts of the SIP\nthat were included in the “limited approval”:\n EPA grants a partial limited approval of the LA RH SIP\n submittal for meeting the requirements of: 51.308(d), for the core\n requirements for regional haze SIPs, except for the requirements\n of 51.308(d)(3); 51.308(f), for the commitment to submit\n comprehensive periodic revisions of regional haze SIPs; 51.308(g),\n for the commitment to submit periodic reports describing progress\n towards the reasonable progress goals (RPGs); 51.308(h), for the\n commitment to conduct periodic determinations of the adequacy of\n the existing regional haze SIP; and 51.308(i), for coordination with\n state and Federal Land Managers. 111\n\n All provisions of the 2008 SIP referenced in this sentence were “limitedly\napproved,” including the provisions after “except,” which did not meet the Act’s\nrequirements. Through this “partial limited approval,” the EPA concluded that\nall of the provisions referenced in that sentence would take effect because the\nsubmittal “as a whole . . . strengthen[ed] the Louisiana SIP” and the EPA did\n\n\n 110 Processing of State Implementation Plan Revisions at 2–3, the EPA Memorandum\nfrom John Calcagni (July 9, 1992), https://www.epa.gov/sites/production/files/2015-\n07/documents/procsip.pdf.\n 111 2012 Final Rule, 77 Fed. Reg. at 39,426.\n\n 45\n\f Case: 18-60116 Document: 00515144673 Page: 46 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nnot specifically “address[] [them in the] partial disapproval.” 112 Those\nreferenced provisions therefore became effective when the EPA issued the 2012\nFinal Rule.\n The following sentence in the 2012 Final Rule addresses the provisions\nof the SIP that were “partially disapproved”:\n However, . . . the EPA is also partially disapproving the LA\n RH SIP submittal because it does not include fully approvable\n measures for meeting the requirements of 40 CFR 51.308(d)(3),\n long-term strategy for regional haze as it relies on deficient non-\n EGU BART analyses; and 51.308(e), BART requirements for\n regional haze visibility impairment with respect to emissions of\n visibility impairing pollutants from four non-EGUs. 113\n\n Because the provisions referenced in this sentence were “partially\ndisapproved,” they did not go into effect when the EPA issued the 2012 Final\nRule. So, after the EPA issued the 2012 Final Rule, Louisiana was required to\nre-do only the parts of its SIP referenced in that partial disapproval. Those\nwere (1) the parts of 2008 SIP’s long-term strategy that “relie[d] on deficient\nnon-EGU BART analyses” and (2) the parts of the 2008 SIP’s long-term\nstrategy that involved BART requirements “from four non-EGUs.” These were\nthe only two provisions that did not go into effect and needed to be remedied\nby Louisiana.\n Other than these two deficiencies, the 2012 Final Rule “result[ed] in\napproval of all of the remaining elements of Louisiana’s [2008 Regional Haze]\n\n\n 112 Id. at 39,425.\n 113 Id. at 39,426.\n 46\n\f Case: 18-60116 Document: 00515144673 Page: 47 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nSIP.” 114 That included Louisiana’s reasonable progress analysis and long-term\nstrategy.\n Environmental Petitioners focus on one of the EPA’s responses to a\ncomment. In the first part of that response, the EPA elaborates on the partial\ndisapproval and identifies the two deficiencies that Louisiana needed to\naddress in its SIP revisions.\n [1] Louisiana must submit and the EPA must approve a\n revised SIP submittal to address . . . BART for EGUs to cure the\n deficiencies in the SIP resulting from the remand of CAIR. . . . [2]\n Louisiana must also submit revisions sufficient to cure the\n deficiencies in the non-EGU BART determinations. 115\n\n Environmental Petitioners rely on a different sentence in that response\nto contend that Louisiana was required to re-do its evaluation of the non-BART\npowerplants that qualify as reasonable progress sources. They point to this\nsentence in the EPA’s response: “Louisiana must consider whether EGUs\npreviously covered by the CAIR, whether subject to BART or not, should be\ncontrolled to ensure reasonable progress to meet the State’s long-term\nstrategies.” 116 However, in context, that sentence simply restates Louisiana’s\noverall obligations under the Clean Air Act. The response reads in full as\nfollows:\n We have evaluated the LA RH SIP submittal as a whole and\n at this time we are taking final action on all elements of the LA\n RH SIP submittal that were not addressed in the national Better-\n\n 114 Id. at 39,426.\n 115 Id. at 39,427.\n 116 Id.\n\n 47\n\f Case: 18-60116 Document: 00515144673 Page: 48 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n than-BART rule. Louisiana must consider whether EGUs\n previously covered by the CAIR, whether subject to BART or not,\n should be controlled to ensure reasonable progress to meet the\n State’s long-term strategies. However, insofar as Louisiana’s LTS\n and RPGs are affected by the remand of CAIR, those issues are\n addressed in the national Better-than-BART rulemaking and are\n outside the scope of this action on the remainder of the LA RH SIP.\n Also, the CAA expressly provides authority to the EPA to partially\n approve and partially disapprove a SIP revision. 42 U.S.C.\n 7410(k)(3). The EPA has adopted the partial approval approach\n numerous times in SIP actions across the nation over the last\n twenty years. Partial approval and partial disapproval is\n appropriate here because the EPA has determined that a portion\n of Louisiana’s RH SIP meets regional haze requirements and a\n portion of it does not. . . . Therefore, Louisiana must submit and\n the EPA must approve a revised SIP submittal to address both\n NOX and SO2 BART for EGUs to cure the deficiencies in the SIP\n resulting from the remand of CAIR. Louisiana may elect to rely on\n the Transport Rule for NOX BART for EGUs in that\n submittal. However, because Louisiana is not covered under the\n Transport Rule for SO2, the State must submit source-specific\n SO2 BART evaluations for the subject-to-BART EGUs in\n Louisiana. As discussed further in our responses to several\n comments below, Louisiana must also submit revisions sufficient\n to cure the deficiencies in the non-EGU BART determinations. 117\n\n This context, including the lack of an express directive to “submit” a new\nlong-term strategy or to impose controls at additional reasonable progress\nsources, confirms that the 2012 Final Rule approved Louisiana’s reasonable\nprogress goals and selection of reasonable progress sources. Additionally, the\n\n\n\n 117 2012 Final Rule, 77 Fed. Reg. at 39,427 (emphasis added).\n 48\n\f Case: 18-60116 Document: 00515144673 Page: 49 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n2012 Final Rule does not mention the single source Louisiana identified as a\nreasonable progress source, Big Cajun II. In three separate parts of the 2012\nFinal Rule, the EPA identifies the partially disapproved parts and directs\nLouisiana to address only those provisions. 118 If the EPA had intended to\ndisapprove Louisiana’s reasonable progress goals, long-term strategy, or\nidentification of reasonable progress sources in this response, it would have\nincluded those provisions of the 2008 SIP in the “partial disapproval” sentence.\n Because Louisiana’s reasonable progress goals, long-term strategy, and\nevaluation of reasonable progress sources were included in the 2012 Final\nRule’s “partial limited approval” of Louisiana’s 2008 SIP, we reject\nEnvironmental Petitioners’ challenge on this issue.\n ii. Notice and Comment\n Environmental Petitioners alternatively claim that the EPA violated the\nAPA’s notice and comment requirements.\n Under the APA, “notice of proposed rulemaking shall be published in the\nFederal Register,” and “shall be accompanied by a statement of its basis and\npurpose. . . . The statement of basis and purpose shall include a summary of .\n. . the major legal interpretations and policy considerations underlying the\nproposed rule.” 119\n Environmental Petitioners contend that the EPA did not include its\nreasoning addressing Louisiana’s reasonable progress analysis in the July\n\n\n\n 118 Id. at 39,426–39,427, 39,435.\n 119 42 U.S.C. § 7607(d)(3).\n 49\n\f Case: 18-60116 Document: 00515144673 Page: 50 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n2017 Proposed Rule. They assert that the EPA’s inclusion of additional\nreasoning on that issue in the December 2017 Final Rule amounted to a “major\nlegal interpretation.”\n In the 2017 Proposed Rule, the EPA did not discuss Louisiana’s\nreasonable progress analysis, long-term strategy, or evaluation of reasonable\nprogress sources. Environmental Petitioners commented on the 2017 Proposed\nRule’s failure to address Louisiana’s reasonable progress analysis and long-\nterm strategy, and the EPA responded to that comment in the 2017 Final Rule.\nIn its response to Environmental Petitioners’ comments on the 2017 Final\nRule, the EPA directed Environmental Petitioners to the 2012 Final Rule. The\nagency explained that it had already approved Louisiana’s reasonable progress\nanalysis, long-term strategy, and evaluation of reasonable progress sources. 120\n We conclude that this explanation is not a major legal interpretation or\npolicy consideration underlying the 2017 Proposed Rule that required\nadditional notice and comment. Rather, it is merely a response to a comment\nthat pointed the Environmental Petitioners to the agency’s earlier resolution\nof the issue in the 2012 Final Rule.\n * * *\n In short, the EPA’s 2012 Final Rule, which “limitedly approved” most of\nLouisiana’s 2008 SIP, did not require Louisiana to re-do its reasonable\nprogress goals or its long-term strategy in its 2017 SIP revisions. Neither did\n\n\n\n\n 120 See 82 Fed. Reg. at 60,539–60,540.\n 50\n\f Case: 18-60116 Document: 00515144673 Page: 51 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nthe EPA’s response to Environmental Petitioners’ 2017 comment “reopen” the\nissue 121 or violate the APA’s notice and comment provision.\n Environmental Petitioners’ petition is denied.\nB. The Industry Petitioners’ Petition\n In contrast to Environmental Petitioners’ challenge to Louisiana’s\nselection of emission controls to satisfy BART (step three of the BART\nanalysis), Industry Petitioners challenge Louisiana’s determinations that\nNelson and Brame are “subject to BART” at all (step two of the BART analysis).\nIndustry Petitioners object to the EPA’s approval of Louisiana’s “subject to\nBART” determinations, which relied on the “CALPUFF” model. They also\nchallenge the EPA’s reliance on its own “CAMx” modeling (on which Louisiana\ndid not rely) to approve Louisiana’s SIP.\n The Clean Air Act states that a source is “subject to BART” if it “emits\nany air pollutant which may reasonably be anticipated to cause or contribute\nto any impairment of visibility” in a Class I area. 122 Under the BART\nguidelines, a 1.0 deciview change from an individual source “causes” visibility\nimpairment, whereas a 0.5 deciview change from an individual source\n“contributes” to visibility impairment. 123 Under some circumstances, states\n\n\n\n\n 121 See West Virginia v. EPA, 362 F.3d 861, 872 (D.C. Cir. 2004) (“‘[W]hether an agency\nhas in fact reopened an issue, explicitly or implicitly,’ depends on the ‘entire context of the\nrulemaking including all relevant proposals and reactions of the agency.’” (citation omitted)).\n 122 42 U.S.C. § 7491(b)(2)(A).\n 123 BART Rule, 70 Fed. Reg. at 39,120.\n\n 51\n\f Case: 18-60116 Document: 00515144673 Page: 52 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nmay set a lower threshold for sources that “contribute” to visibility\nimpairment. 124\n In the BART guidelines, the EPA adopted CALPUFF as the preferred\nmodel for making “subject to BART” determinations. 125 The EPA recently\nremoved CALPUFF as a “preferred” model for other air-quality modeling\napplications under the Clean Air Act, but retained CALPUFF as a preferred\nmodel for making “subject-to-BART” determinations. 126\n The LDEQ reviewed CALPUFF and CAMx modeling results that\nEntergy, Cleco, and the EPA submitted to the department. In the LDEQ’s\nFebruary and June 2017 SIP revisions, it determined that Nelson and two\nunits at Brame were “subject to BART.” Louisiana relied on CALPUFF\nmodeling to determine that Nelson and Brame exceeded the 0.5 deciview\nthreshold. The LDEQ acknowledged, but did not rely on, the CAMx modeling\nthat the parties submitted. The LDEQ stated that it did “not have the expertise\nwith which to review [the CAMx] model runs.” And, in its amicus brief, the\nLDEQ states that it still does not have the technical expertise to review CAMx\nmodeling.\n\n\n\n\n 124 Id. at 39,120–39,121.\n 125 BART Guidelines, 40 C.F.R. part 51, App. Y, III.A.3. See 69 Fed. Reg. 25,184, 25,194\n(May 5, 2004) (“We are proposing that a CALPUFF assessment of an individual source be\nused as the preferred approach for determining whether a BART-eligible source may be\nexempt from BART.”).\n 126 82 Fed. Reg. 5,182, 5,196 (Jan. 17, 2017) (“[T]his final action does not affect the\n\nEPA’s recommendation that states use CALPUFF to determine the applicability and level of\nbest available retrofit technology in regional haze implementation plans.”).\n 52\n\f Case: 18-60116 Document: 00515144673 Page: 53 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n In a May 2017 proposed rule, the EPA proposed to approve the “subject\nto BART” determination for Brame. 127 In the July 2017 Proposed Rule, it\nproposed to approve Louisiana’s “subject to BART” and BART\ndeterminations. 128 Industry Petitioners submitted comments on those\nproposed rules (1) objecting to the LDEQ’s reliance on CALPUFF and (2)\ncriticizing the EPA’s reliance on its own CAMx modeling. In the instant 2017\nFinal Rule, the EPA responded to those comments and approved the LDEQ’s\ndetermination that Nelson and Brame have visibility effects greater than 0.5\ndeciviews at Class I areas and are therefore “subject to BART.” 129\n Here, Industry Petitioners contend that the EPA’s approval of\nLouisiana’s “subject to BART” determinations at Nelson and Brame was\narbitrary and capricious. The EPA and Environmental Respondents respond\nthat we lack jurisdiction to consider Industry Petitioners’ challenge. They also\ninsist that (1) Louisiana permissibly relied on the CALPUFF model in making\nits BART determination and (2) the EPA was not arbitrary and capricious in\nconsidering its own CAMx modeling.\n As we shall explain in greater detail, we conclude that (1) we have\njurisdiction and (2) the EPA’s approval of Louisiana’s reliance on the\nCALPUFF model was not arbitrary and capricious.\n\n\n\n\n 127 82 Fed. Reg. 22,936, 22,941 (May 19, 2017).\n 128 82 Fed. Reg. 32,294, 32,296 (July 13, 2017).\n 129 Final Rule, 82 Fed. Reg. at 60,520; id. at 60,525–60,526 (response to comments on\n\nmodeling).\n 53\n\f Case: 18-60116 Document: 00515144673 Page: 54 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n 1. Jurisdiction\n a. Environmental Respondents’ Jurisdictional Arguments\n Environmental Respondents contend that parts of Industry Petitioners’\nchallenge address the 2005 BART guidelines rather than the 2017 Final Rule.\nEnvironmental Respondents assert that this court lacks jurisdiction over the\nparts of the Industry Petitioners’ claim that address CALPUFF’s use of 24-\nhour actual emissions and natural background conditions. According to\nEnvironmental Respondents, these are complaints about the policies\nunderlying the 2005 BART guidelines, policies to which the EPA responded\nwhen it promulgated those guidelines. According to Environmental\nRespondents, these concerns should have been raised (1) in the D.C. Circuit\nand (2) within 60 days after those guidelines were published in the Federal\nRegister. 130\n Environmental Respondents liken this case to American Road &\nTransportation Builders Ass’n v. EPA, 705 F.3d 453 (D.C. Cir. 2013), in which\nthe D.C. Circuit considered a challenge to the EPA’s approval of a state’s SIP\nin 2011. In that case, the EPA’s approval of a SIP relied on a rule that the\nagency had issued in 1994. 131 The petitioner did not claim that the state had\nmisapplied the EPA’s rule; rather, it contended that the policies announced in\nthe 1994 rule were unlawful. 132 Because that challenge was to the 1994 rule—\nrather than to the 2011 SIP approval—the D.C. Circuit concluded that it lacked\n\n\n 130 42 U.S.C. § 7607(b)(1).\n 131 705 F.3d at 454–55.\n 132 Id. at 456.\n\n 54\n\f Case: 18-60116 Document: 00515144673 Page: 55 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\njurisdiction because the challenge was time-barred under the Clean Air Act’s\n60-day period for filing petitions for review. 133\n Environmental Respondents maintain that Industry Petitioners’ claims\nobjecting to CALPUFF’s assumptions are similarly time-barred. They note\nthat Industry Petitioners have an alternative route to recourse under the\nClean Air Act’s provision that provides for reconsideration of a rule if a\npetitioner can demonstrate that it was impracticable to raise an issue during\nthe public comment period. 134\n The jurisdictional issue here is similar to the one that the D.C. Circuit\nconsidered in American Road & Transportation Builders. That court held that\nthe petitioner’s challenge was to the underlying the EPA rule rather than to\nthe EPA’s later approval of a SIP based on the standards set out in that\nunderlying rule. The D.C. Circuit dismissed that challenge to a SIP approval\nbecause it was “duplicative of arguments the agency had already rejected”\nmany years earlier. 135 The court explained that “[t]here would be no pressure\nto challenge regulations within the 60-day period after their promulgation if\nany petitioner could simply wait to test the substance of those regulations once\nthe EPA applies them, for example, in an approval of a state SIP revision—as\n[the petitioner] has attempted to do here.” 136\n\n\n\n\n 133 Id. at 458.\n 134 See 42 U.S.C. § 7607(d)(7)(B).\n 135 Am. Road & Transportation Builders Ass’n, 705 F.3d at 456.\n 136 Id. at 458.\n\n 55\n\f Case: 18-60116 Document: 00515144673 Page: 56 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n Similarly, in the instant petition for review, Industry Petitioners\nchallenge the CALPUFF model based on its use of 24-hour actual emissions\nand natural background conditions. The EPA expressly rejected these\narguments when it adopted CALPUFF as the preferred model at the time in\n2005 that it issued the BART guidelines. 137\n But, unlike American Road & Transportation Builders, the BART\nguidelines at issue here recommend—but do not require—that states use\nCALPUFF. 138 Louisiana could have picked a different model. Because Industry\nPetitioners challenge Louisiana’s choice to use CALPUFF modeling instead of\na different model, Industry Petitioners’ challenge is properly viewed as a\nchallenge to the application of the BART guidelines rather than a challenge to\nthe those guidelines themselves. Louisiana had the option to pick a different\nmodel, so the parts of Industry Petitioners’ challenge addressing CALPUFF’s\nflaws are not barred by the Clean Air Act’s 60-day statute of limitations.\n b. The EPA’s Jurisdictional Arguments\n The EPA maintains that, after actively participating in Louisiana’s SIP-\ndevelopment process, the Industry Petitioners should have sought judicial\n\n\n\n\n 137 BART Guidelines, 40 C.F.R. part 51, App. Y III.A.3 (“We recommend that States\nuse the 24 hour average actual emission rate from the highest emitting day of the\nmeteorological period modeled.”).\n 138 BART Rule, 70 Fed. Reg. at 39,123 (“The use of other models and techniques to\n\nestimate if a source causes or contributes to visibility impairment may be considered by the\nState, and the BART guidelines preserve a State’s ability to use other models.”).\n 56\n\f Case: 18-60116 Document: 00515144673 Page: 57 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nreview of Louisiana’s modeling decisions in state court based on a Louisiana\nstatute that allows for review of state rules and regulations. 139\n This argument is unavailing. Industry Petitioners challenge the EPA’s\napproval of Louisiana’s SIP, not the underlying state action. Although\nIndustry Petitioners might also have been able to challenge Louisiana’s\nprocess for developing its SIP in state court, the Clean Air Act expressly\nprovides Industry Petitioners the opportunity to petition this court for review\nof the EPA’s actions. 140\n 2. CALPUFF Modeling\n “A reviewing court must be ‘most deferential’ to the agency where, as\nhere, its decision is based upon its evaluation of complex scientific data within\nits technical expertise.” 141 And “because ‘a model is meant to simplify reality\nin order to make it tractable,’ it is no criticism of a model ‘that it does not fit\nevery application perfectly.’” 142\n\n\n\n 139See La. R.S. § 49:963(a)(1)).\n 14042 U.S.C. § 7607(b)(1).\n 141 BCCA Appeal Grp. v. EPA, 355 F.3d 817, 824 (5th Cir. 2003) (quoting Baltimore\n\nGas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983)). The D.C. Circuit, setting out a similar\nstandard, has described this as “extreme deference”:\n [W]e will “give an extreme degree of deference to the agency when it is\n evaluating scientific data within its technical expertise.” . . . Furthermore, “we\n must defer to the agency’s decision on how to balance the cost and complexity\n of a more elaborate model against the oversimplification of a simpler model.”\n . . . We will “reverse only if the model is so oversimplified that the agency’s\n conclusions from it are unreasonable.”\nWest Virginia, 362 F.3d at 871 (citations omitted).\n 142 Ass’n of Battery Recyclers, Inc. v. EPA, 308 F.3d 1047, 1063 (D.C. Cir. 2000) (citation\n\nomitted).\n 57\n\f Case: 18-60116 Document: 00515144673 Page: 58 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n Despite the significant deference we afford to decisions involving\nanalysis of scientific data within an agency’s technical expertise, Industry\nPetitioners maintain that the EPA’s approval of Louisiana’s CALPUFF\nmodeling was arbitrary and capricious. They first point to CALPUFF’s\nshortcomings as a model, including that it (1) is unreliable at predicting\nvisibility impacts at locations farther than 300 km from an emission source, (2)\ntends to overestimate visibility impacts, (3) uses “overly simplistic”\nassumptions, and (4) has a high margin of error. They next contend that the\nEPA’s reliance on its own CAMx modeling was improper because the Clean Air\nAct does not give the EPA authority to cure a deficient SIP. Finally, even\nassuming that the EPA could rely on its own CAMx modeling, Industry\nPetitioners take issue with technical flaws in the EPA’s CAMx modeling,\nincluding that model’s: (1) use of “24-hour maximum emission rates” instead\nof “actual emission rates,” (2) reliance on “absolute maximum modeled\nconcentrations” instead of “relative response factors,” and (3) deficient\nperformance on a “model performance evaluation.”\n i. Distance Limitations\n Industry Petitioners contend that the CALPUFF model used at Nelson\nand Brame exceeded that model’s distance limitations and was inconsistent\nwith the EPA’s prior determination that CALPUFF is unreliable when\nassessing visibility impacts from sources more than 300 km from a Class I\n\n\n\n\n 58\n\f Case: 18-60116 Document: 00515144673 Page: 59 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\narea. 143 Nelson is 425 km from Breton and 460 km from Caney Creek; Brame\nis 422 km from Breton and 352 km from Caney Creek.\n Industry Petitioners cite a 1998 statement from the EPA’s Interagency\nWorkgroup on Air Quality Modeling (“IWAQM”) that “there are serious\nconceptual concerns with the use of puff dispersion [models like CALPUFF] for\nvery long-range transport (300 km and beyond).” In a 2003 final rule, IWAQM\nconcluded that the “CALPUFF dispersion model . . . performed in a reasonable\nmanner . . . so long as the transport distance was limited to less than\n300km.” 144 According to Industry Petitioners, because CALPUFF does not\nperform “in a reasonable manner” at distances greater than 300 km, CALPUFF\nmay not be used to determine that sources at such distances may “reasonably\nbe anticipated” to cause or contribute to visibility impairment.\n Industry Petitioners next point to several regional haze actions in which\nthe EPA has stated that it has concerns about using CALPUFF at distances\ngreater than 300 km. They rely on the Arkansas Regional Haze Federal\nImplementation Plan, the New Mexico Regional Haze SIP, and the EPA’s\nstatement defending its reliance on CAMx for Texas’s and Oklahoma’s regional\nhaze SIPs. 145\n\n\n 143 Industry Petitioners raise the same concerns they raised in their comments on the\nProposed Rule.\n 144 68 Fed. Reg. 18,458 (Apr. 15, 2003).\n 145 Arkansas Regional Haze Federal Implementation Plan, 81 Fed. Reg. 66,332, 66,394\n\n(Sept. 27, 2016) (“[T]here are concerns in using CALPUFF for modeling impacts at distances\nmuch greater than 300 km from the source . . . .”); New Mexico Regional Haze SIP, 79 Fed.\nReg. 60,978, 60,983 (Oct. 9, 2014) (“CALPUFF results are less reliable at distances greater\nthan 300 km.”).\n 59\n\f Case: 18-60116 Document: 00515144673 Page: 60 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n Industry Petitioners describe these statements and criticisms of\nCALPUFF as indicative of the EPA’s failure to follow its own guidance and\npast practice. They contend that the Final Rule does not provide a rational\nexplanation for this departure. And, although the EPA has stated that\nCALPUFF is permissible at sources farther than 300 km “with some additional\nconsiderations” such as stack height or size of emissions, Industry Petitioners\nmaintain that the EPA did not address these “additional considerations” at\nNelson and Brame.\n The EPA responds that Industry Petitioners overstate and oversimplify\nthe BART guidelines and the EPA’s prior actions. The EPA insists, contrary to\nIndustry Petitioners’ assertions, that it has never stated that: (1) CALPUFF\nshould not be used to model visibility impacts more than 300 km from the\nemissions source, (2) CALPUFF is unable to reliably predict visibility impacts\nat distances greater than 300 km, or (3) CALPUFF is “unreliable” and does not\nperform in a reasonable manner. The EPA also contends that Industry\nPetitioners’ reliance on statements from IWAQM is misplaced, arguing that\nIWAQM’s statements (1) set out guidelines for air quality models under the\nClean Air Act for purposes other than regional haze analyses and (2) were\nissued in 1998 and 2003, before the EPA issued the BART guidelines in 2005.\n The EPA explains that CALPUFF has been used at distances greater\nthan 300 km, citing South Dakota’s CALPUFF modeling for sources farther\nthan 400 km, and Nebraska’s CALPUFF modeling for sources between 300 and\n\n\n\n 60\n\f Case: 18-60116 Document: 00515144673 Page: 61 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n600 km. 146 In the EPA’s “Modeling Response to Comments” document, it stated\nthat “the EPA and [Federal Land Managers] have utilized CALPUFF results\nin a number of different situations when the range was between 300–450 km\nor more.” 147\n The EPA also points out that historically, “the use of CALPUFF was\ngenerally acceptable at 300 km or greater for larger emissions sources with\nelevated stacks.” In its Modeling Response to Comments document, the EPA\nexpressly stated that Nelson and Brame are “larger emissions sources with\nelevated stacks.” Nelson has three BART-eligible electric generating units that\nhave a combined 1200 megawatts of production capacity, 148 and Brame has two\nBART-eligible electric generating units with a combined output of 963\nmegawatts. 149 The EPA’s CALPUFF analysis estimated that both Nelson and\nBrame exceeded the 1.0 deciview threshold for “causing” visibility impairment.\nThese high visibility numbers for Nelson and Brame align with the EPA’s\nstatement in the BART Rule that it anticipated “that most of these plants are\npredicted to have much higher maximum impacts” than 1.0 deciviews. 150\n Finally, the EPA maintains that its own CAMx modeling provided\nadditional support for the CALPUFF model’s results. The EPA’s CAMx\n\n\n\n 146 Final Rule, 82 Fed. Reg. at 60,525 n.39.\n 147 See Final Rule, 82 Fed. Reg. at 60,525 (“As discussed in the Modeling RTC\ndocument, EPA and FLM representatives have utilized CALPUFF results in a number of\ndifferent situations when the range was between 300-450 km or more.”).\n 148 Final Rule, 82 Fed. Reg. at 60,522, 60,533.\n 149 82 Fed. Reg. at 22,944.\n 150 BART Rule, 70 Fed. Reg. at 39,123.\n\n 61\n\f Case: 18-60116 Document: 00515144673 Page: 62 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nmodeling showed visibility impairments at Caney Creek from Nelson as high\nas 2.22 deciviews and from Brame as high as 2.83 deciviews. 151 According to\nthe EPA, such large visibility-impact numbers provide additional support for\nthe CALPUFF model’s results.\n We conclude that, although the EPA has “a higher confidence level” in\nCALPUFF modeling at distances under than 300 km, the agency did not act\narbitrarily and capriciously by using that model at Nelson and Brame. Even\nthough Nelson and Brame are farther than 300 km from the protected areas\nat issue here, the use of CALPUFF modeling aligns with the EPA’s acceptance\nof CALPUFF at longer distances for powerplants with larger emissions sources\nwith elevated stacks like Nelson and Brame. 152\n ii. The EPA’s January 2017 Action\n Industry Petitioners focus on the EPA’s January 2017 action, which\nremoved CALPUFF as the preferred model for long-range air quality\nassessments. For those assessments, the EPA concluded that photochemical\n\n\n\n 151 Final Rule, 82 Fed. Reg. at 60,526 (“Entergy Nelson has a maximum modeled\nimpact of 2.22 dv at Caney Creek, with 31 days out of the 365 days modeled exceeding 0.5 dv,\nand 9 days exceeding 1.0 dv. Similarly, Cleco Brame has a maximum modeled impact of 2.833\ndv at Caney Creek, with 30 days out of a maximum 365 days modeled exceeding 0.5 dv and\n10 days exceeding 1.0 dv.”).\n 152 Our opinion should not be read to countenance the reliability or accuracy of the\n\nCALPUFF model in general. Although the EPA maintains that it recommends that states\ncontinue to use CALPUFF modeling for “subject to BART” determinations based on\n“consistency across and within states in the regional haze program” and because most of the\nmodeling for this planning period has already been completed, there is reason to question the\nEPA’s recommendation that states continue using a model that it appears to know is not\nreliable when used at distances such as those involved here.\n 62\n\f Case: 18-60116 Document: 00515144673 Page: 63 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\ngrid models like CAMx “are generally most appropriate . . . because they\nprovide a spatially and temporally dynamic realistic chemical and physical\nenvironment for plume growth and chemical transformation.” 153 Industry\nPetitioners maintain that the EPA’s 2017 action confirms that states should\nrely on CAMx rather than CALPUFF when making BART determinations,\nbecause it more realistically simulates the processes involved in haze\nformation.\n The EPA’s January 2017 action, however, does not support Industry\nPetitioners’ arguments. The EPA removed CALPUFF as a preferred model for\nother types of Clean Air Act analyses, but the agency expressly confirmed that\nCALPUFF remains a recommended option for BART determinations. “[T]his\nfinal action does not affect the EPA’s recommendation that states use\nCALPUFF to determine the applicability and level of best available retrofit\ntechnology in regional haze implementation plans.” 154\n But the EPA retained CALPUFF as a preferred model for BART\ndeterminations because of concerns about consistency between the states’\nBART determinations:\n The proposed changes to the Guideline do not affect the EPA’s\n recommendation in the 2005 BART Guidelines to use CALPUFF\n in the BART determination process. Given that the overwhelming\n majority of BART determinations have been made using\n CALPUFF, we consider it appropriate for states (or the EPA) to\n continue to use this application for the remaining assessments\n\n 153 80 Fed. Reg. 45,340, 45,349 (July 29, 2015), finalized at 82 Fed. Reg. 5,182 (Jan.\n17, 2017).\n 154 82 Fed. Reg. at 5,196.\n 63\n\f Case: 18-60116 Document: 00515144673 Page: 64 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n under the current Guideline with approved protocols. This\n approach assures consistency across and within states in the\n regional haze program. In addition, in many instances, the\n modeling of visibility impacts has already been completed even\n though the BART determination process is not yet done. Allowing\n states to continue to rely on CALPUFF avoids additional time and\n expense in developing a new assessment of visibility impacts for a\n SIP initially due in 2007. 155\n\n Because CALPUFF remains the BART guidelines’ recommended model,\nthe January 2017 action does not undermine the use of CALPUFF for BART\ndeterminations. Rather, the EPA’s explanations about (1) consistency between\nstates, (2) that most of the modeling for this planning period has already been\ncompleted, and (3) avoiding the “additional time and expense in developing a\nnew assessment” support the use of that model here.\n iii. Overestimation Bias\n Industry Petitioners next object to several technical assumptions\nunderlying the CALPUFF model. The most significant of these is CALPUFF’s\nsimulation of the transformation of SO2 and NOx emissions into visibility-\nimpairing sulfates and nitrates. CALPUFF’s simplistic handling of chemical\nprocesses can result in “a systematic bias in the estimated concentrations and\nvisibility impacts,” in other words, an “overestimation bias.” When compared\nwith “real-world measurements,” CALPUFF overpredicts the contribution of\nnitrates to visibility impairment. According to Industry Petitioners, a\ncomparison between the “real-world” impairment data and the CALPUFF\n\n\n 155 80 Fed. Reg. at 45,350.\n 64\n\f Case: 18-60116 Document: 00515144673 Page: 65 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nmodeling results shows that the CALPUFF modeling here overestimated\nnitrate contributions “by nearly 500%.”\n Industry Petitioners cite 2005 guidelines from the Central Regional Air\nPlanning Association (“CENRAP”) warning that CALPUFF’s overestimation\nbias may lead to “unwarranted and excessive control of emissions from some\nsources.” 156 They maintain that the EPA has not articulated a satisfactory\nexplanation for ignoring the technical shortcomings in the CALPUFF model. 157\n In defending its use of CALPUFF here, the EPA emphasizes the policy\nconsiderations underlying the BART guidelines. When the EPA proposed the\nBART guidelines that recommended CALPUFF as the preferred model, some\ncommenters objected on the same grounds raised here: CALPUFF is unreliable\nat long distances, relies on simplified assumptions, and overpredicts visibility\nimpairment. 158 The EPA responded to those criticisms by describing\nCALPUFF as a “conservative” screening model and stating that “conservatism\nis needed because the purpose of the [subject to BART] test [is] solely to\ndetermine if a closer look is needed.” 159 At this “screening” step, the EPA\nemphasized that models should capture the “maximum” or “worst case”\npotential impacts of a source. 160\n\n\n 156 See Alpine Geophysics, LLC, CENRAP BART Modeling Guidelines, at 3–8 (Dec.\n15, 2005).\n 15710 Ring Precision, Inc., 722 F.3d at 723.\n 158BART Rule, 70 Fed. Reg. at 39,126.\n 159 Id. at 39,123 (“[the EPA] understand[s] the concerns of commenters that the\n\nchemistry modules of the CALPUFF model are less advanced than some of the more recent\natmospheric chemistry simulations.”).\n 160 Id. at 39,123, 39,126.\n\n 65\n\f Case: 18-60116 Document: 00515144673 Page: 66 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n We conclude that the BART guidelines accounted for this\n“overestimation” bias. Those guidelines explain the assumptions underlying\nthe CALPUFF model, including the use of “the 98th percentile visibility\nimpairment rather than the highest daily impact,” which was meant to\n“exclude roughly 7 days per year from consideration” and “minimiz[e] the\nlikelihood that the highest modeled visibility impacts might be caused by\nunusual meteorology or conservative assumptions in the model.” As the EPA\nexplained in the analysis it submitted to the LDEQ, it “made the decision to\nconsider the less conservative 98th percentile primarily because the chemistry\nmodules in the CALPUFF model are simplified and likely to provide\nconservative (higher) results for peak impacts.”\n iv. Margin of Error\n Entergy submitted analyses to the EPA that purported to demonstrate\nthat Nelson’s CALPUFF-predicted visibility impacts at Caney Creek and\nBreton fell within CALPUFF’s margin of error. According to Industry\nPetitioners, its margin of error at Caney Creek is 1.38 deciviews, and its\nmargin of error at Breton is 1.25 deciviews. So, based on Entergy’s CALPUFF\nmodeling analysis that calculated Nelson’s baseline visibility impact at 0.703\ndeciviews at Caney Creek and 0.77 deciviews at Breton, the Entergy-calculated\nmargin of error for CALPUFF would put Nelson below the 0.5 deciview “subject\nto BART” threshold.\n Entergy submitted comments on this issue, relying on a Ninth Circuit\ndecision, National Parks Conservation Ass’n v. EPA, 788 F.3d 1134, 1146–47\n(9th Cir. 2015), in which the court concluded that the EPA did not\n 66\n\f Case: 18-60116 Document: 00515144673 Page: 67 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n“meaningfully address” a comment about model-predicted visibility\nimprovements that were within a model’s margin of error. 161 There, the federal\nimplementation plan for Montana sought to implement a control that\nCALPUFF predicted would improve visibility by only 0.085 deciview. 162 A\ncommenter maintained that “an improvement of 0.085 deciview [was] ‘beyond\nthe CALPUFF model’s ability to predict with any confidence.’” 163 The EPA\nresponded to that comment, but the court concluded that the response did “not\nmeaningfully address [the] comment” because it did not “also suffice as a\nreasoned response regarding how CALPUFF could be relied upon to predict an\nimprovement of as little as 0.085 deciviews when PPL offered reasons to think\nthat doing so was outside the model’s capabilities.” 164\n Entergy submitted its “margin of error” comments, which compared that\ncase to this one. The EPA addressed Entergy’s comments in its November 2017\nModeling Response to Comments document.\n Industry Petitioners contend that the EPA’s response to Entergy’s\ncomments did not adequately respond to the margin of error issue and\n\n\n\n\n 161 722 F.3d at 1146–47.\n 162 Id. Notably, this small number is significantly smaller than the baseline impact\nvalues at issue here, which are above 1 deciview for both facilities.\n 163 Nat’l Parks Conservation Ass’n, 788 F.3d at 1146–47.\n 164 Id. One judge on that panel separately concurred to emphasize the procedural focus\n\nof the court’s holding. “I write separately to underline my understanding that . . . we are not\nimpugning the EPA’s use of the CALPUFF model generally. Instead we are requiring a\nsufficiently reasoned response to a particular comment regarding CALPUFF’s usefulness in\nthese specific circumstances.” Id. at 1149 (Berzon, J., concurring).\n 67\n\f Case: 18-60116 Document: 00515144673 Page: 68 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\ntherefore failed to fulfill the agency’s procedural obligation to consider\nsignificant comments made by the public.\n The EPA responded to this “margin of error” comment as follows:\n The commenter mischaracterizes the Ninth Circuit decision\n regarding the “margin of error” of the model. The commenter\n suggests that the Court agreed that the anticipated visibility\n benefits in that case were within the margin of error of the model.\n This is incorrect. The Ninth Circuit decision did not rule on any\n specific issue related to CALPUFF. Rather, the court ruled on a\n procedural error that the EPA did not respond to the comment\n received regarding the CALPUFF margin of error in its\n rulemaking as required under the law. Here and elsewhere in our\n previous response to comments we address a very similar comment\n with respect to CALPUFF modeling for Arkansas sources, as well\n as the commenter’s analysis claiming to estimate the “margin of\n error.”\n\n We responded to comments concerning a very similar “margin of\n error” analysis in our response to comments and final action for\n Regional Haze in Arkansas. The Trinity analysis discussed in the\n comment above purports to calculate a “margin of error” of the\n CALPUFF modeling for Entergy Nelson. In general, the\n commenter’s analysis adds CALPUFF model results for a specific\n source or sources with CAMx model results and compares this\n value to visibility conditions derived from monitored data at each\n Class I area. This analysis is flawed for many reasons as discussed\n in detail in our Arkansas RTC document that discusses a similar\n analysis performed for Entergy Lake Catherine and fails to\n provide any assessment of the ability of the CALPUFF model to\n evaluate visibility impacts or the degree of visibility improvement\n that may be expected from available control technology to inform\n BART and reasonable progress evaluations. Whether or not the\n modeled visibility impacts or benefits lie below this calculated\n “margin of error” is immaterial to any assessment of whether or\n 68\n\f Case: 18-60116 Document: 00515144673 Page: 69 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n not the visibility impairment or benefits from controls can\n reasonably be anticipated to occur. We note that the commenter\n did not provide any spreadsheets or detailed calculations to\n support this analysis, therefore we were unable to fully review and\n respond to the individual calculations or specific methodology\n underlying the presented values in the commenter’s summary\n report and comments.\n\n As discussed elsewhere in this document, we are confident that\n CALPUFF distinguishes, comparatively, the relative contributions\n from sources such that the differences in source configurations,\n sizes, emission rates, and visibility impacts are well-reflected in\n the model results. We agree with LDEQ that the CALPUFF model\n followed the reviewed protocol is an appropriate tool to evaluate\n visibility impacts and benefits to inform a BART determination.\n\n Furthermore, our CAMx modeling of coal-fired sources included in\n the LA RH SIP (see Appendix F) further supports the conclusion\n that the Entergy Nelson and Cleco Brame sources are subject to\n BART.\n\n This explanation is fulsome. In it, the EPA (1) cited its responses on the\nsame issue in the Arkansas and Texas federal implementation plans (which\nare in the administrative record here), (2) disagreed with the commenter’s\ninterpretation of National Parks Conservation Ass’n, (3) criticized the\ncommenter’s “calculated margin of error” methodology, (4) disagreed with the\ncommenter’s method of combining results from two different models, and (5)\nnoted the commenter’s failure to provide the underlying data. Although\nIndustry Petitioners might not agree with the conclusion that the EPA\nreached, the EPA “meaningfully respond[ed]” to the substance of the comment.\n * * *\n 69\n\f Case: 18-60116 Document: 00515144673 Page: 70 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n In short, Industry Petitioners contend that CALPUFF uses\noversimplified and unrealistic assumptions. The EPA agrees in part, but\ninsists that those assumptions are based on reasoned policy decisions.\n Given the conflicting technical contentions, we defer to the EPA’s\napproval of Louisiana’s reliance on the CALPUFF model. The EPA’s selection\nof modeling methods to measure visibility impacts is exactly the type of\ndecision for which “significant deference” is appropriate. 165 Although\nCALPUFF has documented flaws, (1) the BART guidelines continue to\nrecommend that model for these determinations, 166 (2) the EPA has recently\ndirected states to use that model, 167 and (3) it “has been used for almost every\nsingle-source BART analysis in the country.”\n We defer to the EPA’s approval of Louisiana’s reliance on the CALPUFF\nmodel. Industry Petitioners have not carried their “considerable burden” to\novercome the “presumption of regularity” that we afford to “the EPA’s choice\nof analytical methodology.” 168 Because a model “is meant to simplify reality in\norder to make it tractable,” and need not “fit every application perfectly,” 169 we\n\n\n\n\n 165 See Appalachian Power Co. v. EPA, 135 F.3d 791, 802 (D.C. Cir. 1998) (“Statistical\nanalysis is perhaps the prime example of those areas of technical wilderness into which\njudicial expeditions are best limited to ascertaining the lay of the land.”).\n 166 BART Guidelines, 40 C.F.R. part 51, App. Y, III.A.3.\n 167 82 Fed. Reg. 5,182, 5,196 (Jan. 17, 2017) (“[T]his final action does not affect the\n\nEPA’s recommendation that states use CALPUFF to determine the applicability and level of\nbest available retrofit technology in regional haze implementation plans.”).\n 168 BCCA Appeal Grp., 355 F.3d at 832\n 169 Ass’n of Battery Recyclers, 308 F.3d at 1063.\n\n 70\n\f Case: 18-60116 Document: 00515144673 Page: 71 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\nhold that the EPA’s reliance on the CALPUFF model was not arbitrary and\ncapricious.\n Moreover, the Clean Air Act’s structure gives states the primary\nresponsibility for implementing the federal standards. The EPA’s role is to\nreview the states’ plans for compliance with the Act’s requirements. Within\nthose respective roles, “the States may submit implementation plans more\nstringent than federal law requires,” and the EPA “must approve such plans if\nthey meet the minimum requirements” of the Clean Air Act. 170 At this “subject\nto BART” stage—the purpose of which is to determine which of the BART-\neligible sources warrant a “closer look” 171—Louisiana’s reliance on a modeling\nmethod that tends to be overinclusive would result in a SIP that is more\nstringent than the federal requirements. The EPA’s approval of such a SIP\nwould be well within the agency’s role to ensure the SIP “meet[s] the minimum\nrequirements” of the Clean Air Act. 172\n 3. Challenge to the EPA’s CAMx Modeling\n We have concluded that the EPA’s reliance on the CALPUFF model was\nnot arbitrary and capricious, so we need not address Industry Petitioners’\ncontentions about the EPA’s use of CAMx modeling.\n\n\n\n\n 170 Union Elec. Co., 427 U.S. at 265; see 42 U.S.C. § 7410(k)(3) (“[the EPA] shall\napprove [a SIP] submittal as a whole if it meets all of the applicable requirements of this\nchapter.”).\n 171 BART Rule, 70 Fed. Reg. at 39,127.\n 172 Union Elec. Co., 427 U.S. at 265.\n\n 71\n\fCase: 18-60116 Document: 00515144673 Page: 72 Date Filed: 10/03/2019\n\n\n No. 18-60116\n\n\n\n\n IV. CONCLUSION\n For the foregoing reasons, the petitions for review are DENIED.\n\n\n\n\n 72\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Sierra Club v. EPA\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-03\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-60116 Document: 00515144673 Page: 1 Date Filed: 10/03/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n October 3, 2019\\n No. 18-60116\\n Lyle W. Cayce\\n Clerk\\nSIERRA CLUB; NATIONAL PARKS CONSERVATION ASSOCIATION;\\nENTERGY LOUISIANA, L.L.C.,\\n\\n Petitioners\\n\\nv.\\n\\nUNITED STATES ENVIRONMENTAL PROTECTION AGENCY; ANDREW\\nWHEELER, Administrator, United States Environmental Protection Agency,\\n\\n Respondents\\n\\n\\n\\n On Petitions for Review of Final Administrative Action\\n of the United States Environmental Protection Agency\\n\\n\\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\\nWIENER, Circuit Judge:\\n In a December 21, 2017 Final Rule (“the Final Rule”), the United States\\nEnvironmental Protection Agency (“the EPA”) approved Louisiana’s state\\nimplementation plan (“SIP”) for controlling regional haze. Louisiana’s regional\\nhaze SIP had two alleged problems. First, the SIP used an outdated air-\\npollution model called “CALPUFF” to measure the visibility impacts of\\npowerplant emissions. Second, the SIP included a sparse explanation for how\\nLouisiana weighed five mandatory statutory factors in determining the Best\\nAvailable Retrofit Technology (“BART”) for controlling emissions at Unit 6 of\\nthe Roy S. Nelson powerplant (“Nelson”). Despite the EPA’s knowledge of these\\n\\f Case: 18-60116 Document: 00515144673 Page: 2 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nproblems, it determined that Louisiana had fulfilled its obligations under the\\nClean Air Act.\\n We consider two petitions for review of the Final Rule. One is from\\nPetitioners-Appellants Sierra Club and National Parks Conservation\\nAssociation (collectively, “Environmental Petitioners”). The other is from\\nPetitioner-Appellant Entergy Louisiana, L.L.C., the owner of the Nelson\\npowerplant, and Cleco Power, L.L.C., an intervenor in this case (collectively,\\n“Industry Petitioners”).\\n Environmental Petitioners maintain that Louisiana’s SIP does too little\\nto curb regional haze at federally protected areas. They contend that (1)\\nLouisiana’s determination that “low-sulfur coal” was the BART for the Nelson\\npowerplant was deficient in several respects and (2) the EPA acted arbitrarily\\nand capriciously in approving Louisiana’s SIP because it knew about those\\ndeficiencies.\\n In contrast, Industry Petitioners insist that Louisiana’s SIP\\noverestimates the amount of pollution that their powerplants produce. In their\\nchallenge to the EPA’s approval of Louisiana’s “subject to BART”\\ndeterminations, Industry Petitioners object to Louisiana’s and the EPA’s use\\nof the “CALPUFF” model, which they maintain relies on several flawed\\ntechnical assumptions.\\n We deny Industry Petitioners’ petition. We afford “significant deference”\\nto agency decisions involving analysis of scientific data within the agency’s\\ntechnical expertise. The EPA’s selection of a model to measure air pollution\\nlevels is precisely that type of decision. The EPA therefore did not act\\n 2\\n\\f Case: 18-60116 Document: 00515144673 Page: 3 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\narbitrarily and capriciously in relying on the CALPUFF model to approve\\nLouisiana’s “subject to BART” determinations.\\n Although Environmental Petitioners’ challenge presents a closer\\nquestion, we deny that petition as well. Louisiana’s explanation of its BART\\ndetermination for Nelson omitted two of the five mandatory factors and failed\\nto compare—or even set out—the numbers for the costs and benefits of the\\ncontrol options Louisiana considered. Louisiana also failed to explain how its\\ndecision accounted for the EPA-submitted analyses that pointed out\\nsubstantial flaws in other analyses in the administrative record. But applying\\nthe deferential standards of the Administrative Procedures Act to the facts of\\nthis case, we hold that the EPA’s approval of Louisiana’s SIP was not arbitrary\\nand capricious.\\n The petitions for review are denied.\\n I. BACKGROUND\\n This case addresses the EPA’s approval of Louisiana’s SIP for controlling\\nregional haze. The Clean Air Act “requires the states and the federal\\ngovernment to set and seek to achieve targets for visibility in protected\\nnational parks and wildlife areas by modifying regulations that control air\\npollutants in ambient air.” 1 Under the Act, the federal government identifies\\nair pollutants and sets standards, and the states have “the primary\\nresponsibility” for implementing those standards through SIPs. 2 After a state\\n\\n\\n 1 Texas v. EPA, 829 F.3d 405, 411 (5th Cir. 2016) (citing 42 U.S.C. §§ 71410, 7491,\\n7492(e)(2)).\\n 2 Id. (citation omitted).\\n\\n 3\\n\\f Case: 18-60116 Document: 00515144673 Page: 4 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nsubmits its SIP, the EPA reviews the SIP for compliance with the Clean Air\\nAct.\\n Powerplants that emit sulfur dioxide (“SO2”) and oxides of nitrogen\\n(“NOx”) contribute to regional haze in protected federal areas. 3 Louisiana has\\nfive powerplants that cause or contribute to visibility impairments in such\\nareas. 4 Since 2008, Louisiana has revised its SIP several times and established\\nemission controls at some of those powerplants. In October 2017, Louisiana\\nsubmitted its final SIP revisions, which addressed, inter alia, emission controls\\nat Unit 6 of the Nelson powerplant.\\n On December 21, 2017, the EPA promulgated a final rule approving\\nLouisiana’s SIP. 82 Fed. Reg. 60,520 (Dec. 21, 2017) (“the Final Rule”). The two\\npetitions for review of the Final Rule address the EPA’s approval of (1)\\nLouisiana’s determination that Nelson and two units at the Cleco-owned\\nBrame Energy Center (“Brame”) are subject to BART for controlling emissions,\\n(2) Louisiana’s selection of low-sulfur coal as BART for controlling SO2\\nemissions at Nelson, and (3) Louisiana’s reasonable progress goals and long-\\nterm strategy.\\n Environmental Petitioners first address Louisiana’s BART\\ndetermination for Nelson. They contend that the Louisiana Department of\\n\\n\\n\\n 3Id. Regional haze is a “visibility impairment that is produced by a multitude of\\nsources and activities that are located across a broad geographic area and emit fine\\nparticulates . . . and their precursors.” 77 Fed. Reg. 42,834, 42,837 (July 20, 2012) (describing\\nregional haze and the history of regional haze regulation).\\n 4 See 82 Fed. Reg. 22,936, 22,942 (May 19, 2017).\\n\\n 4\\n\\f Case: 18-60116 Document: 00515144673 Page: 5 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nEnvironmental Quality (“LDEQ”) erred in three ways: (1) determining that\\nlow-sulfur coal was BART for Nelson, despite the EPA-submitted analyses that\\ncontradicted the analyses in the record, (2) failing to provide a rational basis\\nfor rejecting a more effective pollution control, and (3) not complying with the\\nBART guidelines or considering all the mandatory BART factors.\\n Environmental Petitioners next object to the Final Rule’s approval of\\nLouisiana’s long-term strategy and reasonable progress goals. They maintain\\nthat Louisiana’s 2017 SIP revisions did not fulfill the state’s obligations to\\nrevise and resubmit its long-term strategy and reasonable progress goals after\\nthe EPA disapproved that strategy and those goals in 2012. Louisiana’s 2017\\nSIP revisions did not impose additional controls at non-BART “reasonable\\nprogress” sources and did not address the state’s reasonable progress goals or\\nlong-term strategy for achieving natural visibility conditions. According to\\nEnvironmental Petitioners, the EPA improperly overlooked these omissions\\nwhen it approved Louisiana’s SIP.\\n Environmental Petitioners object to the type of BART control Louisiana\\nimplemented. Industry Petitioners, in contrast, object to Louisiana’s\\ndetermination that Nelson and Brame are subject to BART at all. Industry\\nPetitioners challenge the technical assumptions underlying the modeling\\nmethods on which Louisiana and the EPA relied. Louisiana relied on the\\n“CALPUFF” model, and the EPA relied on both the CALPUFF and the “CAMx”\\nmodels. According to Industry Petitioners, the CALPUFF model overstates the\\nvisibility effects of powerplant emissions. They also maintain that the EPA\\n\\n\\n 5\\n\\f Case: 18-60116 Document: 00515144673 Page: 6 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nexceeded its authority by using its own CAMx modeling to support Louisiana’s\\nmodeling results.\\n Each petitioner in this case is also a respondent-intervenor. The\\nEnvironmental Petitioners, in addition to petitioning for review of some parts\\nof the Final Rule, also intervened and filed a responsive brief opposing\\nIndustry Petitioners’ petition. Likewise, Industry Petitioners, in addition to\\npetitioning for review of some parts of the Final Rule, also intervened and filed\\na responsive brief opposing Environmental Petitioners’ petition.\\n The EPA responded to both petitions, insisting that the Final Rule\\nshould be approved in full. The LDEQ filed an amicus brief supporting the\\nEPA’s position.\\nA. Statutory and Regulatory Framework\\n This case is governed by the Clean Air Act and the regulations\\nimplementing it. In 1977, “in response to a growing awareness that visibility\\nwas rapidly deteriorating in many places, such as wilderness areas and\\nnational parks,” Congress amended the Act by enacting § 169A. 5\\n That amendment established as a national goal “the prevention of any\\nfuture, and the remedying of any existing, impairment in visibility in\\nmandatory class I Federal areas which impairment results from manmade air\\npollution.” 6 Protected class I Federal areas include “all (1) international parks,\\n(2) national wilderness areas which exceed 5,000 acres in size, (3) national\\n\\n\\n\\n 5 North Dakota v. EPA, 730 F.3d 750, 755 (8th Cir. 2013) (internal quotation omitted).\\n 6 42 U.S.C. § 7491.\\n 6\\n\\f Case: 18-60116 Document: 00515144673 Page: 7 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nmemorial parks which exceed 5,000 acres in size, and (4) national parks which\\nexceed 6,000 acres in size.” 7 Louisiana’s Breton National Wildlife Refuge and\\nthe Caney Creek Wilderness Area in southwest Arkansas are the protected\\nClass I Federal areas at issue here. 8\\n The Clean Air Act is “an experiment in cooperative federalism,” in which\\nthe federal government identifies pollutants and sets visibility targets, and the\\nstates implement those standards though SIPs. 9 The Act directed the EPA to\\nissue regulations requiring: (1) that states submit SIPs to the EPA, (2) the\\ninstallation of the “best available retrofit technology, as determined by the\\nState . . . for controlling emissions” at specified air-pollution sources, and (3)\\nthat each state adopt a long-term strategy “for making reasonable progress”\\ntoward the national visibility goal. 10\\n Based on the Act’s directive, the EPA promulgated the Regional Haze\\nRule in 1999. 11 “The Regional Haze Rule established the guidelines for state\\ncompliance with the air visibility requirements of [the Clean Air Act].” 12 In\\n2005, the EPA revised that Rule and issued the BART guidelines, which set\\nout the process for states to establish BART emissions limitations. 13\\n\\n\\n\\n 7 Id. § 7472(a).\\n 8 77 Fed. Reg. 11,839, 11,845 (Feb. 28, 2012).\\n 9 Texas, 829 F.3d at 411.\\n 10 42 U.S.C. § 7491(b)(2)(A)–(B). The EPA has stated that the national visibility goal\\n\\nis “to attain natural visibility conditions by the year 2064.” 40 C.F.R. § 51.308(d)(1)(i)(B).\\n 11 64 Fed. Reg. 35,714 (July 1, 1999); 40 C.F.R. § 51.308 (“Regional Haze Rule”).\\n 12 Texas, 829 F.3d at 412.\\n 13 70 Fed. Reg. 39,104 (July 6, 2005) (“BART Rule”); 40 C.F.R. Part 51, App. Y (“BART\\n\\nGuidelines”).\\n 7\\n\\f Case: 18-60116 Document: 00515144673 Page: 8 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n The Clean Air Act and the Regional Haze Rule impose five requirements\\nfor SIPs:\\n For each affected wilderness and national park, the plan must: (1)\\n set “reasonable progress goals” toward achieving natural visibility\\n conditions that ensure improvements in visibility on the most\\n impaired days over the period of the implementation plan; (2)\\n calculate baseline visibility and natural visibility conditions; (3)\\n devise a long-term strategy with enforceable emissions limitations,\\n compliance schedules, and other measures necessary to achieve\\n the reasonable progress goals; (4) develop a monitoring strategy\\n for measuring and reporting visibility; and (5) list the best\\n available retrofit technology . . . that emission sources in the state\\n will have to adopt to achieve the visibility goals, along with a\\n schedule for implementing BART. 14\\n\\n After a state submits its SIP to the EPA, the agency reviews the SIP for\\ncompliance with the Clean Air Act. If the EPA determines that a SIP does not\\ncomply with the Act, it must promulgate a “Federal implementation plan” that\\nfixes the SIP’s shortcomings, unless the state corrects the deficiency. 15 The\\nEPA’s role is confined “to the ministerial function of reviewing SIPs for\\nconsistency with the Act’s requirements.” 16\\n The parties focus on two of the Clean Air Act’s and Regional Haze Rule’s\\nrequirements: (1) the BART emission limits and (2) the reasonable progress\\ngoals and long-term strategy that each state must implement.\\n\\n\\n 14 Texas, 829 F.3d at 412 (citing 40 C.F.R. § 51.308(d), (e)).\\n 15 42 U.S.C. § 7410(k)(3), (c)(1). Because the EPA approved Louisiana’s SIP, there is\\nno Federal implementation plan at issue here.\\n 16 Texas, 829 F.3d at 411 (quoting Luminant Generation Co. v. EPA, 675 F.3d 917, 921\\n\\n(5th Cir. 2012)).\\n 8\\n\\f Case: 18-60116 Document: 00515144673 Page: 9 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n 1. BART Emission Limits\\n The Regional Haze Rule defines BART as “an emission limitation based\\non the degree of reduction achievable through the application of the best\\nsystem of continuous emission reduction for each pollutant which is emitted by\\nan existing stationary facility.” 17 The BART process has three steps. First, a\\nstate must identify all “BART-eligible sources.” Second, it must determine\\nwhich of those BART-eligible sources are “subject to BART.” Third, for each\\nsource that is “subject to BART,” the state must make a “BART determination”\\nby analyzing and selecting the appropriate emission control for that source. 18\\n Step one is identifying all “BART-eligible sources.” That definition\\nincludes all stationary facilities that (1) were in existence before August 7,\\n1977 but were not in operation before August 7, 1962, (2) have “the potential\\nto emit 250 tons per year or more of any visibility-impairing air pollutant,” and\\n(3) fall within one of 26 listed source categories. 19 The parties agree that Nelson\\nand Brame satisfy these requirements and are “BART-eligible” sources.\\n Step two is making “subject to BART” determinations. The state must\\ndetermine which of the BART-eligible sources emit air pollutants that “may\\nreasonably be anticipated to cause or contribute to any impairment of\\nvisibility” in a Class I area. 20 The key words are “cause” and “contribute to.”\\n\\n\\n\\n 1740 C.F.R. § 51.301.\\n 18BART Guidelines, 40 C.F.R. Part 51, App. Y at I.F; see also Util. Air Regulatory Grp.\\nv. EPA, 471 F.3d 1333, 1335–36 (D.C. Cir. 2006) (explaining the process).\\n 19 40 C.F.R. § 51.301.\\n 20 Id.\\n\\n 9\\n\\f Case: 18-60116 Document: 00515144673 Page: 10 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nSources that a state determines may reasonably be anticipated to “cause” or\\n“contribute to” visibility impairment at a protected area are “subject to\\nBART.” 21 Under the BART Guidelines, a 1.0 deciview 22 change from an\\nindividual source “causes” visibility impairment, whereas a 0.5 deciview\\nchange from an individual source “contributes to” impairment. 23 In some\\ninstances, states may set a lower threshold for sources that “contribute to”\\nvisibility impairment. 24\\n At the “subject to BART” screening step, states have discretion to either\\n(a) determine that all BART-eligible sources are “subject to BART” via\\n“collective attribution” or (b) conduct individualized testing to determine that\\na source, or a group of sources, is exempt from BART. 25 Here, Louisiana opted\\nfor the second option.\\n\\n\\n\\n\\n 21 Id.\\n 22 Visibility impairments are measured in deciviews. A deciview “is the unit of\\nmeasurement on the deciview index scale for quantifying in a standard manner human\\nperceptions of visibility.” 40 C.F.R. § 51.301. “A higher deciview measurement indicates more\\nhaze and less visibility. . . . A single deciview is around the increment that the average person\\ncan perceive with the naked eye.” Texas, 829 F.3d at 413 n.2.\\n 23 BART Rule, 70 Fed. Reg. at 39,120 (“[W]e are clarifying that for purposes of\\n\\ndetermining which sources are subject to BART, States should consider a 1.0 deciview change\\nor more from an individual source to ‘cause’ visibility impairment, and a change of 0.5\\ndeciviews to ‘contribute’ to impairment.”). For a fuller background on the “cause” or\\n“contribute” distinction, see id. at 39,117–39,122.\\n 24 Id. at 39,120–39,121 (“In a regulatory context, we believe that a State’s decision as\\n\\nto an appropriate threshold for contribution could depend upon the number of sources\\naffecting a class I area.”).\\n 25 BART Guidelines, 40 C.F.R. Pt. 51, App. Y at III.\\n\\n 10\\n\\f Case: 18-60116 Document: 00515144673 Page: 11 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n The third step is the “BART determination,” in which a state must\\nidentify the appropriate emission control for each “subject to BART” source. 26\\nAt each such source, the state must consider five statutory factors: (1) the costs\\nof compliance, (2) the energy and nonair quality environmental impacts of\\ncompliance, (3) any existing pollution control technology in use at the source,\\n(4) the remaining useful life of the source, and (5) the degree of improvement\\nin visibility which may reasonably be anticipated to result from the use of such\\ntechnology. 27\\n For powerplants with generating capacities greater than 750 megawatts,\\nlike those at issue here, a state’s BART determination must comply with the\\nBART guidelines, 28 which provide step-by-step instructions for making BART\\ndeterminations. 29 In contrast, at the BART-eligibility and “subject to BART”\\nsteps, the BART guidelines are advisory only. 30\\n 2. Reasonable Progress Goals and Long-Term Strategy\\n The Regional Haze Rule requires a state to “establish goals (expressed\\nin deciviews) that provide for reasonable progress towards achieving natural\\nvisibility conditions” for each Class I area within that state. 31 The process and\\nconsiderations for calculating these goals are as follows:\\n\\n\\n\\n 26Id. at IV.\\n 2742 U.S.C. § 7491(g)(2); Regional Haze Rule, 40 C.F.R. § 308(e)(1)(ii)(A) .\\n 28 Regional Haze Rule, 40 C.F.R. § 51.308(e)(1)(ii)(B); 42 U.S.C. § 7491(b)(2); see also\\n\\n77 Fed. Reg. 11,839, 11,849 (Feb. 28, 2012).\\n 29 See BART Guidelines, 40 C.F.R. Part 51, App. Y § IV.\\n 30 Util. Air Regulatory Grp., 471 F.3d at 1338–39.\\n 31 40 C.F.R. § 51.308(d)(1).\\n\\n 11\\n\\f Case: 18-60116 Document: 00515144673 Page: 12 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n A state begins by calculating the steady linear rate of decreasing\\n emissions that would achieve natural visibility in the covered\\n wildernesses and national parks by the year 2064. 40 C.F.R.\\n § 51.308. If a state determines that the linear rate would result in\\n unreasonable regulations, it must propose an alternative set of\\n reasonable progress goals and demonstrate both that the linear\\n rate is unreasonable and that the alternative goals are reasonable.\\n Id. § 51.308(d)(1)(ii). The Clean Air Act and the Regional Haze\\n Rule require a state to consider four factors when setting\\n reasonable progress goals: “the costs of compliance, the time\\n necessary for compliance, and the energy and nonair quality\\n environmental impacts of compliance, and the remaining useful\\n life of any existing source subject to such requirements.” 42 U.S.C.\\n § 7491(g)(1); see also 40 C.F.R. § 51.308(d)(1)(i)(A) (repeating the\\n factors listed in § 7491(g)(1)). 32\\n\\nThe evaluation of the four statutory factors is often referred to as a “‘four-factor\\nanalysis’ or ‘reasonable progress analysis.’” 33\\n In addition to setting reasonable progress goals, a state must establish a\\n“long-term strategy” to make reasonable progress toward achieving natural\\nvisibility conditions. 34 This strategy must include “enforceable emissions\\nlimitations, compliance schedules, and other measures necessary to achieve\\nthe reasonable progress goals.” 35 As part of its long-term strategy, a state may\\nimpose additional emission reduction measures at sources that are not “subject\\nto BART.” 36 Sources that are regulated through the reasonable progress\\n\\n\\n 32 Texas, 829 F.3d at 412–13.\\n 33 81 Fed. Reg. 66,332, 66,360 (Sept. 27, 2016).\\n 34 40 C.F.R. § 51.308(d)(3).\\n 35 Id.; see 42 U.S.C. § 7491(b)(2)(A).\\n 36 40 C.F.R. § 51.308(d)(3).\\n\\n 12\\n\\f Case: 18-60116 Document: 00515144673 Page: 13 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\ngoals—rather than through BART—are referred to as “reasonable progress\\nsources.” 37\\nB. Factual Background\\n The procedural history of this case began when Louisiana submitted its\\nregional haze SIP to the EPA in 2008. Since then, Louisiana has revised and\\nresubmitted its SIP many times. Louisiana submitted its final SIP revisions in\\nOctober 2017, and the EPA approved Louisiana’s SIP in its December 2017\\nFinal Rule. 38\\n 1. Louisiana’s 2008 Submittal\\n Louisiana submitted a SIP for addressing regional haze in June 2008. In\\nthat SIP, Louisiana relied on an emissions-trading program called the Clean\\nAir Interstate Rule (“CAIR”) to satisfy its BART, reasonable-progress, and\\nlong-term strategy obligations. The EPA reviewed that SIP in two separate\\nactions in 2012. 39\\n The first such action, a national rulemaking, was based on a D.C. Circuit\\ndecision that (1) held that states could not rely on CAIR to satisfy their BART\\nobligations and (2) remanded CAIR to the EPA. 40 In that national rulemaking,\\nthe EPA finalized a “limited disapproval” of Louisiana’s SIP because it had\\nrelied on CAIR. 41\\n\\n\\n 37 Id.\\n 38 See Final Rule, 82 Fed. Reg. at 60,521–60,522 (“Our Previous Actions”).\\n 39 See 82 Fed. Reg. 32,294, 32,295 (July 13, 2017) (detailing the procedural history).\\n 40 See North Carolina v. EPA, 531 F.3d 896, 930 (D.C. Cir. 2008), reh’g granted in part,\\n\\n550 F.3d 1176 (D.C. Cir. 2008).\\n 41 77 Fed. Reg. 33,642, 33,643 (June 7, 2012).\\n\\n 13\\n\\f Case: 18-60116 Document: 00515144673 Page: 14 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n The second such action “partially disapproved” Louisiana’s SIP\\nsubmission based on issues other than, and “go[ing beyond],” the SIP’s reliance\\non CAIR. In addition to this “partial disapproval” of particular parts of\\nLouisiana’s SIP, that action also included a “partial limited approval” of other\\nparts of the SIP.\\n The “partial limited approval” part of that action was based on the EPA’s\\nconclusion that specified parts of the SIP, “as a whole, strengthen[ed] the\\nState’s SIP.” 42 Although the EPA concluded that some of the SIP provisions—\\nincluding Louisiana’s reasonable progress goals and long-term strategy—did\\nnot comply with the Clean Air Act, those noncompliant provisions were\\nincluded in the partial limited approval. 43\\n In the “partial disapproval” part of that action, the EPA disapproved the\\nparts of the SIP related to CAIR, including the BART analyses for non-electric\\ngenerating unit (“EGU”) sources 44 and the BART determinations for four\\nspecific non-EGU sources. 45 Those deficiencies are not at issue here.\\n A definitional note: Limited approvals and partial approvals are\\ndifferent. If a submittal does not meet all of the Act’s requirements, but a\\n“separable” part does meet those requirements, a “partial approval may be\\n\\n\\n 42 77 Fed. Reg. 39,425, 39,426 (July 3, 2012) (“2012 Final Rule”).\\n 43 See id.\\n 44 “[T]he term ‘electric generating unit’ or ‘EGU’ is used to mean a solid fuel-fired\\n\\nsteam generating unit that serves a generator that produces electricity for sale to the electric\\ngrid.” EPA Whitepaper on Available and Emerging Technologies for Reducing Greenhouse\\nGas Emissions from Coal-Fired Electric Generating Units (Oct. 2010),\\nhttps://www.epa.gov/sites/production/files/2015-12/documents/electricgeneration.pdf.\\n 45 2012 Final Rule, 77 Fed. Reg. at 39,426.\\n\\n 14\\n\\f Case: 18-60116 Document: 00515144673 Page: 15 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nused to approve that part of the submittal and disapprove the remainder.” 46 In\\ncontrast, if parts of a submittal do not meet the Clean Air Act’s requirements,\\nbut “the submittal as a whole” has a “strengthening effect” on the SIP, the EPA\\nmay use a “limited approval” to enact the entire submittal. 47 The practical\\ndifference is\\n that under a limited approval the EPA’s approval action goes to\\n the entire [submittal]. In other words, although portions of a\\n [submittal] prevent the EPA from finding that the [submittal]\\n meets a certain requirement of the Act, the EPA believes that the\\n [submittal], as a whole, strengthens the SIP. Therefore, the EPA\\n approves the entire [submittal]--even those portions that prohibit\\n full approval. Likewise, when the EPA issues the limited\\n disapproval, the disapproval applies to the entire [submittal] as\\n failing to meet a specific requirement of the Act. The [submittal]\\n remains a part of the [enforceable] SIP, however, under the limited\\n disapproval, because the [submittal] strengthens the SIP. The\\n disapproval only applies to whether the submittal meets a specific\\n requirement of the Act and does not affect incorporation of the rule\\n into the approved, federally enforceable SIP. 48\\n\\nIn short, in a partial approval, the approved parts of the submittal go into effect\\nand the disapproved parts do not. In a limited approval, the entire part that is\\n“limitedly” approved—including the provisions within that part that do not\\n\\n\\n\\n\\n 46 Processing of State Implementation Plan Revisions at 2, the EPA Memorandum\\nfrom John Calcagni (July 9, 1992), https://www.epa.gov/sites/production/files/2015-\\n07/documents/procsip.pdf.\\n 47 Id. at 2–3.\\n 48 Id. at 3.\\n\\n 15\\n\\f Case: 18-60116 Document: 00515144673 Page: 16 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\ncomply with the Clean Air Act—goes into effect and are incorporated into the\\napproved SIP.\\n As a result of the partial disapproval, the EPA was required to\\npromulgate a federal implementation plan within two years of that\\ndisapproval, unless it approved a corrected state plan. 49 The EPA did not\\npromulgate a federal plan or approve a corrected state plan within that\\ntimeframe. Based on that, the Sierra Club sued the EPA, and a federal district\\ncourt entered a consent decree requiring the EPA to issue a federal plan or\\napprove a corrected state plan by December 15, 2017. 50\\n 2. Louisiana’s 2017 Revisions and the EPA’s Approval\\n To bring its SIP into compliance, Louisiana revised its SIP to, among\\nother things, address BART for the Nelson and Brame powerplants. Nelson\\nand Brame are two of the largest sources of SO2 and NOx emissions in\\nLouisiana, are “BART-eligible,” and have generating capacities greater than\\n750 megawatts. 51\\n In August 2016, Louisiana submitted a partial plan addressing BART at\\n“non-EGU” sources. The EPA proposed to approve that partial plan in October\\n2016 and finalized the approval in the December 2017 Final Rule. 52 The\\napproval of that partial plan is not at issue here.\\n\\n\\n 49 42 U.S.C. § 7410(c)(1).\\n 50 See Notice of Modification of Consent Decree, Sierra Club v. Pruitt, No. 15-cv-01555-\\nJEB (D.D.C. Mar. 13, 2017).\\n 51 Final Rule, 82 Fed. Reg. at 60,525–26.\\n 52 81 Fed. Reg. 74,750 (Oct. 27, 2016) (proposed rulemaking); Final Rule, 82 Fed. Reg.\\n\\nat 60,522 (“[W]e are finalizing that approval here.”).\\n 16\\n\\f Case: 18-60116 Document: 00515144673 Page: 17 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n In February 2017, Louisiana submitted a revised plan addressing BART\\nfor EGU sources, including Nelson and Brame. In June 2017, Louisiana revised\\nits SIP to make a BART determination for Nelson. Louisiana revised its SIP\\nagain in October 2017. The EPA’s December 2017 Final Rule explains the\\nrelevant procedural history as follows:\\n On June 20, 2017, LDEQ submitted a SIP revision for parallel\\n processing related to Entergy’s Nelson facility. On July 13, 2017,\\n we proposed to approve this SIP revision along with the remaining\\n portion of the February 2017 SIP revision that addressed BART\\n for the Nelson facility. Specifically, we proposed to approve the\\n LDEQ BART determinations for Nelson Units 6 and 4, and the\\n Unit 4 auxiliary boiler, and the [administrative order on consent]\\n that makes the emission limits that represent BART permanent\\n and enforceable for the purposes of regional haze. We also solicited\\n comment with respect to any information that would support or\\n refute the costs in Entergy’s evaluation of SO2 controls for Unit 6.\\n On June 21, 2017, Entergy submitted a comment to LDEQ on its\\n proposed SIP revision requesting a three-year compliance deadline\\n to achieve the proposed SO2 BART limit for Nelson Unit 6.\\n Entergy’s letter explained that the company has coal contracts in\\n place for the next three years, so the revised compliance date would\\n provide the company sufficient time to transition to new mines\\n with lower sulfur coal. Additionally, Entergy stated that it did not\\n have the necessary equipment to blend varying fuel supplies. On\\n August 24, 2017, we received a letter from LDEQ explaining their\\n intent to revise the compliance date in the SIP revision for Nelson\\n Unit 6 based on Entergy’s comment letter. On September 26, 2017,\\n we supplemented our proposed approval of the SO2 BART\\n determination for Nelson by proposing to approve the three-year\\n compliance date. On October 26, 2017, we received LDEQ’s final\\n SIP revision addressing Nelson, including a final [administrative\\n order of consent] with emission limits and a SO2 compliance date\\n\\n 17\\n\\f Case: 18-60116 Document: 00515144673 Page: 18 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n three years from the effective date of the EPA’s final approval of\\n the SIP revision. 53\\n\\n In the October 2017 SIP revisions, Louisiana (1) determined that Nelson\\nand Brame were “subject to BART” and (2) determined that low-sulfur coal was\\nBART for controlling SO2 emissions at Nelson.\\n In reaching those conclusions, Louisiana considered analyses submitted\\nby Entergy, Cleco, and the EPA. The analyses submitted by the parties\\naddressed: (1) the modeling methods for making “subject to BART”\\ndeterminations and (2) the potential control options for BART at Nelson. The\\nEPA’s analyses contradicted and sharply criticized significant parts of\\nEntergy’s and Cleco’s analyses. The LDEQ included all the analyses as\\nappendices to its revised SIP.\\n i. The “Subject to BART” Determinations\\n The LDEQ concluded that Nelson and Brame were “subject to BART.”\\nThe department reached that conclusion based on dispersion modeling that\\nestablished that those powerplants produced emissions that surpassed the 0.5\\ndeciview threshold for “contributing to” visibility impairment at the Breton\\nNational Wilderness Area and the Caney Creek Wilderness Area.\\n The LDEQ relied on the “CALPUFF” model, which “predicts 24-hour\\naverage pollutant concentrations based on source emissions and how they\\ndisperse in the atmosphere” and converts those concentrations to daily\\n\\n\\n\\n\\n 53 82 Fed. Reg. at 60,522.\\n 18\\n\\f Case: 18-60116 Document: 00515144673 Page: 19 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\ndeciview effects. 54 The BART guidelines provide that a state may “use\\nCALPUFF or other appropriate model to estimate visibility impacts from a\\nsingle source at a Class I area.” 55 When the EPA promulgated those guidelines\\nin 2005, CALPUFF was “the best regulatory modeling application currently\\navailable for predicting a single source’s contribution to visibility impairment\\nand [was then] the only EPA-approved model for use in estimating single\\nsource pollutant concentrations resulting from the long range transport of\\nprimary pollutants.” 56 Although the EPA has recently removed CALPUFF as\\na “preferred” model for other air-quality modeling applications under the Clean\\nAir Act, CALPUFF remains a recommended model for making “subject-to-\\nBART” and BART emission control determinations. 57\\n Both Entergy’s and the EPA’s CALPUFF modeling showed that Nelson\\nand Brame each had a greater than 0.5 deciview impact on visibility\\nimpairment at Breton and Caney Creek. Entergy, however, submitted reports\\nshowing that CALPUFF’s reliance on flawed assumptions imposed a too-high\\nmargin of error.\\n In addition to conducting CALPUFF modeling, Entergy and the EPA\\nconducted another type of modeling called “CAMx.” Entergy and the EPA\\nsubmitted their CAMx analyses to the LDEQ.\\n\\n\\n 54 See BART Rule, 70 Fed. Reg. at 39,122 (describing the CALPUFF model in detail).\\n 55 BART Guidelines, 40 C.F.R. Part 51, App. Y, III.A.3.\\n 56 Id.\\n 57 82 Fed. Reg. 5,182, 5,196 (Jan. 17, 2017) (“[T]his final action does not affect the\\n\\nEPA’s recommendation that states use CALPUFF to determine the applicability and level of\\nbest available retrofit technology in regional haze implementation plans.”).\\n 19\\n\\f Case: 18-60116 Document: 00515144673 Page: 20 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n The EPA’s CAMx modeling showed that Nelson and Brame exceeded the\\n0.5 deciview threshold. In contrast, Entergy’s CAMx modeling showed that\\nthose powerplants’ emissions did not exceed the 0.5 deciview threshold. The\\nEPA, however, concluded that Entergy’s CAMx modeling “was not conducted\\nin accordance with the BART Guidelines and d[id] not properly assess\\nmaximum baseline impacts, so [the EPA] consider[ed] this CAMx modeling\\nprovided by Entergy to be invalid for supporting a determination of minimal\\nvisibility impacts.” 58\\n When the LDEQ reviewed the models that the parties had submitted, it\\nstated that it did “not have the expertise with which to review those [CAMx]\\nmodel runs,” and instead relied only on the CALPUFF modeling. The LDEQ\\ndid, however, include the CAMx analyses as appendices to its revised SIP.\\n ii. BART Determinations for Brame and Nelson\\n Louisiana’s revised SIP also made BART determinations for Brame and\\nNelson. For the two Brame units, the LDEQ determined that “no additional\\ncontrols constitute[d] BART.” The LDEQ reached that determination based on\\nthose units’ existing controls. At one of those units, BART was satisfied via the\\nunit’s earlier conversion from coal to natural gas. The other unit satisfied its\\nBART obligations based on an earlier dry sorbent injection installation. 59\\n For Nelson, the LDEQ changed its BART determination between the\\nFebruary 2017 revision and the June and October 2017 revisions. In the\\n\\n\\n 82 Fed. Reg. at 32,299.\\n 58\\n\\n Cleco does not challenge the LDEQ’s determination about the BART controls at the\\n 59\\n\\nBrame units; it challenges only the determination that the units are “subject to BART.”\\n 20\\n\\f Case: 18-60116 Document: 00515144673 Page: 21 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nFebruary 2017 SIP revision, the LDEQ concluded that no additional controls\\nwere necessary for Nelson to satisfy BART. Although the LDEQ stated that\\n“low sulfur coal presents the most feasible control based on economics and\\nimpacts to visibility,” it also stated that it “believe[d] that the visibility\\nimprovement that would be achieved through the installation and operation of\\ncontrols at each of the Nelson units would be negligible, therefore the facility’s\\nexisting controls satisfy the BART requirements and no further controls are\\nnecessary.”\\n In its June 2017 SIP revision, however, the LDEQ changed course and\\ndetermined that low-sulfur coal was BART for controlling SO2 at Nelson. The\\nOctober 2017 SIP revision retained that determination and extended the\\ncompliance date for BART at Nelson by three years.\\n In the October 2017 SIP revision, the LDEQ stated that it evaluated four\\ndifferent technologies for reducing emissions at Nelson: (1) low-sulfur coal, (2)\\ndry sorbent injection (“DSI”), (3) dry flue-gas desulfurization (“FGD”), or a “dry\\nscrubber,” and (4) wet FGD, or a “wet scrubber.” The LDEQ stated its\\nreasoning for selecting low-sulfur coal as BART at Nelson as follows:\\n In the Entergy BART five-factor SO2 analysis for the Unit 6\\n Boiler, a number of emission reduction controls were reviewed.\\n The reviewed controls included the use of a lower sulfur coal, DSI,\\n enhanced DSI, dry flue-gas desulfurization (FGD) and wet FGD.\\n LDEQ has reviewed and weighed the five factors carefully; after a\\n review of the information that Entergy and EPA provided, LDEQ\\n has concluded that the appropriate BART for this facility is to\\n establish an emission limit of .6 lbs/MMBtu based on a 30 day\\n rolling average as defined in the AOC (see Appendix D). While\\n additional visibility benefits may be available through the use of\\n 21\\n\\f Case: 18-60116 Document: 00515144673 Page: 22 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n FGD, the lower sulfur coal option results in visibility benefits at a\\n lower annual cost. Along with the extra cost, FGD use results in\\n additional waste spent due to spent reagent and has some power\\n demands to run the equipment. LDEQ believes, at present, that\\n the use of lower sulfur coal presents the appropriate SO2 control\\n based on consideration of economics, energy impacts, non-air\\n quality environmental impacts, and impacts to visibility.\\n\\n iii. Long-Term Strategy and Reasonable Progress Goals\\n\\n Louisiana’s revised SIP did not specifically set out a long-term strategy\\nor impose emission controls at additional “reasonable progress sources.”\\nNeither did it evaluate the four “reasonable progress factors” for determining\\nwhether any non-BART reasonable progress sources should be controlled.\\n 3. The EPA’s Approval of Louisiana’s SIP\\n The EPA proposed two separate rules to approve Louisiana’s revised\\nSIP. In May 2017, the EPA issued a proposed rule to approve the entire\\nFebruary 2017 SIP revision except for the part about Nelson, on which the EPA\\ndeferred action. 60 This rulemaking included an approval of Louisiana’s “subject\\nto BART” determination for Brame. 61\\n In June 2017, Louisiana revised its SIP by changing its previous “no\\nfurther controls” BART determination for Nelson to require the use of low-\\nsulfur coal. In a July 2017 rulemaking (“the Proposed Rule”), the EPA proposed\\nto approve the remaining part of Louisiana’s SIP addressing Nelson. 62 The\\n\\n\\n\\n 60 82 Fed. Reg. 22,936 (May 19, 2017).\\n 61 Id. at 22,942–22,943.\\n 62 Proposed Rule, 82 Fed. Reg. 32,294, 32,300 (July 13, 2017).\\n\\n 22\\n\\f Case: 18-60116 Document: 00515144673 Page: 23 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nProposed Rule (1) agreed with the LDEQ that Nelson was “subject to BART”\\nand (2) stated that the LDEQ had adequately analyzed the five mandatory\\nBART factors. 63 But the Proposed Rule also criticized several aspects of the\\nSIP revision, including Entergy’s modeling, cost estimates, and supporting\\ndocumentation. The Proposed Rule stated that the EPA performed its own\\nmodeling and analyses to correct those errors. 64\\n After the EPA issued the Proposed Rule, Louisiana submitted a letter to\\nthe EPA explaining the state’s intention to extend the compliance date in its\\ndraft SIP for Nelson by three years. In response to that letter, the EPA\\nsupplemented the Proposed Rule to reflect such change. 65\\n Louisiana revised its SIP again in October 2017. As discussed above, that\\nrevision extended the date for Nelson to comply with BART by three years. The\\nEPA finalized its proposed approval of all of Louisiana’s SIP revisions when it\\nissued the Final Rule on December 21, 2017. 66\\n The Environmental and Industry Petitioners timely petitioned for\\nreview of the Final Rule. On the same day that this case was filed, the\\nEnvironmental Petitioners also filed an administrative petition for\\nreconsideration of the Final Rule. This court stayed the case pending the EPA’s\\n\\n\\n\\n\\n 63 Id. at 32,296–32,297.\\n 64 Id. at 32,297–32,298.\\n 65 82 Fed. Reg. 44,753 (Sept. 26, 2017).\\n 66 Final Rule, 82 Fed. Reg. 60,520 (Dec. 21, 2017).\\n\\n 23\\n\\f Case: 18-60116 Document: 00515144673 Page: 24 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\ndecision on the administrative petition, then lifted the stay after the EPA\\ndenied that petition. 67\\n II. STANDARD OF REVIEW\\n We review the EPA’s approval of Louisiana’s regional haze SIP under\\nthe standards set out in the Administrative Procedure Act (“APA”), which\\nrequire us to set aside an agency action that is “arbitrary, capricious, an abuse\\nof discretion, or otherwise not in accordance with law.” 68 An action is arbitrary\\nand capricious “if the agency has relied on factors which Congress has not\\nintended it to consider, entirely failed to consider an important aspect of the\\nproblem, offered an explanation for its decision that runs counter to the\\nevidence before the agency, or is so implausible that it could not be ascribed to\\na difference in view or the product of agency expertise.” 69\\n The arbitrary and capricious standard is “narrow,” and we must “be\\nmindful not to substitute [our] judgment for that of the agency.” 70 We “must\\nalso ensure that the agency ‘examined the relevant data and articulated a\\nsatisfactory explanation for its action.’” 71 “We consider whether the decision\\n\\n\\n\\n 67 See EPA’s Response to Reconsideration Petition, https://www.regulations.gov/\\ncontentStreamer?documentId=EPA-R06-OAR-2016-0520-0011&contentType=pdf. Although\\nwe take notice of the administrative petition for reconsideration and the EPA’s response to\\nit, our review of the Final Rule “is limited to the record before the agency at the time of its\\ndecision.” Luminant, 675 F.3d at 925 (quotation omitted).\\n 68 5 U.S.C. § 706(2)(A).\\n 69 Tex. Oil & Gas Ass’n v. EPA, 161 F.3d 923, 933 (5th Cir. 1998) (quoting Motor\\n\\nVehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)).\\n 70 10 Ring Precision, Inc. v. Jones, 722 F.3d 711, 723 (5th Cir. 2013) (quoting Motor\\n\\nVehicle Mfrs. Ass’n, 463 U.S. at 43).\\n 71 Id. (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).\\n\\n 24\\n\\f Case: 18-60116 Document: 00515144673 Page: 25 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nwas based on a consideration of the relevant factors and whether there has\\nbeen a clear error of judgment.” 72\\n Additionally, federal agencies “are required to engage in ‘reasoned\\ndecisionmaking.’” 73 The agency’s process must be “logical and rational,” and its\\ndecision “is lawful only if it rests ‘on a consideration of the relevant factors.’” 74\\nThe agency must “articulate a satisfactory explanation for its action including\\na ‘rational connection between the facts found and the choice made.’” 75 Under\\nthis standard, courts have vacated agency decisions that created “unexplained\\ninconsistencies in the rulemaking record.” 76\\n Under the Clean Air Act’s structure of cooperative federalism, Louisiana\\nis the entity considering “relevant factors,” and the EPA’s role is confined to\\nensuring that Louisiana’s determinations complied with the Clean Air Act. 77\\nUnder this structure, we review whether the EPA was arbitrary and capricious\\nin approving Louisiana’s compliance with the Act.\\n\\n\\n\\n 72 Id. (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).\\n 73 Michigan v. EPA, 135 S. Ct. 2699, 2706 (2015) (quoting Allentown Mack Sales &\\nServ., Inc. v. NLRB, 622 U.S. 359, 374 (1998)).\\n 74 Id. (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).\\n 75 Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (quoting Burlington Truck Lines v. United\\n\\nStates, 371 U.S. 156, 168 (1962)).\\n 76 U.S. Sugar Corp. v. EPA, 830 F.3d 579, 651 (D.C. Cir. 2016); see id. at 650 (collecting\\n\\nD.C. Circuit authority and stating “[t]his court has ‘often declined to affirm an agency\\ndecision if there are unexplained inconsistencies in the final rule’” (citation omitted)); Gulf\\nPower Co. v. FERC, 983 F.2d 1095, 1101 (D.C. Cir. 1993) (“[W]hen an agency takes\\ninconsistent positions . . . it must explain its reasoning.); Gen. Chem. Corp. v. United States,\\n817 F.2d 844, 846 (D.C. Cir. 1987) (holding agency action to be arbitrary because its analysis\\nwas “internally inconsistent and inadequately explained”).\\n 77 See Texas, 829 F.3d at 411.\\n\\n 25\\n\\f Case: 18-60116 Document: 00515144673 Page: 26 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n III. ANALYSIS\\n As a threshold matter, Industry Petitioners and Environmental\\nPetitioners have standing. Industry Petitioners’ standing is based on Entergy’s\\nand Cleco’s ownership of the powerplants at issue. Environmental Petitioners\\nhave standing because one of the Sierra Club’s members submitted a\\ndeclaration adequately asserting that (1) he regularly visits the national parks\\nin question, (2) he has concrete plans to return in the future, and (3) regional\\nhaze affects his visibility. Although the declarations submitted by the National\\nParks Conservation Association do not appear to give it standing in this case,\\n“one party with standing is sufficient to satisfy Article III’s case-or-controversy\\nrequirement.” 78\\n Each petition raises two major issues. Environmental Petitioners\\nchallenge the EPA’s approval of (1) Louisiana’s selection of low-sulfur coal as\\nBART for controlling SO2 emissions at Nelson and (2) Louisiana’s reasonable\\nprogress goals and long-term strategy.\\n Industry Petitioners challenge the EPA’s approval of Louisiana’s\\n“subject to BART” determinations at Nelson and Brame. They contend that (1)\\nthe CALPUFF modeling that Louisiana relied on was technically flawed; (2)\\nthe CAMx modeling, on which the EPA relied but Louisiana did not, was\\ntechnically flawed; and (3) even if the CAMx modeling were not technically\\n\\n\\n\\n\\n 78Brackeen v. Bernhardt, 937 F.3d 406, 421 (5th Cir. 2019) (quoting Rumsfeld v.\\nForum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 53 n.2 (2006)).\\n 26\\n\\f Case: 18-60116 Document: 00515144673 Page: 27 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nflawed, the EPA should not have considered it because Louisiana expressly did\\nnot consider it.\\n We address each issue in turn.\\nA. The Environmental Petitioners’ Petition\\n The first part of Environmental Petitioners’ challenge addresses the\\nEPA’s approval of Louisiana’s determination that low-sulfur coal was BART\\nfor Nelson. The second part of their challenge addresses the EPA’s approval of\\nLouisiana’s long-term strategy and reasonable progress goals.\\n We deny Environmental Petitioners’ petition, and we explain our\\nreasons below.\\n 1. The EPA’s Approval of the BART Determination for Nelson\\n In its October 2017 SIP revision, Louisiana selected low-sulfur coal as\\nBART for controlling SO2 emissions at Nelson. The LDEQ explained its\\ndetermination as follows:\\n In the Entergy BART five-factor SO2 analysis for the Unit 6\\n Boiler, a number of emission reduction controls were reviewed.\\n The reviewed controls included the use of a lower sulfur coal, DSI,\\n enhanced DSI, dry flue-gas desulfurization (FGD) and wet FGD.\\n LDEQ has reviewed and weighed the five factors carefully; after a\\n review of the information that Entergy and EPA provided, LDEQ\\n has concluded that the appropriate BART for this facility is to\\n establish an emission limit of .6 lbs/MMBtu based on a 30 day\\n rolling average as defined in the AOC (see Appendix D). While\\n additional visibility benefits may be available through the use of\\n FGD, the lower sulfur coal option results in visibility benefits at a\\n lower annual cost. Along with the extra cost, FGD use results in\\n additional waste spent due to spent reagent and has some power\\n demands to run the equipment. LDEQ believes, at present, that\\n 27\\n\\f Case: 18-60116 Document: 00515144673 Page: 28 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n the use of lower sulfur coal presents the appropriate SO2 control\\n based on consideration of economics, energy impacts, non-air\\n quality environmental impacts, and impacts to visibility.\\n\\n Environmental Petitioners contend that the EPA’s approval of this\\ndetermination was arbitrary and capricious for three reasons. First,\\nLouisiana’s selection of low-sulfur coal as BART at Nelson was inconsistent\\nwith the evidence that the state considered. Second, Louisiana did not provide\\na “rational basis” for rejecting more effective pollution controls. Third, in its\\nBART determination, Louisiana did not weigh the Clean Air Act’s factors in\\ncompliance with the mandatory BART guidelines.\\n i. The Evidence Louisiana Considered\\n According to Environmental Petitioners, Louisiana’s BART\\ndetermination rested solely on analysis by Nelson’s owner, Entergy.\\nEnvironmental Petitioners point out that the EPA was “unable to verify any of\\nthe company’s costs” because those costs were based on a proprietary database\\nto which the EPA was not given access. 79 Similarly, the EPA could not verify\\nEntergy’s modeling analyses because Entergy did not provide the “inputs” that\\nwere used in the modeling.\\n For the parts of Entergy’s analyses that the EPA did review, the EPA\\nconcluded that Entergy’s cost and visibility analyses, on which Louisiana\\nrelied, had many errors, including: (1) implementing improper costs, (2)\\ninflated contingency estimates, and (3) modeling errors. The EPA pointed out\\n\\n\\n\\n 79 Proposed Rule, 82 Fed. Reg. at 39,432.\\n 28\\n\\f Case: 18-60116 Document: 00515144673 Page: 29 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nthese errors in the Proposed Rule: (1) “Entergy’s control cost estimates\\nincluded costs not allowed under our Control Cost Manual (e.g., escalation\\nduring construction and owner’s costs)”; (2) “Entergy also assumed a\\ncontingency of 25%, which we note is unusually high”; and (3) “Entergy’s\\nCALPUFF modeling included errors in its estimates of sulfuric acid and PM\\nemissions.” 80\\n After noting these perceived errors, the EPA submitted its own BART\\nanalyses that reached markedly different cost-effectiveness estimates for each\\nproposed control option at Nelson. The following table compares the EPA’s and\\nEntergy’s cost-effectiveness calculations, in cost per ton of pollutant removed,\\nfor each control option.\\n Cost-Effectiveness Comparison 81\\n Technology Entergy’s Calculation the EPA’s Calculation\\n Low-sulfur coal $597 $2,957\\n DSI $5,611 $3,578 - $4,302\\n Wet scrubber $4,413 $2,743\\n Dry scrubber (SDA) $4,536 $2,706\\n\\n Most striking is the difference between the EPA’s and Entergy’s\\ncalculations for low-sulfur coal. Entergy estimated that low-sulfur coal would\\ncost $597 per ton of pollution removed; the EPA estimated that it would cost\\n$2,957 per ton. Entergy’s estimate for what the parties agree would be the most\\n\\n\\n 80Proposed Rule, 82 Fed. Reg. at 32,298–32,299.\\n 81The Proposed Rule contains a thorough narrative discussion of the EPA’s analyses\\nand the problems with Entergy’s analyses. 82 Fed. Reg. at 32,298–32,299.\\n 29\\n\\f Case: 18-60116 Document: 00515144673 Page: 30 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\neffective option—a dry scrubber—was significantly higher than the EPA’s\\nestimate. Entergy’s estimate was $4,536 per ton of pollution removed; the\\nEPA’s was $2,706 per ton.\\n Similarly, the EPA’s conclusions about the visibility improvements for\\neach option differed from Entergy’s conclusions. In the Proposed Rule, the EPA\\nexplained that the differences resulted from Entergy’s model’s failure to follow\\nthe BART guidelines. 82 The following chart compares the visibility\\nimprovement calculations (in deciviews) for each control option.\\n Expected Visibility Improvement Comparison for Caney Creek\\n Technology Trinity Consultants’ the EPA’s Calculation\\n Calculation\\n Low-sulfur coal 0.164 0.411\\n DSI 0.302 0.511\\n Dry scrubber (SDA) 0.355 0.831\\n\\n According to Environmental Petitioners, Louisiana’s reliance on\\nEntergy’s analyses—which the EPA’s analyses concluded overestimated the\\ncosts and underestimated the benefits of more effective pollution controls—was\\nirrational. After the EPA informed Louisiana of those errors, that state\\nreached the same BART determination. In its SIP revision, Louisiana did not\\nacknowledge the EPA’s criticisms and did not attempt to reconcile the\\n\\n\\n 82 82 Fed. Reg. at 32,299 (“As we discuss above and in the CAMx Modeling TSD,\\nEntergy also provided additional screening modeling results using CAMx to support its\\nconclusion that visibility impacts from Unit 6 are minimal. However, this modeling was not\\nconducted in accordance with the BART Guidelines and does not properly assess maximum\\nbaseline impacts, so we consider this CAMx modeling provided by Entergy to be invalid for\\nsupporting a determination of minimal visibility impacts.”).\\n 30\\n\\f Case: 18-60116 Document: 00515144673 Page: 31 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nconflicting the EPA and Entergy analyses. Environmental Petitioners insist\\nthat Louisiana’s failure to explain why its decision remained unchanged after\\nreviewing the EPA’s contradictory analyses created an “unexplained\\ninconsistenc[y] in the rulemaking record” that made the EPA’s approval\\narbitrary and capricious. 83\\n The EPA does not defend these discrepancies. In its brief, it concedes\\nthat the agency “was aware of these errors when it approved the SIP,”\\nacknowledges that the SIP revision contained “a number of errors,” and\\ndescribes Entergy’s submissions as “Entergy’s faulty analyses.”\\n The EPA contends that, despite these errors, Louisiana “may, to the\\nextent supported by the record as a whole, reach the same conclusion both\\nbefore and after reviewing a particular set of information.” 84 The EPA points\\nto the fact that its own analyses were in the record and that the LDEQ included\\nthose analyses in an appendix to the revised SIP. The EPA insists that, based\\non the agency’s earlier review of the “entirety of” Louisiana’s SIP submission,\\nLouisiana considered all the information in its October 2017 SIP submission,\\nweighed that information in arriving at its final BART determination, and\\nexplained the reasons for its decision.\\n Industry Respondents defend the analyses they submitted to the LDEQ\\nand insist that those analyses adequately supported Louisiana’s BART\\ndetermination. They criticize the analyses that the EPA submitted to the\\n\\n\\n 83U.S. Sugar Corp, 830 F.3d 579 at 651.\\n 84See 42 U.S.C. § 7410(k)(3) (“[the EPA] shall approve such submittal as a whole if it\\nmeets all of the applicable requirements of [the Act].”).\\n 31\\n\\f Case: 18-60116 Document: 00515144673 Page: 32 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nLDEQ and challenge the EPA’s earlier determination that their analyses failed\\nto comply with the BART guidelines.\\n Environmental Petitioners have the better arguments on this point.\\nEntergy and the EPA reached significantly different conclusions about the\\ncosts and visibility improvements of each emission control. But after the EPA\\nsubmitted analyses pointing out flaws in Entergy’s analysis, the LDEQ did not\\ndiscuss the EPA-identified errors, and it reached the same BART\\ndetermination for Nelson as it did before the EPA identified mistakes. Given\\nthe EPA’s analysis showing that Entergy significantly underestimated the cost\\nof low-sulfur coal and overestimated the cost of a scrubber, Louisiana’s failure\\nto address or reconcile the conflicting analyses appears to create an\\n“unexplained inconsistenc[y]” in the rulemaking record. 85 Although that\\nshortcoming in Louisiana’s SIP is worthy of careful scrutiny, it does not fully\\nresolve the matter.\\n ii. Rational Explanation for Rejecting a More Effective\\n Control\\n Environmental Petitioners next contend that Louisiana did not provide\\na rational explanation for rejecting a more effective pollution control at Nelson.\\nThey point to the EPA’s past actions that reviewed BART determinations for\\nwhether the costs and visibility benefits of a determination were within the\\nrange of the EPA’s prior BART determinations. 86 They also cite the BART\\n\\n\\n\\n 85See U.S. Sugar Corp., 830 F.3d at 651.\\n 86See 82 Fed. Reg. 912,938 (Jan. 4, 2017) (“[T]he cost-effectiveness of all of the controls\\nthat form the basis of our proposed BART determinations are within a range found to be\\n 32\\n\\f Case: 18-60116 Document: 00515144673 Page: 33 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nguidelines, which recommend that “[a] reasonable range would be a range that\\nis consistent with the range of cost effectiveness values used in other similar\\npermit decisions over a period of time.” 87\\n The LDEQ’s SIP revisions did not provide cost-effectiveness numbers for\\nany of the control options it considered. Based on the LDEQ’s failure to include\\nthose numbers in its SIP, the EPA was not able to compare the instant BART\\ndetermination with the EPA’s previously approved BART determinations.\\nAccording to Environmental Petitioners, this lack of a comparison to prior\\nEPA-approved BART determinations amounts to an “unexplained deviation\\nfrom past practice.” 88\\n To bolster this argument, Environmental Petitioners compared the\\nEPA’s cost-effectiveness numbers for a scrubber with all of the EPA’s prior\\nBART determinations. Environmental Petitioners included a graph of those\\nresults, which shows that the cost-effectiveness numbers for a scrubber align\\nwith the EPA’s prior BART decisions.\\n The EPA responds that, although in other actions it has stated that\\ncomparisons to prior BART determinations are helpful, the BART guidelines\\ndo not require such comparisons. The EPA points to the Final Rule’s\\nstatements explaining that BART determinations depend on the unique\\n\\n\\n\\n\\nacceptable in other case.”); 80 Fed. Reg. 18,944, 18,952 (Apr. 8, 2015) (“[T]he cost effectiveness\\n. . . is within the range of what we consider to be cost-effective for BART.”).\\n 87 BART Guidelines, 40 C.F.R. part 51, App. Y § IV.D.4.f.\\n 88 See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125–26 (2016); WildEarth\\n\\nGuardians v. EPA, 770 F.3d 919, 941 (10th Cir. 2014).\\n 33\\n\\f Case: 18-60116 Document: 00515144673 Page: 34 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\ncircumstances of each source and that “[s]ome variation is to be expected\\nbecause SIP actions are highly fact-dependent.” 89 The EPA also cites several\\ncases holding that states have broad authority to weigh the statutory factors\\nand to pick appropriate emission controls. 90\\n The EPA has the better argument on this point. Louisiana has the\\nauthority to select the appropriate BART emission control. The fact that a\\nscrubber more closely aligns with the EPA’s prior BART determinations did\\nnot preclude Louisiana from choosing low-sulfur coal instead. The guideline\\nthat Environmental Petitioners cite does not require that BART\\ndeterminations align with the EPA’s prior BART determinations:\\n You should provide documentation of any unusual circumstances\\n that exist for the source that would lead to cost-effectiveness\\n estimates that would exceed that for recent retrofits. This is\\n especially important in cases where recent retrofits have cost-\\n effectiveness values that are within what has been considered a\\n reasonable range, but your analysis concludes that costs for the\\n source being analyzed are not considered reasonable. (A\\n reasonable range would be a range that is consistent with the\\n range of cost effectiveness values used in other similar permit\\n decisions over a period of time.) 91\\n\\n Although the parties do not explain how low-sulfur coal compares to the\\nEPA’s prior BART determinations, the record is devoid of any “unusual\\n\\n\\n\\n 89 82 Fed. Reg. at 60,534–60,535.\\n 90 See Oklahoma v. EPA, 723 F.3d 1201, 1209 (10th Cir. 2013) (“[S]tates ha[ve] broad\\nauthority to weigh the statutory factors and make BART determinations.”); see also Ariz. ex\\nrel. Darwin v. EPA, 852 F.3d 1148, 1161 (9th Cir. 2017).\\n 91 BART Guidelines, 40 C.F.R. part 51, App. Y § IV.D.4.f.\\n\\n 34\\n\\f Case: 18-60116 Document: 00515144673 Page: 35 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\ncircumstances” indicating that low-sulfur coal’s cost-effectiveness estimates\\nare out of line with prior BART determinations. Therefore, the guideline\\naddressing “similar permit decisions over a period of time” does not apply here.\\n iii. Weighing the Statutory Factors and Compliance with\\n the BART Guidelines\\n In making a BART determination, a state “shall take into consideration”\\nfive factors: (1) the costs of compliance, (2) the energy and nonair quality\\nenvironmental impacts of compliance, (3) any existing pollution control\\ntechnology in use at the source, (4) the remaining useful life of the source, and\\n(5) the degree of improvement in visibility that may reasonably be anticipated\\nto result from the use of such technology. 92 States have discretion as to “the\\nweight and significance” of each factor, as well as the appropriate emission\\ncontrol that qualifies as BART at a given source. 93\\n In addition to considering those statutory factors, for powerplants with\\ngenerating capacities greater than 750 megawatts, like Nelson and Brame, the\\nstate’s BART determination “shall be determined pursuant to [the BART]\\nguidelines.” 94 The BART guidelines state:\\n From the alternatives you evaluated . . . we recommend you\\n develop a chart (or charts) displaying for each of the alternatives:\\n\\n (1) Expected emission rate . . . ;\\n\\n\\n 92 42 U.S.C. § 7491(g)(2).\\n 93 BART Rule, 70 Fed. Reg. at 39,123; see Oklahoma, 723 F.3d at 1209 (“[S]tates ha[ve]\\nbroad authority to weigh the statutory factors and make BART determinations.”).\\n 94 42 U.S.C. § 7491 (b)(2)(B); see 40 C.F.R. § 51.308(e)(1)(ii)(B). In its brief, the EPA\\n\\nconcedes that the BART Guidelines are mandatory at this step.\\n 35\\n\\f Case: 18-60116 Document: 00515144673 Page: 36 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n (2) Emissions performance level . . . ;\\n (3) Expected emissions reductions . . . ;\\n (4) Costs of compliance—total annualized costs ($), cost\\n effectiveness ($/ton), and incremental cost effectiveness\\n ($/ton), and/or any other cost-effectiveness measures (such\\n as $/deciview);\\n (5) Energy impacts;\\n (6) Non-air quality environmental impacts; and\\n (7) Modeled visibility impacts. 95\\n\\n ....\\n You have discretion to determine the order in which you should\\n evaluate control options for BART. Whatever the order in which\\n you choose to evaluate options, you should always (1) display the\\n options evaluated; (2) identify the average and incremental costs\\n of each option; (3) consider the energy and non-air quality\\n environmental impacts of each option; (4) consider the remaining\\n useful life; and (5) consider the modeled visibility impacts. You\\n should provide a justification for adopting the technology that you\\n select as the “best” level of control, including an explanation of the\\n CAA factors that led you to choose that option over other control\\n levels. 96\\n\\n The LDEQ’s explanation of its determination that low-sulfur coal was\\nBART for Nelson states:\\n In the Entergy BART five-factor SO2 analysis for the Unit 6\\n Boiler, a number of emission reduction controls were reviewed.\\n The reviewed controls included the use of a lower sulfur coal, DSI,\\n enhanced DSI, dry flue-gas desulfurization (FGD) and wet FGD.\\n LDEQ has reviewed and weighed the five factors carefully; after a\\n review of the information that Entergy and EPA provided, LDEQ\\n\\n 95 BART Guidelines, 40 C.F.R. part 51, App. Y § IV.E.1 (emphasis added).\\n 96 Id. (emphasis added).\\n 36\\n\\f Case: 18-60116 Document: 00515144673 Page: 37 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n has concluded that the appropriate BART for this facility is to\\n establish an emission limit of .6 lbs/MMBtu based on a 30 day\\n rolling average as defined in the AOC (see Appendix D). While\\n additional visibility benefits may be available through the use of\\n FGD, the lower sulfur coal option results in visibility benefits at a\\n lower annual cost. Along with the extra cost, FGD use results in\\n additional waste spent due to spent reagent and has some power\\n demands to run the equipment. LDEQ believes, at present, that\\n the use of lower sulfur coal presents the appropriate SO2 control\\n based on consideration of economics, energy impacts, non-air\\n quality environmental impacts, and impacts to visibility.\\n\\n In the 2017 Final Rule, the EPA approved this explanation as compliant\\nwith the Clean Air Act. The Final Rule relied on the language in the revised\\nSIP, which states that “LDEQ has weighed the five factors carefully” and\\nreached its decision “after a review of both Entergy’s and the EPA’s\\ninformation.” 97 Referring to this statement, the Final Rule concludes:\\n This indicates that the State reviewed the information it received\\n from both Entergy and the EPA, and thus had adequate\\n information upon which to base its determination. After reviewing\\n the relevant information contained in LDEQ’s SIP, we determined\\n that the State’s SIP meets the requirements of the Act and the\\n applicable regulations and guidance. 98\\n\\n Environmental Petitioners challenge the EPA’s approval of the LDEQ’s\\nexplanation of its BART determination. Those Petitioners contend that,\\nbecause the LDEQ failed to discuss how it weighed each statutory factor, it did\\nnot comply with the BART guidelines and therefore did not satisfy its\\n\\n\\n 97 Final Rule, 82 Fed. Reg. at 60,532.\\n 98 Id.\\n 37\\n\\f Case: 18-60116 Document: 00515144673 Page: 38 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nobligations under the Clean Air Act. They point to the LDEQ’s failure to\\nevaluate (1) the existing pollution controls at Nelson, (2) the remaining useful\\nlife of Nelson, (3) the cost-effectiveness of pollution controls, and (4) the\\nvisibility benefits of pollution controls.\\n In response, the EPA concedes that Louisiana “could have expanded its\\ndiscussion of its decisionmaking process.” The EPA nonetheless maintains that\\nit “determined that the path Louisiana took in weighing the five factors and\\nreaching its BART determination could be reasonably discerned from the\\nrecord before it.” The EPA’s and Industry Respondents’ arguments focus on the\\nfact that Entergy’s and the EPA’s analyses—which were included as\\nappendices to the SIP revisions—did the appropriate analysis and considered\\nall the factors.\\n Environmental Petitioners are correct that the LDEQ’s explanation did\\nnot discuss the Clean Air Act’s factors of (1) the existing controls at Nelson, (2)\\nNelson’s remaining useful life, or (3) the BART guidelines factor of “cost-\\neffectiveness.”\\n On the “existing control” factor, the LDEQ’s failure to discuss the\\nexisting controls at Nelson highlights a factual dispute between the parties.\\nEnvironmental Petitioners maintain that low-sulfur coal is already in use at\\nNelson and has been since 2015. The EPA’s June 2017 technical support\\ndocument states that “beginning in the Spring of 2015, Entergy began\\npurchasing coals with lower sulfur contents that occur in a tighter range in\\ncomparison to those purchased in the past.”\\n\\n\\n 38\\n\\f Case: 18-60116 Document: 00515144673 Page: 39 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n Regarding the “remaining useful life” factor, the LDEQ’s explanation of\\nits BART determination does not mention or address that factor. Neither does\\nthe LDEQ’s explanation mention “cost-effectiveness.” The BART guidelines\\nrequire states to consider the cost-effectiveness of potential control options. 99\\nThose guidelines define that term as follows:\\n Cost-effectiveness, in general, is a criterion used to assess the\\n potential for achieving an objective in the most economical way.\\n For purposes of air pollutant analysis, “effectiveness” is measured\\n in terms of annualized control costs. We recommend two types of\\n cost-effectiveness calculations - average cost effectiveness, and\\n incremental cost effectiveness.\\n ...\\n Average cost effectiveness means the total annualized costs of\\n control divided by annual emissions reductions (the difference\\n between baseline annual emissions and the estimate of emissions\\n after controls), using the following formula . . . . 100\\n\\n Louisiana’s explanation mentions “annual cost” but does not mention\\n“cost-effectiveness.” As the BART guidelines explain, annual cost and cost-\\neffectiveness are different: Annual cost is the annualized capital cost for a\\ncontrol; cost-effectiveness is the annual cost of a control divided by the annual\\nemissions reductions of that control. In general, the least effective control\\ntechnology will almost always have the lowest absolute (or annual) cost. In\\ncontrast, the most effective control technology will often have the highest\\n\\n\\n\\n\\n 99 See BART Guidelines, 40 C.F.R. part 51, App. Y § IV.D.4.b; see also id. § IV.E.1.\\n 100 Id. § IV.D.4.(b)–(c).\\n 39\\n\\f Case: 18-60116 Document: 00515144673 Page: 40 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nabsolute (or annual) cost. 101 Based on this distinction, the BART guidelines\\nimpose cost-effectiveness, i.e., the cost per ton of pollution removed—instead of\\nannual cost—as the relevant consideration.\\n * * *\\n The Clean Air Act requires states to consider five statutory factors when\\nmaking a BART determination. The EPA then must approve or disapprove\\nthat determination. Our role is to decide whether the EPA was arbitrary and\\ncapricious in approving Louisiana’s SIP.\\n The LDEQ’s key statements on this issue are that (1) it “reviewed and\\nweighed the five factors carefully,” (2) it reached its decision after “review[ing]\\n. . . the information that Entergy and EPA provided,” and (3) the “lower sulfur\\ncoal option results in visibility benefits at a lower annual cost.”\\n The LDEQ’s short explanation is lacking in several respects. It did not\\n(1) provide numbers supporting its conclusions, (2) address or reconcile the\\nEPA’s criticism of Entergy’s analyses, (3) compare the costs or benefits of each\\ncontrol option, or (4) discuss Nelson’s existing controls, remaining useful life,\\nor the cost-efficiency of the potential control options. The EPA’s and Industry\\nRespondents’ primary contention is that because Entergy and the EPA did the\\nappropriate analysis and weighed the statutory factors—and the LDEQ said it\\nreviewed those analyses and included them as appendices—the LDEQ\\nappropriately weighed the factors. The parties’ briefing on how Louisiana\\nweighed the factors focuses almost entirely on the analyses that the EPA and\\n\\n\\n 101 See Proposed Rule, 82 Fed. Reg. at 32,298–32,299.\\n 40\\n\\f Case: 18-60116 Document: 00515144673 Page: 41 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nEntergy submitted. None of the briefs, however, cite any place in the record in\\nwhich the LDEQ discusses all five statutory factors.\\n Moreover, the parties rely on the LDEQ’s statement that it considered\\nthe analyses that Entergy and the EPA provided before making its\\ndetermination, as well as the fact that those analyses were included as\\nappendices to the SIP revisions. But the LDEQ expressly disavowed\\n“agree[ing] with,” “adopt[ing],” or “incorporat[ing]” any of Entergy’s or the\\nEPA’s calculations in its revised SIP:\\n LDEQ submits these comments in response to certain statements\\n in the preamble [of the 2017 Proposed Rule] that matters were\\n “adopted and incorporated” into the LDEQ SIP revision. LDEQ\\n places all documents and information submitted to it in connection\\n with the development of the SIP in an administrative record . . . .\\n However, placement in the record does not indicate that LDEQ\\n agrees with or has “adopted” positions, conclusions, or decisions,\\n nor has “incorporated” them into the SIP revision submitted to the\\n EPA. The final SIP document and any enforceable conditions\\n included therein encompass the final decision by LDEQ.\\n\\nBased on this express disavowal, we cannot conclude that the analyses Entergy\\nand the EPA submitted to the LDEQ were incorporated into the terms of\\nLouisiana’s revised SIP.\\n And, in contrast to the BART guidelines’ detailed instructions for making\\na BART determination, the LDEQ’s explanation of its BART determination for\\nNelson provides hardly any details. The guidelines recommend “always”\\nidentifying the average and incremental costs of each option, but the LDEQ\\nprovided neither specific numbers supporting that decision nor a comparison\\n\\n 41\\n\\f Case: 18-60116 Document: 00515144673 Page: 42 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nof the costs and estimated visibility benefits for each control option. Unlike the\\ndetailed analyses that the EPA and Entergy submitted—which did provide cost\\nand pollution-control estimates for each control option—the LDEQ simply\\nstated that low-sulfur coal had an unspecified “lower annual cost.”\\n Despite these shortcomings, we conclude that the EPA’s approval of\\nLouisiana’s BART determination was not arbitrary and capricious. 102 The\\nstandard of review is narrow and highly deferential. Our review is limited to\\n“whether the decision was based on a consideration of the relevant factors and\\nwhether there has been a clear error of judgment.” 103\\n There was a plethora of record evidence—the analyses that Entergy\\nsubmitted to the LDEQ—to support the BART determination. There was also\\nconsiderable record evidence—the analyses that the EPA submitted—\\nundermining that determination. The LDEQ stated that (1) it considered both\\nof these analyses when it made its BART determination and (2) it “reviewed\\nand weighed the five factors carefully.” Although the LDEQ could have offered\\na more thorough explanation of its reasoning, its assurance that it weighed the\\nfive factors carefully indicates that its decision “rest[ed] ‘on a consideration of\\nthe relevant factors’” 104 and that the agency did not “entirely fail[] to consider\\n\\n\\n\\n\\n 102 We note that this would be a much easier case if the LDEQ had (a) explained the\\nweight it afforded to any of the five factors, (b) expressly compared the costs of each option,\\nor (c) simply reproduced Entergy’s charts and numbers in the revised SIP.\\n 103 10 Ring Precision, Inc., 722 F.3d at 723 (quoting Motor Vehicle Mfrs. Ass’n, 463\\n\\nU.S. at 43).\\n 104 Michigan, 135 S. Ct. at 2706 (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).\\n\\n 42\\n\\f Case: 18-60116 Document: 00515144673 Page: 43 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nan important aspect of the problem.” 105 The EPA’s approval of that\\ndetermination was not arbitrary and capricious. 106\\n 2. Louisiana’s Long-Term Strategy and Reasonable Progress\\n Goals\\n The second part of Environmental Petitioners’ challenge is to the EPA’s\\napproval of Louisiana’s long-term strategy and reasonable-progress goals. The\\nClean Air Act requires states to adopt long-term strategies “for making\\nreasonable progress” toward the national visibility goal. 107 Louisiana’s 2008\\nSIP included reasonable progress goals and a long-term strategy, but the 2017\\nSIP revisions did not.\\n Environmental Petitioners contend that the 2017 SIP revisions did not\\ncomply with the Act because they did not address Louisiana’s long-term\\n\\n\\n\\n 105 Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43.\\n 106 Environmental Petitioners cite no authority, and we are aware of no authority,\\ndemanding that Louisiana prefer the EPA’s analyses to those provided by industry. Indeed,\\nin a highly technical area such as cost-effectiveness of various control options, a private firm\\nmay well provide more accurate data inputs regarding a specific proposal at the specific plant\\nit operates. To take one example, the EPA and Entergy disagreed about the cost-effectiveness\\nof low-sulfur coal. Entergy calculated it to cost $597 per ton of pollutant removed while the\\nEPA calculated $2,957 per ton. That discrepancy was based on Entergy’s reliance on\\nproprietary data, its contingency value, and its consideration of costs that the EPA does not\\nallow in its control cost manual. See 82 Fed. Reg. at 32,298. The technical analyses used\\ndifferent approaches and presented different strengths and weaknesses. Louisiana\\nscrutinized Entergy’s analysis and chose to embrace it. It was free to do so. A state has “wide\\ndiscretion” in formulating its SIP and “may select whatever mix of control devices it desires”\\nso long as national standards are met. Union Elec. Co. v. EPA, 427 U.S. 246, 250, 266 (1976).\\nThat is why Congress tied the EPA’s hands during SIP approval: “the Administrator shall\\napprove such submittal as a whole if it meets all of the applicable requirements of this\\nchapter.” 42 U.S.C. § 7410(k)(3) (emphasis added).\\n 107 42 U.S.C. § 7491(b)(2)(A)–(B).\\n\\n 43\\n\\f Case: 18-60116 Document: 00515144673 Page: 44 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nstrategy, set out reasonable progress goals, or impose emission controls at any\\nadditional “reasonable progress sources,” such as the Dolet Hills powerplant.\\nDolet Hills, which is the largest single source of SO2 emissions in Louisiana, is\\na non-BART-eligible EGU powerplant that could be subject to emissions\\ncontrols as a reasonable progress source.\\n The EPA points to its actions in 2012 on this issue, including a proposed\\nrule and a final rule (“the 2012 Proposed Rule” and “the 2012 Final Rule”),\\nwhich included a “partial disapproval” and “partial limited approval” of\\nLouisiana’s 2008 SIP. 108 It insists that Louisiana’s reasonable progress goals\\nand long-term-strategy obligations were approved as part of the 2012 Final\\nRule’s “partial limited approval.” According to the EPA, the 2012 resolution of\\nthis issue time-bars the Environmental Petitioners challenge.\\n The EPA is correct. Louisiana was not required to re-do its reasonable\\nprogress analysis or re-evaluate the reasonable progress sources because that\\npart of its 2008 SIP was approved and made effective by the 2012 Final Rule.\\nThe 2012 Final Rule “finaliz[ed] a partial limited approval and a partial\\ndisapproval of a revision to the Louisiana SIP submitted . . . on June 13,\\n2008.” 109\\n We resolve this issue based on the distinction between “partial” and\\n“limited” approvals. A “limited approval” is used when some parts of a SIP do\\nnot meet the Clean Air Act’s requirements, but the EPA concludes that “the\\n\\n\\n 108 77 Fed. Reg. 11,839, 11,840 (Feb. 28, 2012) (“2012 Proposed Rule”); 2012 Final\\nRule, 77 Fed. Reg. at 39,425.\\n 109 2012 Final Rule, 77 Fed. Reg. at 39,426.\\n\\n 44\\n\\f Case: 18-60116 Document: 00515144673 Page: 45 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nsubmittal as a whole” has a “strengthening effect” on the SIP. 110 In a “limited\\napproval,” the provisions of a SIP that are “limitedly approved,” including any\\nprovisions that do not comply with the Act, are incorporated into the SIP and\\ngo into effect. In contrast, in a “partial approval/disapproval,” the partially\\napproved parts of a submittal go into effect, and the disapproved parts do not.\\n The 2012 Final Rule contained a “partial limited approval” and a “partial\\ndisapproval.” This sentence from the Final Rule addresses the parts of the SIP\\nthat were included in the “limited approval”:\\n EPA grants a partial limited approval of the LA RH SIP\\n submittal for meeting the requirements of: 51.308(d), for the core\\n requirements for regional haze SIPs, except for the requirements\\n of 51.308(d)(3); 51.308(f), for the commitment to submit\\n comprehensive periodic revisions of regional haze SIPs; 51.308(g),\\n for the commitment to submit periodic reports describing progress\\n towards the reasonable progress goals (RPGs); 51.308(h), for the\\n commitment to conduct periodic determinations of the adequacy of\\n the existing regional haze SIP; and 51.308(i), for coordination with\\n state and Federal Land Managers. 111\\n\\n All provisions of the 2008 SIP referenced in this sentence were “limitedly\\napproved,” including the provisions after “except,” which did not meet the Act’s\\nrequirements. Through this “partial limited approval,” the EPA concluded that\\nall of the provisions referenced in that sentence would take effect because the\\nsubmittal “as a whole . . . strengthen[ed] the Louisiana SIP” and the EPA did\\n\\n\\n 110 Processing of State Implementation Plan Revisions at 2–3, the EPA Memorandum\\nfrom John Calcagni (July 9, 1992), https://www.epa.gov/sites/production/files/2015-\\n07/documents/procsip.pdf.\\n 111 2012 Final Rule, 77 Fed. Reg. at 39,426.\\n\\n 45\\n\\f Case: 18-60116 Document: 00515144673 Page: 46 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nnot specifically “address[] [them in the] partial disapproval.” 112 Those\\nreferenced provisions therefore became effective when the EPA issued the 2012\\nFinal Rule.\\n The following sentence in the 2012 Final Rule addresses the provisions\\nof the SIP that were “partially disapproved”:\\n However, . . . the EPA is also partially disapproving the LA\\n RH SIP submittal because it does not include fully approvable\\n measures for meeting the requirements of 40 CFR 51.308(d)(3),\\n long-term strategy for regional haze as it relies on deficient non-\\n EGU BART analyses; and 51.308(e), BART requirements for\\n regional haze visibility impairment with respect to emissions of\\n visibility impairing pollutants from four non-EGUs. 113\\n\\n Because the provisions referenced in this sentence were “partially\\ndisapproved,” they did not go into effect when the EPA issued the 2012 Final\\nRule. So, after the EPA issued the 2012 Final Rule, Louisiana was required to\\nre-do only the parts of its SIP referenced in that partial disapproval. Those\\nwere (1) the parts of 2008 SIP’s long-term strategy that “relie[d] on deficient\\nnon-EGU BART analyses” and (2) the parts of the 2008 SIP’s long-term\\nstrategy that involved BART requirements “from four non-EGUs.” These were\\nthe only two provisions that did not go into effect and needed to be remedied\\nby Louisiana.\\n Other than these two deficiencies, the 2012 Final Rule “result[ed] in\\napproval of all of the remaining elements of Louisiana’s [2008 Regional Haze]\\n\\n\\n 112 Id. at 39,425.\\n 113 Id. at 39,426.\\n 46\\n\\f Case: 18-60116 Document: 00515144673 Page: 47 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nSIP.” 114 That included Louisiana’s reasonable progress analysis and long-term\\nstrategy.\\n Environmental Petitioners focus on one of the EPA’s responses to a\\ncomment. In the first part of that response, the EPA elaborates on the partial\\ndisapproval and identifies the two deficiencies that Louisiana needed to\\naddress in its SIP revisions.\\n [1] Louisiana must submit and the EPA must approve a\\n revised SIP submittal to address . . . BART for EGUs to cure the\\n deficiencies in the SIP resulting from the remand of CAIR. . . . [2]\\n Louisiana must also submit revisions sufficient to cure the\\n deficiencies in the non-EGU BART determinations. 115\\n\\n Environmental Petitioners rely on a different sentence in that response\\nto contend that Louisiana was required to re-do its evaluation of the non-BART\\npowerplants that qualify as reasonable progress sources. They point to this\\nsentence in the EPA’s response: “Louisiana must consider whether EGUs\\npreviously covered by the CAIR, whether subject to BART or not, should be\\ncontrolled to ensure reasonable progress to meet the State’s long-term\\nstrategies.” 116 However, in context, that sentence simply restates Louisiana’s\\noverall obligations under the Clean Air Act. The response reads in full as\\nfollows:\\n We have evaluated the LA RH SIP submittal as a whole and\\n at this time we are taking final action on all elements of the LA\\n RH SIP submittal that were not addressed in the national Better-\\n\\n 114 Id. at 39,426.\\n 115 Id. at 39,427.\\n 116 Id.\\n\\n 47\\n\\f Case: 18-60116 Document: 00515144673 Page: 48 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n than-BART rule. Louisiana must consider whether EGUs\\n previously covered by the CAIR, whether subject to BART or not,\\n should be controlled to ensure reasonable progress to meet the\\n State’s long-term strategies. However, insofar as Louisiana’s LTS\\n and RPGs are affected by the remand of CAIR, those issues are\\n addressed in the national Better-than-BART rulemaking and are\\n outside the scope of this action on the remainder of the LA RH SIP.\\n Also, the CAA expressly provides authority to the EPA to partially\\n approve and partially disapprove a SIP revision. 42 U.S.C.\\n 7410(k)(3). The EPA has adopted the partial approval approach\\n numerous times in SIP actions across the nation over the last\\n twenty years. Partial approval and partial disapproval is\\n appropriate here because the EPA has determined that a portion\\n of Louisiana’s RH SIP meets regional haze requirements and a\\n portion of it does not. . . . Therefore, Louisiana must submit and\\n the EPA must approve a revised SIP submittal to address both\\n NOX and SO2 BART for EGUs to cure the deficiencies in the SIP\\n resulting from the remand of CAIR. Louisiana may elect to rely on\\n the Transport Rule for NOX BART for EGUs in that\\n submittal. However, because Louisiana is not covered under the\\n Transport Rule for SO2, the State must submit source-specific\\n SO2 BART evaluations for the subject-to-BART EGUs in\\n Louisiana. As discussed further in our responses to several\\n comments below, Louisiana must also submit revisions sufficient\\n to cure the deficiencies in the non-EGU BART determinations. 117\\n\\n This context, including the lack of an express directive to “submit” a new\\nlong-term strategy or to impose controls at additional reasonable progress\\nsources, confirms that the 2012 Final Rule approved Louisiana’s reasonable\\nprogress goals and selection of reasonable progress sources. Additionally, the\\n\\n\\n\\n 117 2012 Final Rule, 77 Fed. Reg. at 39,427 (emphasis added).\\n 48\\n\\f Case: 18-60116 Document: 00515144673 Page: 49 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n2012 Final Rule does not mention the single source Louisiana identified as a\\nreasonable progress source, Big Cajun II. In three separate parts of the 2012\\nFinal Rule, the EPA identifies the partially disapproved parts and directs\\nLouisiana to address only those provisions. 118 If the EPA had intended to\\ndisapprove Louisiana’s reasonable progress goals, long-term strategy, or\\nidentification of reasonable progress sources in this response, it would have\\nincluded those provisions of the 2008 SIP in the “partial disapproval” sentence.\\n Because Louisiana’s reasonable progress goals, long-term strategy, and\\nevaluation of reasonable progress sources were included in the 2012 Final\\nRule’s “partial limited approval” of Louisiana’s 2008 SIP, we reject\\nEnvironmental Petitioners’ challenge on this issue.\\n ii. Notice and Comment\\n Environmental Petitioners alternatively claim that the EPA violated the\\nAPA’s notice and comment requirements.\\n Under the APA, “notice of proposed rulemaking shall be published in the\\nFederal Register,” and “shall be accompanied by a statement of its basis and\\npurpose. . . . The statement of basis and purpose shall include a summary of .\\n. . the major legal interpretations and policy considerations underlying the\\nproposed rule.” 119\\n Environmental Petitioners contend that the EPA did not include its\\nreasoning addressing Louisiana’s reasonable progress analysis in the July\\n\\n\\n\\n 118 Id. at 39,426–39,427, 39,435.\\n 119 42 U.S.C. § 7607(d)(3).\\n 49\\n\\f Case: 18-60116 Document: 00515144673 Page: 50 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n2017 Proposed Rule. They assert that the EPA’s inclusion of additional\\nreasoning on that issue in the December 2017 Final Rule amounted to a “major\\nlegal interpretation.”\\n In the 2017 Proposed Rule, the EPA did not discuss Louisiana’s\\nreasonable progress analysis, long-term strategy, or evaluation of reasonable\\nprogress sources. Environmental Petitioners commented on the 2017 Proposed\\nRule’s failure to address Louisiana’s reasonable progress analysis and long-\\nterm strategy, and the EPA responded to that comment in the 2017 Final Rule.\\nIn its response to Environmental Petitioners’ comments on the 2017 Final\\nRule, the EPA directed Environmental Petitioners to the 2012 Final Rule. The\\nagency explained that it had already approved Louisiana’s reasonable progress\\nanalysis, long-term strategy, and evaluation of reasonable progress sources. 120\\n We conclude that this explanation is not a major legal interpretation or\\npolicy consideration underlying the 2017 Proposed Rule that required\\nadditional notice and comment. Rather, it is merely a response to a comment\\nthat pointed the Environmental Petitioners to the agency’s earlier resolution\\nof the issue in the 2012 Final Rule.\\n * * *\\n In short, the EPA’s 2012 Final Rule, which “limitedly approved” most of\\nLouisiana’s 2008 SIP, did not require Louisiana to re-do its reasonable\\nprogress goals or its long-term strategy in its 2017 SIP revisions. Neither did\\n\\n\\n\\n\\n 120 See 82 Fed. Reg. at 60,539–60,540.\\n 50\\n\\f Case: 18-60116 Document: 00515144673 Page: 51 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nthe EPA’s response to Environmental Petitioners’ 2017 comment “reopen” the\\nissue 121 or violate the APA’s notice and comment provision.\\n Environmental Petitioners’ petition is denied.\\nB. The Industry Petitioners’ Petition\\n In contrast to Environmental Petitioners’ challenge to Louisiana’s\\nselection of emission controls to satisfy BART (step three of the BART\\nanalysis), Industry Petitioners challenge Louisiana’s determinations that\\nNelson and Brame are “subject to BART” at all (step two of the BART analysis).\\nIndustry Petitioners object to the EPA’s approval of Louisiana’s “subject to\\nBART” determinations, which relied on the “CALPUFF” model. They also\\nchallenge the EPA’s reliance on its own “CAMx” modeling (on which Louisiana\\ndid not rely) to approve Louisiana’s SIP.\\n The Clean Air Act states that a source is “subject to BART” if it “emits\\nany air pollutant which may reasonably be anticipated to cause or contribute\\nto any impairment of visibility” in a Class I area. 122 Under the BART\\nguidelines, a 1.0 deciview change from an individual source “causes” visibility\\nimpairment, whereas a 0.5 deciview change from an individual source\\n“contributes” to visibility impairment. 123 Under some circumstances, states\\n\\n\\n\\n\\n 121 See West Virginia v. EPA, 362 F.3d 861, 872 (D.C. Cir. 2004) (“‘[W]hether an agency\\nhas in fact reopened an issue, explicitly or implicitly,’ depends on the ‘entire context of the\\nrulemaking including all relevant proposals and reactions of the agency.’” (citation omitted)).\\n 122 42 U.S.C. § 7491(b)(2)(A).\\n 123 BART Rule, 70 Fed. Reg. at 39,120.\\n\\n 51\\n\\f Case: 18-60116 Document: 00515144673 Page: 52 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nmay set a lower threshold for sources that “contribute” to visibility\\nimpairment. 124\\n In the BART guidelines, the EPA adopted CALPUFF as the preferred\\nmodel for making “subject to BART” determinations. 125 The EPA recently\\nremoved CALPUFF as a “preferred” model for other air-quality modeling\\napplications under the Clean Air Act, but retained CALPUFF as a preferred\\nmodel for making “subject-to-BART” determinations. 126\\n The LDEQ reviewed CALPUFF and CAMx modeling results that\\nEntergy, Cleco, and the EPA submitted to the department. In the LDEQ’s\\nFebruary and June 2017 SIP revisions, it determined that Nelson and two\\nunits at Brame were “subject to BART.” Louisiana relied on CALPUFF\\nmodeling to determine that Nelson and Brame exceeded the 0.5 deciview\\nthreshold. The LDEQ acknowledged, but did not rely on, the CAMx modeling\\nthat the parties submitted. The LDEQ stated that it did “not have the expertise\\nwith which to review [the CAMx] model runs.” And, in its amicus brief, the\\nLDEQ states that it still does not have the technical expertise to review CAMx\\nmodeling.\\n\\n\\n\\n\\n 124 Id. at 39,120–39,121.\\n 125 BART Guidelines, 40 C.F.R. part 51, App. Y, III.A.3. See 69 Fed. Reg. 25,184, 25,194\\n(May 5, 2004) (“We are proposing that a CALPUFF assessment of an individual source be\\nused as the preferred approach for determining whether a BART-eligible source may be\\nexempt from BART.”).\\n 126 82 Fed. Reg. 5,182, 5,196 (Jan. 17, 2017) (“[T]his final action does not affect the\\n\\nEPA’s recommendation that states use CALPUFF to determine the applicability and level of\\nbest available retrofit technology in regional haze implementation plans.”).\\n 52\\n\\f Case: 18-60116 Document: 00515144673 Page: 53 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n In a May 2017 proposed rule, the EPA proposed to approve the “subject\\nto BART” determination for Brame. 127 In the July 2017 Proposed Rule, it\\nproposed to approve Louisiana’s “subject to BART” and BART\\ndeterminations. 128 Industry Petitioners submitted comments on those\\nproposed rules (1) objecting to the LDEQ’s reliance on CALPUFF and (2)\\ncriticizing the EPA’s reliance on its own CAMx modeling. In the instant 2017\\nFinal Rule, the EPA responded to those comments and approved the LDEQ’s\\ndetermination that Nelson and Brame have visibility effects greater than 0.5\\ndeciviews at Class I areas and are therefore “subject to BART.” 129\\n Here, Industry Petitioners contend that the EPA’s approval of\\nLouisiana’s “subject to BART” determinations at Nelson and Brame was\\narbitrary and capricious. The EPA and Environmental Respondents respond\\nthat we lack jurisdiction to consider Industry Petitioners’ challenge. They also\\ninsist that (1) Louisiana permissibly relied on the CALPUFF model in making\\nits BART determination and (2) the EPA was not arbitrary and capricious in\\nconsidering its own CAMx modeling.\\n As we shall explain in greater detail, we conclude that (1) we have\\njurisdiction and (2) the EPA’s approval of Louisiana’s reliance on the\\nCALPUFF model was not arbitrary and capricious.\\n\\n\\n\\n\\n 127 82 Fed. Reg. 22,936, 22,941 (May 19, 2017).\\n 128 82 Fed. Reg. 32,294, 32,296 (July 13, 2017).\\n 129 Final Rule, 82 Fed. Reg. at 60,520; id. at 60,525–60,526 (response to comments on\\n\\nmodeling).\\n 53\\n\\f Case: 18-60116 Document: 00515144673 Page: 54 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n 1. Jurisdiction\\n a. Environmental Respondents’ Jurisdictional Arguments\\n Environmental Respondents contend that parts of Industry Petitioners’\\nchallenge address the 2005 BART guidelines rather than the 2017 Final Rule.\\nEnvironmental Respondents assert that this court lacks jurisdiction over the\\nparts of the Industry Petitioners’ claim that address CALPUFF’s use of 24-\\nhour actual emissions and natural background conditions. According to\\nEnvironmental Respondents, these are complaints about the policies\\nunderlying the 2005 BART guidelines, policies to which the EPA responded\\nwhen it promulgated those guidelines. According to Environmental\\nRespondents, these concerns should have been raised (1) in the D.C. Circuit\\nand (2) within 60 days after those guidelines were published in the Federal\\nRegister. 130\\n Environmental Respondents liken this case to American Road &\\nTransportation Builders Ass’n v. EPA, 705 F.3d 453 (D.C. Cir. 2013), in which\\nthe D.C. Circuit considered a challenge to the EPA’s approval of a state’s SIP\\nin 2011. In that case, the EPA’s approval of a SIP relied on a rule that the\\nagency had issued in 1994. 131 The petitioner did not claim that the state had\\nmisapplied the EPA’s rule; rather, it contended that the policies announced in\\nthe 1994 rule were unlawful. 132 Because that challenge was to the 1994 rule—\\nrather than to the 2011 SIP approval—the D.C. Circuit concluded that it lacked\\n\\n\\n 130 42 U.S.C. § 7607(b)(1).\\n 131 705 F.3d at 454–55.\\n 132 Id. at 456.\\n\\n 54\\n\\f Case: 18-60116 Document: 00515144673 Page: 55 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\njurisdiction because the challenge was time-barred under the Clean Air Act’s\\n60-day period for filing petitions for review. 133\\n Environmental Respondents maintain that Industry Petitioners’ claims\\nobjecting to CALPUFF’s assumptions are similarly time-barred. They note\\nthat Industry Petitioners have an alternative route to recourse under the\\nClean Air Act’s provision that provides for reconsideration of a rule if a\\npetitioner can demonstrate that it was impracticable to raise an issue during\\nthe public comment period. 134\\n The jurisdictional issue here is similar to the one that the D.C. Circuit\\nconsidered in American Road & Transportation Builders. That court held that\\nthe petitioner’s challenge was to the underlying the EPA rule rather than to\\nthe EPA’s later approval of a SIP based on the standards set out in that\\nunderlying rule. The D.C. Circuit dismissed that challenge to a SIP approval\\nbecause it was “duplicative of arguments the agency had already rejected”\\nmany years earlier. 135 The court explained that “[t]here would be no pressure\\nto challenge regulations within the 60-day period after their promulgation if\\nany petitioner could simply wait to test the substance of those regulations once\\nthe EPA applies them, for example, in an approval of a state SIP revision—as\\n[the petitioner] has attempted to do here.” 136\\n\\n\\n\\n\\n 133 Id. at 458.\\n 134 See 42 U.S.C. § 7607(d)(7)(B).\\n 135 Am. Road & Transportation Builders Ass’n, 705 F.3d at 456.\\n 136 Id. at 458.\\n\\n 55\\n\\f Case: 18-60116 Document: 00515144673 Page: 56 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n Similarly, in the instant petition for review, Industry Petitioners\\nchallenge the CALPUFF model based on its use of 24-hour actual emissions\\nand natural background conditions. The EPA expressly rejected these\\narguments when it adopted CALPUFF as the preferred model at the time in\\n2005 that it issued the BART guidelines. 137\\n But, unlike American Road & Transportation Builders, the BART\\nguidelines at issue here recommend—but do not require—that states use\\nCALPUFF. 138 Louisiana could have picked a different model. Because Industry\\nPetitioners challenge Louisiana’s choice to use CALPUFF modeling instead of\\na different model, Industry Petitioners’ challenge is properly viewed as a\\nchallenge to the application of the BART guidelines rather than a challenge to\\nthe those guidelines themselves. Louisiana had the option to pick a different\\nmodel, so the parts of Industry Petitioners’ challenge addressing CALPUFF’s\\nflaws are not barred by the Clean Air Act’s 60-day statute of limitations.\\n b. The EPA’s Jurisdictional Arguments\\n The EPA maintains that, after actively participating in Louisiana’s SIP-\\ndevelopment process, the Industry Petitioners should have sought judicial\\n\\n\\n\\n\\n 137 BART Guidelines, 40 C.F.R. part 51, App. Y III.A.3 (“We recommend that States\\nuse the 24 hour average actual emission rate from the highest emitting day of the\\nmeteorological period modeled.”).\\n 138 BART Rule, 70 Fed. Reg. at 39,123 (“The use of other models and techniques to\\n\\nestimate if a source causes or contributes to visibility impairment may be considered by the\\nState, and the BART guidelines preserve a State’s ability to use other models.”).\\n 56\\n\\f Case: 18-60116 Document: 00515144673 Page: 57 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nreview of Louisiana’s modeling decisions in state court based on a Louisiana\\nstatute that allows for review of state rules and regulations. 139\\n This argument is unavailing. Industry Petitioners challenge the EPA’s\\napproval of Louisiana’s SIP, not the underlying state action. Although\\nIndustry Petitioners might also have been able to challenge Louisiana’s\\nprocess for developing its SIP in state court, the Clean Air Act expressly\\nprovides Industry Petitioners the opportunity to petition this court for review\\nof the EPA’s actions. 140\\n 2. CALPUFF Modeling\\n “A reviewing court must be ‘most deferential’ to the agency where, as\\nhere, its decision is based upon its evaluation of complex scientific data within\\nits technical expertise.” 141 And “because ‘a model is meant to simplify reality\\nin order to make it tractable,’ it is no criticism of a model ‘that it does not fit\\nevery application perfectly.’” 142\\n\\n\\n\\n 139See La. R.S. § 49:963(a)(1)).\\n 14042 U.S.C. § 7607(b)(1).\\n 141 BCCA Appeal Grp. v. EPA, 355 F.3d 817, 824 (5th Cir. 2003) (quoting Baltimore\\n\\nGas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983)). The D.C. Circuit, setting out a similar\\nstandard, has described this as “extreme deference”:\\n [W]e will “give an extreme degree of deference to the agency when it is\\n evaluating scientific data within its technical expertise.” . . . Furthermore, “we\\n must defer to the agency’s decision on how to balance the cost and complexity\\n of a more elaborate model against the oversimplification of a simpler model.”\\n . . . We will “reverse only if the model is so oversimplified that the agency’s\\n conclusions from it are unreasonable.”\\nWest Virginia, 362 F.3d at 871 (citations omitted).\\n 142 Ass’n of Battery Recyclers, Inc. v. EPA, 308 F.3d 1047, 1063 (D.C. Cir. 2000) (citation\\n\\nomitted).\\n 57\\n\\f Case: 18-60116 Document: 00515144673 Page: 58 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n Despite the significant deference we afford to decisions involving\\nanalysis of scientific data within an agency’s technical expertise, Industry\\nPetitioners maintain that the EPA’s approval of Louisiana’s CALPUFF\\nmodeling was arbitrary and capricious. They first point to CALPUFF’s\\nshortcomings as a model, including that it (1) is unreliable at predicting\\nvisibility impacts at locations farther than 300 km from an emission source, (2)\\ntends to overestimate visibility impacts, (3) uses “overly simplistic”\\nassumptions, and (4) has a high margin of error. They next contend that the\\nEPA’s reliance on its own CAMx modeling was improper because the Clean Air\\nAct does not give the EPA authority to cure a deficient SIP. Finally, even\\nassuming that the EPA could rely on its own CAMx modeling, Industry\\nPetitioners take issue with technical flaws in the EPA’s CAMx modeling,\\nincluding that model’s: (1) use of “24-hour maximum emission rates” instead\\nof “actual emission rates,” (2) reliance on “absolute maximum modeled\\nconcentrations” instead of “relative response factors,” and (3) deficient\\nperformance on a “model performance evaluation.”\\n i. Distance Limitations\\n Industry Petitioners contend that the CALPUFF model used at Nelson\\nand Brame exceeded that model’s distance limitations and was inconsistent\\nwith the EPA’s prior determination that CALPUFF is unreliable when\\nassessing visibility impacts from sources more than 300 km from a Class I\\n\\n\\n\\n\\n 58\\n\\f Case: 18-60116 Document: 00515144673 Page: 59 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\narea. 143 Nelson is 425 km from Breton and 460 km from Caney Creek; Brame\\nis 422 km from Breton and 352 km from Caney Creek.\\n Industry Petitioners cite a 1998 statement from the EPA’s Interagency\\nWorkgroup on Air Quality Modeling (“IWAQM”) that “there are serious\\nconceptual concerns with the use of puff dispersion [models like CALPUFF] for\\nvery long-range transport (300 km and beyond).” In a 2003 final rule, IWAQM\\nconcluded that the “CALPUFF dispersion model . . . performed in a reasonable\\nmanner . . . so long as the transport distance was limited to less than\\n300km.” 144 According to Industry Petitioners, because CALPUFF does not\\nperform “in a reasonable manner” at distances greater than 300 km, CALPUFF\\nmay not be used to determine that sources at such distances may “reasonably\\nbe anticipated” to cause or contribute to visibility impairment.\\n Industry Petitioners next point to several regional haze actions in which\\nthe EPA has stated that it has concerns about using CALPUFF at distances\\ngreater than 300 km. They rely on the Arkansas Regional Haze Federal\\nImplementation Plan, the New Mexico Regional Haze SIP, and the EPA’s\\nstatement defending its reliance on CAMx for Texas’s and Oklahoma’s regional\\nhaze SIPs. 145\\n\\n\\n 143 Industry Petitioners raise the same concerns they raised in their comments on the\\nProposed Rule.\\n 144 68 Fed. Reg. 18,458 (Apr. 15, 2003).\\n 145 Arkansas Regional Haze Federal Implementation Plan, 81 Fed. Reg. 66,332, 66,394\\n\\n(Sept. 27, 2016) (“[T]here are concerns in using CALPUFF for modeling impacts at distances\\nmuch greater than 300 km from the source . . . .”); New Mexico Regional Haze SIP, 79 Fed.\\nReg. 60,978, 60,983 (Oct. 9, 2014) (“CALPUFF results are less reliable at distances greater\\nthan 300 km.”).\\n 59\\n\\f Case: 18-60116 Document: 00515144673 Page: 60 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n Industry Petitioners describe these statements and criticisms of\\nCALPUFF as indicative of the EPA’s failure to follow its own guidance and\\npast practice. They contend that the Final Rule does not provide a rational\\nexplanation for this departure. And, although the EPA has stated that\\nCALPUFF is permissible at sources farther than 300 km “with some additional\\nconsiderations” such as stack height or size of emissions, Industry Petitioners\\nmaintain that the EPA did not address these “additional considerations” at\\nNelson and Brame.\\n The EPA responds that Industry Petitioners overstate and oversimplify\\nthe BART guidelines and the EPA’s prior actions. The EPA insists, contrary to\\nIndustry Petitioners’ assertions, that it has never stated that: (1) CALPUFF\\nshould not be used to model visibility impacts more than 300 km from the\\nemissions source, (2) CALPUFF is unable to reliably predict visibility impacts\\nat distances greater than 300 km, or (3) CALPUFF is “unreliable” and does not\\nperform in a reasonable manner. The EPA also contends that Industry\\nPetitioners’ reliance on statements from IWAQM is misplaced, arguing that\\nIWAQM’s statements (1) set out guidelines for air quality models under the\\nClean Air Act for purposes other than regional haze analyses and (2) were\\nissued in 1998 and 2003, before the EPA issued the BART guidelines in 2005.\\n The EPA explains that CALPUFF has been used at distances greater\\nthan 300 km, citing South Dakota’s CALPUFF modeling for sources farther\\nthan 400 km, and Nebraska’s CALPUFF modeling for sources between 300 and\\n\\n\\n\\n 60\\n\\f Case: 18-60116 Document: 00515144673 Page: 61 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n600 km. 146 In the EPA’s “Modeling Response to Comments” document, it stated\\nthat “the EPA and [Federal Land Managers] have utilized CALPUFF results\\nin a number of different situations when the range was between 300–450 km\\nor more.” 147\\n The EPA also points out that historically, “the use of CALPUFF was\\ngenerally acceptable at 300 km or greater for larger emissions sources with\\nelevated stacks.” In its Modeling Response to Comments document, the EPA\\nexpressly stated that Nelson and Brame are “larger emissions sources with\\nelevated stacks.” Nelson has three BART-eligible electric generating units that\\nhave a combined 1200 megawatts of production capacity, 148 and Brame has two\\nBART-eligible electric generating units with a combined output of 963\\nmegawatts. 149 The EPA’s CALPUFF analysis estimated that both Nelson and\\nBrame exceeded the 1.0 deciview threshold for “causing” visibility impairment.\\nThese high visibility numbers for Nelson and Brame align with the EPA’s\\nstatement in the BART Rule that it anticipated “that most of these plants are\\npredicted to have much higher maximum impacts” than 1.0 deciviews. 150\\n Finally, the EPA maintains that its own CAMx modeling provided\\nadditional support for the CALPUFF model’s results. The EPA’s CAMx\\n\\n\\n\\n 146 Final Rule, 82 Fed. Reg. at 60,525 n.39.\\n 147 See Final Rule, 82 Fed. Reg. at 60,525 (“As discussed in the Modeling RTC\\ndocument, EPA and FLM representatives have utilized CALPUFF results in a number of\\ndifferent situations when the range was between 300-450 km or more.”).\\n 148 Final Rule, 82 Fed. Reg. at 60,522, 60,533.\\n 149 82 Fed. Reg. at 22,944.\\n 150 BART Rule, 70 Fed. Reg. at 39,123.\\n\\n 61\\n\\f Case: 18-60116 Document: 00515144673 Page: 62 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nmodeling showed visibility impairments at Caney Creek from Nelson as high\\nas 2.22 deciviews and from Brame as high as 2.83 deciviews. 151 According to\\nthe EPA, such large visibility-impact numbers provide additional support for\\nthe CALPUFF model’s results.\\n We conclude that, although the EPA has “a higher confidence level” in\\nCALPUFF modeling at distances under than 300 km, the agency did not act\\narbitrarily and capriciously by using that model at Nelson and Brame. Even\\nthough Nelson and Brame are farther than 300 km from the protected areas\\nat issue here, the use of CALPUFF modeling aligns with the EPA’s acceptance\\nof CALPUFF at longer distances for powerplants with larger emissions sources\\nwith elevated stacks like Nelson and Brame. 152\\n ii. The EPA’s January 2017 Action\\n Industry Petitioners focus on the EPA’s January 2017 action, which\\nremoved CALPUFF as the preferred model for long-range air quality\\nassessments. For those assessments, the EPA concluded that photochemical\\n\\n\\n\\n 151 Final Rule, 82 Fed. Reg. at 60,526 (“Entergy Nelson has a maximum modeled\\nimpact of 2.22 dv at Caney Creek, with 31 days out of the 365 days modeled exceeding 0.5 dv,\\nand 9 days exceeding 1.0 dv. Similarly, Cleco Brame has a maximum modeled impact of 2.833\\ndv at Caney Creek, with 30 days out of a maximum 365 days modeled exceeding 0.5 dv and\\n10 days exceeding 1.0 dv.”).\\n 152 Our opinion should not be read to countenance the reliability or accuracy of the\\n\\nCALPUFF model in general. Although the EPA maintains that it recommends that states\\ncontinue to use CALPUFF modeling for “subject to BART” determinations based on\\n“consistency across and within states in the regional haze program” and because most of the\\nmodeling for this planning period has already been completed, there is reason to question the\\nEPA’s recommendation that states continue using a model that it appears to know is not\\nreliable when used at distances such as those involved here.\\n 62\\n\\f Case: 18-60116 Document: 00515144673 Page: 63 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\ngrid models like CAMx “are generally most appropriate . . . because they\\nprovide a spatially and temporally dynamic realistic chemical and physical\\nenvironment for plume growth and chemical transformation.” 153 Industry\\nPetitioners maintain that the EPA’s 2017 action confirms that states should\\nrely on CAMx rather than CALPUFF when making BART determinations,\\nbecause it more realistically simulates the processes involved in haze\\nformation.\\n The EPA’s January 2017 action, however, does not support Industry\\nPetitioners’ arguments. The EPA removed CALPUFF as a preferred model for\\nother types of Clean Air Act analyses, but the agency expressly confirmed that\\nCALPUFF remains a recommended option for BART determinations. “[T]his\\nfinal action does not affect the EPA’s recommendation that states use\\nCALPUFF to determine the applicability and level of best available retrofit\\ntechnology in regional haze implementation plans.” 154\\n But the EPA retained CALPUFF as a preferred model for BART\\ndeterminations because of concerns about consistency between the states’\\nBART determinations:\\n The proposed changes to the Guideline do not affect the EPA’s\\n recommendation in the 2005 BART Guidelines to use CALPUFF\\n in the BART determination process. Given that the overwhelming\\n majority of BART determinations have been made using\\n CALPUFF, we consider it appropriate for states (or the EPA) to\\n continue to use this application for the remaining assessments\\n\\n 153 80 Fed. Reg. 45,340, 45,349 (July 29, 2015), finalized at 82 Fed. Reg. 5,182 (Jan.\\n17, 2017).\\n 154 82 Fed. Reg. at 5,196.\\n 63\\n\\f Case: 18-60116 Document: 00515144673 Page: 64 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n under the current Guideline with approved protocols. This\\n approach assures consistency across and within states in the\\n regional haze program. In addition, in many instances, the\\n modeling of visibility impacts has already been completed even\\n though the BART determination process is not yet done. Allowing\\n states to continue to rely on CALPUFF avoids additional time and\\n expense in developing a new assessment of visibility impacts for a\\n SIP initially due in 2007. 155\\n\\n Because CALPUFF remains the BART guidelines’ recommended model,\\nthe January 2017 action does not undermine the use of CALPUFF for BART\\ndeterminations. Rather, the EPA’s explanations about (1) consistency between\\nstates, (2) that most of the modeling for this planning period has already been\\ncompleted, and (3) avoiding the “additional time and expense in developing a\\nnew assessment” support the use of that model here.\\n iii. Overestimation Bias\\n Industry Petitioners next object to several technical assumptions\\nunderlying the CALPUFF model. The most significant of these is CALPUFF’s\\nsimulation of the transformation of SO2 and NOx emissions into visibility-\\nimpairing sulfates and nitrates. CALPUFF’s simplistic handling of chemical\\nprocesses can result in “a systematic bias in the estimated concentrations and\\nvisibility impacts,” in other words, an “overestimation bias.” When compared\\nwith “real-world measurements,” CALPUFF overpredicts the contribution of\\nnitrates to visibility impairment. According to Industry Petitioners, a\\ncomparison between the “real-world” impairment data and the CALPUFF\\n\\n\\n 155 80 Fed. Reg. at 45,350.\\n 64\\n\\f Case: 18-60116 Document: 00515144673 Page: 65 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nmodeling results shows that the CALPUFF modeling here overestimated\\nnitrate contributions “by nearly 500%.”\\n Industry Petitioners cite 2005 guidelines from the Central Regional Air\\nPlanning Association (“CENRAP”) warning that CALPUFF’s overestimation\\nbias may lead to “unwarranted and excessive control of emissions from some\\nsources.” 156 They maintain that the EPA has not articulated a satisfactory\\nexplanation for ignoring the technical shortcomings in the CALPUFF model. 157\\n In defending its use of CALPUFF here, the EPA emphasizes the policy\\nconsiderations underlying the BART guidelines. When the EPA proposed the\\nBART guidelines that recommended CALPUFF as the preferred model, some\\ncommenters objected on the same grounds raised here: CALPUFF is unreliable\\nat long distances, relies on simplified assumptions, and overpredicts visibility\\nimpairment. 158 The EPA responded to those criticisms by describing\\nCALPUFF as a “conservative” screening model and stating that “conservatism\\nis needed because the purpose of the [subject to BART] test [is] solely to\\ndetermine if a closer look is needed.” 159 At this “screening” step, the EPA\\nemphasized that models should capture the “maximum” or “worst case”\\npotential impacts of a source. 160\\n\\n\\n 156 See Alpine Geophysics, LLC, CENRAP BART Modeling Guidelines, at 3–8 (Dec.\\n15, 2005).\\n 15710 Ring Precision, Inc., 722 F.3d at 723.\\n 158BART Rule, 70 Fed. Reg. at 39,126.\\n 159 Id. at 39,123 (“[the EPA] understand[s] the concerns of commenters that the\\n\\nchemistry modules of the CALPUFF model are less advanced than some of the more recent\\natmospheric chemistry simulations.”).\\n 160 Id. at 39,123, 39,126.\\n\\n 65\\n\\f Case: 18-60116 Document: 00515144673 Page: 66 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n We conclude that the BART guidelines accounted for this\\n“overestimation” bias. Those guidelines explain the assumptions underlying\\nthe CALPUFF model, including the use of “the 98th percentile visibility\\nimpairment rather than the highest daily impact,” which was meant to\\n“exclude roughly 7 days per year from consideration” and “minimiz[e] the\\nlikelihood that the highest modeled visibility impacts might be caused by\\nunusual meteorology or conservative assumptions in the model.” As the EPA\\nexplained in the analysis it submitted to the LDEQ, it “made the decision to\\nconsider the less conservative 98th percentile primarily because the chemistry\\nmodules in the CALPUFF model are simplified and likely to provide\\nconservative (higher) results for peak impacts.”\\n iv. Margin of Error\\n Entergy submitted analyses to the EPA that purported to demonstrate\\nthat Nelson’s CALPUFF-predicted visibility impacts at Caney Creek and\\nBreton fell within CALPUFF’s margin of error. According to Industry\\nPetitioners, its margin of error at Caney Creek is 1.38 deciviews, and its\\nmargin of error at Breton is 1.25 deciviews. So, based on Entergy’s CALPUFF\\nmodeling analysis that calculated Nelson’s baseline visibility impact at 0.703\\ndeciviews at Caney Creek and 0.77 deciviews at Breton, the Entergy-calculated\\nmargin of error for CALPUFF would put Nelson below the 0.5 deciview “subject\\nto BART” threshold.\\n Entergy submitted comments on this issue, relying on a Ninth Circuit\\ndecision, National Parks Conservation Ass’n v. EPA, 788 F.3d 1134, 1146–47\\n(9th Cir. 2015), in which the court concluded that the EPA did not\\n 66\\n\\f Case: 18-60116 Document: 00515144673 Page: 67 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n“meaningfully address” a comment about model-predicted visibility\\nimprovements that were within a model’s margin of error. 161 There, the federal\\nimplementation plan for Montana sought to implement a control that\\nCALPUFF predicted would improve visibility by only 0.085 deciview. 162 A\\ncommenter maintained that “an improvement of 0.085 deciview [was] ‘beyond\\nthe CALPUFF model’s ability to predict with any confidence.’” 163 The EPA\\nresponded to that comment, but the court concluded that the response did “not\\nmeaningfully address [the] comment” because it did not “also suffice as a\\nreasoned response regarding how CALPUFF could be relied upon to predict an\\nimprovement of as little as 0.085 deciviews when PPL offered reasons to think\\nthat doing so was outside the model’s capabilities.” 164\\n Entergy submitted its “margin of error” comments, which compared that\\ncase to this one. The EPA addressed Entergy’s comments in its November 2017\\nModeling Response to Comments document.\\n Industry Petitioners contend that the EPA’s response to Entergy’s\\ncomments did not adequately respond to the margin of error issue and\\n\\n\\n\\n\\n 161 722 F.3d at 1146–47.\\n 162 Id. Notably, this small number is significantly smaller than the baseline impact\\nvalues at issue here, which are above 1 deciview for both facilities.\\n 163 Nat’l Parks Conservation Ass’n, 788 F.3d at 1146–47.\\n 164 Id. One judge on that panel separately concurred to emphasize the procedural focus\\n\\nof the court’s holding. “I write separately to underline my understanding that . . . we are not\\nimpugning the EPA’s use of the CALPUFF model generally. Instead we are requiring a\\nsufficiently reasoned response to a particular comment regarding CALPUFF’s usefulness in\\nthese specific circumstances.” Id. at 1149 (Berzon, J., concurring).\\n 67\\n\\f Case: 18-60116 Document: 00515144673 Page: 68 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\ntherefore failed to fulfill the agency’s procedural obligation to consider\\nsignificant comments made by the public.\\n The EPA responded to this “margin of error” comment as follows:\\n The commenter mischaracterizes the Ninth Circuit decision\\n regarding the “margin of error” of the model. The commenter\\n suggests that the Court agreed that the anticipated visibility\\n benefits in that case were within the margin of error of the model.\\n This is incorrect. The Ninth Circuit decision did not rule on any\\n specific issue related to CALPUFF. Rather, the court ruled on a\\n procedural error that the EPA did not respond to the comment\\n received regarding the CALPUFF margin of error in its\\n rulemaking as required under the law. Here and elsewhere in our\\n previous response to comments we address a very similar comment\\n with respect to CALPUFF modeling for Arkansas sources, as well\\n as the commenter’s analysis claiming to estimate the “margin of\\n error.”\\n\\n We responded to comments concerning a very similar “margin of\\n error” analysis in our response to comments and final action for\\n Regional Haze in Arkansas. The Trinity analysis discussed in the\\n comment above purports to calculate a “margin of error” of the\\n CALPUFF modeling for Entergy Nelson. In general, the\\n commenter’s analysis adds CALPUFF model results for a specific\\n source or sources with CAMx model results and compares this\\n value to visibility conditions derived from monitored data at each\\n Class I area. This analysis is flawed for many reasons as discussed\\n in detail in our Arkansas RTC document that discusses a similar\\n analysis performed for Entergy Lake Catherine and fails to\\n provide any assessment of the ability of the CALPUFF model to\\n evaluate visibility impacts or the degree of visibility improvement\\n that may be expected from available control technology to inform\\n BART and reasonable progress evaluations. Whether or not the\\n modeled visibility impacts or benefits lie below this calculated\\n “margin of error” is immaterial to any assessment of whether or\\n 68\\n\\f Case: 18-60116 Document: 00515144673 Page: 69 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n not the visibility impairment or benefits from controls can\\n reasonably be anticipated to occur. We note that the commenter\\n did not provide any spreadsheets or detailed calculations to\\n support this analysis, therefore we were unable to fully review and\\n respond to the individual calculations or specific methodology\\n underlying the presented values in the commenter’s summary\\n report and comments.\\n\\n As discussed elsewhere in this document, we are confident that\\n CALPUFF distinguishes, comparatively, the relative contributions\\n from sources such that the differences in source configurations,\\n sizes, emission rates, and visibility impacts are well-reflected in\\n the model results. We agree with LDEQ that the CALPUFF model\\n followed the reviewed protocol is an appropriate tool to evaluate\\n visibility impacts and benefits to inform a BART determination.\\n\\n Furthermore, our CAMx modeling of coal-fired sources included in\\n the LA RH SIP (see Appendix F) further supports the conclusion\\n that the Entergy Nelson and Cleco Brame sources are subject to\\n BART.\\n\\n This explanation is fulsome. In it, the EPA (1) cited its responses on the\\nsame issue in the Arkansas and Texas federal implementation plans (which\\nare in the administrative record here), (2) disagreed with the commenter’s\\ninterpretation of National Parks Conservation Ass’n, (3) criticized the\\ncommenter’s “calculated margin of error” methodology, (4) disagreed with the\\ncommenter’s method of combining results from two different models, and (5)\\nnoted the commenter’s failure to provide the underlying data. Although\\nIndustry Petitioners might not agree with the conclusion that the EPA\\nreached, the EPA “meaningfully respond[ed]” to the substance of the comment.\\n * * *\\n 69\\n\\f Case: 18-60116 Document: 00515144673 Page: 70 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n In short, Industry Petitioners contend that CALPUFF uses\\noversimplified and unrealistic assumptions. The EPA agrees in part, but\\ninsists that those assumptions are based on reasoned policy decisions.\\n Given the conflicting technical contentions, we defer to the EPA’s\\napproval of Louisiana’s reliance on the CALPUFF model. The EPA’s selection\\nof modeling methods to measure visibility impacts is exactly the type of\\ndecision for which “significant deference” is appropriate. 165 Although\\nCALPUFF has documented flaws, (1) the BART guidelines continue to\\nrecommend that model for these determinations, 166 (2) the EPA has recently\\ndirected states to use that model, 167 and (3) it “has been used for almost every\\nsingle-source BART analysis in the country.”\\n We defer to the EPA’s approval of Louisiana’s reliance on the CALPUFF\\nmodel. Industry Petitioners have not carried their “considerable burden” to\\novercome the “presumption of regularity” that we afford to “the EPA’s choice\\nof analytical methodology.” 168 Because a model “is meant to simplify reality in\\norder to make it tractable,” and need not “fit every application perfectly,” 169 we\\n\\n\\n\\n\\n 165 See Appalachian Power Co. v. EPA, 135 F.3d 791, 802 (D.C. Cir. 1998) (“Statistical\\nanalysis is perhaps the prime example of those areas of technical wilderness into which\\njudicial expeditions are best limited to ascertaining the lay of the land.”).\\n 166 BART Guidelines, 40 C.F.R. part 51, App. Y, III.A.3.\\n 167 82 Fed. Reg. 5,182, 5,196 (Jan. 17, 2017) (“[T]his final action does not affect the\\n\\nEPA’s recommendation that states use CALPUFF to determine the applicability and level of\\nbest available retrofit technology in regional haze implementation plans.”).\\n 168 BCCA Appeal Grp., 355 F.3d at 832\\n 169 Ass’n of Battery Recyclers, 308 F.3d at 1063.\\n\\n 70\\n\\f Case: 18-60116 Document: 00515144673 Page: 71 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\nhold that the EPA’s reliance on the CALPUFF model was not arbitrary and\\ncapricious.\\n Moreover, the Clean Air Act’s structure gives states the primary\\nresponsibility for implementing the federal standards. The EPA’s role is to\\nreview the states’ plans for compliance with the Act’s requirements. Within\\nthose respective roles, “the States may submit implementation plans more\\nstringent than federal law requires,” and the EPA “must approve such plans if\\nthey meet the minimum requirements” of the Clean Air Act. 170 At this “subject\\nto BART” stage—the purpose of which is to determine which of the BART-\\neligible sources warrant a “closer look” 171—Louisiana’s reliance on a modeling\\nmethod that tends to be overinclusive would result in a SIP that is more\\nstringent than the federal requirements. The EPA’s approval of such a SIP\\nwould be well within the agency’s role to ensure the SIP “meet[s] the minimum\\nrequirements” of the Clean Air Act. 172\\n 3. Challenge to the EPA’s CAMx Modeling\\n We have concluded that the EPA’s reliance on the CALPUFF model was\\nnot arbitrary and capricious, so we need not address Industry Petitioners’\\ncontentions about the EPA’s use of CAMx modeling.\\n\\n\\n\\n\\n 170 Union Elec. Co., 427 U.S. at 265; see 42 U.S.C. § 7410(k)(3) (“[the EPA] shall\\napprove [a SIP] submittal as a whole if it meets all of the applicable requirements of this\\nchapter.”).\\n 171 BART Rule, 70 Fed. Reg. at 39,127.\\n 172 Union Elec. Co., 427 U.S. at 265.\\n\\n 71\\n\\fCase: 18-60116 Document: 00515144673 Page: 72 Date Filed: 10/03/2019\\n\\n\\n No. 18-60116\\n\\n\\n\\n\\n IV. CONCLUSION\\n For the foregoing reasons, the petitions for review are DENIED.\\n\\n\\n\\n\\n 72\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4581,"cells":{"id":{"kind":"number","value":4667345,"string":"4,667,345"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. James Smith"},"decision_date":{"kind":"string","value":"2019-10-04"},"docket_number":{"kind":"string","value":"18-11155"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before WIENER, GRAVES, and OLDHAM, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"WIENER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-11155 Document: 00515146519 Page: 1 Date Filed: 10/04/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-11155 October 4, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nJAMES B. SMITH,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore WIENER, GRAVES, and OLDHAM, Circuit Judges.\\nWIENER, Circuit Judge:\\n Defendant-Appellant James B. Smith appeals his 71-month prison\\nsentence for violation of 18 U.S.C. § 922(g)(1). Smith alleges that the district\\ncourt erred by increasing his criminal history level based on his prior state\\ncourt conviction for use of methamphetamine in violation of California Health\\nand Safety Code § 11550(a). Smith contends that this conviction is similar to a\\nconviction for “public intoxication” and should have been exempt under\\nSentencing Guideline § 4A1.2(c)(2). We disagree.\\n I. FACTS AND PROCEEDINGS\\n Smith was charged with two counts of being a felon in possession of a\\nfirearm and pleaded guilty to one of those counts. In the presentence report’s\\n\\n Case: 18-11155 Document: 00515146519 Page: 2 Date Filed: 10/04/2019\\n\\n\\n\\n No. 18-11155\\n(“PSR”) calculation of Smith’s criminal history level, one point was added for a\\nCalifornia misdemeanor conviction for Use/Under the Influence of a Controlled\\nSubstance in violation of § 11550(a). Smith had been convicted on that charge\\nin 2011 for using methamphetamine. He timely objected to inclusion of that\\nconviction in his criminal history calculation. At sentencing, the district court\\noverruled that objection. Smith now appeals the district court’s inclusion of the\\n2011 California misdemeanor conviction in determining his sentence for the\\ninstant conviction.\\n II. DISCUSSION\\n Smith challenges the district court’s application of the U.S. Sentencing\\nGuidelines. We review the district court’s interpretation and application of the\\nGuidelines de novo and its factual findings for clear error. 1 Guideline § 4A1.1(c)\\nstates that one point should be added to a defendant’s criminal history level\\n“for each prior sentence not counted in [subsections] (a) or (b), up to a total of\\n4 points for this subsection.” 2 These additions are limited by the instructions\\nin § 4A1.2(c):\\n Sentences for misdemeanor and petty offenses are counted,\\n except as follows: . . . . Sentences for the following prior offenses\\n and offenses similar to them, by whatever name they are known,\\n are never counted:\\n\\n Fish and game violations\\n Hitchhiking\\n Juvenile status offenses and truancy\\n Local ordinance violations (except those violations that are also\\n violations under state criminal law)\\n Loitering\\n Minor traffic infractions (e.g., speeding)\\n Public intoxication\\n\\n\\n\\n 1 United States v. Perez, 585 F.3d 880, 883 (5th Cir. 2009).\\n 2 U.S. Sentencing Guidelines Manual § 4A1.1(c) (U.S. Sentencing Comm’n 2018).\\n 2\\n\\n Case: 18-11155 Document: 00515146519 Page: 3 Date Filed: 10/04/2019\\n\\n\\n\\n No. 18-11155\\n Vagrancy. 3\\n\\n Smith argues that his California misdemeanor conviction for Use/Under\\nthe Influence of a Controlled Substance, in violation of § 11550(a), is similar to\\n“public intoxication,” and should therefore be excluded from the calculation of\\nhis criminal history level. This is an issue of first impression for the Fifth\\nCircuit, but, other circuits have considered this or similar issues. 4\\n The Sentencing Guidelines application note on § 4A1.2 instructs that:\\n In determining whether an unlisted offense is similar to an\\n offense listed . . . , the court should use a common sense approach\\n that includes consideration of relevant factors such as (i) a\\n comparison of punishments imposed for the listed and unlisted\\n offenses; (ii) the perceived seriousness of the offense as indicated\\n by the level of punishment; (iii) the elements of the offense; (iv) the\\n level of culpability involved; and (v) the degree to which the\\n commission of the offense indicates a likelihood of recurring\\n criminal conduct. 5\\n\\n For factors (i) and (ii), the Fifth Circuit compares the unlisted offense,\\nhere California Health and Safety Code § 11550(a), 6 to the “equivalent [of the\\nlisted] offense under the relevant State’s law.” 7 California’s version of public\\n\\n\\n\\n\\n 3 Id. § 4A1.2(c) (emphasis added).\\n 4 See United States v. Martinez, 956 U.S. 891 (9th Cir. 1992) (per curium); United\\nStates v. Roy, 126 F.3d 953 (7th Cir. 1997); United States v. Locklear, 26 F. App’x 371 (4th\\nCir. 2002) (per curium).\\n 5 U.S. Sentencing Guidelines Manual § 4A1.2(c) cmt. n.12(A).\\n 6 “A person shall not use, or be under the influence of any [of a number of referenced]\\n\\ncontrolled substance[s] . . . , or (2) a narcotic drug classified in Schedule III, IV, or V, except\\nwhen administered by or under the direction of a person licensed by the state to dispense,\\nprescribe, or administer controlled substances. . . . A person convicted of violating this\\nsubdivision is guilty of a misdemeanor and shall be sentenced to serve a term of not more\\nthan one year in a county jail. The court may also place a person convicted under this\\nsubdivision on probation for a period not to exceed five years.” Cal. Health and Safety Code\\n§ 11550(a).\\n 7 United States v. Lamm, 392 F.3d 130, 132 (5th Cir. 2004).\\n\\n 3\\n\\n Case: 18-11155 Document: 00515146519 Page: 4 Date Filed: 10/04/2019\\n\\n\\n\\n No. 18-11155\\nintoxication is California Penal Code § 647(f). 8\\n At the time of Smith’s conviction in California, violation of § 11550(a)\\ncarried a mandatory minimum sentence of 90 days in jail. 9 The current law\\nhas a maximum jail sentence of one year, but has no mandatory minimum. 10\\nIn contrast, § 647(f) states that a person “[w]ho is found in any public place\\nunder the influence of intoxicating liquor . . . [is] to be placed . . . in civil\\nprotective custody [by] a peace officer, if he or she is reasonably able to do so.” 11\\nHowever, “[t]his subdivision does not apply to . . . [a] person who is under the\\ninfluence of any drug, or under the combined influence of intoxicating liquor\\nand any drug.” 12 A person who is under the influence of a drug is subject to the\\ngeneral punishment for committing a California misdemeanor, which is up to\\n6 months in jail and a $1000 fine. 13\\n\\n\\n\\n\\n 8 “[E]very person who commits . . . the following act[] is guilty of disorderly conduct, a\\nmisdemeanor:\\n ....\\n (f) Who is found in any public place under the influence of intoxicating liquor, any\\ndrug, controlled substance, toluene, or any combination of any intoxicating liquor, drug,\\ncontrolled substance, or toluene, in a condition that he or she is unable to exercise care for\\nhis or her own safety or the safety of others, or by reason of his or her being under the\\ninfluence of intoxicating liquor, any drug, controlled substance, toluene, or any combination\\nof any intoxicating liquor, drug, or toluene, interferes with or obstructs or prevents the free\\nuse of any street, sidewalk, or other public way.\\n (g) If a person has violated subdivision (f), a peace officer, if he or she is reasonably\\nable to do so, shall place the person, or cause him or her to be placed, in civil protective\\ncustody. The person shall be taken to a facility . . . for the 72-hour treatment and evaluation\\nof inebriates. . . . A person who has been placed in civil protective custody shall not thereafter\\nbe subject to any criminal prosecution or juvenile court proceeding based on the facts giving\\nrise to this placement. This subdivision does not apply to the following persons:\\n (1) A person who is under the influence of any drug, or under the combined influence\\nof intoxicating liquor and any drug.” Cal. Penal Code § 647(f)–(g).\\n 9 Cal. Health and Safety Code § 11550(a) (2002).\\n 10 Cal. Health and Safety Code § 11550(a) (2015).\\n 11 Cal. Penal Code § 647(f)–(g).\\n 12 Id. § 647(g).\\n 13 Id. § 19.\\n\\n 4\\n\\n Case: 18-11155 Document: 00515146519 Page: 5 Date Filed: 10/04/2019\\n\\n\\n\\n No. 18-11155\\n The punishments for these two offenses are different. California has\\ncodified the classic “public intoxication” offense in a separate statute and\\npunishes use of illegal drugs more severely under both laws than it punishes\\npublic intoxication by alcohol. Thus, in California the perceived seriousness of\\nany use of illegal drugs is greater than abuse of alcohol. Additionally, at the\\ntime of Smith’s conviction, use of methamphetamine carried a mandatory-\\nminimum jail sentence.\\n We next consider the elements of the California offenses. California\\nHealth and Safety Code § 11550(a): (1) “use, or . . . under the influence of [(2)]\\nany [of a number of referenced] controlled substance[s].” 14 Smith suggests\\ncomparison of the elements of “public intoxication” under the Model Penal\\nCode and the Texas Penal Code. The Model Penal Code defines “Public\\nDrunkenness; Drug Intoxication” as: (1) “appear[ance] in any public place [(2)]\\nmanifestly under the influence of [(3)] alcohol, narcotics or other drug, . . . [(4)]\\nto the degree [of danger or annoyance].” 15 The Texas Penal Code defines Public\\nIntoxication as: (1) “appear[ance] in a public place [(2)] while intoxicated [(3)]\\nto the degree that the person may [cause danger].” 16\\n The Texas and Model “public intoxication” laws differ from § 11550(a)\\nbecause they have additional elements requiring that the defendant (1) be in\\npublic and (2) cause some damage or disturbance. Unlike § 11550, the elements\\nof § 647(f) are closely aligned with those of the public intoxication laws in the\\nModel Penal Code and Texas Penal Code: (1) being “found in any public place\\n[(2)] under the influence of [(3)] intoxicating liquor, any drug, [or] controlled\\n\\n\\n\\n\\n 14 Cal. Health and Safety Code § 11550(a).\\n 15 Model Penal Code § 250.5.\\n 16 Tex. Penal Code § 49.02(a).\\n\\n 5\\n\\n Case: 18-11155 Document: 00515146519 Page: 6 Date Filed: 10/04/2019\\n\\n\\n\\n No. 18-11155\\nsubstance . . . [(4)] in a condition [that causes danger or obstructs a public\\nway].” 17\\n We next address the level of culpability involved in the offense. Other\\ncircuits that have considered this factor have reasoned that the level of\\nculpability for violating § 11550(a) is greater than that of public intoxication\\nbecause § 11550(a) always requires use, and thus acquisition, of an illegal\\nsubstance. By contrast, classic “public intoxication” usually involves abuse of\\nalcohol, which is a legal substance. 18 “Being under the influence of a controlled\\nsubstance is almost universally regarded as culpable, is widely criminalized,\\nand offers a substantial basis for predicting future significant criminal activity.\\nBy contrast, public intoxication is rarely criminalized and may involve the use\\nof alcohol, a non-controlled substance.” 19\\n We turn finally to the “degree to which the commission of the offense\\nindicates a likelihood of recurring criminal conduct.” 20\\n It is apparent the offenses listed in U.S.S.G.\\n § 4A1.2(c)(2) are excluded from the defendant’s criminal history\\n because they are of such minor significance to the goals of\\n sentencing . . . that inclusion would more likely distort than\\n improve the process established by the guidelines for determining\\n an appropriate sentence. The listed offenses offer no basis for\\n predicting future significant criminal activity by the\\n defendant; the conduct they involve is not uniformly criminalized,\\n and when it is, the penalty is usually light. 21\\n\\n Smith argues that both Use/Under the Influence of a Controlled\\n\\n\\n\\n 17 Cal. Penal Code § 647(f).\\n 18 See Martinez, 956 U.S. at 893; Roy, 126 F.3d at 955 (“An individual’s decision to use\\nan illicit drug is more culpable and involves more criminal intent than an individual’s\\noverindulgence in what is typically meant by intoxication, namely, alcohol─a non-controlled\\nsubstance.”); Locklear, 26 F. App’x at 372.\\n 19 Martinez, 956 U.S. at 893.\\n 20 U.S. Sentencing Guidelines Manual § 4A1.2(c) cmt. n.12(A).\\n 21 United States v. Martinez, 905 F.2d 251, 253 (9th Cir. 1990).\\n\\n 6\\n\\n Case: 18-11155 Document: 00515146519 Page: 7 Date Filed: 10/04/2019\\n\\n\\n\\n No. 18-11155\\nSubstance and “public intoxication” are predictors of recidivism because they\\ninvolve the use of addictive substances. Both statutes provide treatment\\nprograms, thereby acknowledging that addiction is a correlated problem for\\ndefendants who use either alcohol or illegal drugs. 22 However, only § 11550\\nexpressly provides for repeat offenders. 23 Additionally, the procuring of\\nmethamphetamine is itself significant criminal conduct and likely to recur in\\ndrug addicted individuals as is other statistically correlated criminal\\nconduct. 24 That is not necessarily true of alcohol.\\n III. CONCLUSION\\n Because (1) all of the common-sense factors show differences between (a)\\nUse/Under the Influence of a Controlled Substance and (b) “public intoxication”\\nlaws; (2) other circuits have rejected Smith’s arguments regarding the instant\\nstatute; and (3) California has an offense that is more similar to “public\\nintoxication,” we AFFIRM the district court’s holding that Smith’s conviction\\nfor violation of California Health and Safety Code § 11550(a) was appropriately\\nused to increase his criminal history level.\\n\\n\\n\\n\\n 22 Cal. Penal Code § 647(g); Cal. Health and Safety Code § 11550(c).\\n 23 Cal. Health and Safety Code § 11550(b).\\n 24 See Michael C. Gizzi and Patrick Gerkin, Methamphetamine Use and Criminal\\n\\nBehavior, 54 Int’l J. Offender Therapy & Comp. Criminology 915 (2010) (“A content analysis\\nof criminal records demonstrates that meth users have more extensive criminal records and\\nare more likely than other drug users to commit property crimes.”); Mary-Lynn Brecht and\\nDiane Herbeck, Methamphetamine Use and Violent Behavior: User Perceptions and\\nPredictors, 43 Drug Issues 468 (2013); but see Presley Center for Crime and Justice Studies\\nand Department of Sociology, Alcohol and violence: connections, evidence and possibilities for\\nprevention, Supp. 2 Psychoactive Drugs 157 (2004) (“[There is] substantial empirical evidence\\nthat alcohol policy can be an effective crime prevention tool.”).\\n 7\\n\\n Case: 18-11155 Document: 00515146519 Page: 8 Date Filed: 10/04/2019\\n\\n\\n\\n No. 18-11155\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4444598/\", \"author_raw\": \"WIENER, Circuit Judge:\"}, {\"author\": \"JAMES E. GRAVES, JR., Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"JAMES E. GRAVES, JR., Circuit Judge, dissenting:\\n I disagree with the majority’s conclusion that James Smith’s California\\nconviction was not similar to a conviction for “public intoxication.” Because I\\nwould vacate and remand, I respectfully dissent.\\n Pursuant to a traffic stop in Lubbock, Texas, Smith pleaded guilty to one\\ncount of convicted felon in possession of a firearm in violation of 18 U.S.C. §\\n922(g)(1). Smith’s presentence report (PSR) set out a criminal history of ten,\\nplacing Smith in criminal history category V. Those ten points included the\\naddition of one point for a 2011 misdemeanor conviction in California under\\nU.S.S.G. § 4A1.1(c).\\n Smith objected to the calculation on the basis that the California\\nconviction was similar to “public intoxication” and, thus, did not count toward\\nhis history. U.S.S.G. §4A1.2(c)(2). The district court overruled Smith’s\\nobjection for the reasons set forth in the PSR. The district court sentenced\\nSmith at the top of the guidelines range to 71 months. Without the California\\nconviction, Smith’s criminal history category would have been IV and the top\\nof the guideline range would have been 57 months. Smith subsequently\\nappealed.\\n On appeal, Smith asserts that the district court erred by including his\\nCalifornia misdemeanor conviction on the basis that it was not similar to public\\nintoxication. I agree.\\n The commentary to the sentencing guidelines states that §§ 4A1.1 and\\n4A1.2 must be read together. The sentencing guidelines also set out the\\nfollowing:\\n In determining whether an unlisted offense is similar to an\\n offense listed in subsection (c)(1) or (c)(2), the court should use a\\n common sense approach that includes consideration of relevant\\n factors such as (i) a comparison of punishments imposed for the\\n listed and unlisted offenses; (ii) the perceived seriousness of the\\n\\n 8\\n\\n Case: 18-11155 Document: 00515146519 Page: 9 Date Filed: 10/04/2019\\n\\n\\n\\n No. 18-11155\\n offense as indicated by the level of punishment; (iii) the elements\\n of the offense; (iv) the level of culpability involved; and (v) the\\n degree to which the commission of the offense indicates a\\n likelihood of recurring criminal conduct.\\n\\nU.S.S.G. § 4A1.2, Application Note 12(A).\\n Smith’s misdemeanor California conviction involved a violation of\\nCalifornia Health and Safety Code § 11550(a), which at the time of Smith’s\\noffense said:\\n No person shall use, or be under the influence of any controlled\\n substance which is (1) specified in subdivision (b), (c), or (e), or\\n paragraph (1) of subdivision (f) of Section 11054, specified in\\n paragraph (14), (15), (21), (22), or (23) of subdivision (d) of Section\\n 11054, specified in subdivision (b) or (c) of Section 11055, or\\n specified in paragraph (1) or (2) of subdivision (d) or in paragraph\\n (3) of subdivision (e) of Section 11055, or (2) a narcotic drug\\n classified in Schedule III, IV, or V, except when administered by\\n or under the direction of a person licensed by the state to dispense,\\n prescribe, or administer controlled substances. It shall be the\\n burden of the defense to show that it comes within the exception.\\n Any person convicted of violating this subdivision is guilty of a\\n misdemeanor and shall be sentenced to serve a term of not less\\n than 90 days or more than one year in a county jail. The court may\\n place a person convicted under this subdivision on probation for a\\n period not to exceed five years and, except as provided in\\n subdivision (c), shall in all cases in which probation is granted\\n require, as a condition thereof, that the person be confined in a\\n county jail for at least 90 days. Other than as provided by\\n subdivision (c), in no event shall the court have the power to\\n absolve a person who violates this subdivision from the obligation\\n of spending at least 90 days in confinement in a county jail.\\nCal. Health and Safety Code § 11550(a) (2002). The statute was later\\namended to remove the mandatory minimum. Cal. Health and Safety\\nCode §11550(a) (2011).\\n As the majority states, the issue of whether Smith’s California\\nmisdemeanor conviction is similar to “public intoxication” is one of first\\n\\n 9\\n\\n Case: 18-11155 Document: 00515146519 Page: 10 Date Filed: 10/04/2019\\n\\n\\n\\n No. 18-11155\\nimpression for this court. The majority concludes that this statute is not\\nsimilar and points to California Penal Code §647(f) as being more\\nsimilar. Section 647(f) states that a person is guilty of disorderly\\nconduct, a misdemeanor:\\n Who is found in any public place under the influence of\\n intoxicating liquor, any drug, controlled substance, toluene, or any\\n combination of any intoxicating liquor, drug, controlled substance,\\n or toluene, in a condition that he or she is unable to exercise care\\n for his or her own safety or the safety of others, or by reason of his\\n or her being under the influence of intoxicating liquor, any drug,\\n controlled substance, toluene, or any combination of any\\n intoxicating liquor, drug, or toluene, interferes with or obstructs or\\n prevents the free use of any street, sidewalk, or other public way.\\n\\nCal. Penal Code §647(f).\\n While this may appear to be more similar, the sentencing\\nguidelines were not written with the California statute in mind.\\nMoreover, there is no prohibition against more than one California\\nstatute being similar.\\n The majority stresses the difference in punishments for violations\\nunder the relevant statutes. At the time of Smith’s conviction, a violation\\nof Section 11550(a) included a mandatory minimum of 90 days in jail to\\na maximum of one year in jail. However, Smith’s judgment was deferred,\\nand he was ordered to participate in drug court.\\n A violation of Section 647(f) involving liquor involves placement in\\ncivil protective custody for 72-hour treatment and evaluation. Cal. Penal\\nCode §647(g). Whereas, a violation involving a person under the\\ninfluence of any drug or a combination of drugs and alcohol falls under\\nthe general punishment of a California misdemeanor, i.e.,\\n“imprisonment in the county jail not exceeding six months, or by fine not\\nexceeding one thousand dollars ($1,000), or by both.” Cal. Penal Code\\n\\n 10\\n\\n Case: 18-11155 Document: 00515146519 Page: 11 Date Filed: 10/04/2019\\n\\n\\n\\n No. 18-11155\\n§19. The majority interprets this to mean that California punishes use\\nof illegal drugs more severely than public intoxication by alcohol. But\\nthe majority offers no support for such an interpretation. Also, Section\\n19, by use of “or” and as quoted above, clearly allows for the possibility\\nof no jail time for those under the influence of drugs.\\n The majority next concludes that the elements of the offenses are\\ndifferent. Specifically, the majority concludes that the Texas and Model\\n“public intoxication” laws differ from section 11550(a) because they have\\nadditional requirements of being in public and causing some damage or\\ndisturbance. Again, the majority concludes that California Penal Code\\nSection 647(f) is more similar to the Texas and Model public intoxication\\nlaws. Again, I disagree.\\n The Model Penal Code states:\\n A person is guilty of an offense if he appears in any public place\\n manifestly under the influence of alcohol, narcotics or other drug,\\n not therapeutically administered, to the degree that he may\\n endanger himself or other persons or property, or annoy persons in\\n his vicinity. An offense under this Section constitutes a petty\\n misdemeanor if the actor has been convicted hereunder twice\\n before within a period of one year. Otherwise the offense\\n constitutes a violation.\\n\\nModel Penal Code §250.5 (emphasis added). Contrary to the majority’s\\ncharacterization, this section does not require the defendant to cause\\nsome damage or disturbance. The requirement is only that the\\ndefendant be intoxicated “to the degree that he may endanger . . . or\\nannoy.”\\n Likewise, the Texas Penal Code does not require any damage or\\ndisturbance. Rather, the Texas section also requires only that the\\ndefendant “appears in a public place while intoxicated to the degree that\\nthe person may endanger” himself or another. Tex. Penal Code §\\n 11\\n\\n Case: 18-11155 Document: 00515146519 Page: 12 Date Filed: 10/04/2019\\n\\n\\n\\n No. 18-11155\\n49.02(a). As for “public place,” it is likely that a person would not be\\nfound in violation of section 11550(a) if not located in a public place.\\n The majority next concludes that the level of culpability for a\\nviolation of section 11550(a) is greater than that of public intoxication\\nbecause section 11550(a) requires the use of an illegal substance. The\\nmajority states that “classic public intoxication” involves only the use of\\nalcohol, a legal substance. I disagree. Additionally, the majority cites\\nno authority for its statement that section 11550(a) requires the\\nacquisition of an illegal controlled substance. As quoted above, the\\nstatute includes no such requirement.\\n Section 647(f), which the majority states is more similar to public\\nintoxication, explicitly includes “any drug, controlled substance.” This\\ncontradicts the majority’s characterization of public intoxication\\ninvolving only alcohol. Further, the Model Penal Code, other states\\nincluding Texas, and Black’s Law Dictionary include drugs and/or\\nalcohol in public intoxication.\\n With regard to public intoxication, the Model Penal Code states that:\\n A person is guilty of an offense if he appears in any public\\n place manifestly under the influence of alcohol, narcotics or other\\n drug, not therapeutically administered, to the degree that he may\\n endanger himself or other persons or property, or annoy persons\\n in his vicinity. An offense under this Section constitutes a petty\\n misdemeanor if the actor has been convicted hereunder twice\\n before within a period of one year. Otherwise the offense\\n constitutes a violation.\\n\\nModel Penal Code § 250.5.\\n Black’s Law Dictionary (11th ed. 2019) defines “intoxication” as “A\\ndiminished ability to act with full mental and physical capabilities\\nbecause of alcohol or drug consumption; drunkenness. See Model Penal\\nCode § 2.08” and “public intoxication” as “The quality, state, or condition\\n 12\\n\\n Case: 18-11155 Document: 00515146519 Page: 13 Date Filed: 10/04/2019\\n\\n\\n\\n No. 18-11155\\nof a person who is under the influence of drugs or alcohol in a place open\\nto the general public.” Older versions of Black’s Law Dictionary (9th ed.\\n2009) define “public intoxication” as “[t]he condition of a person who is\\nunder the influence of drugs or alcohol in a place open to the general\\npublic.” California has a unique statutory scheme with a separate\\nstatute for being under the influence of a controlled substance.\\n Moreover, the nonbinding authority relied upon by the majority\\nhere, United States v. Martinez, 956 F.2d 891, 892 (9th Cir. 1992), was\\ndecided in 1992, which was prior to the adoption of the five-factor\\ncommon sense approach that we are applying today. Additionally,\\nMartinez was decided prior to the mandatory minimum being removed\\nfrom California section 11550, indicating a lessening in seriousness.\\n For these reasons, I conclude that the district court erred in finding\\nthat Smith’s California conviction was not similar to a conviction for\\npublic intoxication. Because I would vacate and remand for\\nresentencing, I respectfully dissent.\\n\\n\\n\\n\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4444598/\", \"author_raw\": \"JAMES E. GRAVES, JR., Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"WIENER"},"judge2":{"kind":"string","value":"GRAVES"},"judge3":{"kind":"string","value":"OLDHAM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"WIENER\": \", Circuit\", \"GRAVES\": \", Circuit\", \"OLDHAM\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4667345/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. James Smith\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-04\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-11155 Document: 00515146519 Page: 1 Date Filed: 10/04/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-11155 October 4, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n\n Plaintiff - Appellee\n\nv.\n\nJAMES B. SMITH,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\nBefore WIENER, GRAVES, and OLDHAM, Circuit Judges.\nWIENER, Circuit Judge:\n Defendant-Appellant James B. Smith appeals his 71-month prison\nsentence for violation of 18 U.S.C. § 922(g)(1). Smith alleges that the district\ncourt erred by increasing his criminal history level based on his prior state\ncourt conviction for use of methamphetamine in violation of California Health\nand Safety Code § 11550(a). Smith contends that this conviction is similar to a\nconviction for “public intoxication” and should have been exempt under\nSentencing Guideline § 4A1.2(c)(2). We disagree.\n I. FACTS AND PROCEEDINGS\n Smith was charged with two counts of being a felon in possession of a\nfirearm and pleaded guilty to one of those counts. In the presentence report’s\n\n Case: 18-11155 Document: 00515146519 Page: 2 Date Filed: 10/04/2019\n\n\n\n No. 18-11155\n(“PSR”) calculation of Smith’s criminal history level, one point was added for a\nCalifornia misdemeanor conviction for Use/Under the Influence of a Controlled\nSubstance in violation of § 11550(a). Smith had been convicted on that charge\nin 2011 for using methamphetamine. He timely objected to inclusion of that\nconviction in his criminal history calculation. At sentencing, the district court\noverruled that objection. Smith now appeals the district court’s inclusion of the\n2011 California misdemeanor conviction in determining his sentence for the\ninstant conviction.\n II. DISCUSSION\n Smith challenges the district court’s application of the U.S. Sentencing\nGuidelines. We review the district court’s interpretation and application of the\nGuidelines de novo and its factual findings for clear error. 1 Guideline § 4A1.1(c)\nstates that one point should be added to a defendant’s criminal history level\n“for each prior sentence not counted in [subsections] (a) or (b), up to a total of\n4 points for this subsection.” 2 These additions are limited by the instructions\nin § 4A1.2(c):\n Sentences for misdemeanor and petty offenses are counted,\n except as follows: . . . . Sentences for the following prior offenses\n and offenses similar to them, by whatever name they are known,\n are never counted:\n\n Fish and game violations\n Hitchhiking\n Juvenile status offenses and truancy\n Local ordinance violations (except those violations that are also\n violations under state criminal law)\n Loitering\n Minor traffic infractions (e.g., speeding)\n Public intoxication\n\n\n\n 1 United States v. Perez, 585 F.3d 880, 883 (5th Cir. 2009).\n 2 U.S. Sentencing Guidelines Manual § 4A1.1(c) (U.S. Sentencing Comm’n 2018).\n 2\n\n Case: 18-11155 Document: 00515146519 Page: 3 Date Filed: 10/04/2019\n\n\n\n No. 18-11155\n Vagrancy. 3\n\n Smith argues that his California misdemeanor conviction for Use/Under\nthe Influence of a Controlled Substance, in violation of § 11550(a), is similar to\n“public intoxication,” and should therefore be excluded from the calculation of\nhis criminal history level. This is an issue of first impression for the Fifth\nCircuit, but, other circuits have considered this or similar issues. 4\n The Sentencing Guidelines application note on § 4A1.2 instructs that:\n In determining whether an unlisted offense is similar to an\n offense listed . . . , the court should use a common sense approach\n that includes consideration of relevant factors such as (i) a\n comparison of punishments imposed for the listed and unlisted\n offenses; (ii) the perceived seriousness of the offense as indicated\n by the level of punishment; (iii) the elements of the offense; (iv) the\n level of culpability involved; and (v) the degree to which the\n commission of the offense indicates a likelihood of recurring\n criminal conduct. 5\n\n For factors (i) and (ii), the Fifth Circuit compares the unlisted offense,\nhere California Health and Safety Code § 11550(a), 6 to the “equivalent [of the\nlisted] offense under the relevant State’s law.” 7 California’s version of public\n\n\n\n\n 3 Id. § 4A1.2(c) (emphasis added).\n 4 See United States v. Martinez, 956 U.S. 891 (9th Cir. 1992) (per curium); United\nStates v. Roy, 126 F.3d 953 (7th Cir. 1997); United States v. Locklear, 26 F. App’x 371 (4th\nCir. 2002) (per curium).\n 5 U.S. Sentencing Guidelines Manual § 4A1.2(c) cmt. n.12(A).\n 6 “A person shall not use, or be under the influence of any [of a number of referenced]\n\ncontrolled substance[s] . . . , or (2) a narcotic drug classified in Schedule III, IV, or V, except\nwhen administered by or under the direction of a person licensed by the state to dispense,\nprescribe, or administer controlled substances. . . . A person convicted of violating this\nsubdivision is guilty of a misdemeanor and shall be sentenced to serve a term of not more\nthan one year in a county jail. The court may also place a person convicted under this\nsubdivision on probation for a period not to exceed five years.” Cal. Health and Safety Code\n§ 11550(a).\n 7 United States v. Lamm, 392 F.3d 130, 132 (5th Cir. 2004).\n\n 3\n\n Case: 18-11155 Document: 00515146519 Page: 4 Date Filed: 10/04/2019\n\n\n\n No. 18-11155\nintoxication is California Penal Code § 647(f). 8\n At the time of Smith’s conviction in California, violation of § 11550(a)\ncarried a mandatory minimum sentence of 90 days in jail. 9 The current law\nhas a maximum jail sentence of one year, but has no mandatory minimum. 10\nIn contrast, § 647(f) states that a person “[w]ho is found in any public place\nunder the influence of intoxicating liquor . . . [is] to be placed . . . in civil\nprotective custody [by] a peace officer, if he or she is reasonably able to do so.” 11\nHowever, “[t]his subdivision does not apply to . . . [a] person who is under the\ninfluence of any drug, or under the combined influence of intoxicating liquor\nand any drug.” 12 A person who is under the influence of a drug is subject to the\ngeneral punishment for committing a California misdemeanor, which is up to\n6 months in jail and a $1000 fine. 13\n\n\n\n\n 8 “[E]very person who commits . . . the following act[] is guilty of disorderly conduct, a\nmisdemeanor:\n ....\n (f) Who is found in any public place under the influence of intoxicating liquor, any\ndrug, controlled substance, toluene, or any combination of any intoxicating liquor, drug,\ncontrolled substance, or toluene, in a condition that he or she is unable to exercise care for\nhis or her own safety or the safety of others, or by reason of his or her being under the\ninfluence of intoxicating liquor, any drug, controlled substance, toluene, or any combination\nof any intoxicating liquor, drug, or toluene, interferes with or obstructs or prevents the free\nuse of any street, sidewalk, or other public way.\n (g) If a person has violated subdivision (f), a peace officer, if he or she is reasonably\nable to do so, shall place the person, or cause him or her to be placed, in civil protective\ncustody. The person shall be taken to a facility . . . for the 72-hour treatment and evaluation\nof inebriates. . . . A person who has been placed in civil protective custody shall not thereafter\nbe subject to any criminal prosecution or juvenile court proceeding based on the facts giving\nrise to this placement. This subdivision does not apply to the following persons:\n (1) A person who is under the influence of any drug, or under the combined influence\nof intoxicating liquor and any drug.” Cal. Penal Code § 647(f)–(g).\n 9 Cal. Health and Safety Code § 11550(a) (2002).\n 10 Cal. Health and Safety Code § 11550(a) (2015).\n 11 Cal. Penal Code § 647(f)–(g).\n 12 Id. § 647(g).\n 13 Id. § 19.\n\n 4\n\n Case: 18-11155 Document: 00515146519 Page: 5 Date Filed: 10/04/2019\n\n\n\n No. 18-11155\n The punishments for these two offenses are different. California has\ncodified the classic “public intoxication” offense in a separate statute and\npunishes use of illegal drugs more severely under both laws than it punishes\npublic intoxication by alcohol. Thus, in California the perceived seriousness of\nany use of illegal drugs is greater than abuse of alcohol. Additionally, at the\ntime of Smith’s conviction, use of methamphetamine carried a mandatory-\nminimum jail sentence.\n We next consider the elements of the California offenses. California\nHealth and Safety Code § 11550(a): (1) “use, or . . . under the influence of [(2)]\nany [of a number of referenced] controlled substance[s].” 14 Smith suggests\ncomparison of the elements of “public intoxication” under the Model Penal\nCode and the Texas Penal Code. The Model Penal Code defines “Public\nDrunkenness; Drug Intoxication” as: (1) “appear[ance] in any public place [(2)]\nmanifestly under the influence of [(3)] alcohol, narcotics or other drug, . . . [(4)]\nto the degree [of danger or annoyance].” 15 The Texas Penal Code defines Public\nIntoxication as: (1) “appear[ance] in a public place [(2)] while intoxicated [(3)]\nto the degree that the person may [cause danger].” 16\n The Texas and Model “public intoxication” laws differ from § 11550(a)\nbecause they have additional elements requiring that the defendant (1) be in\npublic and (2) cause some damage or disturbance. Unlike § 11550, the elements\nof § 647(f) are closely aligned with those of the public intoxication laws in the\nModel Penal Code and Texas Penal Code: (1) being “found in any public place\n[(2)] under the influence of [(3)] intoxicating liquor, any drug, [or] controlled\n\n\n\n\n 14 Cal. Health and Safety Code § 11550(a).\n 15 Model Penal Code § 250.5.\n 16 Tex. Penal Code § 49.02(a).\n\n 5\n\n Case: 18-11155 Document: 00515146519 Page: 6 Date Filed: 10/04/2019\n\n\n\n No. 18-11155\nsubstance . . . [(4)] in a condition [that causes danger or obstructs a public\nway].” 17\n We next address the level of culpability involved in the offense. Other\ncircuits that have considered this factor have reasoned that the level of\nculpability for violating § 11550(a) is greater than that of public intoxication\nbecause § 11550(a) always requires use, and thus acquisition, of an illegal\nsubstance. By contrast, classic “public intoxication” usually involves abuse of\nalcohol, which is a legal substance. 18 “Being under the influence of a controlled\nsubstance is almost universally regarded as culpable, is widely criminalized,\nand offers a substantial basis for predicting future significant criminal activity.\nBy contrast, public intoxication is rarely criminalized and may involve the use\nof alcohol, a non-controlled substance.” 19\n We turn finally to the “degree to which the commission of the offense\nindicates a likelihood of recurring criminal conduct.” 20\n It is apparent the offenses listed in U.S.S.G.\n § 4A1.2(c)(2) are excluded from the defendant’s criminal history\n because they are of such minor significance to the goals of\n sentencing . . . that inclusion would more likely distort than\n improve the process established by the guidelines for determining\n an appropriate sentence. The listed offenses offer no basis for\n predicting future significant criminal activity by the\n defendant; the conduct they involve is not uniformly criminalized,\n and when it is, the penalty is usually light. 21\n\n Smith argues that both Use/Under the Influence of a Controlled\n\n\n\n 17 Cal. Penal Code § 647(f).\n 18 See Martinez, 956 U.S. at 893; Roy, 126 F.3d at 955 (“An individual’s decision to use\nan illicit drug is more culpable and involves more criminal intent than an individual’s\noverindulgence in what is typically meant by intoxication, namely, alcohol─a non-controlled\nsubstance.”); Locklear, 26 F. App’x at 372.\n 19 Martinez, 956 U.S. at 893.\n 20 U.S. Sentencing Guidelines Manual § 4A1.2(c) cmt. n.12(A).\n 21 United States v. Martinez, 905 F.2d 251, 253 (9th Cir. 1990).\n\n 6\n\n Case: 18-11155 Document: 00515146519 Page: 7 Date Filed: 10/04/2019\n\n\n\n No. 18-11155\nSubstance and “public intoxication” are predictors of recidivism because they\ninvolve the use of addictive substances. Both statutes provide treatment\nprograms, thereby acknowledging that addiction is a correlated problem for\ndefendants who use either alcohol or illegal drugs. 22 However, only § 11550\nexpressly provides for repeat offenders. 23 Additionally, the procuring of\nmethamphetamine is itself significant criminal conduct and likely to recur in\ndrug addicted individuals as is other statistically correlated criminal\nconduct. 24 That is not necessarily true of alcohol.\n III. CONCLUSION\n Because (1) all of the common-sense factors show differences between (a)\nUse/Under the Influence of a Controlled Substance and (b) “public intoxication”\nlaws; (2) other circuits have rejected Smith’s arguments regarding the instant\nstatute; and (3) California has an offense that is more similar to “public\nintoxication,” we AFFIRM the district court’s holding that Smith’s conviction\nfor violation of California Health and Safety Code § 11550(a) was appropriately\nused to increase his criminal history level.\n\n\n\n\n 22 Cal. Penal Code § 647(g); Cal. Health and Safety Code § 11550(c).\n 23 Cal. Health and Safety Code § 11550(b).\n 24 See Michael C. Gizzi and Patrick Gerkin, Methamphetamine Use and Criminal\n\nBehavior, 54 Int’l J. Offender Therapy & Comp. Criminology 915 (2010) (“A content analysis\nof criminal records demonstrates that meth users have more extensive criminal records and\nare more likely than other drug users to commit property crimes.”); Mary-Lynn Brecht and\nDiane Herbeck, Methamphetamine Use and Violent Behavior: User Perceptions and\nPredictors, 43 Drug Issues 468 (2013); but see Presley Center for Crime and Justice Studies\nand Department of Sociology, Alcohol and violence: connections, evidence and possibilities for\nprevention, Supp. 2 Psychoactive Drugs 157 (2004) (“[There is] substantial empirical evidence\nthat alcohol policy can be an effective crime prevention tool.”).\n 7\n\n Case: 18-11155 Document: 00515146519 Page: 8 Date Filed: 10/04/2019\n\n\n\n No. 18-11155\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. James Smith\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-04\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-11155 Document: 00515146519 Page: 1 Date Filed: 10/04/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-11155 October 4, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nJAMES B. SMITH,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore WIENER, GRAVES, and OLDHAM, Circuit Judges.\\nWIENER, Circuit Judge:\\n Defendant-Appellant James B. Smith appeals his 71-month prison\\nsentence for violation of 18 U.S.C. § 922(g)(1). Smith alleges that the district\\ncourt erred by increasing his criminal history level based on his prior state\\ncourt conviction for use of methamphetamine in violation of California Health\\nand Safety Code § 11550(a). Smith contends that this conviction is similar to a\\nconviction for “public intoxication” and should have been exempt under\\nSentencing Guideline § 4A1.2(c)(2). We disagree.\\n I. FACTS AND PROCEEDINGS\\n Smith was charged with two counts of being a felon in possession of a\\nfirearm and pleaded guilty to one of those counts. In the presentence report’s\\n\\n Case: 18-11155 Document: 00515146519 Page: 2 Date Filed: 10/04/2019\\n\\n\\n\\n No. 18-11155\\n(“PSR”) calculation of Smith’s criminal history level, one point was added for a\\nCalifornia misdemeanor conviction for Use/Under the Influence of a Controlled\\nSubstance in violation of § 11550(a). Smith had been convicted on that charge\\nin 2011 for using methamphetamine. He timely objected to inclusion of that\\nconviction in his criminal history calculation. At sentencing, the district court\\noverruled that objection. Smith now appeals the district court’s inclusion of the\\n2011 California misdemeanor conviction in determining his sentence for the\\ninstant conviction.\\n II. DISCUSSION\\n Smith challenges the district court’s application of the U.S. Sentencing\\nGuidelines. We review the district court’s interpretation and application of the\\nGuidelines de novo and its factual findings for clear error. 1 Guideline § 4A1.1(c)\\nstates that one point should be added to a defendant’s criminal history level\\n“for each prior sentence not counted in [subsections] (a) or (b), up to a total of\\n4 points for this subsection.” 2 These additions are limited by the instructions\\nin § 4A1.2(c):\\n Sentences for misdemeanor and petty offenses are counted,\\n except as follows: . . . . Sentences for the following prior offenses\\n and offenses similar to them, by whatever name they are known,\\n are never counted:\\n\\n Fish and game violations\\n Hitchhiking\\n Juvenile status offenses and truancy\\n Local ordinance violations (except those violations that are also\\n violations under state criminal law)\\n Loitering\\n Minor traffic infractions (e.g., speeding)\\n Public intoxication\\n\\n\\n\\n 1 United States v. Perez, 585 F.3d 880, 883 (5th Cir. 2009).\\n 2 U.S. Sentencing Guidelines Manual § 4A1.1(c) (U.S. Sentencing Comm’n 2018).\\n 2\\n\\n Case: 18-11155 Document: 00515146519 Page: 3 Date Filed: 10/04/2019\\n\\n\\n\\n No. 18-11155\\n Vagrancy. 3\\n\\n Smith argues that his California misdemeanor conviction for Use/Under\\nthe Influence of a Controlled Substance, in violation of § 11550(a), is similar to\\n“public intoxication,” and should therefore be excluded from the calculation of\\nhis criminal history level. This is an issue of first impression for the Fifth\\nCircuit, but, other circuits have considered this or similar issues. 4\\n The Sentencing Guidelines application note on § 4A1.2 instructs that:\\n In determining whether an unlisted offense is similar to an\\n offense listed . . . , the court should use a common sense approach\\n that includes consideration of relevant factors such as (i) a\\n comparison of punishments imposed for the listed and unlisted\\n offenses; (ii) the perceived seriousness of the offense as indicated\\n by the level of punishment; (iii) the elements of the offense; (iv) the\\n level of culpability involved; and (v) the degree to which the\\n commission of the offense indicates a likelihood of recurring\\n criminal conduct. 5\\n\\n For factors (i) and (ii), the Fifth Circuit compares the unlisted offense,\\nhere California Health and Safety Code § 11550(a), 6 to the “equivalent [of the\\nlisted] offense under the relevant State’s law.” 7 California’s version of public\\n\\n\\n\\n\\n 3 Id. § 4A1.2(c) (emphasis added).\\n 4 See United States v. Martinez, 956 U.S. 891 (9th Cir. 1992) (per curium); United\\nStates v. Roy, 126 F.3d 953 (7th Cir. 1997); United States v. Locklear, 26 F. App’x 371 (4th\\nCir. 2002) (per curium).\\n 5 U.S. Sentencing Guidelines Manual § 4A1.2(c) cmt. n.12(A).\\n 6 “A person shall not use, or be under the influence of any [of a number of referenced]\\n\\ncontrolled substance[s] . . . , or (2) a narcotic drug classified in Schedule III, IV, or V, except\\nwhen administered by or under the direction of a person licensed by the state to dispense,\\nprescribe, or administer controlled substances. . . . A person convicted of violating this\\nsubdivision is guilty of a misdemeanor and shall be sentenced to serve a term of not more\\nthan one year in a county jail. The court may also place a person convicted under this\\nsubdivision on probation for a period not to exceed five years.” Cal. Health and Safety Code\\n§ 11550(a).\\n 7 United States v. Lamm, 392 F.3d 130, 132 (5th Cir. 2004).\\n\\n 3\\n\\n Case: 18-11155 Document: 00515146519 Page: 4 Date Filed: 10/04/2019\\n\\n\\n\\n No. 18-11155\\nintoxication is California Penal Code § 647(f). 8\\n At the time of Smith’s conviction in California, violation of § 11550(a)\\ncarried a mandatory minimum sentence of 90 days in jail. 9 The current law\\nhas a maximum jail sentence of one year, but has no mandatory minimum. 10\\nIn contrast, § 647(f) states that a person “[w]ho is found in any public place\\nunder the influence of intoxicating liquor . . . [is] to be placed . . . in civil\\nprotective custody [by] a peace officer, if he or she is reasonably able to do so.” 11\\nHowever, “[t]his subdivision does not apply to . . . [a] person who is under the\\ninfluence of any drug, or under the combined influence of intoxicating liquor\\nand any drug.” 12 A person who is under the influence of a drug is subject to the\\ngeneral punishment for committing a California misdemeanor, which is up to\\n6 months in jail and a $1000 fine. 13\\n\\n\\n\\n\\n 8 “[E]very person who commits . . . the following act[] is guilty of disorderly conduct, a\\nmisdemeanor:\\n ....\\n (f) Who is found in any public place under the influence of intoxicating liquor, any\\ndrug, controlled substance, toluene, or any combination of any intoxicating liquor, drug,\\ncontrolled substance, or toluene, in a condition that he or she is unable to exercise care for\\nhis or her own safety or the safety of others, or by reason of his or her being under the\\ninfluence of intoxicating liquor, any drug, controlled substance, toluene, or any combination\\nof any intoxicating liquor, drug, or toluene, interferes with or obstructs or prevents the free\\nuse of any street, sidewalk, or other public way.\\n (g) If a person has violated subdivision (f), a peace officer, if he or she is reasonably\\nable to do so, shall place the person, or cause him or her to be placed, in civil protective\\ncustody. The person shall be taken to a facility . . . for the 72-hour treatment and evaluation\\nof inebriates. . . . A person who has been placed in civil protective custody shall not thereafter\\nbe subject to any criminal prosecution or juvenile court proceeding based on the facts giving\\nrise to this placement. This subdivision does not apply to the following persons:\\n (1) A person who is under the influence of any drug, or under the combined influence\\nof intoxicating liquor and any drug.” Cal. Penal Code § 647(f)–(g).\\n 9 Cal. Health and Safety Code § 11550(a) (2002).\\n 10 Cal. Health and Safety Code § 11550(a) (2015).\\n 11 Cal. Penal Code § 647(f)–(g).\\n 12 Id. § 647(g).\\n 13 Id. § 19.\\n\\n 4\\n\\n Case: 18-11155 Document: 00515146519 Page: 5 Date Filed: 10/04/2019\\n\\n\\n\\n No. 18-11155\\n The punishments for these two offenses are different. California has\\ncodified the classic “public intoxication” offense in a separate statute and\\npunishes use of illegal drugs more severely under both laws than it punishes\\npublic intoxication by alcohol. Thus, in California the perceived seriousness of\\nany use of illegal drugs is greater than abuse of alcohol. Additionally, at the\\ntime of Smith’s conviction, use of methamphetamine carried a mandatory-\\nminimum jail sentence.\\n We next consider the elements of the California offenses. California\\nHealth and Safety Code § 11550(a): (1) “use, or . . . under the influence of [(2)]\\nany [of a number of referenced] controlled substance[s].” 14 Smith suggests\\ncomparison of the elements of “public intoxication” under the Model Penal\\nCode and the Texas Penal Code. The Model Penal Code defines “Public\\nDrunkenness; Drug Intoxication” as: (1) “appear[ance] in any public place [(2)]\\nmanifestly under the influence of [(3)] alcohol, narcotics or other drug, . . . [(4)]\\nto the degree [of danger or annoyance].” 15 The Texas Penal Code defines Public\\nIntoxication as: (1) “appear[ance] in a public place [(2)] while intoxicated [(3)]\\nto the degree that the person may [cause danger].” 16\\n The Texas and Model “public intoxication” laws differ from § 11550(a)\\nbecause they have additional elements requiring that the defendant (1) be in\\npublic and (2) cause some damage or disturbance. Unlike § 11550, the elements\\nof § 647(f) are closely aligned with those of the public intoxication laws in the\\nModel Penal Code and Texas Penal Code: (1) being “found in any public place\\n[(2)] under the influence of [(3)] intoxicating liquor, any drug, [or] controlled\\n\\n\\n\\n\\n 14 Cal. Health and Safety Code § 11550(a).\\n 15 Model Penal Code § 250.5.\\n 16 Tex. Penal Code § 49.02(a).\\n\\n 5\\n\\n Case: 18-11155 Document: 00515146519 Page: 6 Date Filed: 10/04/2019\\n\\n\\n\\n No. 18-11155\\nsubstance . . . [(4)] in a condition [that causes danger or obstructs a public\\nway].” 17\\n We next address the level of culpability involved in the offense. Other\\ncircuits that have considered this factor have reasoned that the level of\\nculpability for violating § 11550(a) is greater than that of public intoxication\\nbecause § 11550(a) always requires use, and thus acquisition, of an illegal\\nsubstance. By contrast, classic “public intoxication” usually involves abuse of\\nalcohol, which is a legal substance. 18 “Being under the influence of a controlled\\nsubstance is almost universally regarded as culpable, is widely criminalized,\\nand offers a substantial basis for predicting future significant criminal activity.\\nBy contrast, public intoxication is rarely criminalized and may involve the use\\nof alcohol, a non-controlled substance.” 19\\n We turn finally to the “degree to which the commission of the offense\\nindicates a likelihood of recurring criminal conduct.” 20\\n It is apparent the offenses listed in U.S.S.G.\\n § 4A1.2(c)(2) are excluded from the defendant’s criminal history\\n because they are of such minor significance to the goals of\\n sentencing . . . that inclusion would more likely distort than\\n improve the process established by the guidelines for determining\\n an appropriate sentence. The listed offenses offer no basis for\\n predicting future significant criminal activity by the\\n defendant; the conduct they involve is not uniformly criminalized,\\n and when it is, the penalty is usually light. 21\\n\\n Smith argues that both Use/Under the Influence of a Controlled\\n\\n\\n\\n 17 Cal. Penal Code § 647(f).\\n 18 See Martinez, 956 U.S. at 893; Roy, 126 F.3d at 955 (“An individual’s decision to use\\nan illicit drug is more culpable and involves more criminal intent than an individual’s\\noverindulgence in what is typically meant by intoxication, namely, alcohol─a non-controlled\\nsubstance.”); Locklear, 26 F. App’x at 372.\\n 19 Martinez, 956 U.S. at 893.\\n 20 U.S. Sentencing Guidelines Manual § 4A1.2(c) cmt. n.12(A).\\n 21 United States v. Martinez, 905 F.2d 251, 253 (9th Cir. 1990).\\n\\n 6\\n\\n Case: 18-11155 Document: 00515146519 Page: 7 Date Filed: 10/04/2019\\n\\n\\n\\n No. 18-11155\\nSubstance and “public intoxication” are predictors of recidivism because they\\ninvolve the use of addictive substances. Both statutes provide treatment\\nprograms, thereby acknowledging that addiction is a correlated problem for\\ndefendants who use either alcohol or illegal drugs. 22 However, only § 11550\\nexpressly provides for repeat offenders. 23 Additionally, the procuring of\\nmethamphetamine is itself significant criminal conduct and likely to recur in\\ndrug addicted individuals as is other statistically correlated criminal\\nconduct. 24 That is not necessarily true of alcohol.\\n III. CONCLUSION\\n Because (1) all of the common-sense factors show differences between (a)\\nUse/Under the Influence of a Controlled Substance and (b) “public intoxication”\\nlaws; (2) other circuits have rejected Smith’s arguments regarding the instant\\nstatute; and (3) California has an offense that is more similar to “public\\nintoxication,” we AFFIRM the district court’s holding that Smith’s conviction\\nfor violation of California Health and Safety Code § 11550(a) was appropriately\\nused to increase his criminal history level.\\n\\n\\n\\n\\n 22 Cal. Penal Code § 647(g); Cal. Health and Safety Code § 11550(c).\\n 23 Cal. Health and Safety Code § 11550(b).\\n 24 See Michael C. Gizzi and Patrick Gerkin, Methamphetamine Use and Criminal\\n\\nBehavior, 54 Int’l J. Offender Therapy & Comp. Criminology 915 (2010) (“A content analysis\\nof criminal records demonstrates that meth users have more extensive criminal records and\\nare more likely than other drug users to commit property crimes.”); Mary-Lynn Brecht and\\nDiane Herbeck, Methamphetamine Use and Violent Behavior: User Perceptions and\\nPredictors, 43 Drug Issues 468 (2013); but see Presley Center for Crime and Justice Studies\\nand Department of Sociology, Alcohol and violence: connections, evidence and possibilities for\\nprevention, Supp. 2 Psychoactive Drugs 157 (2004) (“[There is] substantial empirical evidence\\nthat alcohol policy can be an effective crime prevention tool.”).\\n 7\\n\\n Case: 18-11155 Document: 00515146519 Page: 8 Date Filed: 10/04/2019\\n\\n\\n\\n No. 18-11155\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4582,"cells":{"id":{"kind":"number","value":4668443,"string":"4,668,443"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Luis Valencia"},"decision_date":{"kind":"string","value":"2019-10-09"},"docket_number":{"kind":"string","value":"18-51008"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before OWEN, Chief Judge, and JONES and SMITH, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JERRY E. SMITH, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-51008 Document: 00515152745 Page: 1 Date Filed: 10/09/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-51008 FILED\\n October 9, 2019\\n Lyle W. Cayce\\n Clerk\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff−Appellee,\\n\\nversus\\n\\nLUIS VALENCIA,\\n\\n Defendant−Appellant.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\n\\n\\nBefore OWEN, Chief Judge, and JONES and SMITH, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n Luis Valencia appeals the denial of his motion to dismiss his indictment.\\nConcluding that we lack jurisdiction, we dismiss the appeal.\\n\\n I.\\n In November 2017, a grand jury indicted Valencia for violations of\\n\\f Case: 18-51008 Document: 00515152745 Page: 2 Date Filed: 10/09/2019\\n\\n\\n\\n No. 18-51008\\nvarious federal statutes. One year later, the President accepted the resigna-\\ntion of Attorney General Sessions and designated Matthew Whitaker as Acting\\nAttorney General. Citing the alleged illegality of Whitaker’s designation, Val-\\nencia moved to dismiss the indictment. The district court denied the motion\\non the merits, concluding that Whitaker’s designation was valid under both\\nthe U.S. Constitution and relevant federal statutes.\\n\\n II.\\n A.\\n Valencia’s argument proceeds in two steps. First, he contends that the\\ndistrict court erroneously held that Whitaker’s designation conformed to the\\nAppointments Clause, Art. II § 2, cl. 2, and to applicable federal statutory law,\\n28 U.S.C. §§ 508, 3345. Second, Valencia suggests that the court also erred in\\nholding that, even absent a lawfully appointed Attorney General, a validly\\nappointed United States Attorney maintains the authority to prosecute. The\\ngovernment replies that we lack jurisdiction because the district court’s denial\\nof Valencia’s motion to dismiss “was not a ‘final decision[]’ under 28 U.S.C.\\n§ 1291” and “the collateral-order doctrine does not apply.”\\n\\n Valencia does not claim that this court has jurisdiction under § 1291.\\nInstead, he avers that the order is appealable as a collateral order. “[A]s courts\\nof limited jurisdiction, we are obliged to examine the basis of our own jurisdic-\\ntion before reviewing the merits.” United States v. Pittman, 915 F.3d 1005,\\n1007 (5th Cir. 2019) (citation and internal quotation marks omitted).\\n\\n B.\\n The collateral order doctrine allows appeals from a “small class [of\\norders] which finally determine claims of right separable from, and collateral\\nto, rights asserted in the action, too important to be denied review and too\\n\\n 2\\n\\f Case: 18-51008 Document: 00515152745 Page: 3 Date Filed: 10/09/2019\\n\\n\\n\\n No. 18-51008\\nindependent of the cause itself to require that appellate consideration be\\ndeferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan\\nCorp., 337 U.S. 541, 546 (1949). Applicable orders must “(1) conclusively\\ndetermine the disputed question, (2) resolve an important issue completely\\nseparate from the merits of the action, and (3) be effectively unreviewable on\\nappeal from a final judgment.” Will v. Hallock, 546 U.S. 345, 349 (2006) (quot-\\ning P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144\\n(1993)). “The collateral order doctrine is rarely applied in criminal cases,” In\\nre Grand Jury Subpoena, 190 F.3d 375, 381 (5th Cir. 1999), and is interpreted\\n“with the utmost strictness,” Pittman, 915 F.3d at 1008 (citations omitted).\\n\\n The denial of Valencia’s motion is not an appealable collateral order.\\nAlthough the order did “conclusively determine the disputed question,” argua-\\nbly “resolv[ing] an important issue completely separate from the merits of the\\naction,” it is not “effectively unreviewable on appeal from a final judgment.”\\nIndeed, Valencia will have the opportunity to raise these same issues when\\nappealing any adverse final judgment per § 1291.\\n\\n The Supreme Court has “had numerous opportunities in the [70] years\\nsince Cohen to consider the appealability of prejudgment orders in criminal\\ncases, [and has] found denials of only three types of motions to be immediately\\nappealable: motions to reduce bail, motions to dismiss on double jeopardy\\ngrounds, and motions to dismiss under the Speech or Debate Clause.” Midland\\nAsphalt Corp. v. United States, 489 U.S. 794 (1989) (internal citations omitted).\\nWe decline to find a new category today. See Mohawk Indus., Inc. v. Carpenter,\\n558 U.S. 100, 113 (2009) (“[T]he class of collaterally appealable orders must\\nremain narrow and selective in its membership.”) (citation and internal quota-\\ntion marks omitted).\\n\\n The appeal is DISMISSED for want of jurisdiction.\\n\\n 3\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4445696/\", \"author_raw\": \"JERRY E. SMITH, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"OWEN"},"judge2":{"kind":"string","value":"JONES"},"judge3":{"kind":"string","value":"SMITH"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"OWEN\": \", Chief\", \"JONES\": \", Circuit\", \"SMITH\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4668443/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Luis Valencia\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-09\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-51008 Document: 00515152745 Page: 1 Date Filed: 10/09/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 18-51008 FILED\n October 9, 2019\n Lyle W. Cayce\n Clerk\n\nUNITED STATES OF AMERICA,\n\n Plaintiff−Appellee,\n\nversus\n\nLUIS VALENCIA,\n\n Defendant−Appellant.\n\n\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n\n\n\n\nBefore OWEN, Chief Judge, and JONES and SMITH, Circuit Judges.\nJERRY E. SMITH, Circuit Judge:\n\n Luis Valencia appeals the denial of his motion to dismiss his indictment.\nConcluding that we lack jurisdiction, we dismiss the appeal.\n\n I.\n In November 2017, a grand jury indicted Valencia for violations of\n\f Case: 18-51008 Document: 00515152745 Page: 2 Date Filed: 10/09/2019\n\n\n\n No. 18-51008\nvarious federal statutes. One year later, the President accepted the resigna-\ntion of Attorney General Sessions and designated Matthew Whitaker as Acting\nAttorney General. Citing the alleged illegality of Whitaker’s designation, Val-\nencia moved to dismiss the indictment. The district court denied the motion\non the merits, concluding that Whitaker’s designation was valid under both\nthe U.S. Constitution and relevant federal statutes.\n\n II.\n A.\n Valencia’s argument proceeds in two steps. First, he contends that the\ndistrict court erroneously held that Whitaker’s designation conformed to the\nAppointments Clause, Art. II § 2, cl. 2, and to applicable federal statutory law,\n28 U.S.C. §§ 508, 3345. Second, Valencia suggests that the court also erred in\nholding that, even absent a lawfully appointed Attorney General, a validly\nappointed United States Attorney maintains the authority to prosecute. The\ngovernment replies that we lack jurisdiction because the district court’s denial\nof Valencia’s motion to dismiss “was not a ‘final decision[]’ under 28 U.S.C.\n§ 1291” and “the collateral-order doctrine does not apply.”\n\n Valencia does not claim that this court has jurisdiction under § 1291.\nInstead, he avers that the order is appealable as a collateral order. “[A]s courts\nof limited jurisdiction, we are obliged to examine the basis of our own jurisdic-\ntion before reviewing the merits.” United States v. Pittman, 915 F.3d 1005,\n1007 (5th Cir. 2019) (citation and internal quotation marks omitted).\n\n B.\n The collateral order doctrine allows appeals from a “small class [of\norders] which finally determine claims of right separable from, and collateral\nto, rights asserted in the action, too important to be denied review and too\n\n 2\n\f Case: 18-51008 Document: 00515152745 Page: 3 Date Filed: 10/09/2019\n\n\n\n No. 18-51008\nindependent of the cause itself to require that appellate consideration be\ndeferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan\nCorp., 337 U.S. 541, 546 (1949). Applicable orders must “(1) conclusively\ndetermine the disputed question, (2) resolve an important issue completely\nseparate from the merits of the action, and (3) be effectively unreviewable on\nappeal from a final judgment.” Will v. Hallock, 546 U.S. 345, 349 (2006) (quot-\ning P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144\n(1993)). “The collateral order doctrine is rarely applied in criminal cases,” In\nre Grand Jury Subpoena, 190 F.3d 375, 381 (5th Cir. 1999), and is interpreted\n“with the utmost strictness,” Pittman, 915 F.3d at 1008 (citations omitted).\n\n The denial of Valencia’s motion is not an appealable collateral order.\nAlthough the order did “conclusively determine the disputed question,” argua-\nbly “resolv[ing] an important issue completely separate from the merits of the\naction,” it is not “effectively unreviewable on appeal from a final judgment.”\nIndeed, Valencia will have the opportunity to raise these same issues when\nappealing any adverse final judgment per § 1291.\n\n The Supreme Court has “had numerous opportunities in the [70] years\nsince Cohen to consider the appealability of prejudgment orders in criminal\ncases, [and has] found denials of only three types of motions to be immediately\nappealable: motions to reduce bail, motions to dismiss on double jeopardy\ngrounds, and motions to dismiss under the Speech or Debate Clause.” Midland\nAsphalt Corp. v. United States, 489 U.S. 794 (1989) (internal citations omitted).\nWe decline to find a new category today. See Mohawk Indus., Inc. v. Carpenter,\n558 U.S. 100, 113 (2009) (“[T]he class of collaterally appealable orders must\nremain narrow and selective in its membership.”) (citation and internal quota-\ntion marks omitted).\n\n The appeal is DISMISSED for want of jurisdiction.\n\n 3\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Luis Valencia\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-09\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-51008 Document: 00515152745 Page: 1 Date Filed: 10/09/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-51008 FILED\\n October 9, 2019\\n Lyle W. Cayce\\n Clerk\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff−Appellee,\\n\\nversus\\n\\nLUIS VALENCIA,\\n\\n Defendant−Appellant.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\n\\n\\nBefore OWEN, Chief Judge, and JONES and SMITH, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n Luis Valencia appeals the denial of his motion to dismiss his indictment.\\nConcluding that we lack jurisdiction, we dismiss the appeal.\\n\\n I.\\n In November 2017, a grand jury indicted Valencia for violations of\\n\\f Case: 18-51008 Document: 00515152745 Page: 2 Date Filed: 10/09/2019\\n\\n\\n\\n No. 18-51008\\nvarious federal statutes. One year later, the President accepted the resigna-\\ntion of Attorney General Sessions and designated Matthew Whitaker as Acting\\nAttorney General. Citing the alleged illegality of Whitaker’s designation, Val-\\nencia moved to dismiss the indictment. The district court denied the motion\\non the merits, concluding that Whitaker’s designation was valid under both\\nthe U.S. Constitution and relevant federal statutes.\\n\\n II.\\n A.\\n Valencia’s argument proceeds in two steps. First, he contends that the\\ndistrict court erroneously held that Whitaker’s designation conformed to the\\nAppointments Clause, Art. II § 2, cl. 2, and to applicable federal statutory law,\\n28 U.S.C. §§ 508, 3345. Second, Valencia suggests that the court also erred in\\nholding that, even absent a lawfully appointed Attorney General, a validly\\nappointed United States Attorney maintains the authority to prosecute. The\\ngovernment replies that we lack jurisdiction because the district court’s denial\\nof Valencia’s motion to dismiss “was not a ‘final decision[]’ under 28 U.S.C.\\n§ 1291” and “the collateral-order doctrine does not apply.”\\n\\n Valencia does not claim that this court has jurisdiction under § 1291.\\nInstead, he avers that the order is appealable as a collateral order. “[A]s courts\\nof limited jurisdiction, we are obliged to examine the basis of our own jurisdic-\\ntion before reviewing the merits.” United States v. Pittman, 915 F.3d 1005,\\n1007 (5th Cir. 2019) (citation and internal quotation marks omitted).\\n\\n B.\\n The collateral order doctrine allows appeals from a “small class [of\\norders] which finally determine claims of right separable from, and collateral\\nto, rights asserted in the action, too important to be denied review and too\\n\\n 2\\n\\f Case: 18-51008 Document: 00515152745 Page: 3 Date Filed: 10/09/2019\\n\\n\\n\\n No. 18-51008\\nindependent of the cause itself to require that appellate consideration be\\ndeferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan\\nCorp., 337 U.S. 541, 546 (1949). Applicable orders must “(1) conclusively\\ndetermine the disputed question, (2) resolve an important issue completely\\nseparate from the merits of the action, and (3) be effectively unreviewable on\\nappeal from a final judgment.” Will v. Hallock, 546 U.S. 345, 349 (2006) (quot-\\ning P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144\\n(1993)). “The collateral order doctrine is rarely applied in criminal cases,” In\\nre Grand Jury Subpoena, 190 F.3d 375, 381 (5th Cir. 1999), and is interpreted\\n“with the utmost strictness,” Pittman, 915 F.3d at 1008 (citations omitted).\\n\\n The denial of Valencia’s motion is not an appealable collateral order.\\nAlthough the order did “conclusively determine the disputed question,” argua-\\nbly “resolv[ing] an important issue completely separate from the merits of the\\naction,” it is not “effectively unreviewable on appeal from a final judgment.”\\nIndeed, Valencia will have the opportunity to raise these same issues when\\nappealing any adverse final judgment per § 1291.\\n\\n The Supreme Court has “had numerous opportunities in the [70] years\\nsince Cohen to consider the appealability of prejudgment orders in criminal\\ncases, [and has] found denials of only three types of motions to be immediately\\nappealable: motions to reduce bail, motions to dismiss on double jeopardy\\ngrounds, and motions to dismiss under the Speech or Debate Clause.” Midland\\nAsphalt Corp. v. United States, 489 U.S. 794 (1989) (internal citations omitted).\\nWe decline to find a new category today. See Mohawk Indus., Inc. v. Carpenter,\\n558 U.S. 100, 113 (2009) (“[T]he class of collaterally appealable orders must\\nremain narrow and selective in its membership.”) (citation and internal quota-\\ntion marks omitted).\\n\\n The appeal is DISMISSED for want of jurisdiction.\\n\\n 3\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4583,"cells":{"id":{"kind":"number","value":4668734,"string":"4,668,734"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Jaydan Dean"},"decision_date":{"kind":"string","value":"2019-10-10"},"docket_number":{"kind":"string","value":"18-50509"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before OWEN, Chief Judge, and JONES and SMITH, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"EDITH H. JONES, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-50509 Document: 00515154922 Page: 1 Date Filed: 10/10/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n\\n No. 18-50509\\n Fifth Circuit\\n\\n FILED\\n October 10, 2019\\n\\nUNITED STATES OF AMERICA, Lyle W. Cayce\\n Clerk\\n Plaintiff - Appellee\\n\\nv.\\n\\nJAYDAN DEAN,\\n\\n Defendant – Appellant\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore OWEN, Chief Judge, and JONES and SMITH, Circuit Judges.\\nEDITH H. JONES, Circuit Judge:\\n Jaydan Dean appeals his sentence, arguing that the district court abused\\nits discretion by imposing a search condition as a special condition of his\\nsupervised release. For the following reasons, we affirm the judgment of the\\ndistrict court.\\n I. BACKGROUND\\n Dean pleaded guilty to being a felon in possession of a firearm in\\nviolation of 18 U.S.C. § 922(g)(1). The U.S. Probation Office created a\\nPresentence Report (PSR) detailing Dean’s criminal history. Based on his past\\nconvictions, the report calculated a criminal history category of VI and an\\noffense level of 12. Consistent with the recommendations of the PSR and\\nwithin the Guidelines’ range, the district court sentenced him to 37 months of\\n\\f Case: 18-50509 Document: 00515154922 Page: 2 Date Filed: 10/10/2019\\n\\n\\n No. 18-50509\\n\\nimprisonment and a three-year term of supervised release. In addition to the\\nmandatory and standard conditions of supervision, the district court, again\\nadopting the recommendation of the PSR, imposed the following special search\\ncondition:\\n The defendant shall submit his or her person, property, house,\\n residence, vehicle, papers, computers (as defined in 18 U.S.C.\\n § 1030(e)(1)), other electronic communications or data storage\\n devices or media, or office, to a search conducted by a United States\\n probation officer. Failure to submit to a search may be grounds for\\n revocation of release. The defendant shall warn any other\\n occupants that the premises may be subject to searches pursuant\\n to this condition. The probation officer may conduct a search under\\n this condition only when reasonable suspicion exists that the\\n defendant has violated a condition of supervision and that the\\n areas to be searched contain evidence of this violation. Any search\\n shall be conducted at a reasonable time and in a reasonable\\n manner.\\nThe parties were given the PSR nearly two months before sentencing, but\\nneither party filed an objection to the report. Dean’s counsel confirmed that\\nhe had reviewed the report with Dean and had no objection to the report at the\\nsentencing hearing, after which the district court adopted the report and\\nimposed the search condition. Dean raised no objection when the court\\nimposed the condition.\\n Dean now appeals the special search condition.\\n II. DISCUSSION\\n Under 18 U.S.C. § 3583(d), a district “court may order, as a further\\ncondition of supervised release, . . . any condition set forth as a discretionary\\ncondition of probation in [18 U.S.C. § 3563(b)] and any other condition it\\nconsiders to be appropriate.” Dean challenges the search condition on the\\ngrounds that it is not reasonably related to the 18 U.S.C. § 3553(a) factors,\\nlacks a factual basis, and is not narrowly tailored to ensure the least\\n\\n\\n 2\\n\\f Case: 18-50509 Document: 00515154922 Page: 3 Date Filed: 10/10/2019\\n\\n\\n No. 18-50509\\n\\ndeprivation of liberty necessary. He argues his claim should be reviewed for\\nan abuse of discretion because he had no meaningful opportunity to object and,\\nalternately, that he can meet the plain error standard if it applies. The\\nGovernment counters that Dean’s appeal should be reviewed for plain error,\\nbut under either standard, his claim is unavailing. We agree with the\\nGovernment that Dean’s appeal should be reviewed for plain error. Dean’s\\nchallenge to the special condition of supervised release does not satisfy that\\nstandard.\\n When the defendant objects at sentencing to a special condition of\\nsupervised release, this court reviews for an abuse of discretion. United States\\nv. Woods, 547 F.3d 515, 517 (5th Cir. 2008) (per curiam). Absent an objection,\\n“this court reviews for plain error only.” United States v. Bishop, 603 F.3d 279,\\n280 (5th Cir. 2010).\\n Dean does not dispute that he failed to raise an objection to the special\\ncondition during sentencing, but he claims he lacked a “meaningful\\nopportunity to object.” When a defendant has not been provided a meaningful\\nopportunity to object, this Court reviews sentencing for an abuse of discretion.\\nSee United States v. Rivas-Estrada, 906 F.3d 346, 348-50 (5th Cir. 2018).\\nRivas-Estrada reasoned that the purpose behind the “opportunity to object” is\\n“to give fair notice.” Id. at 349. Dean had ample notice. The record shows that\\nDean received a copy of the PSR over a month before sentencing but filed no\\nobjection. At the sentencing hearing, the district court orally confirmed that\\nDean’s attorney reviewed the report with him and asked if there were\\nobjections. None were raised. Then the court explicitly stated, “Additionally,\\nthe defendant shall submit to the search condition of the district.” Still there\\nwas no objection. Because Dean had notice of the conditions and “an\\nopportunity to contest [the] conditions at the sentencing hearing,” his claim is\\n\\n\\n 3\\n\\f Case: 18-50509 Document: 00515154922 Page: 4 Date Filed: 10/10/2019\\n\\n\\n No. 18-50509\\n\\nreviewed for plain error. United States v. Rouland, 726 F.3d 728, 733-34 (5th\\nCir. 2013).\\n Under the plain error standard, Dean “must show 1) an error; 2) that is\\nclear or obvious 3) that affects substantial rights and 4) that seriously affects\\nthe fairness, integrity, or public reputation of judicial proceedings.” United\\nStates v. Huor, 852 F.3d 392, 398 (5th Cir. 2017) (internal quotation marks and\\ncitation omitted).\\n District courts have “wide discretion in imposing terms and conditions of\\nsupervised release.” United States v. Paul, 274 F.3d 155, 164 (5th Cir. 2001).\\nThe court may impose any condition it deems appropriate, provided the\\ncondition is reasonably related to at least one of four factors: “(1) the nature\\nand characteristics of the offense and the history and characteristics of the\\ndefendant, (2) the deterrence of criminal conduct, (3) the protection of the\\npublic from further crimes of the defendant, and (4) the provision of needed\\neducational or vocational training, medical care, or other correctional\\ntreatment to the defendant.” United States v. Weatherton, 567 F.3d 149, 153\\n(5th Cir. 2009) (citing 18 U.S.C. § 3583(d)(1), § 3553(a)(1), (2)(B)-(D)).\\nAdditionally, “the condition must be narrowly tailored such that it does not\\ninvolve a greater deprivation of liberty than is reasonably necessary to fulfill\\nthe purposes set forth in” § 3553(a). United States v. Scott, 821 F.3d 562, 570\\n(5th Cir. 2016) (internal quotation marks and citation omitted).\\n Dean argues that the special search condition was not supported by the\\nrecord or narrowly tailored to him individually; that is, the error was plain and\\naffected his substantial rights. The district court must “set forth factual\\nfindings to justify special probation conditions” in terms of the 18 U.S.C.\\n§ 3553(a) factors. United States v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014).\\nBut “[i]n the absence of a factual finding, a court of appeals may nevertheless\\n\\n\\n 4\\n\\f Case: 18-50509 Document: 00515154922 Page: 5 Date Filed: 10/10/2019\\n\\n\\n No. 18-50509\\n\\naffirm a special condition ‘where the [district] court’s reasoning can be inferred\\nafter an examination of the record.’” United States v. Caravayo, 809 F.3d 269,\\n275 (5th Cir. 2015) (quoting Salazar, 743 F.3d at 451).\\n Here, the record sufficiently supports the special search condition. Not\\nonly did the district court expressly adopt the findings of the PSR—which\\nincluded Dean’s extensive criminal history ranging from drug possession to\\nburglary to firearm possession—but also the condition is a mechanism for\\nenforcing other conditions prohibiting Dean’s possession of drugs or firearms\\nby facilitating the detection of evidence of other supervised release violations.\\nThe reasonableness of this condition is further evident from the very\\nbackground of Dean’s appeal, which stems from a crime he committed while on\\nparole. Nor can Dean show that the district court’s failure to state reasons\\nsubstantially affected his rights because “he fail[ed] to show that an\\nexplanation would have changed his sentence.” United States v. Tang,\\n718 F.3d 476, 483 (5th Cir. 2013).\\n We also reject Dean’s argument that the warrantless search condition is\\nnot narrowly tailored. In a recent unpublished opinion, this court reviewed a\\nsimilar search provision for abuse of discretion and found that it, too, was\\njustified. See United States v. Acosta-Navarro, No. 18-60564, 2019 WL\\n3058607 (5th Cir. Jul. 11, 2019). In that case, the district court imposed a\\nspecial condition requiring the defendant to “submit his property, including his\\nelectronic communications devices to a search by a probation officer if the\\nofficer has a reasonable suspicion that [the defendant] has violated a condition\\nof his supervision.” Id. at *1 (quotation marks omitted). We held that even\\nthough nothing in the record indicated the defendant used electronic devices\\nto commit his offenses, “the condition is reasonably related to the sentencing\\ngoals of deterring future criminal conduct and protecting the public from [the\\n\\n\\n 5\\n\\f Case: 18-50509 Document: 00515154922 Page: 6 Date Filed: 10/10/2019\\n\\n\\n No. 18-50509\\n\\ndefendant’s] future crimes.” Id. at *4; see also United States v. Balla,\\n769 F. App’x 127, 128-29 (5th Cir. 2019) (per curiam) (unpublished) (affirming\\nelectronics-search condition for defendant convicted of being a felon in\\npossession of a firearm and ammunition because defendant’s criminal history\\nand sentencing goal of deterring future criminal conduct and protecting the\\npublic justified the special condition). Given Dean’s criminal history, which is\\nconsiderably more extensive than the defendant’s in Acosta-Navarro, and the\\ndistrict court’s expressed concern that someone so young could have such a\\nhigh criminal history category, we find the condition is both reasonably related\\nto the § 3553(a) factors and narrowly tailored. As in Acosta-Navarro, Dean will\\nbe subject to the search condition only if the probation officer reasonably\\nsuspects Dean has violated a condition of supervision, and any search may be\\nconducted only “at a reasonable time and in a reasonable manner.” In this\\ncase, the condition further requires that the probation officer must reasonably\\nsuspect that the areas to be searched contain evidence of the violation. And\\nany search may be conducted only “at a reasonable time and in a reasonable\\nmanner.” In light of Dean’s criminal history, the “possibility of intermittent\\nsearches” is not “too much of a burden on [his] already reduced liberty\\ninterest.” Acosta-Navarro, 2019 WL 3058607, at *5 (citing United States v.\\nHathorn, 920 F.3d 982, 986 (5th Cir. 2019)).\\n Having concluded that there is no clear error adversely impacting Dean’s\\nsubstantial rights, we do not need to consider what the effect on the fairness,\\nintegrity, or public reputation of judicial proceedings would be.\\n CONCLUSION\\n For the foregoing reasons, we AFFIRM the judgment of the district court\\nimposing the special search condition of supervised release.\\n\\n\\n\\n\\n 6\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4445987/\", \"author_raw\": \"EDITH H. JONES, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"OWEN"},"judge2":{"kind":"string","value":"JONES"},"judge3":{"kind":"string","value":"SMITH"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"OWEN\": \", Chief\", \"JONES\": \", Circuit\", \"SMITH\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4668734/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Jaydan Dean\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-50509 Document: 00515154922 Page: 1 Date Filed: 10/10/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n\n No. 18-50509\n Fifth Circuit\n\n FILED\n October 10, 2019\n\nUNITED STATES OF AMERICA, Lyle W. Cayce\n Clerk\n Plaintiff - Appellee\n\nv.\n\nJAYDAN DEAN,\n\n Defendant – Appellant\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n\n\nBefore OWEN, Chief Judge, and JONES and SMITH, Circuit Judges.\nEDITH H. JONES, Circuit Judge:\n Jaydan Dean appeals his sentence, arguing that the district court abused\nits discretion by imposing a search condition as a special condition of his\nsupervised release. For the following reasons, we affirm the judgment of the\ndistrict court.\n I. BACKGROUND\n Dean pleaded guilty to being a felon in possession of a firearm in\nviolation of 18 U.S.C. § 922(g)(1). The U.S. Probation Office created a\nPresentence Report (PSR) detailing Dean’s criminal history. Based on his past\nconvictions, the report calculated a criminal history category of VI and an\noffense level of 12. Consistent with the recommendations of the PSR and\nwithin the Guidelines’ range, the district court sentenced him to 37 months of\n\f Case: 18-50509 Document: 00515154922 Page: 2 Date Filed: 10/10/2019\n\n\n No. 18-50509\n\nimprisonment and a three-year term of supervised release. In addition to the\nmandatory and standard conditions of supervision, the district court, again\nadopting the recommendation of the PSR, imposed the following special search\ncondition:\n The defendant shall submit his or her person, property, house,\n residence, vehicle, papers, computers (as defined in 18 U.S.C.\n § 1030(e)(1)), other electronic communications or data storage\n devices or media, or office, to a search conducted by a United States\n probation officer. Failure to submit to a search may be grounds for\n revocation of release. The defendant shall warn any other\n occupants that the premises may be subject to searches pursuant\n to this condition. The probation officer may conduct a search under\n this condition only when reasonable suspicion exists that the\n defendant has violated a condition of supervision and that the\n areas to be searched contain evidence of this violation. Any search\n shall be conducted at a reasonable time and in a reasonable\n manner.\nThe parties were given the PSR nearly two months before sentencing, but\nneither party filed an objection to the report. Dean’s counsel confirmed that\nhe had reviewed the report with Dean and had no objection to the report at the\nsentencing hearing, after which the district court adopted the report and\nimposed the search condition. Dean raised no objection when the court\nimposed the condition.\n Dean now appeals the special search condition.\n II. DISCUSSION\n Under 18 U.S.C. § 3583(d), a district “court may order, as a further\ncondition of supervised release, . . . any condition set forth as a discretionary\ncondition of probation in [18 U.S.C. § 3563(b)] and any other condition it\nconsiders to be appropriate.” Dean challenges the search condition on the\ngrounds that it is not reasonably related to the 18 U.S.C. § 3553(a) factors,\nlacks a factual basis, and is not narrowly tailored to ensure the least\n\n\n 2\n\f Case: 18-50509 Document: 00515154922 Page: 3 Date Filed: 10/10/2019\n\n\n No. 18-50509\n\ndeprivation of liberty necessary. He argues his claim should be reviewed for\nan abuse of discretion because he had no meaningful opportunity to object and,\nalternately, that he can meet the plain error standard if it applies. The\nGovernment counters that Dean’s appeal should be reviewed for plain error,\nbut under either standard, his claim is unavailing. We agree with the\nGovernment that Dean’s appeal should be reviewed for plain error. Dean’s\nchallenge to the special condition of supervised release does not satisfy that\nstandard.\n When the defendant objects at sentencing to a special condition of\nsupervised release, this court reviews for an abuse of discretion. United States\nv. Woods, 547 F.3d 515, 517 (5th Cir. 2008) (per curiam). Absent an objection,\n“this court reviews for plain error only.” United States v. Bishop, 603 F.3d 279,\n280 (5th Cir. 2010).\n Dean does not dispute that he failed to raise an objection to the special\ncondition during sentencing, but he claims he lacked a “meaningful\nopportunity to object.” When a defendant has not been provided a meaningful\nopportunity to object, this Court reviews sentencing for an abuse of discretion.\nSee United States v. Rivas-Estrada, 906 F.3d 346, 348-50 (5th Cir. 2018).\nRivas-Estrada reasoned that the purpose behind the “opportunity to object” is\n“to give fair notice.” Id. at 349. Dean had ample notice. The record shows that\nDean received a copy of the PSR over a month before sentencing but filed no\nobjection. At the sentencing hearing, the district court orally confirmed that\nDean’s attorney reviewed the report with him and asked if there were\nobjections. None were raised. Then the court explicitly stated, “Additionally,\nthe defendant shall submit to the search condition of the district.” Still there\nwas no objection. Because Dean had notice of the conditions and “an\nopportunity to contest [the] conditions at the sentencing hearing,” his claim is\n\n\n 3\n\f Case: 18-50509 Document: 00515154922 Page: 4 Date Filed: 10/10/2019\n\n\n No. 18-50509\n\nreviewed for plain error. United States v. Rouland, 726 F.3d 728, 733-34 (5th\nCir. 2013).\n Under the plain error standard, Dean “must show 1) an error; 2) that is\nclear or obvious 3) that affects substantial rights and 4) that seriously affects\nthe fairness, integrity, or public reputation of judicial proceedings.” United\nStates v. Huor, 852 F.3d 392, 398 (5th Cir. 2017) (internal quotation marks and\ncitation omitted).\n District courts have “wide discretion in imposing terms and conditions of\nsupervised release.” United States v. Paul, 274 F.3d 155, 164 (5th Cir. 2001).\nThe court may impose any condition it deems appropriate, provided the\ncondition is reasonably related to at least one of four factors: “(1) the nature\nand characteristics of the offense and the history and characteristics of the\ndefendant, (2) the deterrence of criminal conduct, (3) the protection of the\npublic from further crimes of the defendant, and (4) the provision of needed\neducational or vocational training, medical care, or other correctional\ntreatment to the defendant.” United States v. Weatherton, 567 F.3d 149, 153\n(5th Cir. 2009) (citing 18 U.S.C. § 3583(d)(1), § 3553(a)(1), (2)(B)-(D)).\nAdditionally, “the condition must be narrowly tailored such that it does not\ninvolve a greater deprivation of liberty than is reasonably necessary to fulfill\nthe purposes set forth in” § 3553(a). United States v. Scott, 821 F.3d 562, 570\n(5th Cir. 2016) (internal quotation marks and citation omitted).\n Dean argues that the special search condition was not supported by the\nrecord or narrowly tailored to him individually; that is, the error was plain and\naffected his substantial rights. The district court must “set forth factual\nfindings to justify special probation conditions” in terms of the 18 U.S.C.\n§ 3553(a) factors. United States v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014).\nBut “[i]n the absence of a factual finding, a court of appeals may nevertheless\n\n\n 4\n\f Case: 18-50509 Document: 00515154922 Page: 5 Date Filed: 10/10/2019\n\n\n No. 18-50509\n\naffirm a special condition ‘where the [district] court’s reasoning can be inferred\nafter an examination of the record.’” United States v. Caravayo, 809 F.3d 269,\n275 (5th Cir. 2015) (quoting Salazar, 743 F.3d at 451).\n Here, the record sufficiently supports the special search condition. Not\nonly did the district court expressly adopt the findings of the PSR—which\nincluded Dean’s extensive criminal history ranging from drug possession to\nburglary to firearm possession—but also the condition is a mechanism for\nenforcing other conditions prohibiting Dean’s possession of drugs or firearms\nby facilitating the detection of evidence of other supervised release violations.\nThe reasonableness of this condition is further evident from the very\nbackground of Dean’s appeal, which stems from a crime he committed while on\nparole. Nor can Dean show that the district court’s failure to state reasons\nsubstantially affected his rights because “he fail[ed] to show that an\nexplanation would have changed his sentence.” United States v. Tang,\n718 F.3d 476, 483 (5th Cir. 2013).\n We also reject Dean’s argument that the warrantless search condition is\nnot narrowly tailored. In a recent unpublished opinion, this court reviewed a\nsimilar search provision for abuse of discretion and found that it, too, was\njustified. See United States v. Acosta-Navarro, No. 18-60564, 2019 WL\n3058607 (5th Cir. Jul. 11, 2019). In that case, the district court imposed a\nspecial condition requiring the defendant to “submit his property, including his\nelectronic communications devices to a search by a probation officer if the\nofficer has a reasonable suspicion that [the defendant] has violated a condition\nof his supervision.” Id. at *1 (quotation marks omitted). We held that even\nthough nothing in the record indicated the defendant used electronic devices\nto commit his offenses, “the condition is reasonably related to the sentencing\ngoals of deterring future criminal conduct and protecting the public from [the\n\n\n 5\n\f Case: 18-50509 Document: 00515154922 Page: 6 Date Filed: 10/10/2019\n\n\n No. 18-50509\n\ndefendant’s] future crimes.” Id. at *4; see also United States v. Balla,\n769 F. App’x 127, 128-29 (5th Cir. 2019) (per curiam) (unpublished) (affirming\nelectronics-search condition for defendant convicted of being a felon in\npossession of a firearm and ammunition because defendant’s criminal history\nand sentencing goal of deterring future criminal conduct and protecting the\npublic justified the special condition). Given Dean’s criminal history, which is\nconsiderably more extensive than the defendant’s in Acosta-Navarro, and the\ndistrict court’s expressed concern that someone so young could have such a\nhigh criminal history category, we find the condition is both reasonably related\nto the § 3553(a) factors and narrowly tailored. As in Acosta-Navarro, Dean will\nbe subject to the search condition only if the probation officer reasonably\nsuspects Dean has violated a condition of supervision, and any search may be\nconducted only “at a reasonable time and in a reasonable manner.” In this\ncase, the condition further requires that the probation officer must reasonably\nsuspect that the areas to be searched contain evidence of the violation. And\nany search may be conducted only “at a reasonable time and in a reasonable\nmanner.” In light of Dean’s criminal history, the “possibility of intermittent\nsearches” is not “too much of a burden on [his] already reduced liberty\ninterest.” Acosta-Navarro, 2019 WL 3058607, at *5 (citing United States v.\nHathorn, 920 F.3d 982, 986 (5th Cir. 2019)).\n Having concluded that there is no clear error adversely impacting Dean’s\nsubstantial rights, we do not need to consider what the effect on the fairness,\nintegrity, or public reputation of judicial proceedings would be.\n CONCLUSION\n For the foregoing reasons, we AFFIRM the judgment of the district court\nimposing the special search condition of supervised release.\n\n\n\n\n 6\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Jaydan Dean\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-10\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-50509 Document: 00515154922 Page: 1 Date Filed: 10/10/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n\\n No. 18-50509\\n Fifth Circuit\\n\\n FILED\\n October 10, 2019\\n\\nUNITED STATES OF AMERICA, Lyle W. Cayce\\n Clerk\\n Plaintiff - Appellee\\n\\nv.\\n\\nJAYDAN DEAN,\\n\\n Defendant – Appellant\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore OWEN, Chief Judge, and JONES and SMITH, Circuit Judges.\\nEDITH H. JONES, Circuit Judge:\\n Jaydan Dean appeals his sentence, arguing that the district court abused\\nits discretion by imposing a search condition as a special condition of his\\nsupervised release. For the following reasons, we affirm the judgment of the\\ndistrict court.\\n I. BACKGROUND\\n Dean pleaded guilty to being a felon in possession of a firearm in\\nviolation of 18 U.S.C. § 922(g)(1). The U.S. Probation Office created a\\nPresentence Report (PSR) detailing Dean’s criminal history. Based on his past\\nconvictions, the report calculated a criminal history category of VI and an\\noffense level of 12. Consistent with the recommendations of the PSR and\\nwithin the Guidelines’ range, the district court sentenced him to 37 months of\\n\\f Case: 18-50509 Document: 00515154922 Page: 2 Date Filed: 10/10/2019\\n\\n\\n No. 18-50509\\n\\nimprisonment and a three-year term of supervised release. In addition to the\\nmandatory and standard conditions of supervision, the district court, again\\nadopting the recommendation of the PSR, imposed the following special search\\ncondition:\\n The defendant shall submit his or her person, property, house,\\n residence, vehicle, papers, computers (as defined in 18 U.S.C.\\n § 1030(e)(1)), other electronic communications or data storage\\n devices or media, or office, to a search conducted by a United States\\n probation officer. Failure to submit to a search may be grounds for\\n revocation of release. The defendant shall warn any other\\n occupants that the premises may be subject to searches pursuant\\n to this condition. The probation officer may conduct a search under\\n this condition only when reasonable suspicion exists that the\\n defendant has violated a condition of supervision and that the\\n areas to be searched contain evidence of this violation. Any search\\n shall be conducted at a reasonable time and in a reasonable\\n manner.\\nThe parties were given the PSR nearly two months before sentencing, but\\nneither party filed an objection to the report. Dean’s counsel confirmed that\\nhe had reviewed the report with Dean and had no objection to the report at the\\nsentencing hearing, after which the district court adopted the report and\\nimposed the search condition. Dean raised no objection when the court\\nimposed the condition.\\n Dean now appeals the special search condition.\\n II. DISCUSSION\\n Under 18 U.S.C. § 3583(d), a district “court may order, as a further\\ncondition of supervised release, . . . any condition set forth as a discretionary\\ncondition of probation in [18 U.S.C. § 3563(b)] and any other condition it\\nconsiders to be appropriate.” Dean challenges the search condition on the\\ngrounds that it is not reasonably related to the 18 U.S.C. § 3553(a) factors,\\nlacks a factual basis, and is not narrowly tailored to ensure the least\\n\\n\\n 2\\n\\f Case: 18-50509 Document: 00515154922 Page: 3 Date Filed: 10/10/2019\\n\\n\\n No. 18-50509\\n\\ndeprivation of liberty necessary. He argues his claim should be reviewed for\\nan abuse of discretion because he had no meaningful opportunity to object and,\\nalternately, that he can meet the plain error standard if it applies. The\\nGovernment counters that Dean’s appeal should be reviewed for plain error,\\nbut under either standard, his claim is unavailing. We agree with the\\nGovernment that Dean’s appeal should be reviewed for plain error. Dean’s\\nchallenge to the special condition of supervised release does not satisfy that\\nstandard.\\n When the defendant objects at sentencing to a special condition of\\nsupervised release, this court reviews for an abuse of discretion. United States\\nv. Woods, 547 F.3d 515, 517 (5th Cir. 2008) (per curiam). Absent an objection,\\n“this court reviews for plain error only.” United States v. Bishop, 603 F.3d 279,\\n280 (5th Cir. 2010).\\n Dean does not dispute that he failed to raise an objection to the special\\ncondition during sentencing, but he claims he lacked a “meaningful\\nopportunity to object.” When a defendant has not been provided a meaningful\\nopportunity to object, this Court reviews sentencing for an abuse of discretion.\\nSee United States v. Rivas-Estrada, 906 F.3d 346, 348-50 (5th Cir. 2018).\\nRivas-Estrada reasoned that the purpose behind the “opportunity to object” is\\n“to give fair notice.” Id. at 349. Dean had ample notice. The record shows that\\nDean received a copy of the PSR over a month before sentencing but filed no\\nobjection. At the sentencing hearing, the district court orally confirmed that\\nDean’s attorney reviewed the report with him and asked if there were\\nobjections. None were raised. Then the court explicitly stated, “Additionally,\\nthe defendant shall submit to the search condition of the district.” Still there\\nwas no objection. Because Dean had notice of the conditions and “an\\nopportunity to contest [the] conditions at the sentencing hearing,” his claim is\\n\\n\\n 3\\n\\f Case: 18-50509 Document: 00515154922 Page: 4 Date Filed: 10/10/2019\\n\\n\\n No. 18-50509\\n\\nreviewed for plain error. United States v. Rouland, 726 F.3d 728, 733-34 (5th\\nCir. 2013).\\n Under the plain error standard, Dean “must show 1) an error; 2) that is\\nclear or obvious 3) that affects substantial rights and 4) that seriously affects\\nthe fairness, integrity, or public reputation of judicial proceedings.” United\\nStates v. Huor, 852 F.3d 392, 398 (5th Cir. 2017) (internal quotation marks and\\ncitation omitted).\\n District courts have “wide discretion in imposing terms and conditions of\\nsupervised release.” United States v. Paul, 274 F.3d 155, 164 (5th Cir. 2001).\\nThe court may impose any condition it deems appropriate, provided the\\ncondition is reasonably related to at least one of four factors: “(1) the nature\\nand characteristics of the offense and the history and characteristics of the\\ndefendant, (2) the deterrence of criminal conduct, (3) the protection of the\\npublic from further crimes of the defendant, and (4) the provision of needed\\neducational or vocational training, medical care, or other correctional\\ntreatment to the defendant.” United States v. Weatherton, 567 F.3d 149, 153\\n(5th Cir. 2009) (citing 18 U.S.C. § 3583(d)(1), § 3553(a)(1), (2)(B)-(D)).\\nAdditionally, “the condition must be narrowly tailored such that it does not\\ninvolve a greater deprivation of liberty than is reasonably necessary to fulfill\\nthe purposes set forth in” § 3553(a). United States v. Scott, 821 F.3d 562, 570\\n(5th Cir. 2016) (internal quotation marks and citation omitted).\\n Dean argues that the special search condition was not supported by the\\nrecord or narrowly tailored to him individually; that is, the error was plain and\\naffected his substantial rights. The district court must “set forth factual\\nfindings to justify special probation conditions” in terms of the 18 U.S.C.\\n§ 3553(a) factors. United States v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014).\\nBut “[i]n the absence of a factual finding, a court of appeals may nevertheless\\n\\n\\n 4\\n\\f Case: 18-50509 Document: 00515154922 Page: 5 Date Filed: 10/10/2019\\n\\n\\n No. 18-50509\\n\\naffirm a special condition ‘where the [district] court’s reasoning can be inferred\\nafter an examination of the record.’” United States v. Caravayo, 809 F.3d 269,\\n275 (5th Cir. 2015) (quoting Salazar, 743 F.3d at 451).\\n Here, the record sufficiently supports the special search condition. Not\\nonly did the district court expressly adopt the findings of the PSR—which\\nincluded Dean’s extensive criminal history ranging from drug possession to\\nburglary to firearm possession—but also the condition is a mechanism for\\nenforcing other conditions prohibiting Dean’s possession of drugs or firearms\\nby facilitating the detection of evidence of other supervised release violations.\\nThe reasonableness of this condition is further evident from the very\\nbackground of Dean’s appeal, which stems from a crime he committed while on\\nparole. Nor can Dean show that the district court’s failure to state reasons\\nsubstantially affected his rights because “he fail[ed] to show that an\\nexplanation would have changed his sentence.” United States v. Tang,\\n718 F.3d 476, 483 (5th Cir. 2013).\\n We also reject Dean’s argument that the warrantless search condition is\\nnot narrowly tailored. In a recent unpublished opinion, this court reviewed a\\nsimilar search provision for abuse of discretion and found that it, too, was\\njustified. See United States v. Acosta-Navarro, No. 18-60564, 2019 WL\\n3058607 (5th Cir. Jul. 11, 2019). In that case, the district court imposed a\\nspecial condition requiring the defendant to “submit his property, including his\\nelectronic communications devices to a search by a probation officer if the\\nofficer has a reasonable suspicion that [the defendant] has violated a condition\\nof his supervision.” Id. at *1 (quotation marks omitted). We held that even\\nthough nothing in the record indicated the defendant used electronic devices\\nto commit his offenses, “the condition is reasonably related to the sentencing\\ngoals of deterring future criminal conduct and protecting the public from [the\\n\\n\\n 5\\n\\f Case: 18-50509 Document: 00515154922 Page: 6 Date Filed: 10/10/2019\\n\\n\\n No. 18-50509\\n\\ndefendant’s] future crimes.” Id. at *4; see also United States v. Balla,\\n769 F. App’x 127, 128-29 (5th Cir. 2019) (per curiam) (unpublished) (affirming\\nelectronics-search condition for defendant convicted of being a felon in\\npossession of a firearm and ammunition because defendant’s criminal history\\nand sentencing goal of deterring future criminal conduct and protecting the\\npublic justified the special condition). Given Dean’s criminal history, which is\\nconsiderably more extensive than the defendant’s in Acosta-Navarro, and the\\ndistrict court’s expressed concern that someone so young could have such a\\nhigh criminal history category, we find the condition is both reasonably related\\nto the § 3553(a) factors and narrowly tailored. As in Acosta-Navarro, Dean will\\nbe subject to the search condition only if the probation officer reasonably\\nsuspects Dean has violated a condition of supervision, and any search may be\\nconducted only “at a reasonable time and in a reasonable manner.” In this\\ncase, the condition further requires that the probation officer must reasonably\\nsuspect that the areas to be searched contain evidence of the violation. And\\nany search may be conducted only “at a reasonable time and in a reasonable\\nmanner.” In light of Dean’s criminal history, the “possibility of intermittent\\nsearches” is not “too much of a burden on [his] already reduced liberty\\ninterest.” Acosta-Navarro, 2019 WL 3058607, at *5 (citing United States v.\\nHathorn, 920 F.3d 982, 986 (5th Cir. 2019)).\\n Having concluded that there is no clear error adversely impacting Dean’s\\nsubstantial rights, we do not need to consider what the effect on the fairness,\\nintegrity, or public reputation of judicial proceedings would be.\\n CONCLUSION\\n For the foregoing reasons, we AFFIRM the judgment of the district court\\nimposing the special search condition of supervised release.\\n\\n\\n\\n\\n 6\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4584,"cells":{"id":{"kind":"number","value":4668737,"string":"4,668,737"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Elena Sammons v. George Economou"},"decision_date":{"kind":"string","value":"2019-10-10"},"docket_number":{"kind":"string","value":"18-50932"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"STEPHEN A. HIGGINSON, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-50932 Document: 00515155074 Page: 1 Date Filed: 10/10/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-50932 FILED\\n October 10, 2019\\n Lyle W. Cayce\\nELENA SAMMONS; MICHAEL SAMMONS, Clerk\\n\\n Plaintiffs - Appellants\\n\\nv.\\n\\nGEORGE ECONOMOU, Chairman of the Board and CEO for Dryships,\\nIncorporated; DRYSHIPS, INCORPORATED, A Corporation Incorporated,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore DAVIS, GRAVES, and HIGGINSON, Circuit Judges.\\nSTEPHEN A. HIGGINSON, Circuit Judge:\\n This case involves the appeal of two district court orders. The first\\nrequires that appellant Michael Sammons pay $26,726 in costs under Federal\\nRule of Civil Procedure 41(d), 1 and the second administratively closes the case\\npending such payment. Because these orders are not final judgments, they do\\nnot fall within any exception to the final judgment rule, and mandamus relief\\nis inappropriate in this case, we DISMISS for lack of jurisdiction.\\n\\n\\n\\n\\n 1Specifically, Mr. Sammons was ordered to pay $18,537.18 to Appellee George\\nEconomou and $8,188.81 to Appellee Dryships, Inc.\\n\\f Case: 18-50932 Document: 00515155074 Page: 2 Date Filed: 10/10/2019\\n\\n\\n\\n No. 18-50932\\n I\\n On July 3, 2017, appellant Michael Sammons filed a complaint in the\\nHigh Court of the Republic of the Marshall Islands (RMI court) asserting direct\\nclaims against appellees for breach of fiduciary duties, fraud, and unjust\\nenrichment, as well as a derivative claim on behalf of DryShips, Inc. against\\nGeorge Economou. On February 2, 2018, the RMI court stated that “it was\\ninclined to grant [appellees’] motions to dismiss.” Before the motions were\\ngranted, however, Mr. Sammons filed “Plaintiff’s Motion for Voluntary Dissal\\n(sic) Without Prejudice,” which amounted to a Federal Rule of Civil Procedure\\n41(a)(1)(A) notice of dismissal without prejudice. The RMI court acknowledged\\nthe dismissal but found that Mr. Sammons engaged in “gamesmanship” and\\n“wasted the Court’s time and resources.” Appellants then filed this action in\\nthe Western District of Texas on February 27, 2018 based on similar\\nallegations. On March 14, 2018, Mr. Economou and DryShips, Inc. moved for\\nreimbursement of costs incurred in the action before the RMI court pursuant\\nto Fed. R. Civ. P. 41(d) and a stay of the case pending payment. 2 The district\\ncourt granted the costs motion in part and administratively closed the case\\npending payment, prompting this appeal.\\n II\\n Appellants urge three separate grounds for jurisdiction. First, that this\\nis a direct appeal from a final judgment; second, that the collateral order\\ndoctrine should apply; and third, that a writ of mandamus is appropriate. We\\naddress each in turn.\\n\\n\\n\\n 2 Under Fed. R. Civ. P. 41(d):\\n If a plaintiff who previously dismissed an action in any court files an\\n action based on or including the same claim against the same\\n defendant, the court: (1) may order the plaintiff to pay all of part of the\\n costs of [a] previous action; and (2) may stay the proceedings until the\\n plaintiff has complied.\\n 2\\n\\f Case: 18-50932 Document: 00515155074 Page: 3 Date Filed: 10/10/2019\\n\\n\\n\\n No. 18-50932\\n Direct Appeal from a Final Judgment\\n The appellants first allege that this is a direct appeal from a final\\njudgment because “[a] case which has been ‘administratively closed’ . . .\\npending occurrence of an event which will never occur . . . is the functional\\nequivalent of a dismissal over which an appellate court can exercise review.”\\nUnder 28 U.S.C. § 1291, “a final judgment is normally deemed not to have\\noccurred until there has been a decision by the District Court that ends the\\nlitigation on the merits and leaves nothing for the court to do but execute the\\njudgment.” Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 171 (5th\\nCir. 2009) (cleaned up). “We have held that . . . an administrative closure is the\\nfunctional equivalent of a stay and a stay will not support appellate jurisdiction\\nunder 28 U.S.C. § 1291.” Int’l Ass’n of Machinists & Aerospace Workers Local\\nLodge 2121 AFL-CIO v. Goodrich Corp., 410 F.3d 204, 209 (5th Cir. 2005)\\n(citing Mire v. Full Spectrum Lending, Inc., 389 F.3d 163, 167 (5th Cir. 2004)).\\nSince the district court has yet to address the merits of appellants’ claims, the\\norders below do not amount to a final judgment in the case.\\n Collateral Order Doctrine\\n Appellants also invoke the collateral order doctrine as a basis for\\njurisdiction. We have jurisdiction under 28 U.S.C. § 1291 pursuant to the\\ncollateral order doctrine when an order: (1) “conclusively determine[s] the\\ndisputed question;” (2) “resolve[s] an important issue completely separate from\\nthe merits of the action;” and (3) is “effectively unreviewable on appeal from a\\nfinal judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). The\\norders at issue in this case fail to meet the third requirement.\\n We have previously held that other, similar interim fee orders are not\\neffectively unreviewable following a final judgment. See, e.g., Netsphere, Inc. v.\\nBaron, 799 F.3d 327, 335 (5th Cir. 2015) (receiver fees); Campanioni v. Barr,\\n962 F.2d 461, 463 (5th Cir. 1992) (Criminal Justice Act fees); Ruiz v. Estelle,\\n 3\\n\\f Case: 18-50932 Document: 00515155074 Page: 4 Date Filed: 10/10/2019\\n\\n\\n\\n No. 18-50932\\n609 F.2d 118, 119 (5th Cir. 1980) (attorneys’ fees). This is so because the\\nrecipients of the fees can pay them back if the appellants win their appeal\\nfollowing a final judgment. See Netsphere, Inc., 799 F.3d at 336 (“[T]here are\\nno allegations—and certainly no proof—that the receiver or its counsel would\\nbe unable to pay back the awards if [appellant] prevails.”). 3\\n There are at least two exceptions to this pre-final judgment fee rule.\\nFirst, a pre-final judgment fee award is reviewable if “mere payment of the fees\\nwould make them unrecoverable.” Netsphere, Inc., 799 F.3d at 335–36; see\\nS.E.C. v. Forex Asset Mgmt. L.L.C., 242 F.3d 325, 330 (5th Cir. 2001). For\\nexample, in Forex Asset Mgmt. L.L.C., we found that a decision by the district\\ncourt to approve a receiver’s distribution plan was reviewable because “the\\nassets from the receivership [would] be distributed, and likely unrecoverable,\\nlong before the action . . . [would be] subject to appellate review.” 242 F.3d at\\n330. Here, there is no allegation that the costs awarded will be unrecoverable\\nupon successful appeal of a final judgment. There is no indication that\\nappellees or their attorneys are judgment-proof, and only a few interested\\nparties will receive payment in this case.\\n Second, pre-final judgment fee awards are reviewable when “it is\\nunlikely that there will ever be a ‘final judgement’ for this court to review.”\\nWalker v. U.S. Dept. of Housing and Urban Dev., 99 F.3d 761, 766–67 (5th Cir.\\n1996). For example, in Walker, an award of attorneys’ fees was reviewable\\nbecause of the “ongoing and possibly permanent nature of monitoring and\\n\\n\\n\\n 3 To support their contention that this court has jurisdiction under the collateral order\\ndoctrine, appellants cite to Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) and\\nAtlantic Fertilizer & Chemical Corp. v. Italmare, S.p.A., 117 F.3d 266 (5th Cir. 1997). Both\\nof these cases involve appeals of orders denying security, which are distinct from pre-final\\njudgment fee awards precisely because they may be effectively unreviewable on appeal from\\na final judgment. See Cohen, 337 U.S. at 546 (“When [a final judgment] comes, it will be too\\nlate effectively to review the present order and the rights conferred by the statute, if it is\\napplicable, will have been lost, probably irreparably.”).\\n 4\\n\\f Case: 18-50932 Document: 00515155074 Page: 5 Date Filed: 10/10/2019\\n\\n\\n\\n No. 18-50932\\npreventing further changes to” an ongoing desegregation consent decree. Id. at\\n765–66. Although appellants claim that their case has been effectively\\ndismissed based on the administrative closure, this results entirely from their\\nobjection to, and consequent unwillingness to pay, the ordered costs. Refusal\\nto comply, without more, is not an adequate basis for avoiding the general rule\\nthat pre-final judgment fee awards are not reviewable under the collateral\\norder doctrine. See E.E.O.C. v. Neches Butane Prods. Co., 704 F.2d 144, 148\\n(5th Cir. 1983) (finding no jurisdiction to consider the appeal of a stay pending\\ncompliance with a discovery order). Since there is no indication that the\\nordered costs could not be paid and later recovered upon a successful appeal of\\na final judgment, the collateral order doctrine is not an adequate basis for\\njurisdiction in this case. 4\\n Mandamus Relief\\n Finally, appellants seek a writ of mandamus. “To be entitled to the\\nextraordinary remedy of mandamus, [appellants have] to satisfy three\\nrequirements.” In re Am. Lebanese Syrian Associated Charities, Inc., 815 F.3d\\n204, 206 (5th Cir. 2016). First, there must be “no other adequate means to\\n\\n\\n\\n 4 We note that, in an unpublished opinion several decades ago, the Ninth Circuit\\nstated that a stay pursuant to Fed. R. Civ. P. 41(d) “is appealable under 28 U.S.C. § 1291\\nsince it could put [appellants] ‘effectively out of court.’” Chien v. Hathaway, 17 F.3d 393, *1\\n(9th Cir. 1994) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10\\n(1983)). For this proposition, the Ninth Circuit relied on a series of cases in which appellants’\\nfederal actions were stayed pending either state or administrative proceedings. Because the\\nresults of those collateral proceedings would have restricted review in federal court, the\\nappellants were effectively put out of court. See Moses H. Cone Mem’l Hosp., 460 U.S. at 10;\\nUnited States v. General Dynamics Corp., 828 F.2d 1356, 1360 (9th Cir. 1987); Silberkleit v.\\nKantrowitz, 713 F.2d 433, 434 (9th Cir. 1983). We do not find stays ordered pursuant to Fed.\\nR. Civ. P. 41(d) analogous. In fact, relying on the same Supreme Court precedent, we have\\npreviously stated that “[a] case in which ‘the plaintiff himself may choose not to proceed’ is\\nsimply not the same as one in which ‘the district court refuses to allow’ the plaintiff to litigate\\nin federal court.” Neches Butane Prods. Co., 704 F.2d at 150–51 (quoting Moses H. Cone Mem’l\\nHosp., 460 U.S. at 10 n.11). Appellants can pay the ordered costs, litigate their case to a final\\njudgment, and then appeal. They are not effectively out of court.\\n 5\\n\\f Case: 18-50932 Document: 00515155074 Page: 6 Date Filed: 10/10/2019\\n\\n\\n\\n No. 18-50932\\nattain the relief [desired].” Id. (cleaned up). Second, they must show “a clear\\nand indisputable right to the writ.” Id. (cleaned up). “And third, the court must\\nbe satisfied that the writ is appropriate under the circumstances.” Id. (cleaned\\nup). Appellants fall short of the first requirement.\\n “Where an interest can be vindicated through direct appeal after a final\\njudgment, this court will ordinarily not grant a writ of mandamus.”\\nCampanioni, 962 F.2d at 464. In Gregory v. Dimock, the Second Circuit granted\\na writ of mandamus to set aside a Fed. R. Civ. P. 41(d) stay that acted as an\\nabsolute bar to an indigent plaintiff’s case. 286 F.2d 717, 718 (2d Cir. 1961).\\nUnlike that case, appellants here do not allege that they are unable to pay.\\nUnwillingness to pay based on disagreement with the district court’s decision\\nis insufficient. Appellants can obtain relief through direct appeal after a final\\njudgment. Therefore, we decline to issue a writ of mandamus.\\n III\\n For the foregoing reasons, the case is DISMISSED for lack of\\njurisdiction.\\n\\n\\n\\n\\n 6\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4445990/\", \"author_raw\": \"STEPHEN A. HIGGINSON, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"DAVIS"},"judge2":{"kind":"string","value":"GRAVES"},"judge3":{"kind":"string","value":"HIGGINSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"DAVIS\": \", Circuit\", \"GRAVES\": \", Circuit\", \"HIGGINSON\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4668737/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Elena Sammons v. George Economou\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-50932 Document: 00515155074 Page: 1 Date Filed: 10/10/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 18-50932 FILED\n October 10, 2019\n Lyle W. Cayce\nELENA SAMMONS; MICHAEL SAMMONS, Clerk\n\n Plaintiffs - Appellants\n\nv.\n\nGEORGE ECONOMOU, Chairman of the Board and CEO for Dryships,\nIncorporated; DRYSHIPS, INCORPORATED, A Corporation Incorporated,\n\n Defendants - Appellees\n\n\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n\n\nBefore DAVIS, GRAVES, and HIGGINSON, Circuit Judges.\nSTEPHEN A. HIGGINSON, Circuit Judge:\n This case involves the appeal of two district court orders. The first\nrequires that appellant Michael Sammons pay $26,726 in costs under Federal\nRule of Civil Procedure 41(d), 1 and the second administratively closes the case\npending such payment. Because these orders are not final judgments, they do\nnot fall within any exception to the final judgment rule, and mandamus relief\nis inappropriate in this case, we DISMISS for lack of jurisdiction.\n\n\n\n\n 1Specifically, Mr. Sammons was ordered to pay $18,537.18 to Appellee George\nEconomou and $8,188.81 to Appellee Dryships, Inc.\n\f Case: 18-50932 Document: 00515155074 Page: 2 Date Filed: 10/10/2019\n\n\n\n No. 18-50932\n I\n On July 3, 2017, appellant Michael Sammons filed a complaint in the\nHigh Court of the Republic of the Marshall Islands (RMI court) asserting direct\nclaims against appellees for breach of fiduciary duties, fraud, and unjust\nenrichment, as well as a derivative claim on behalf of DryShips, Inc. against\nGeorge Economou. On February 2, 2018, the RMI court stated that “it was\ninclined to grant [appellees’] motions to dismiss.” Before the motions were\ngranted, however, Mr. Sammons filed “Plaintiff’s Motion for Voluntary Dissal\n(sic) Without Prejudice,” which amounted to a Federal Rule of Civil Procedure\n41(a)(1)(A) notice of dismissal without prejudice. The RMI court acknowledged\nthe dismissal but found that Mr. Sammons engaged in “gamesmanship” and\n“wasted the Court’s time and resources.” Appellants then filed this action in\nthe Western District of Texas on February 27, 2018 based on similar\nallegations. On March 14, 2018, Mr. Economou and DryShips, Inc. moved for\nreimbursement of costs incurred in the action before the RMI court pursuant\nto Fed. R. Civ. P. 41(d) and a stay of the case pending payment. 2 The district\ncourt granted the costs motion in part and administratively closed the case\npending payment, prompting this appeal.\n II\n Appellants urge three separate grounds for jurisdiction. First, that this\nis a direct appeal from a final judgment; second, that the collateral order\ndoctrine should apply; and third, that a writ of mandamus is appropriate. We\naddress each in turn.\n\n\n\n 2 Under Fed. R. Civ. P. 41(d):\n If a plaintiff who previously dismissed an action in any court files an\n action based on or including the same claim against the same\n defendant, the court: (1) may order the plaintiff to pay all of part of the\n costs of [a] previous action; and (2) may stay the proceedings until the\n plaintiff has complied.\n 2\n\f Case: 18-50932 Document: 00515155074 Page: 3 Date Filed: 10/10/2019\n\n\n\n No. 18-50932\n Direct Appeal from a Final Judgment\n The appellants first allege that this is a direct appeal from a final\njudgment because “[a] case which has been ‘administratively closed’ . . .\npending occurrence of an event which will never occur . . . is the functional\nequivalent of a dismissal over which an appellate court can exercise review.”\nUnder 28 U.S.C. § 1291, “a final judgment is normally deemed not to have\noccurred until there has been a decision by the District Court that ends the\nlitigation on the merits and leaves nothing for the court to do but execute the\njudgment.” Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 171 (5th\nCir. 2009) (cleaned up). “We have held that . . . an administrative closure is the\nfunctional equivalent of a stay and a stay will not support appellate jurisdiction\nunder 28 U.S.C. § 1291.” Int’l Ass’n of Machinists & Aerospace Workers Local\nLodge 2121 AFL-CIO v. Goodrich Corp., 410 F.3d 204, 209 (5th Cir. 2005)\n(citing Mire v. Full Spectrum Lending, Inc., 389 F.3d 163, 167 (5th Cir. 2004)).\nSince the district court has yet to address the merits of appellants’ claims, the\norders below do not amount to a final judgment in the case.\n Collateral Order Doctrine\n Appellants also invoke the collateral order doctrine as a basis for\njurisdiction. We have jurisdiction under 28 U.S.C. § 1291 pursuant to the\ncollateral order doctrine when an order: (1) “conclusively determine[s] the\ndisputed question;” (2) “resolve[s] an important issue completely separate from\nthe merits of the action;” and (3) is “effectively unreviewable on appeal from a\nfinal judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). The\norders at issue in this case fail to meet the third requirement.\n We have previously held that other, similar interim fee orders are not\neffectively unreviewable following a final judgment. See, e.g., Netsphere, Inc. v.\nBaron, 799 F.3d 327, 335 (5th Cir. 2015) (receiver fees); Campanioni v. Barr,\n962 F.2d 461, 463 (5th Cir. 1992) (Criminal Justice Act fees); Ruiz v. Estelle,\n 3\n\f Case: 18-50932 Document: 00515155074 Page: 4 Date Filed: 10/10/2019\n\n\n\n No. 18-50932\n609 F.2d 118, 119 (5th Cir. 1980) (attorneys’ fees). This is so because the\nrecipients of the fees can pay them back if the appellants win their appeal\nfollowing a final judgment. See Netsphere, Inc., 799 F.3d at 336 (“[T]here are\nno allegations—and certainly no proof—that the receiver or its counsel would\nbe unable to pay back the awards if [appellant] prevails.”). 3\n There are at least two exceptions to this pre-final judgment fee rule.\nFirst, a pre-final judgment fee award is reviewable if “mere payment of the fees\nwould make them unrecoverable.” Netsphere, Inc., 799 F.3d at 335–36; see\nS.E.C. v. Forex Asset Mgmt. L.L.C., 242 F.3d 325, 330 (5th Cir. 2001). For\nexample, in Forex Asset Mgmt. L.L.C., we found that a decision by the district\ncourt to approve a receiver’s distribution plan was reviewable because “the\nassets from the receivership [would] be distributed, and likely unrecoverable,\nlong before the action . . . [would be] subject to appellate review.” 242 F.3d at\n330. Here, there is no allegation that the costs awarded will be unrecoverable\nupon successful appeal of a final judgment. There is no indication that\nappellees or their attorneys are judgment-proof, and only a few interested\nparties will receive payment in this case.\n Second, pre-final judgment fee awards are reviewable when “it is\nunlikely that there will ever be a ‘final judgement’ for this court to review.”\nWalker v. U.S. Dept. of Housing and Urban Dev., 99 F.3d 761, 766–67 (5th Cir.\n1996). For example, in Walker, an award of attorneys’ fees was reviewable\nbecause of the “ongoing and possibly permanent nature of monitoring and\n\n\n\n 3 To support their contention that this court has jurisdiction under the collateral order\ndoctrine, appellants cite to Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) and\nAtlantic Fertilizer & Chemical Corp. v. Italmare, S.p.A., 117 F.3d 266 (5th Cir. 1997). Both\nof these cases involve appeals of orders denying security, which are distinct from pre-final\njudgment fee awards precisely because they may be effectively unreviewable on appeal from\na final judgment. See Cohen, 337 U.S. at 546 (“When [a final judgment] comes, it will be too\nlate effectively to review the present order and the rights conferred by the statute, if it is\napplicable, will have been lost, probably irreparably.”).\n 4\n\f Case: 18-50932 Document: 00515155074 Page: 5 Date Filed: 10/10/2019\n\n\n\n No. 18-50932\npreventing further changes to” an ongoing desegregation consent decree. Id. at\n765–66. Although appellants claim that their case has been effectively\ndismissed based on the administrative closure, this results entirely from their\nobjection to, and consequent unwillingness to pay, the ordered costs. Refusal\nto comply, without more, is not an adequate basis for avoiding the general rule\nthat pre-final judgment fee awards are not reviewable under the collateral\norder doctrine. See E.E.O.C. v. Neches Butane Prods. Co., 704 F.2d 144, 148\n(5th Cir. 1983) (finding no jurisdiction to consider the appeal of a stay pending\ncompliance with a discovery order). Since there is no indication that the\nordered costs could not be paid and later recovered upon a successful appeal of\na final judgment, the collateral order doctrine is not an adequate basis for\njurisdiction in this case. 4\n Mandamus Relief\n Finally, appellants seek a writ of mandamus. “To be entitled to the\nextraordinary remedy of mandamus, [appellants have] to satisfy three\nrequirements.” In re Am. Lebanese Syrian Associated Charities, Inc., 815 F.3d\n204, 206 (5th Cir. 2016). First, there must be “no other adequate means to\n\n\n\n 4 We note that, in an unpublished opinion several decades ago, the Ninth Circuit\nstated that a stay pursuant to Fed. R. Civ. P. 41(d) “is appealable under 28 U.S.C. § 1291\nsince it could put [appellants] ‘effectively out of court.’” Chien v. Hathaway, 17 F.3d 393, *1\n(9th Cir. 1994) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10\n(1983)). For this proposition, the Ninth Circuit relied on a series of cases in which appellants’\nfederal actions were stayed pending either state or administrative proceedings. Because the\nresults of those collateral proceedings would have restricted review in federal court, the\nappellants were effectively put out of court. See Moses H. Cone Mem’l Hosp., 460 U.S. at 10;\nUnited States v. General Dynamics Corp., 828 F.2d 1356, 1360 (9th Cir. 1987); Silberkleit v.\nKantrowitz, 713 F.2d 433, 434 (9th Cir. 1983). We do not find stays ordered pursuant to Fed.\nR. Civ. P. 41(d) analogous. In fact, relying on the same Supreme Court precedent, we have\npreviously stated that “[a] case in which ‘the plaintiff himself may choose not to proceed’ is\nsimply not the same as one in which ‘the district court refuses to allow’ the plaintiff to litigate\nin federal court.” Neches Butane Prods. Co., 704 F.2d at 150–51 (quoting Moses H. Cone Mem’l\nHosp., 460 U.S. at 10 n.11). Appellants can pay the ordered costs, litigate their case to a final\njudgment, and then appeal. They are not effectively out of court.\n 5\n\f Case: 18-50932 Document: 00515155074 Page: 6 Date Filed: 10/10/2019\n\n\n\n No. 18-50932\nattain the relief [desired].” Id. (cleaned up). Second, they must show “a clear\nand indisputable right to the writ.” Id. (cleaned up). “And third, the court must\nbe satisfied that the writ is appropriate under the circumstances.” Id. (cleaned\nup). Appellants fall short of the first requirement.\n “Where an interest can be vindicated through direct appeal after a final\njudgment, this court will ordinarily not grant a writ of mandamus.”\nCampanioni, 962 F.2d at 464. In Gregory v. Dimock, the Second Circuit granted\na writ of mandamus to set aside a Fed. R. Civ. P. 41(d) stay that acted as an\nabsolute bar to an indigent plaintiff’s case. 286 F.2d 717, 718 (2d Cir. 1961).\nUnlike that case, appellants here do not allege that they are unable to pay.\nUnwillingness to pay based on disagreement with the district court’s decision\nis insufficient. Appellants can obtain relief through direct appeal after a final\njudgment. Therefore, we decline to issue a writ of mandamus.\n III\n For the foregoing reasons, the case is DISMISSED for lack of\njurisdiction.\n\n\n\n\n 6\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Elena Sammons v. George Economou\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-10\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-50932 Document: 00515155074 Page: 1 Date Filed: 10/10/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-50932 FILED\\n October 10, 2019\\n Lyle W. Cayce\\nELENA SAMMONS; MICHAEL SAMMONS, Clerk\\n\\n Plaintiffs - Appellants\\n\\nv.\\n\\nGEORGE ECONOMOU, Chairman of the Board and CEO for Dryships,\\nIncorporated; DRYSHIPS, INCORPORATED, A Corporation Incorporated,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore DAVIS, GRAVES, and HIGGINSON, Circuit Judges.\\nSTEPHEN A. HIGGINSON, Circuit Judge:\\n This case involves the appeal of two district court orders. The first\\nrequires that appellant Michael Sammons pay $26,726 in costs under Federal\\nRule of Civil Procedure 41(d), 1 and the second administratively closes the case\\npending such payment. Because these orders are not final judgments, they do\\nnot fall within any exception to the final judgment rule, and mandamus relief\\nis inappropriate in this case, we DISMISS for lack of jurisdiction.\\n\\n\\n\\n\\n 1Specifically, Mr. Sammons was ordered to pay $18,537.18 to Appellee George\\nEconomou and $8,188.81 to Appellee Dryships, Inc.\\n\\f Case: 18-50932 Document: 00515155074 Page: 2 Date Filed: 10/10/2019\\n\\n\\n\\n No. 18-50932\\n I\\n On July 3, 2017, appellant Michael Sammons filed a complaint in the\\nHigh Court of the Republic of the Marshall Islands (RMI court) asserting direct\\nclaims against appellees for breach of fiduciary duties, fraud, and unjust\\nenrichment, as well as a derivative claim on behalf of DryShips, Inc. against\\nGeorge Economou. On February 2, 2018, the RMI court stated that “it was\\ninclined to grant [appellees’] motions to dismiss.” Before the motions were\\ngranted, however, Mr. Sammons filed “Plaintiff’s Motion for Voluntary Dissal\\n(sic) Without Prejudice,” which amounted to a Federal Rule of Civil Procedure\\n41(a)(1)(A) notice of dismissal without prejudice. The RMI court acknowledged\\nthe dismissal but found that Mr. Sammons engaged in “gamesmanship” and\\n“wasted the Court’s time and resources.” Appellants then filed this action in\\nthe Western District of Texas on February 27, 2018 based on similar\\nallegations. On March 14, 2018, Mr. Economou and DryShips, Inc. moved for\\nreimbursement of costs incurred in the action before the RMI court pursuant\\nto Fed. R. Civ. P. 41(d) and a stay of the case pending payment. 2 The district\\ncourt granted the costs motion in part and administratively closed the case\\npending payment, prompting this appeal.\\n II\\n Appellants urge three separate grounds for jurisdiction. First, that this\\nis a direct appeal from a final judgment; second, that the collateral order\\ndoctrine should apply; and third, that a writ of mandamus is appropriate. We\\naddress each in turn.\\n\\n\\n\\n 2 Under Fed. R. Civ. P. 41(d):\\n If a plaintiff who previously dismissed an action in any court files an\\n action based on or including the same claim against the same\\n defendant, the court: (1) may order the plaintiff to pay all of part of the\\n costs of [a] previous action; and (2) may stay the proceedings until the\\n plaintiff has complied.\\n 2\\n\\f Case: 18-50932 Document: 00515155074 Page: 3 Date Filed: 10/10/2019\\n\\n\\n\\n No. 18-50932\\n Direct Appeal from a Final Judgment\\n The appellants first allege that this is a direct appeal from a final\\njudgment because “[a] case which has been ‘administratively closed’ . . .\\npending occurrence of an event which will never occur . . . is the functional\\nequivalent of a dismissal over which an appellate court can exercise review.”\\nUnder 28 U.S.C. § 1291, “a final judgment is normally deemed not to have\\noccurred until there has been a decision by the District Court that ends the\\nlitigation on the merits and leaves nothing for the court to do but execute the\\njudgment.” Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 171 (5th\\nCir. 2009) (cleaned up). “We have held that . . . an administrative closure is the\\nfunctional equivalent of a stay and a stay will not support appellate jurisdiction\\nunder 28 U.S.C. § 1291.” Int’l Ass’n of Machinists & Aerospace Workers Local\\nLodge 2121 AFL-CIO v. Goodrich Corp., 410 F.3d 204, 209 (5th Cir. 2005)\\n(citing Mire v. Full Spectrum Lending, Inc., 389 F.3d 163, 167 (5th Cir. 2004)).\\nSince the district court has yet to address the merits of appellants’ claims, the\\norders below do not amount to a final judgment in the case.\\n Collateral Order Doctrine\\n Appellants also invoke the collateral order doctrine as a basis for\\njurisdiction. We have jurisdiction under 28 U.S.C. § 1291 pursuant to the\\ncollateral order doctrine when an order: (1) “conclusively determine[s] the\\ndisputed question;” (2) “resolve[s] an important issue completely separate from\\nthe merits of the action;” and (3) is “effectively unreviewable on appeal from a\\nfinal judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). The\\norders at issue in this case fail to meet the third requirement.\\n We have previously held that other, similar interim fee orders are not\\neffectively unreviewable following a final judgment. See, e.g., Netsphere, Inc. v.\\nBaron, 799 F.3d 327, 335 (5th Cir. 2015) (receiver fees); Campanioni v. Barr,\\n962 F.2d 461, 463 (5th Cir. 1992) (Criminal Justice Act fees); Ruiz v. Estelle,\\n 3\\n\\f Case: 18-50932 Document: 00515155074 Page: 4 Date Filed: 10/10/2019\\n\\n\\n\\n No. 18-50932\\n609 F.2d 118, 119 (5th Cir. 1980) (attorneys’ fees). This is so because the\\nrecipients of the fees can pay them back if the appellants win their appeal\\nfollowing a final judgment. See Netsphere, Inc., 799 F.3d at 336 (“[T]here are\\nno allegations—and certainly no proof—that the receiver or its counsel would\\nbe unable to pay back the awards if [appellant] prevails.”). 3\\n There are at least two exceptions to this pre-final judgment fee rule.\\nFirst, a pre-final judgment fee award is reviewable if “mere payment of the fees\\nwould make them unrecoverable.” Netsphere, Inc., 799 F.3d at 335–36; see\\nS.E.C. v. Forex Asset Mgmt. L.L.C., 242 F.3d 325, 330 (5th Cir. 2001). For\\nexample, in Forex Asset Mgmt. L.L.C., we found that a decision by the district\\ncourt to approve a receiver’s distribution plan was reviewable because “the\\nassets from the receivership [would] be distributed, and likely unrecoverable,\\nlong before the action . . . [would be] subject to appellate review.” 242 F.3d at\\n330. Here, there is no allegation that the costs awarded will be unrecoverable\\nupon successful appeal of a final judgment. There is no indication that\\nappellees or their attorneys are judgment-proof, and only a few interested\\nparties will receive payment in this case.\\n Second, pre-final judgment fee awards are reviewable when “it is\\nunlikely that there will ever be a ‘final judgement’ for this court to review.”\\nWalker v. U.S. Dept. of Housing and Urban Dev., 99 F.3d 761, 766–67 (5th Cir.\\n1996). For example, in Walker, an award of attorneys’ fees was reviewable\\nbecause of the “ongoing and possibly permanent nature of monitoring and\\n\\n\\n\\n 3 To support their contention that this court has jurisdiction under the collateral order\\ndoctrine, appellants cite to Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) and\\nAtlantic Fertilizer & Chemical Corp. v. Italmare, S.p.A., 117 F.3d 266 (5th Cir. 1997). Both\\nof these cases involve appeals of orders denying security, which are distinct from pre-final\\njudgment fee awards precisely because they may be effectively unreviewable on appeal from\\na final judgment. See Cohen, 337 U.S. at 546 (“When [a final judgment] comes, it will be too\\nlate effectively to review the present order and the rights conferred by the statute, if it is\\napplicable, will have been lost, probably irreparably.”).\\n 4\\n\\f Case: 18-50932 Document: 00515155074 Page: 5 Date Filed: 10/10/2019\\n\\n\\n\\n No. 18-50932\\npreventing further changes to” an ongoing desegregation consent decree. Id. at\\n765–66. Although appellants claim that their case has been effectively\\ndismissed based on the administrative closure, this results entirely from their\\nobjection to, and consequent unwillingness to pay, the ordered costs. Refusal\\nto comply, without more, is not an adequate basis for avoiding the general rule\\nthat pre-final judgment fee awards are not reviewable under the collateral\\norder doctrine. See E.E.O.C. v. Neches Butane Prods. Co., 704 F.2d 144, 148\\n(5th Cir. 1983) (finding no jurisdiction to consider the appeal of a stay pending\\ncompliance with a discovery order). Since there is no indication that the\\nordered costs could not be paid and later recovered upon a successful appeal of\\na final judgment, the collateral order doctrine is not an adequate basis for\\njurisdiction in this case. 4\\n Mandamus Relief\\n Finally, appellants seek a writ of mandamus. “To be entitled to the\\nextraordinary remedy of mandamus, [appellants have] to satisfy three\\nrequirements.” In re Am. Lebanese Syrian Associated Charities, Inc., 815 F.3d\\n204, 206 (5th Cir. 2016). First, there must be “no other adequate means to\\n\\n\\n\\n 4 We note that, in an unpublished opinion several decades ago, the Ninth Circuit\\nstated that a stay pursuant to Fed. R. Civ. P. 41(d) “is appealable under 28 U.S.C. § 1291\\nsince it could put [appellants] ‘effectively out of court.’” Chien v. Hathaway, 17 F.3d 393, *1\\n(9th Cir. 1994) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10\\n(1983)). For this proposition, the Ninth Circuit relied on a series of cases in which appellants’\\nfederal actions were stayed pending either state or administrative proceedings. Because the\\nresults of those collateral proceedings would have restricted review in federal court, the\\nappellants were effectively put out of court. See Moses H. Cone Mem’l Hosp., 460 U.S. at 10;\\nUnited States v. General Dynamics Corp., 828 F.2d 1356, 1360 (9th Cir. 1987); Silberkleit v.\\nKantrowitz, 713 F.2d 433, 434 (9th Cir. 1983). We do not find stays ordered pursuant to Fed.\\nR. Civ. P. 41(d) analogous. In fact, relying on the same Supreme Court precedent, we have\\npreviously stated that “[a] case in which ‘the plaintiff himself may choose not to proceed’ is\\nsimply not the same as one in which ‘the district court refuses to allow’ the plaintiff to litigate\\nin federal court.” Neches Butane Prods. Co., 704 F.2d at 150–51 (quoting Moses H. Cone Mem’l\\nHosp., 460 U.S. at 10 n.11). Appellants can pay the ordered costs, litigate their case to a final\\njudgment, and then appeal. They are not effectively out of court.\\n 5\\n\\f Case: 18-50932 Document: 00515155074 Page: 6 Date Filed: 10/10/2019\\n\\n\\n\\n No. 18-50932\\nattain the relief [desired].” Id. (cleaned up). Second, they must show “a clear\\nand indisputable right to the writ.” Id. (cleaned up). “And third, the court must\\nbe satisfied that the writ is appropriate under the circumstances.” Id. (cleaned\\nup). Appellants fall short of the first requirement.\\n “Where an interest can be vindicated through direct appeal after a final\\njudgment, this court will ordinarily not grant a writ of mandamus.”\\nCampanioni, 962 F.2d at 464. In Gregory v. Dimock, the Second Circuit granted\\na writ of mandamus to set aside a Fed. R. Civ. P. 41(d) stay that acted as an\\nabsolute bar to an indigent plaintiff’s case. 286 F.2d 717, 718 (2d Cir. 1961).\\nUnlike that case, appellants here do not allege that they are unable to pay.\\nUnwillingness to pay based on disagreement with the district court’s decision\\nis insufficient. Appellants can obtain relief through direct appeal after a final\\njudgment. Therefore, we decline to issue a writ of mandamus.\\n III\\n For the foregoing reasons, the case is DISMISSED for lack of\\njurisdiction.\\n\\n\\n\\n\\n 6\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4585,"cells":{"id":{"kind":"number","value":4669576,"string":"4,669,576"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Dany Pena Oseguera v. William Barr, U. S. Atty Gen"},"decision_date":{"kind":"string","value":"2019-10-15"},"docket_number":{"kind":"string","value":"17-60339"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before JOLLY, COSTA, and ENGELHARDT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"KURT D. ENGELHARDT, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-60339 Document: 00515158420 Page: 1 Date Filed: 10/15/2019\\n\\n\\n\\n\\n REVISED October 15, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 17-60339 FILED\\n August 23, 2019\\n Lyle W. Cayce\\nDANY ARIEL PENA OSEGUERA, Clerk\\n\\n Petitioner\\nv.\\n\\nWILLIAM P. BARR, U.S. ATTORNEY GENERAL,\\n\\n Respondent\\n\\n\\n\\n Petition for Review of an Order of the\\n Board of Immigration Appeals\\n\\n\\nBefore JOLLY, COSTA, and ENGELHARDT, Circuit Judges.\\nKURT D. ENGELHARDT, Circuit Judge:\\n\\n\\n Dany Ariel Pena Oseguera (Pena Oseguera) is a native of Honduras. He\\nappeals the denial of his application for asylum and withholding of removal.\\n I.\\n In early 2013, Pena Oseguera was a university student and lived with\\nhis family. During that time, his mother, a Honduran supervisory police officer,\\nreceived a tip about corrupt police officers who were colluding with gangs. She\\nreferred the tip to a member of the police force with jurisdiction to investigate\\ncorruption. The investigator was murdered in June 2013.\\n\\f Case: 17-60339 Document: 00515158420 Page: 2 Date Filed: 10/15/2019\\n\\n\\n\\n No. 17-60339\\n Pena Oseguera claims he was approached later in 2013 by a person who\\noffered him a job as a bill collector. Pena Oseguera expressed interest but later\\ndeclined the offer. At that point, the person threatened to kill him. Pena\\nOseguera later found out that the person was a gang member. Several days\\nlater, Pena Oseguera’s mother received two text messages threatening her\\nentire family. The messages noted that she was a police officer and specifically\\nmentioned Pena Oseguera.\\n Pena Oseguera’s parents quickly arranged for him to travel to the United\\nStates. After he left, his mother received two more messages threatening her\\nfamily. She also stated that over a year later, her home was shot up by\\nunknown assailants, who she suspected were the corrupt police officers 1.\\n Pena Oseguera applied for asylum, withholding of removal, and relief\\nunder the Convention Against Torture (CAT). On June 6, 2016, the\\nImmigration Judge (IJ) granted relief under CAT. The IJ did not grant the\\nasylum and withholding of removal requests, finding that Pena Oseguera did\\nnot establish a nexus between the alleged persecution and a legally “protected\\nground.” Pena Oseguera appealed, and the Board of Immigration Appeals\\n(BIA) upheld the IJ’s determination on April 3, 2017. He then timely filed a\\npetition for review of the BIA’s decision on May 3, 2017.\\n II.\\n Courts of appeals have exclusive jurisdiction to review final orders of\\nremoval. 8 U.S.C. § 1252(a)(5) (2012). This court usually only reviews the BIA’s\\nfinal decision, unless, as in this instance, the BIA’s decision is affected by the\\nIJ’s decision. In that circumstance, we review both. Sealed Petitioner v. Sealed\\n\\n\\n\\n\\n 1 Pena Oseguera’s mother also entered the United States and testified in support of\\nhis application.\\n 2\\n\\f Case: 17-60339 Document: 00515158420 Page: 3 Date Filed: 10/15/2019\\n\\n\\n\\n No. 17-60339\\nRespondent, 829 F.3d 379, 383 (5th Cir. 2016). We review legal conclusions de\\nnovo and factual findings for substantial evidence. Id.\\n III.\\n As an applicant for asylum, Pena Oseguera must show that he is “unable\\nor unwilling to return” to his country of origin “because of persecution or a well-\\nfounded fear of persecution on account of race, religion, nationality,\\nmembership in a particular social group, or political opinion.” 8 U.S.C. §\\n1101(a)(42). Pena Oseguera must also show a nexus – that the protected\\nground “was or will be at least one central reason for persecuting the\\napplicant.” Id. at § 1158(b)(1)(B)(i). A central motive is not “incidental,\\ntangential, superficial, or subordinate to another reason for harm.” Shaikh v.\\nHolder, 588 F.3d 861, 864 (5th Cir. 2009) (quoting In re J-B-N & S-M, 24 I. &\\nN. Dec. 208, 214 (BIA 2007)).\\n At the time we heard oral arguments in this case, Matter of L-E-A- was\\npending before the Attorney General. 27 I. & N. Dec. 581 (U.S. Att’y Gen. 2019).\\nThat case directly took up the question of whether families qualified as “social\\ngroups” for the purposes of refugee status. 2 We held this case in abeyance\\npending a decision by the Attorney General. A decision has now been\\npublished, and Matter of L-E-A stands for the proposition that families may\\nqualify as social groups, but the decision must be reached on a case-by-case\\nbasis. The “applicant must establish that his specific family group is defined\\nwith sufficient particularity and is socially distinct in his society. In the\\nordinary case, a family group will not meet that standard, because it will not\\nhave the kind of identifying characteristics that render the family socially\\ndistinct within the society in question.” 27 I. & N. Dec. 581, 586 (U.S. Att’y\\n\\n\\n 2 “Whether, and under what circumstances, an alien may establish persecution on\\naccount of membership in a ‘particular social group’ . . . based on the alien’s membership in\\na family unit.” In re L-E-A-, 27 I. & N. Dec. 494. 494 (U.S. Att’y Gen. 2018).\\n 3\\n\\f Case: 17-60339 Document: 00515158420 Page: 4 Date Filed: 10/15/2019\\n\\n\\n\\n No. 17-60339\\nGen. 2019). This is “a fact-based inquiry made on a case-by-case basis.” Id. at\\n584 (quoting Matter of L-E-A-, 27 I. & N. Dec. 40, 42 (BIA 2017)); see also\\nMatter of A-B-, 27 I. & N. Dec. 316, 333 n.8 (Att’y Gen. 2018) (“There is reason\\nto doubt that a nuclear family can comprise a particular social group under the\\nstatute.”).\\n In the instant case, the BIA assumed that “the respondent properly and\\ntimely set forth the particular social group of his family.” It then stated that\\n“the Immigration Judge’s decision does not specifically address this [social]\\ngroup.” Importantly, the BIA went on to suggest that the factual record and\\nanalysis from the IJ was lacking, but brushed that aside because it intended\\nto make the decision based only on an analysis of the nexus: “However, we need\\nnot remand the record for additional fact finding or analysis [on the issue of\\nsocial group].”\\n The BIA admitted that the Immigration Judge incorrectly conflated the\\nrespondent’s claim with that of his mother (“We briefly note that the\\nrespondent is not a derivative application on his mother’s separate asylum\\napplication, and thus each claim must stand on its own merits.” Id. at 3.). The\\nBIA then claims to have come to an “independent conclusion” which “this\\nreasoning by the Immigration Judge does not meaningfully impact.” However,\\nthe BIA must rely on the factual findings of the IJ, which were likely impacted\\nby the incorrect legal posture through which the IJ viewed the case. Zumel v.\\nLynch, 803 F.3d 463, 475 (9th Cir. 2015).\\n IV.\\n Considering this error, and in order that the IJ and the BIA may have\\nthe benefit of the increased clarity provided by Matter of L-E-A-, we determine\\nit prudent to remand. We recognize that Matter of L-E-A- is at odds with the\\nprecedent of several circuits. Matter of L-E-A-, 27 I&N Dec. at 589-91\\n(analyzing precedent from the First, Fourth, Sixth, Seventh, Eighth, and Ninth\\n 4\\n\\f Case: 17-60339 Document: 00515158420 Page: 5 Date Filed: 10/15/2019\\n\\n\\n\\n No. 17-60339\\nCircuits). However, it is not at odds with any precedent in the Fifth Circuit.\\nWe therefore VACATE and REMAND for consideration in light of Matter of L-\\nE-A-.\\n\\n\\n\\n\\n 5\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4446829/\", \"author_raw\": \"KURT D. ENGELHARDT, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"JOLLY"},"judge2":{"kind":"string","value":"COSTA"},"judge3":{"kind":"string","value":"ENGELHARDT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JOLLY\": \", Circuit\", \"COSTA\": \", Circuit\", \"ENGELHARDT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4669576/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Dany Pena Oseguera v. William Barr, U. S. Atty Gen\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-60339 Document: 00515158420 Page: 1 Date Filed: 10/15/2019\n\n\n\n\n REVISED October 15, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 17-60339 FILED\n August 23, 2019\n Lyle W. Cayce\nDANY ARIEL PENA OSEGUERA, Clerk\n\n Petitioner\nv.\n\nWILLIAM P. BARR, U.S. ATTORNEY GENERAL,\n\n Respondent\n\n\n\n Petition for Review of an Order of the\n Board of Immigration Appeals\n\n\nBefore JOLLY, COSTA, and ENGELHARDT, Circuit Judges.\nKURT D. ENGELHARDT, Circuit Judge:\n\n\n Dany Ariel Pena Oseguera (Pena Oseguera) is a native of Honduras. He\nappeals the denial of his application for asylum and withholding of removal.\n I.\n In early 2013, Pena Oseguera was a university student and lived with\nhis family. During that time, his mother, a Honduran supervisory police officer,\nreceived a tip about corrupt police officers who were colluding with gangs. She\nreferred the tip to a member of the police force with jurisdiction to investigate\ncorruption. The investigator was murdered in June 2013.\n\f Case: 17-60339 Document: 00515158420 Page: 2 Date Filed: 10/15/2019\n\n\n\n No. 17-60339\n Pena Oseguera claims he was approached later in 2013 by a person who\noffered him a job as a bill collector. Pena Oseguera expressed interest but later\ndeclined the offer. At that point, the person threatened to kill him. Pena\nOseguera later found out that the person was a gang member. Several days\nlater, Pena Oseguera’s mother received two text messages threatening her\nentire family. The messages noted that she was a police officer and specifically\nmentioned Pena Oseguera.\n Pena Oseguera’s parents quickly arranged for him to travel to the United\nStates. After he left, his mother received two more messages threatening her\nfamily. She also stated that over a year later, her home was shot up by\nunknown assailants, who she suspected were the corrupt police officers 1.\n Pena Oseguera applied for asylum, withholding of removal, and relief\nunder the Convention Against Torture (CAT). On June 6, 2016, the\nImmigration Judge (IJ) granted relief under CAT. The IJ did not grant the\nasylum and withholding of removal requests, finding that Pena Oseguera did\nnot establish a nexus between the alleged persecution and a legally “protected\nground.” Pena Oseguera appealed, and the Board of Immigration Appeals\n(BIA) upheld the IJ’s determination on April 3, 2017. He then timely filed a\npetition for review of the BIA’s decision on May 3, 2017.\n II.\n Courts of appeals have exclusive jurisdiction to review final orders of\nremoval. 8 U.S.C. § 1252(a)(5) (2012). This court usually only reviews the BIA’s\nfinal decision, unless, as in this instance, the BIA’s decision is affected by the\nIJ’s decision. In that circumstance, we review both. Sealed Petitioner v. Sealed\n\n\n\n\n 1 Pena Oseguera’s mother also entered the United States and testified in support of\nhis application.\n 2\n\f Case: 17-60339 Document: 00515158420 Page: 3 Date Filed: 10/15/2019\n\n\n\n No. 17-60339\nRespondent, 829 F.3d 379, 383 (5th Cir. 2016). We review legal conclusions de\nnovo and factual findings for substantial evidence. Id.\n III.\n As an applicant for asylum, Pena Oseguera must show that he is “unable\nor unwilling to return” to his country of origin “because of persecution or a well-\nfounded fear of persecution on account of race, religion, nationality,\nmembership in a particular social group, or political opinion.” 8 U.S.C. §\n1101(a)(42). Pena Oseguera must also show a nexus – that the protected\nground “was or will be at least one central reason for persecuting the\napplicant.” Id. at § 1158(b)(1)(B)(i). A central motive is not “incidental,\ntangential, superficial, or subordinate to another reason for harm.” Shaikh v.\nHolder, 588 F.3d 861, 864 (5th Cir. 2009) (quoting In re J-B-N & S-M, 24 I. &\nN. Dec. 208, 214 (BIA 2007)).\n At the time we heard oral arguments in this case, Matter of L-E-A- was\npending before the Attorney General. 27 I. & N. Dec. 581 (U.S. Att’y Gen. 2019).\nThat case directly took up the question of whether families qualified as “social\ngroups” for the purposes of refugee status. 2 We held this case in abeyance\npending a decision by the Attorney General. A decision has now been\npublished, and Matter of L-E-A stands for the proposition that families may\nqualify as social groups, but the decision must be reached on a case-by-case\nbasis. The “applicant must establish that his specific family group is defined\nwith sufficient particularity and is socially distinct in his society. In the\nordinary case, a family group will not meet that standard, because it will not\nhave the kind of identifying characteristics that render the family socially\ndistinct within the society in question.” 27 I. & N. Dec. 581, 586 (U.S. Att’y\n\n\n 2 “Whether, and under what circumstances, an alien may establish persecution on\naccount of membership in a ‘particular social group’ . . . based on the alien’s membership in\na family unit.” In re L-E-A-, 27 I. & N. Dec. 494. 494 (U.S. Att’y Gen. 2018).\n 3\n\f Case: 17-60339 Document: 00515158420 Page: 4 Date Filed: 10/15/2019\n\n\n\n No. 17-60339\nGen. 2019). This is “a fact-based inquiry made on a case-by-case basis.” Id. at\n584 (quoting Matter of L-E-A-, 27 I. & N. Dec. 40, 42 (BIA 2017)); see also\nMatter of A-B-, 27 I. & N. Dec. 316, 333 n.8 (Att’y Gen. 2018) (“There is reason\nto doubt that a nuclear family can comprise a particular social group under the\nstatute.”).\n In the instant case, the BIA assumed that “the respondent properly and\ntimely set forth the particular social group of his family.” It then stated that\n“the Immigration Judge’s decision does not specifically address this [social]\ngroup.” Importantly, the BIA went on to suggest that the factual record and\nanalysis from the IJ was lacking, but brushed that aside because it intended\nto make the decision based only on an analysis of the nexus: “However, we need\nnot remand the record for additional fact finding or analysis [on the issue of\nsocial group].”\n The BIA admitted that the Immigration Judge incorrectly conflated the\nrespondent’s claim with that of his mother (“We briefly note that the\nrespondent is not a derivative application on his mother’s separate asylum\napplication, and thus each claim must stand on its own merits.” Id. at 3.). The\nBIA then claims to have come to an “independent conclusion” which “this\nreasoning by the Immigration Judge does not meaningfully impact.” However,\nthe BIA must rely on the factual findings of the IJ, which were likely impacted\nby the incorrect legal posture through which the IJ viewed the case. Zumel v.\nLynch, 803 F.3d 463, 475 (9th Cir. 2015).\n IV.\n Considering this error, and in order that the IJ and the BIA may have\nthe benefit of the increased clarity provided by Matter of L-E-A-, we determine\nit prudent to remand. We recognize that Matter of L-E-A- is at odds with the\nprecedent of several circuits. Matter of L-E-A-, 27 I&N Dec. at 589-91\n(analyzing precedent from the First, Fourth, Sixth, Seventh, Eighth, and Ninth\n 4\n\f Case: 17-60339 Document: 00515158420 Page: 5 Date Filed: 10/15/2019\n\n\n\n No. 17-60339\nCircuits). However, it is not at odds with any precedent in the Fifth Circuit.\nWe therefore VACATE and REMAND for consideration in light of Matter of L-\nE-A-.\n\n\n\n\n 5\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Dany Pena Oseguera v. William Barr, U. S. Atty Gen\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-60339 Document: 00515158420 Page: 1 Date Filed: 10/15/2019\\n\\n\\n\\n\\n REVISED October 15, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 17-60339 FILED\\n August 23, 2019\\n Lyle W. Cayce\\nDANY ARIEL PENA OSEGUERA, Clerk\\n\\n Petitioner\\nv.\\n\\nWILLIAM P. BARR, U.S. ATTORNEY GENERAL,\\n\\n Respondent\\n\\n\\n\\n Petition for Review of an Order of the\\n Board of Immigration Appeals\\n\\n\\nBefore JOLLY, COSTA, and ENGELHARDT, Circuit Judges.\\nKURT D. ENGELHARDT, Circuit Judge:\\n\\n\\n Dany Ariel Pena Oseguera (Pena Oseguera) is a native of Honduras. He\\nappeals the denial of his application for asylum and withholding of removal.\\n I.\\n In early 2013, Pena Oseguera was a university student and lived with\\nhis family. During that time, his mother, a Honduran supervisory police officer,\\nreceived a tip about corrupt police officers who were colluding with gangs. She\\nreferred the tip to a member of the police force with jurisdiction to investigate\\ncorruption. The investigator was murdered in June 2013.\\n\\f Case: 17-60339 Document: 00515158420 Page: 2 Date Filed: 10/15/2019\\n\\n\\n\\n No. 17-60339\\n Pena Oseguera claims he was approached later in 2013 by a person who\\noffered him a job as a bill collector. Pena Oseguera expressed interest but later\\ndeclined the offer. At that point, the person threatened to kill him. Pena\\nOseguera later found out that the person was a gang member. Several days\\nlater, Pena Oseguera’s mother received two text messages threatening her\\nentire family. The messages noted that she was a police officer and specifically\\nmentioned Pena Oseguera.\\n Pena Oseguera’s parents quickly arranged for him to travel to the United\\nStates. After he left, his mother received two more messages threatening her\\nfamily. She also stated that over a year later, her home was shot up by\\nunknown assailants, who she suspected were the corrupt police officers 1.\\n Pena Oseguera applied for asylum, withholding of removal, and relief\\nunder the Convention Against Torture (CAT). On June 6, 2016, the\\nImmigration Judge (IJ) granted relief under CAT. The IJ did not grant the\\nasylum and withholding of removal requests, finding that Pena Oseguera did\\nnot establish a nexus between the alleged persecution and a legally “protected\\nground.” Pena Oseguera appealed, and the Board of Immigration Appeals\\n(BIA) upheld the IJ’s determination on April 3, 2017. He then timely filed a\\npetition for review of the BIA’s decision on May 3, 2017.\\n II.\\n Courts of appeals have exclusive jurisdiction to review final orders of\\nremoval. 8 U.S.C. § 1252(a)(5) (2012). This court usually only reviews the BIA’s\\nfinal decision, unless, as in this instance, the BIA’s decision is affected by the\\nIJ’s decision. In that circumstance, we review both. Sealed Petitioner v. Sealed\\n\\n\\n\\n\\n 1 Pena Oseguera’s mother also entered the United States and testified in support of\\nhis application.\\n 2\\n\\f Case: 17-60339 Document: 00515158420 Page: 3 Date Filed: 10/15/2019\\n\\n\\n\\n No. 17-60339\\nRespondent, 829 F.3d 379, 383 (5th Cir. 2016). We review legal conclusions de\\nnovo and factual findings for substantial evidence. Id.\\n III.\\n As an applicant for asylum, Pena Oseguera must show that he is “unable\\nor unwilling to return” to his country of origin “because of persecution or a well-\\nfounded fear of persecution on account of race, religion, nationality,\\nmembership in a particular social group, or political opinion.” 8 U.S.C. §\\n1101(a)(42). Pena Oseguera must also show a nexus – that the protected\\nground “was or will be at least one central reason for persecuting the\\napplicant.” Id. at § 1158(b)(1)(B)(i). A central motive is not “incidental,\\ntangential, superficial, or subordinate to another reason for harm.” Shaikh v.\\nHolder, 588 F.3d 861, 864 (5th Cir. 2009) (quoting In re J-B-N & S-M, 24 I. &\\nN. Dec. 208, 214 (BIA 2007)).\\n At the time we heard oral arguments in this case, Matter of L-E-A- was\\npending before the Attorney General. 27 I. & N. Dec. 581 (U.S. Att’y Gen. 2019).\\nThat case directly took up the question of whether families qualified as “social\\ngroups” for the purposes of refugee status. 2 We held this case in abeyance\\npending a decision by the Attorney General. A decision has now been\\npublished, and Matter of L-E-A stands for the proposition that families may\\nqualify as social groups, but the decision must be reached on a case-by-case\\nbasis. The “applicant must establish that his specific family group is defined\\nwith sufficient particularity and is socially distinct in his society. In the\\nordinary case, a family group will not meet that standard, because it will not\\nhave the kind of identifying characteristics that render the family socially\\ndistinct within the society in question.” 27 I. & N. Dec. 581, 586 (U.S. Att’y\\n\\n\\n 2 “Whether, and under what circumstances, an alien may establish persecution on\\naccount of membership in a ‘particular social group’ . . . based on the alien’s membership in\\na family unit.” In re L-E-A-, 27 I. & N. Dec. 494. 494 (U.S. Att’y Gen. 2018).\\n 3\\n\\f Case: 17-60339 Document: 00515158420 Page: 4 Date Filed: 10/15/2019\\n\\n\\n\\n No. 17-60339\\nGen. 2019). This is “a fact-based inquiry made on a case-by-case basis.” Id. at\\n584 (quoting Matter of L-E-A-, 27 I. & N. Dec. 40, 42 (BIA 2017)); see also\\nMatter of A-B-, 27 I. & N. Dec. 316, 333 n.8 (Att’y Gen. 2018) (“There is reason\\nto doubt that a nuclear family can comprise a particular social group under the\\nstatute.”).\\n In the instant case, the BIA assumed that “the respondent properly and\\ntimely set forth the particular social group of his family.” It then stated that\\n“the Immigration Judge’s decision does not specifically address this [social]\\ngroup.” Importantly, the BIA went on to suggest that the factual record and\\nanalysis from the IJ was lacking, but brushed that aside because it intended\\nto make the decision based only on an analysis of the nexus: “However, we need\\nnot remand the record for additional fact finding or analysis [on the issue of\\nsocial group].”\\n The BIA admitted that the Immigration Judge incorrectly conflated the\\nrespondent’s claim with that of his mother (“We briefly note that the\\nrespondent is not a derivative application on his mother’s separate asylum\\napplication, and thus each claim must stand on its own merits.” Id. at 3.). The\\nBIA then claims to have come to an “independent conclusion” which “this\\nreasoning by the Immigration Judge does not meaningfully impact.” However,\\nthe BIA must rely on the factual findings of the IJ, which were likely impacted\\nby the incorrect legal posture through which the IJ viewed the case. Zumel v.\\nLynch, 803 F.3d 463, 475 (9th Cir. 2015).\\n IV.\\n Considering this error, and in order that the IJ and the BIA may have\\nthe benefit of the increased clarity provided by Matter of L-E-A-, we determine\\nit prudent to remand. We recognize that Matter of L-E-A- is at odds with the\\nprecedent of several circuits. Matter of L-E-A-, 27 I&N Dec. at 589-91\\n(analyzing precedent from the First, Fourth, Sixth, Seventh, Eighth, and Ninth\\n 4\\n\\f Case: 17-60339 Document: 00515158420 Page: 5 Date Filed: 10/15/2019\\n\\n\\n\\n No. 17-60339\\nCircuits). However, it is not at odds with any precedent in the Fifth Circuit.\\nWe therefore VACATE and REMAND for consideration in light of Matter of L-\\nE-A-.\\n\\n\\n\\n\\n 5\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4586,"cells":{"id":{"kind":"number","value":4670090,"string":"4,670,090"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"William Webb v. Lorie Davis, Director"},"decision_date":{"kind":"string","value":"2019-10-16"},"docket_number":{"kind":"string","value":"17-51143"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before JOLLY, GRAVES, and HIGGINSON, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"Case: 17-51143 Document: 00515161079 Page: 1 Date Filed: 10/16/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-51143 October 16, 2019\\n Lyle W. Cayce\\nWILLIAM CHARLES WEBB, Clerk\\n\\n\\n Petitioner - Appellant\\n\\nv.\\n\\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\\n\\n Respondent - Appellee\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore JOLLY, GRAVES, and HIGGINSON, Circuit Judges.\\nPER CURIAM:\\n William Charles Webb, Texas prisoner # 1888883, pled guilty to the\\noffense of injury to a child and received a twenty-year sentence. Webb brings\\nthis challenge to his conviction under 28 U.S.C. § 2254. The district court\\ndenied Webb’s § 2254 application, concluding that Webb’s valid guilty plea\\nwaived his claims for habeas relief. Webb then filed a motion for relief from\\nthat judgment under Federal Rule of Civil Procedure 60(b), which the district\\ncourt denied in part and dismissed in part. Webb was granted a certificate of\\nappealability (COA) to address whether the district court abused its discretion\\nin failing to grant relief to Webb on his claims for denial of the right to a speedy\\n\\f Case: 17-51143 Document: 00515161079 Page: 2 Date Filed: 10/16/2019\\n\\n\\n\\n No. 17-51143\\ntrial, on claims of violation of due process based on the suppression of evidence,\\nand on the claim that he was entitled to substitute counsel. Before we can\\naddress this question on the merits, however, we must first address the\\nrespondent’s contention that we do not have jurisdiction over this appeal.\\nFinding that we have jurisdiction, we still do not address these issues because\\nwe affirm on the grounds that Webb, on appeal, has waived any argument\\nrelated to the issue upon which he was granted appellate review.\\n I.\\n In September 2013, Webb pled guilty to the offense of injury to a child\\nfor which the state court sentenced him to a twenty-year prison term. Before\\nentering his guilty plea, Webb filed motions asserting that he had the right to\\na speedy trial, asking that the state provide him with any exculpatory evidence\\nin its possession, and requesting that substitute counsel be appointed. Despite\\nWebb’s guilty plea, the state trial court certified that Webb had not waived his\\nright to appeal matters, such as these, that were raised by written motion\\nbefore trial.\\n After exhausting his state court remedies, Webb came to federal court\\nand filed a 28 U.S.C. § 2254 application challenging his conviction. In his\\napplication, Webb raised claims of denial of the right to a speedy trial, violation\\nof due process based on the suppression of evidence, error in failure to grant\\nhis motion to appoint substitute counsel, and ineffective assistance of counsel.\\nThe district court determined that Webb’s claims for habeas relief were waived\\nby his valid guilty plea and denied the § 2254 application. Both the district\\ncourt and this court denied Webb a COA. This court then denied Webb’s\\nrequest for reconsideration and rehearing en banc.\\n After this court’s mandate issued, Webb filed a pro se motion for relief\\nfrom the district court’s judgment under Federal Rule of Civil Procedure 60(b).\\nRelying on subsections 60(b)(1) and (6), Webb argued that the district court\\n 2\\n\\f Case: 17-51143 Document: 00515161079 Page: 3 Date Filed: 10/16/2019\\n\\n\\n\\n No. 17-51143\\nerred when it determined that his claims for habeas relief were waived by his\\nguilty plea. The district court did not agree and denied in part and dismissed\\nin part Webb’s Rule 60(b) motion. The district court held that it had “reviewed\\n[Webb’s] ineffective assistance of counsel claims and found no evidence that\\n[his] guilty plea was not knowing and intelligent.” The district court also held\\nthat to the extent Webb challenged the merits of its prior ruling, the Rule 60(b)\\nmotion must be dismissed as an unauthorized successive § 2254 application.\\n Webb timely appealed. In response, a member of this court granted\\nWebb a COA, allowing an appeal on the following issue:\\n [W]hether the district court abused its discretion in denying in\\n part and dismissing in part Webb’s Rule 60(b) motion . . . as to the\\n three claims Webb preserved by a written motion prior to trial\\n (namely, denial of the right to a speedy trial, violation of due\\n process based on the suppression of evidence, and error in failure\\n to appoint substitute counsel).\\nOrder, Webb v. Davis, No. 17-51143, at 3 (5th Cir. Aug. 29, 2018). As noted in\\nthe order, because Texas allows defendants who enter guilty pleas to appeal\\nissues that were raised in written motions prior to trial, a petitioner who has\\npled guilty may raise those issues in a § 2254 application. Gibson v.\\nKlevenhagen, 777 F.2d 1056, 1059 (5th Cir. 1985).\\n II.\\n On appeal, Webb makes two arguments. First, that the district court\\nerred in affording a presumption of correctness to the state court habeas\\nproceedings. And second, that his trial counsel was ineffective. The\\nrespondent asserts that the district court lacked jurisdiction to grant Webb’s\\nRule 60(b) motion. Alternatively, she argues that the district court did not\\nabuse its discretion when it denied Webb’s motion.\\n\\n\\n\\n\\n 3\\n\\f Case: 17-51143 Document: 00515161079 Page: 4 Date Filed: 10/16/2019\\n\\n\\n\\n No. 17-51143\\n III.\\n As we have earlier noted, before we can proceed further with this appeal,\\nwe must assure ourselves that we have jurisdiction to adjudicate Webb’s\\nclaims. “The requirement that jurisdiction be established as a threshold\\nmatter . . . is inflexible and without exception.” Steel Co. v. Citizens for a Better\\nEnv’t, 523 U.S. 83, 94–95 (1998) (internal quotations and citations omitted).\\nThis court’s jurisdiction to consider the merits of this appeal is predicated on\\nwhether the district court had jurisdiction to consider Webb’s Rule 60(b)\\nmotion. See United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). When the\\ndistrict court lacked jurisdiction, this court’s “jurisdiction extends not to the\\nmerits but merely for the purpose of correcting the error of the lower court in\\nentertaining the suit.” N.Y. Life Ins. Co. v. Deshotel, 142 F.3d 873, 883 (5th\\nCir. 1998) (quotations omitted).\\n A.\\n The respondent first asserts that the district court lacked jurisdiction to\\ngrant Webb’s Rule 60(b) motion because the legal basis for that motion had\\nalready been decided and rejected by this court when it declined to grant Webb\\na COA on the district court’s initial denial of his § 2254 application. This\\nargument implicates the “mandate rule” which is “a corollary of the law of the\\ncase doctrine.” Fisher v. Univ. of Tex. at Austin, 758 F.3d 633, 639 (5th Cir.\\n2014). Under the mandate rule, lower courts must comply “with the dictates\\nof a superior court” and cannot allow “relitigation of issues expressly or\\nimpliedly decided by the appellate court.” See id. at 639–40 (quoting United\\nStates v. Lee, 358 F.3d 315, 321 (5th Cir. 2004)). “Despite its importance, the\\nmandate rule is a discretionary device and not immutable.” United States v.\\nPineiro, 470 F.3d 200, 205 (5th Cir. 2006) (emphasis omitted). Indeed, our\\ncourt has recognized several exceptions to the rule, including where the district\\ncourt considers new evidence, where there is an intervening change in law, or\\n 4\\n\\f Case: 17-51143 Document: 00515161079 Page: 5 Date Filed: 10/16/2019\\n\\n\\n\\n No. 17-51143\\nwhere “the earlier decision was clearly erroneous and would work a manifest\\ninjustice.” Id. at 205–06. Accordingly, the mandate rule did not deprive the\\ndistrict court of jurisdiction to resolve the Rule 60(b) motion in Webb’s favor.\\nCf. United States v. Simpson, 796 F.3d 548, 552 (5th Cir. 2015) (declining to\\naddress the applicability of the mandate rule before proceeding to the merits).\\nTo be sure, the mandate rule that the respondent asserts as jurisdictional is\\nnot jurisdictional at all—it is a discretionary rule that can be set aside in\\ncertain circumstances. See United States v. Teel, 691 F.3d 578, 583 (5th Cir.\\n2012).\\n In any event, the mandate rule does not have merit here. The only orders\\nissued by this court were the orders denying Webb’s request for a COA and\\nmotion for reconsideration and rehearing en banc. Neither of these orders\\nspecifically addressed the district court’s determination that Webb’s guilty plea\\nwaived his claims for habeas relief. Instead, in denying Webb’s request for\\nCOA, this court determined only that Webb had not shown “that jurists of\\nreason would find it debatable whether the petition states a valid claim of the\\ndenial of a constitutional right and that jurists of reason would find it\\ndebatable whether the district court was correct in its procedural ruling.”\\nOrder, Webb v. Davis, 17-50123, at 2 (5th Cir. Oct. 25, 2017) (quoting Slack v.\\nMcDaniel, 529 U.S. 473, 484 (2000)). Because this court’s COA order did not\\n“expressly or impliedly” decide that the district court had correctly determined\\nthat Webb’s guilty plea waived his underlying claims, the district court could\\nhave granted Webb’s Rule 60(b) motion without running afoul of the mandate\\nrule.\\n B.\\n The respondent next argues that the district court lacked jurisdiction to\\ngrant Webb’s motion because it amounted to an unauthorized second or\\nsuccessive § 2254 application. A prisoner is required to obtain authorization\\n 5\\n\\f Case: 17-51143 Document: 00515161079 Page: 6 Date Filed: 10/16/2019\\n\\n\\n\\n No. 17-51143\\nfrom this court before filing a second or successive § 2254 application in the\\ndistrict court. See 28 U.S.C. § 2244(b)(3)(A). When faced with a Rule 60(b)\\nmotion filed in response to the denial of an application for habeas relief, the\\ndistrict court must first determine whether the petitioner is only seeking Rule\\n60(b) relief or is attempting to file a second or successive habeas application.\\nGonzalez v. Crosby, 545 U.S. 524, 531–32 (2005). A purported Rule 60(b)\\nmotion should be construed as a successive habeas application when it raises\\na new theory of relief or disputes the district court’s substantive resolution of\\na claim. Id. at 532. 1 In contrast, a Rule 60(b) motion that attacks “some defect\\nin the integrity of the federal habeas proceedings” or a procedural ruling that\\nprecluded a merits determination should not be construed as an unauthorized\\nsuccessive habeas application. See id. at 532, 535–36. “If neither the motion\\nitself nor the federal judgment from which it seeks relief substantively\\naddresses federal grounds for setting aside the movant’s state conviction,\\nallowing the motion to proceed [as a Rule 60(b) motion] creates no\\ninconsistency with the habeas statute or rules.” Id. at 533.\\n We have never squarely addressed whether a Rule 60(b) motion that\\nchallenges a district court’s dismissal of claims based on the determination\\nthat the claims were waived by the petitioner’s guilty plea is an unauthorized\\nsuccessive habeas application. But we do not write on a blank slate. In\\nGonzalez, for example, the Supreme Court provided the following instances of\\nprocedural rulings that habeas petitioners can challenge through a Rule 60(b)\\nmotion: rulings based on failure to exhaust, procedural default, or a statute-of-\\nlimitations bar. Id. at 532 n.4. We have since reasoned that other rulings that\\ncan be challenged in a postjudgment motion include: the district court’s denial\\n\\n\\n 1A district court resolves habeas claims on the merits when it makes “a determination\\nthat there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28\\nU.S.C. §§ 2254 (a) and (d).” Gonzalez, 545 U.S. at 532 n.4.\\n 6\\n\\f Case: 17-51143 Document: 00515161079 Page: 7 Date Filed: 10/16/2019\\n\\n\\n\\n No. 17-51143\\nof funding, the district court’s dismissal of claims without conducting an\\nevidentiary hearing, and the district court’s failure to consider claims\\npresented in the habeas application. See Crutsinger v. Davis, 929 F.3d 259,\\n265–66 (5th Cir. 2019); United States v. McDaniels, 907 F.3d 366, 370 (5th Cir.\\n2018); United States v. Brown, 547 F. App’x 637, 642 (5th Cir. 2013). Similarly,\\nthe Eleventh Circuit has recently held that “the denial of a claim based on a\\nvalid appeal waiver is not a decision on the merits” and therefore can be\\nattacked through a Rule 60(b) motion. See Pease v. United States, 768 F. App’x\\n974, 976 (11th Cir. 2019).\\n In the light of these precedents, we conclude that Webb’s motion\\nattacking the district court’s determination that his guilty plea waived his\\nhabeas claims was only a Rule 60(b) motion and not a successive § 2254\\napplication. We reach this conclusion because in denying Webb habeas relief\\nthe district court did not address the substance of any of his claims. Instead,\\nit concluded that Webb’s voluntary guilty plea effectively waived those claims.\\nThe crux of Webb’s Rule 60(b) motion is that the district court’s ruling that his\\nguilty plea waived his habeas claims was error. Nor did Webb’s motion seek\\nto raise new claims. This challenge is analogous to the types of procedural\\nattacks recognized in Gonzalez as properly brought in a Rule 60(b) motion.\\nAccordingly, we hold that Webb’s motion is not a successive § 2254 application\\nand that we have jurisdiction over this appeal.\\n IV.\\n We now turn to the merits of whether the district court erred in denying\\n60(b) relief to Webb. Whether to grant or deny Rule 60(b) relief is within the\\nsound discretion of the district court. See Seven Elves, Inc. v. Eskenazi, 635\\nF.2d 396, 402 (5th Cir. 1981). “It is not enough that the granting of relief might\\nhave been permissible, or even warranted;” instead, “denial must have been so\\nunwarranted as to constitute an abuse of discretion.” Id. As stated, Webb\\n 7\\n\\f Case: 17-51143 Document: 00515161079 Page: 8 Date Filed: 10/16/2019\\n\\n\\n\\n No. 17-51143\\nclaims he is entitled to relief under both Rule 60(b)(1) and (6). As we have said\\nearlier, Webb claims that the district court erred procedurally by holding that\\nhis guilty plea waived his right to raise his habeas claims. It is thus clear that\\nWebb’s claim, as articulated, falls under Rule 60(b)(1), which allows a district\\ncourt to afford relief from a final judgment on the account of “mistake,\\ninadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). Rule\\n60(b)(6) is a catchall provision that allows for the granting of relief from a\\njudgment for “any . . . reason that justifies relief” other than those reasons\\nlisted in Rule 60(b)(1)–(5). Fed. R. Civ. P. 60(b)(6). “The reason for relief set\\nforth under 60(b)(6) cannot be the reason for relief sought under another\\nsubsection of 60(b).” Hesling v. CSX Transp., Inc., 396 F.3d 632, 643 (5th Cir.\\n2005). Here, Webb asserted the same grounds for relief under Rule 60(b)(6) as\\nhe did under Rule 60(b)(1). Accordingly, he “cannot obtain relief under\\n60(b)(6).” Id.\\n We thus focus on Rule 60(b)(1). A “mistake” under Rule 60(b)(1) includes\\njudicial errors, but such an error must be a “fundamental misconception of the\\nlaw,” and not merely an erroneous ruling. Chick Kam Choo v. Exxon Corp.,\\n699 F.2d 693, 695 (5th Cir. 1983). In considering this issue, we are mindful\\nthat we must liberally construe Webb’s brief because he is proceeding pro se.\\nGrant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). Even so, “arguments must\\nbe briefed to be preserved.” Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).\\n Webb’s appellate brief fails to address whether the district erred by\\ndenying his Rule 60(b)(1) motion as to his habeas claims based on denial of the\\nright to speedy trial, suppression of evidence, and error in failure to appoint\\nsubstitute counsel. Instead, his brief raises two arguments on issues that are\\nnot properly before us. First, Webb argues that the district court erred by\\naffording a presumption of correctness to the state court habeas proceedings.\\nThis issue is not properly before us because Webb did not raise it in his Rule\\n 8\\n\\f Case: 17-51143 Document: 00515161079 Page: 9 Date Filed: 10/16/2019\\n\\n\\n\\n No. 17-51143\\n60(b) motion. Next, Webb contends that his trial counsel was ineffective. Webb\\ndid raise this issue in his Rule 60(b) motion, but our review is confined to the\\nissues granted a COA. See 28 U.S.C. § 2253(c). The COA order denied Webb\\na COA with respect to his ineffective assistance of counsel claims. Order, Webb\\nv. Davis, No. 17-51143, at 3 (5th Cir. Aug. 29, 2018). Thus, we are forbidden\\nto consider this claim. See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).\\nAccordingly, for procedural reasons by which we are bound, we close this\\nopinion without reaching the merits of Webb’s appeal. See Emerson v. Thaler,\\n464 F. App’x 346, 346–47 (5th Cir. 2012) (“Because Emerson has failed to brief\\nthe sole issue on which a COA was granted, he has waived that issue, and the\\njudgment is AFFIRMED.”).\\n V.\\n In sum, the mandate rule did not deprive the district court of jurisdiction\\nto grant Webb’s Rule 60(b) motion. We additionally hold that, when a\\npetitioner files a Rule 60(b) motion attacking a district court’s determination\\nthat the petitioner’s habeas claims were waived by his guilty plea, the motion\\nis not an unauthorized successive habeas petition. Nonetheless, because Webb\\nhas waived argument concerning the issue upon which this court granted\\nappellate review, the judgment of the district court is\\n AFFIRMED.\\n\\n\\n\\n\\n 9\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4447343/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"JOLLY"},"judge2":{"kind":"string","value":"GRAVES"},"judge3":{"kind":"string","value":"HIGGINSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JOLLY\": \", Circuit\", \"GRAVES\": \", Circuit\", \"HIGGINSON\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4670090/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: William Webb v. Lorie Davis, Director\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-51143 Document: 00515161079 Page: 1 Date Filed: 10/16/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 17-51143 October 16, 2019\n Lyle W. Cayce\nWILLIAM CHARLES WEBB, Clerk\n\n\n Petitioner - Appellant\n\nv.\n\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\n\n Respondent - Appellee\n\n\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n\n\nBefore JOLLY, GRAVES, and HIGGINSON, Circuit Judges.\nPER CURIAM:\n William Charles Webb, Texas prisoner # 1888883, pled guilty to the\noffense of injury to a child and received a twenty-year sentence. Webb brings\nthis challenge to his conviction under 28 U.S.C. § 2254. The district court\ndenied Webb’s § 2254 application, concluding that Webb’s valid guilty plea\nwaived his claims for habeas relief. Webb then filed a motion for relief from\nthat judgment under Federal Rule of Civil Procedure 60(b), which the district\ncourt denied in part and dismissed in part. Webb was granted a certificate of\nappealability (COA) to address whether the district court abused its discretion\nin failing to grant relief to Webb on his claims for denial of the right to a speedy\n\f Case: 17-51143 Document: 00515161079 Page: 2 Date Filed: 10/16/2019\n\n\n\n No. 17-51143\ntrial, on claims of violation of due process based on the suppression of evidence,\nand on the claim that he was entitled to substitute counsel. Before we can\naddress this question on the merits, however, we must first address the\nrespondent’s contention that we do not have jurisdiction over this appeal.\nFinding that we have jurisdiction, we still do not address these issues because\nwe affirm on the grounds that Webb, on appeal, has waived any argument\nrelated to the issue upon which he was granted appellate review.\n I.\n In September 2013, Webb pled guilty to the offense of injury to a child\nfor which the state court sentenced him to a twenty-year prison term. Before\nentering his guilty plea, Webb filed motions asserting that he had the right to\na speedy trial, asking that the state provide him with any exculpatory evidence\nin its possession, and requesting that substitute counsel be appointed. Despite\nWebb’s guilty plea, the state trial court certified that Webb had not waived his\nright to appeal matters, such as these, that were raised by written motion\nbefore trial.\n After exhausting his state court remedies, Webb came to federal court\nand filed a 28 U.S.C. § 2254 application challenging his conviction. In his\napplication, Webb raised claims of denial of the right to a speedy trial, violation\nof due process based on the suppression of evidence, error in failure to grant\nhis motion to appoint substitute counsel, and ineffective assistance of counsel.\nThe district court determined that Webb’s claims for habeas relief were waived\nby his valid guilty plea and denied the § 2254 application. Both the district\ncourt and this court denied Webb a COA. This court then denied Webb’s\nrequest for reconsideration and rehearing en banc.\n After this court’s mandate issued, Webb filed a pro se motion for relief\nfrom the district court’s judgment under Federal Rule of Civil Procedure 60(b).\nRelying on subsections 60(b)(1) and (6), Webb argued that the district court\n 2\n\f Case: 17-51143 Document: 00515161079 Page: 3 Date Filed: 10/16/2019\n\n\n\n No. 17-51143\nerred when it determined that his claims for habeas relief were waived by his\nguilty plea. The district court did not agree and denied in part and dismissed\nin part Webb’s Rule 60(b) motion. The district court held that it had “reviewed\n[Webb’s] ineffective assistance of counsel claims and found no evidence that\n[his] guilty plea was not knowing and intelligent.” The district court also held\nthat to the extent Webb challenged the merits of its prior ruling, the Rule 60(b)\nmotion must be dismissed as an unauthorized successive § 2254 application.\n Webb timely appealed. In response, a member of this court granted\nWebb a COA, allowing an appeal on the following issue:\n [W]hether the district court abused its discretion in denying in\n part and dismissing in part Webb’s Rule 60(b) motion . . . as to the\n three claims Webb preserved by a written motion prior to trial\n (namely, denial of the right to a speedy trial, violation of due\n process based on the suppression of evidence, and error in failure\n to appoint substitute counsel).\nOrder, Webb v. Davis, No. 17-51143, at 3 (5th Cir. Aug. 29, 2018). As noted in\nthe order, because Texas allows defendants who enter guilty pleas to appeal\nissues that were raised in written motions prior to trial, a petitioner who has\npled guilty may raise those issues in a § 2254 application. Gibson v.\nKlevenhagen, 777 F.2d 1056, 1059 (5th Cir. 1985).\n II.\n On appeal, Webb makes two arguments. First, that the district court\nerred in affording a presumption of correctness to the state court habeas\nproceedings. And second, that his trial counsel was ineffective. The\nrespondent asserts that the district court lacked jurisdiction to grant Webb’s\nRule 60(b) motion. Alternatively, she argues that the district court did not\nabuse its discretion when it denied Webb’s motion.\n\n\n\n\n 3\n\f Case: 17-51143 Document: 00515161079 Page: 4 Date Filed: 10/16/2019\n\n\n\n No. 17-51143\n III.\n As we have earlier noted, before we can proceed further with this appeal,\nwe must assure ourselves that we have jurisdiction to adjudicate Webb’s\nclaims. “The requirement that jurisdiction be established as a threshold\nmatter . . . is inflexible and without exception.” Steel Co. v. Citizens for a Better\nEnv’t, 523 U.S. 83, 94–95 (1998) (internal quotations and citations omitted).\nThis court’s jurisdiction to consider the merits of this appeal is predicated on\nwhether the district court had jurisdiction to consider Webb’s Rule 60(b)\nmotion. See United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). When the\ndistrict court lacked jurisdiction, this court’s “jurisdiction extends not to the\nmerits but merely for the purpose of correcting the error of the lower court in\nentertaining the suit.” N.Y. Life Ins. Co. v. Deshotel, 142 F.3d 873, 883 (5th\nCir. 1998) (quotations omitted).\n A.\n The respondent first asserts that the district court lacked jurisdiction to\ngrant Webb’s Rule 60(b) motion because the legal basis for that motion had\nalready been decided and rejected by this court when it declined to grant Webb\na COA on the district court’s initial denial of his § 2254 application. This\nargument implicates the “mandate rule” which is “a corollary of the law of the\ncase doctrine.” Fisher v. Univ. of Tex. at Austin, 758 F.3d 633, 639 (5th Cir.\n2014). Under the mandate rule, lower courts must comply “with the dictates\nof a superior court” and cannot allow “relitigation of issues expressly or\nimpliedly decided by the appellate court.” See id. at 639–40 (quoting United\nStates v. Lee, 358 F.3d 315, 321 (5th Cir. 2004)). “Despite its importance, the\nmandate rule is a discretionary device and not immutable.” United States v.\nPineiro, 470 F.3d 200, 205 (5th Cir. 2006) (emphasis omitted). Indeed, our\ncourt has recognized several exceptions to the rule, including where the district\ncourt considers new evidence, where there is an intervening change in law, or\n 4\n\f Case: 17-51143 Document: 00515161079 Page: 5 Date Filed: 10/16/2019\n\n\n\n No. 17-51143\nwhere “the earlier decision was clearly erroneous and would work a manifest\ninjustice.” Id. at 205–06. Accordingly, the mandate rule did not deprive the\ndistrict court of jurisdiction to resolve the Rule 60(b) motion in Webb’s favor.\nCf. United States v. Simpson, 796 F.3d 548, 552 (5th Cir. 2015) (declining to\naddress the applicability of the mandate rule before proceeding to the merits).\nTo be sure, the mandate rule that the respondent asserts as jurisdictional is\nnot jurisdictional at all—it is a discretionary rule that can be set aside in\ncertain circumstances. See United States v. Teel, 691 F.3d 578, 583 (5th Cir.\n2012).\n In any event, the mandate rule does not have merit here. The only orders\nissued by this court were the orders denying Webb’s request for a COA and\nmotion for reconsideration and rehearing en banc. Neither of these orders\nspecifically addressed the district court’s determination that Webb’s guilty plea\nwaived his claims for habeas relief. Instead, in denying Webb’s request for\nCOA, this court determined only that Webb had not shown “that jurists of\nreason would find it debatable whether the petition states a valid claim of the\ndenial of a constitutional right and that jurists of reason would find it\ndebatable whether the district court was correct in its procedural ruling.”\nOrder, Webb v. Davis, 17-50123, at 2 (5th Cir. Oct. 25, 2017) (quoting Slack v.\nMcDaniel, 529 U.S. 473, 484 (2000)). Because this court’s COA order did not\n“expressly or impliedly” decide that the district court had correctly determined\nthat Webb’s guilty plea waived his underlying claims, the district court could\nhave granted Webb’s Rule 60(b) motion without running afoul of the mandate\nrule.\n B.\n The respondent next argues that the district court lacked jurisdiction to\ngrant Webb’s motion because it amounted to an unauthorized second or\nsuccessive § 2254 application. A prisoner is required to obtain authorization\n 5\n\f Case: 17-51143 Document: 00515161079 Page: 6 Date Filed: 10/16/2019\n\n\n\n No. 17-51143\nfrom this court before filing a second or successive § 2254 application in the\ndistrict court. See 28 U.S.C. § 2244(b)(3)(A). When faced with a Rule 60(b)\nmotion filed in response to the denial of an application for habeas relief, the\ndistrict court must first determine whether the petitioner is only seeking Rule\n60(b) relief or is attempting to file a second or successive habeas application.\nGonzalez v. Crosby, 545 U.S. 524, 531–32 (2005). A purported Rule 60(b)\nmotion should be construed as a successive habeas application when it raises\na new theory of relief or disputes the district court’s substantive resolution of\na claim. Id. at 532. 1 In contrast, a Rule 60(b) motion that attacks “some defect\nin the integrity of the federal habeas proceedings” or a procedural ruling that\nprecluded a merits determination should not be construed as an unauthorized\nsuccessive habeas application. See id. at 532, 535–36. “If neither the motion\nitself nor the federal judgment from which it seeks relief substantively\naddresses federal grounds for setting aside the movant’s state conviction,\nallowing the motion to proceed [as a Rule 60(b) motion] creates no\ninconsistency with the habeas statute or rules.” Id. at 533.\n We have never squarely addressed whether a Rule 60(b) motion that\nchallenges a district court’s dismissal of claims based on the determination\nthat the claims were waived by the petitioner’s guilty plea is an unauthorized\nsuccessive habeas application. But we do not write on a blank slate. In\nGonzalez, for example, the Supreme Court provided the following instances of\nprocedural rulings that habeas petitioners can challenge through a Rule 60(b)\nmotion: rulings based on failure to exhaust, procedural default, or a statute-of-\nlimitations bar. Id. at 532 n.4. We have since reasoned that other rulings that\ncan be challenged in a postjudgment motion include: the district court’s denial\n\n\n 1A district court resolves habeas claims on the merits when it makes “a determination\nthat there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28\nU.S.C. §§ 2254 (a) and (d).” Gonzalez, 545 U.S. at 532 n.4.\n 6\n\f Case: 17-51143 Document: 00515161079 Page: 7 Date Filed: 10/16/2019\n\n\n\n No. 17-51143\nof funding, the district court’s dismissal of claims without conducting an\nevidentiary hearing, and the district court’s failure to consider claims\npresented in the habeas application. See Crutsinger v. Davis, 929 F.3d 259,\n265–66 (5th Cir. 2019); United States v. McDaniels, 907 F.3d 366, 370 (5th Cir.\n2018); United States v. Brown, 547 F. App’x 637, 642 (5th Cir. 2013). Similarly,\nthe Eleventh Circuit has recently held that “the denial of a claim based on a\nvalid appeal waiver is not a decision on the merits” and therefore can be\nattacked through a Rule 60(b) motion. See Pease v. United States, 768 F. App’x\n974, 976 (11th Cir. 2019).\n In the light of these precedents, we conclude that Webb’s motion\nattacking the district court’s determination that his guilty plea waived his\nhabeas claims was only a Rule 60(b) motion and not a successive § 2254\napplication. We reach this conclusion because in denying Webb habeas relief\nthe district court did not address the substance of any of his claims. Instead,\nit concluded that Webb’s voluntary guilty plea effectively waived those claims.\nThe crux of Webb’s Rule 60(b) motion is that the district court’s ruling that his\nguilty plea waived his habeas claims was error. Nor did Webb’s motion seek\nto raise new claims. This challenge is analogous to the types of procedural\nattacks recognized in Gonzalez as properly brought in a Rule 60(b) motion.\nAccordingly, we hold that Webb’s motion is not a successive § 2254 application\nand that we have jurisdiction over this appeal.\n IV.\n We now turn to the merits of whether the district court erred in denying\n60(b) relief to Webb. Whether to grant or deny Rule 60(b) relief is within the\nsound discretion of the district court. See Seven Elves, Inc. v. Eskenazi, 635\nF.2d 396, 402 (5th Cir. 1981). “It is not enough that the granting of relief might\nhave been permissible, or even warranted;” instead, “denial must have been so\nunwarranted as to constitute an abuse of discretion.” Id. As stated, Webb\n 7\n\f Case: 17-51143 Document: 00515161079 Page: 8 Date Filed: 10/16/2019\n\n\n\n No. 17-51143\nclaims he is entitled to relief under both Rule 60(b)(1) and (6). As we have said\nearlier, Webb claims that the district court erred procedurally by holding that\nhis guilty plea waived his right to raise his habeas claims. It is thus clear that\nWebb’s claim, as articulated, falls under Rule 60(b)(1), which allows a district\ncourt to afford relief from a final judgment on the account of “mistake,\ninadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). Rule\n60(b)(6) is a catchall provision that allows for the granting of relief from a\njudgment for “any . . . reason that justifies relief” other than those reasons\nlisted in Rule 60(b)(1)–(5). Fed. R. Civ. P. 60(b)(6). “The reason for relief set\nforth under 60(b)(6) cannot be the reason for relief sought under another\nsubsection of 60(b).” Hesling v. CSX Transp., Inc., 396 F.3d 632, 643 (5th Cir.\n2005). Here, Webb asserted the same grounds for relief under Rule 60(b)(6) as\nhe did under Rule 60(b)(1). Accordingly, he “cannot obtain relief under\n60(b)(6).” Id.\n We thus focus on Rule 60(b)(1). A “mistake” under Rule 60(b)(1) includes\njudicial errors, but such an error must be a “fundamental misconception of the\nlaw,” and not merely an erroneous ruling. Chick Kam Choo v. Exxon Corp.,\n699 F.2d 693, 695 (5th Cir. 1983). In considering this issue, we are mindful\nthat we must liberally construe Webb’s brief because he is proceeding pro se.\nGrant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). Even so, “arguments must\nbe briefed to be preserved.” Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).\n Webb’s appellate brief fails to address whether the district erred by\ndenying his Rule 60(b)(1) motion as to his habeas claims based on denial of the\nright to speedy trial, suppression of evidence, and error in failure to appoint\nsubstitute counsel. Instead, his brief raises two arguments on issues that are\nnot properly before us. First, Webb argues that the district court erred by\naffording a presumption of correctness to the state court habeas proceedings.\nThis issue is not properly before us because Webb did not raise it in his Rule\n 8\n\f Case: 17-51143 Document: 00515161079 Page: 9 Date Filed: 10/16/2019\n\n\n\n No. 17-51143\n60(b) motion. Next, Webb contends that his trial counsel was ineffective. Webb\ndid raise this issue in his Rule 60(b) motion, but our review is confined to the\nissues granted a COA. See 28 U.S.C. § 2253(c). The COA order denied Webb\na COA with respect to his ineffective assistance of counsel claims. Order, Webb\nv. Davis, No. 17-51143, at 3 (5th Cir. Aug. 29, 2018). Thus, we are forbidden\nto consider this claim. See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).\nAccordingly, for procedural reasons by which we are bound, we close this\nopinion without reaching the merits of Webb’s appeal. See Emerson v. Thaler,\n464 F. App’x 346, 346–47 (5th Cir. 2012) (“Because Emerson has failed to brief\nthe sole issue on which a COA was granted, he has waived that issue, and the\njudgment is AFFIRMED.”).\n V.\n In sum, the mandate rule did not deprive the district court of jurisdiction\nto grant Webb’s Rule 60(b) motion. We additionally hold that, when a\npetitioner files a Rule 60(b) motion attacking a district court’s determination\nthat the petitioner’s habeas claims were waived by his guilty plea, the motion\nis not an unauthorized successive habeas petition. Nonetheless, because Webb\nhas waived argument concerning the issue upon which this court granted\nappellate review, the judgment of the district court is\n AFFIRMED.\n\n\n\n\n 9\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: William Webb v. Lorie Davis, Director\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-16\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-51143 Document: 00515161079 Page: 1 Date Filed: 10/16/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-51143 October 16, 2019\\n Lyle W. Cayce\\nWILLIAM CHARLES WEBB, Clerk\\n\\n\\n Petitioner - Appellant\\n\\nv.\\n\\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\\n\\n Respondent - Appellee\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore JOLLY, GRAVES, and HIGGINSON, Circuit Judges.\\nPER CURIAM:\\n William Charles Webb, Texas prisoner # 1888883, pled guilty to the\\noffense of injury to a child and received a twenty-year sentence. Webb brings\\nthis challenge to his conviction under 28 U.S.C. § 2254. The district court\\ndenied Webb’s § 2254 application, concluding that Webb’s valid guilty plea\\nwaived his claims for habeas relief. Webb then filed a motion for relief from\\nthat judgment under Federal Rule of Civil Procedure 60(b), which the district\\ncourt denied in part and dismissed in part. Webb was granted a certificate of\\nappealability (COA) to address whether the district court abused its discretion\\nin failing to grant relief to Webb on his claims for denial of the right to a speedy\\n\\f Case: 17-51143 Document: 00515161079 Page: 2 Date Filed: 10/16/2019\\n\\n\\n\\n No. 17-51143\\ntrial, on claims of violation of due process based on the suppression of evidence,\\nand on the claim that he was entitled to substitute counsel. Before we can\\naddress this question on the merits, however, we must first address the\\nrespondent’s contention that we do not have jurisdiction over this appeal.\\nFinding that we have jurisdiction, we still do not address these issues because\\nwe affirm on the grounds that Webb, on appeal, has waived any argument\\nrelated to the issue upon which he was granted appellate review.\\n I.\\n In September 2013, Webb pled guilty to the offense of injury to a child\\nfor which the state court sentenced him to a twenty-year prison term. Before\\nentering his guilty plea, Webb filed motions asserting that he had the right to\\na speedy trial, asking that the state provide him with any exculpatory evidence\\nin its possession, and requesting that substitute counsel be appointed. Despite\\nWebb’s guilty plea, the state trial court certified that Webb had not waived his\\nright to appeal matters, such as these, that were raised by written motion\\nbefore trial.\\n After exhausting his state court remedies, Webb came to federal court\\nand filed a 28 U.S.C. § 2254 application challenging his conviction. In his\\napplication, Webb raised claims of denial of the right to a speedy trial, violation\\nof due process based on the suppression of evidence, error in failure to grant\\nhis motion to appoint substitute counsel, and ineffective assistance of counsel.\\nThe district court determined that Webb’s claims for habeas relief were waived\\nby his valid guilty plea and denied the § 2254 application. Both the district\\ncourt and this court denied Webb a COA. This court then denied Webb’s\\nrequest for reconsideration and rehearing en banc.\\n After this court’s mandate issued, Webb filed a pro se motion for relief\\nfrom the district court’s judgment under Federal Rule of Civil Procedure 60(b).\\nRelying on subsections 60(b)(1) and (6), Webb argued that the district court\\n 2\\n\\f Case: 17-51143 Document: 00515161079 Page: 3 Date Filed: 10/16/2019\\n\\n\\n\\n No. 17-51143\\nerred when it determined that his claims for habeas relief were waived by his\\nguilty plea. The district court did not agree and denied in part and dismissed\\nin part Webb’s Rule 60(b) motion. The district court held that it had “reviewed\\n[Webb’s] ineffective assistance of counsel claims and found no evidence that\\n[his] guilty plea was not knowing and intelligent.” The district court also held\\nthat to the extent Webb challenged the merits of its prior ruling, the Rule 60(b)\\nmotion must be dismissed as an unauthorized successive § 2254 application.\\n Webb timely appealed. In response, a member of this court granted\\nWebb a COA, allowing an appeal on the following issue:\\n [W]hether the district court abused its discretion in denying in\\n part and dismissing in part Webb’s Rule 60(b) motion . . . as to the\\n three claims Webb preserved by a written motion prior to trial\\n (namely, denial of the right to a speedy trial, violation of due\\n process based on the suppression of evidence, and error in failure\\n to appoint substitute counsel).\\nOrder, Webb v. Davis, No. 17-51143, at 3 (5th Cir. Aug. 29, 2018). As noted in\\nthe order, because Texas allows defendants who enter guilty pleas to appeal\\nissues that were raised in written motions prior to trial, a petitioner who has\\npled guilty may raise those issues in a § 2254 application. Gibson v.\\nKlevenhagen, 777 F.2d 1056, 1059 (5th Cir. 1985).\\n II.\\n On appeal, Webb makes two arguments. First, that the district court\\nerred in affording a presumption of correctness to the state court habeas\\nproceedings. And second, that his trial counsel was ineffective. The\\nrespondent asserts that the district court lacked jurisdiction to grant Webb’s\\nRule 60(b) motion. Alternatively, she argues that the district court did not\\nabuse its discretion when it denied Webb’s motion.\\n\\n\\n\\n\\n 3\\n\\f Case: 17-51143 Document: 00515161079 Page: 4 Date Filed: 10/16/2019\\n\\n\\n\\n No. 17-51143\\n III.\\n As we have earlier noted, before we can proceed further with this appeal,\\nwe must assure ourselves that we have jurisdiction to adjudicate Webb’s\\nclaims. “The requirement that jurisdiction be established as a threshold\\nmatter . . . is inflexible and without exception.” Steel Co. v. Citizens for a Better\\nEnv’t, 523 U.S. 83, 94–95 (1998) (internal quotations and citations omitted).\\nThis court’s jurisdiction to consider the merits of this appeal is predicated on\\nwhether the district court had jurisdiction to consider Webb’s Rule 60(b)\\nmotion. See United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). When the\\ndistrict court lacked jurisdiction, this court’s “jurisdiction extends not to the\\nmerits but merely for the purpose of correcting the error of the lower court in\\nentertaining the suit.” N.Y. Life Ins. Co. v. Deshotel, 142 F.3d 873, 883 (5th\\nCir. 1998) (quotations omitted).\\n A.\\n The respondent first asserts that the district court lacked jurisdiction to\\ngrant Webb’s Rule 60(b) motion because the legal basis for that motion had\\nalready been decided and rejected by this court when it declined to grant Webb\\na COA on the district court’s initial denial of his § 2254 application. This\\nargument implicates the “mandate rule” which is “a corollary of the law of the\\ncase doctrine.” Fisher v. Univ. of Tex. at Austin, 758 F.3d 633, 639 (5th Cir.\\n2014). Under the mandate rule, lower courts must comply “with the dictates\\nof a superior court” and cannot allow “relitigation of issues expressly or\\nimpliedly decided by the appellate court.” See id. at 639–40 (quoting United\\nStates v. Lee, 358 F.3d 315, 321 (5th Cir. 2004)). “Despite its importance, the\\nmandate rule is a discretionary device and not immutable.” United States v.\\nPineiro, 470 F.3d 200, 205 (5th Cir. 2006) (emphasis omitted). Indeed, our\\ncourt has recognized several exceptions to the rule, including where the district\\ncourt considers new evidence, where there is an intervening change in law, or\\n 4\\n\\f Case: 17-51143 Document: 00515161079 Page: 5 Date Filed: 10/16/2019\\n\\n\\n\\n No. 17-51143\\nwhere “the earlier decision was clearly erroneous and would work a manifest\\ninjustice.” Id. at 205–06. Accordingly, the mandate rule did not deprive the\\ndistrict court of jurisdiction to resolve the Rule 60(b) motion in Webb’s favor.\\nCf. United States v. Simpson, 796 F.3d 548, 552 (5th Cir. 2015) (declining to\\naddress the applicability of the mandate rule before proceeding to the merits).\\nTo be sure, the mandate rule that the respondent asserts as jurisdictional is\\nnot jurisdictional at all—it is a discretionary rule that can be set aside in\\ncertain circumstances. See United States v. Teel, 691 F.3d 578, 583 (5th Cir.\\n2012).\\n In any event, the mandate rule does not have merit here. The only orders\\nissued by this court were the orders denying Webb’s request for a COA and\\nmotion for reconsideration and rehearing en banc. Neither of these orders\\nspecifically addressed the district court’s determination that Webb’s guilty plea\\nwaived his claims for habeas relief. Instead, in denying Webb’s request for\\nCOA, this court determined only that Webb had not shown “that jurists of\\nreason would find it debatable whether the petition states a valid claim of the\\ndenial of a constitutional right and that jurists of reason would find it\\ndebatable whether the district court was correct in its procedural ruling.”\\nOrder, Webb v. Davis, 17-50123, at 2 (5th Cir. Oct. 25, 2017) (quoting Slack v.\\nMcDaniel, 529 U.S. 473, 484 (2000)). Because this court’s COA order did not\\n“expressly or impliedly” decide that the district court had correctly determined\\nthat Webb’s guilty plea waived his underlying claims, the district court could\\nhave granted Webb’s Rule 60(b) motion without running afoul of the mandate\\nrule.\\n B.\\n The respondent next argues that the district court lacked jurisdiction to\\ngrant Webb’s motion because it amounted to an unauthorized second or\\nsuccessive § 2254 application. A prisoner is required to obtain authorization\\n 5\\n\\f Case: 17-51143 Document: 00515161079 Page: 6 Date Filed: 10/16/2019\\n\\n\\n\\n No. 17-51143\\nfrom this court before filing a second or successive § 2254 application in the\\ndistrict court. See 28 U.S.C. § 2244(b)(3)(A). When faced with a Rule 60(b)\\nmotion filed in response to the denial of an application for habeas relief, the\\ndistrict court must first determine whether the petitioner is only seeking Rule\\n60(b) relief or is attempting to file a second or successive habeas application.\\nGonzalez v. Crosby, 545 U.S. 524, 531–32 (2005). A purported Rule 60(b)\\nmotion should be construed as a successive habeas application when it raises\\na new theory of relief or disputes the district court’s substantive resolution of\\na claim. Id. at 532. 1 In contrast, a Rule 60(b) motion that attacks “some defect\\nin the integrity of the federal habeas proceedings” or a procedural ruling that\\nprecluded a merits determination should not be construed as an unauthorized\\nsuccessive habeas application. See id. at 532, 535–36. “If neither the motion\\nitself nor the federal judgment from which it seeks relief substantively\\naddresses federal grounds for setting aside the movant’s state conviction,\\nallowing the motion to proceed [as a Rule 60(b) motion] creates no\\ninconsistency with the habeas statute or rules.” Id. at 533.\\n We have never squarely addressed whether a Rule 60(b) motion that\\nchallenges a district court’s dismissal of claims based on the determination\\nthat the claims were waived by the petitioner’s guilty plea is an unauthorized\\nsuccessive habeas application. But we do not write on a blank slate. In\\nGonzalez, for example, the Supreme Court provided the following instances of\\nprocedural rulings that habeas petitioners can challenge through a Rule 60(b)\\nmotion: rulings based on failure to exhaust, procedural default, or a statute-of-\\nlimitations bar. Id. at 532 n.4. We have since reasoned that other rulings that\\ncan be challenged in a postjudgment motion include: the district court’s denial\\n\\n\\n 1A district court resolves habeas claims on the merits when it makes “a determination\\nthat there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28\\nU.S.C. §§ 2254 (a) and (d).” Gonzalez, 545 U.S. at 532 n.4.\\n 6\\n\\f Case: 17-51143 Document: 00515161079 Page: 7 Date Filed: 10/16/2019\\n\\n\\n\\n No. 17-51143\\nof funding, the district court’s dismissal of claims without conducting an\\nevidentiary hearing, and the district court’s failure to consider claims\\npresented in the habeas application. See Crutsinger v. Davis, 929 F.3d 259,\\n265–66 (5th Cir. 2019); United States v. McDaniels, 907 F.3d 366, 370 (5th Cir.\\n2018); United States v. Brown, 547 F. App’x 637, 642 (5th Cir. 2013). Similarly,\\nthe Eleventh Circuit has recently held that “the denial of a claim based on a\\nvalid appeal waiver is not a decision on the merits” and therefore can be\\nattacked through a Rule 60(b) motion. See Pease v. United States, 768 F. App’x\\n974, 976 (11th Cir. 2019).\\n In the light of these precedents, we conclude that Webb’s motion\\nattacking the district court’s determination that his guilty plea waived his\\nhabeas claims was only a Rule 60(b) motion and not a successive § 2254\\napplication. We reach this conclusion because in denying Webb habeas relief\\nthe district court did not address the substance of any of his claims. Instead,\\nit concluded that Webb’s voluntary guilty plea effectively waived those claims.\\nThe crux of Webb’s Rule 60(b) motion is that the district court’s ruling that his\\nguilty plea waived his habeas claims was error. Nor did Webb’s motion seek\\nto raise new claims. This challenge is analogous to the types of procedural\\nattacks recognized in Gonzalez as properly brought in a Rule 60(b) motion.\\nAccordingly, we hold that Webb’s motion is not a successive § 2254 application\\nand that we have jurisdiction over this appeal.\\n IV.\\n We now turn to the merits of whether the district court erred in denying\\n60(b) relief to Webb. Whether to grant or deny Rule 60(b) relief is within the\\nsound discretion of the district court. See Seven Elves, Inc. v. Eskenazi, 635\\nF.2d 396, 402 (5th Cir. 1981). “It is not enough that the granting of relief might\\nhave been permissible, or even warranted;” instead, “denial must have been so\\nunwarranted as to constitute an abuse of discretion.” Id. As stated, Webb\\n 7\\n\\f Case: 17-51143 Document: 00515161079 Page: 8 Date Filed: 10/16/2019\\n\\n\\n\\n No. 17-51143\\nclaims he is entitled to relief under both Rule 60(b)(1) and (6). As we have said\\nearlier, Webb claims that the district court erred procedurally by holding that\\nhis guilty plea waived his right to raise his habeas claims. It is thus clear that\\nWebb’s claim, as articulated, falls under Rule 60(b)(1), which allows a district\\ncourt to afford relief from a final judgment on the account of “mistake,\\ninadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). Rule\\n60(b)(6) is a catchall provision that allows for the granting of relief from a\\njudgment for “any . . . reason that justifies relief” other than those reasons\\nlisted in Rule 60(b)(1)–(5). Fed. R. Civ. P. 60(b)(6). “The reason for relief set\\nforth under 60(b)(6) cannot be the reason for relief sought under another\\nsubsection of 60(b).” Hesling v. CSX Transp., Inc., 396 F.3d 632, 643 (5th Cir.\\n2005). Here, Webb asserted the same grounds for relief under Rule 60(b)(6) as\\nhe did under Rule 60(b)(1). Accordingly, he “cannot obtain relief under\\n60(b)(6).” Id.\\n We thus focus on Rule 60(b)(1). A “mistake” under Rule 60(b)(1) includes\\njudicial errors, but such an error must be a “fundamental misconception of the\\nlaw,” and not merely an erroneous ruling. Chick Kam Choo v. Exxon Corp.,\\n699 F.2d 693, 695 (5th Cir. 1983). In considering this issue, we are mindful\\nthat we must liberally construe Webb’s brief because he is proceeding pro se.\\nGrant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). Even so, “arguments must\\nbe briefed to be preserved.” Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).\\n Webb’s appellate brief fails to address whether the district erred by\\ndenying his Rule 60(b)(1) motion as to his habeas claims based on denial of the\\nright to speedy trial, suppression of evidence, and error in failure to appoint\\nsubstitute counsel. Instead, his brief raises two arguments on issues that are\\nnot properly before us. First, Webb argues that the district court erred by\\naffording a presumption of correctness to the state court habeas proceedings.\\nThis issue is not properly before us because Webb did not raise it in his Rule\\n 8\\n\\f Case: 17-51143 Document: 00515161079 Page: 9 Date Filed: 10/16/2019\\n\\n\\n\\n No. 17-51143\\n60(b) motion. Next, Webb contends that his trial counsel was ineffective. Webb\\ndid raise this issue in his Rule 60(b) motion, but our review is confined to the\\nissues granted a COA. See 28 U.S.C. § 2253(c). The COA order denied Webb\\na COA with respect to his ineffective assistance of counsel claims. Order, Webb\\nv. Davis, No. 17-51143, at 3 (5th Cir. Aug. 29, 2018). Thus, we are forbidden\\nto consider this claim. See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).\\nAccordingly, for procedural reasons by which we are bound, we close this\\nopinion without reaching the merits of Webb’s appeal. See Emerson v. Thaler,\\n464 F. App’x 346, 346–47 (5th Cir. 2012) (“Because Emerson has failed to brief\\nthe sole issue on which a COA was granted, he has waived that issue, and the\\njudgment is AFFIRMED.”).\\n V.\\n In sum, the mandate rule did not deprive the district court of jurisdiction\\nto grant Webb’s Rule 60(b) motion. We additionally hold that, when a\\npetitioner files a Rule 60(b) motion attacking a district court’s determination\\nthat the petitioner’s habeas claims were waived by his guilty plea, the motion\\nis not an unauthorized successive habeas petition. Nonetheless, because Webb\\nhas waived argument concerning the issue upon which this court granted\\nappellate review, the judgment of the district court is\\n AFFIRMED.\\n\\n\\n\\n\\n 9\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4587,"cells":{"id":{"kind":"number","value":4670582,"string":"4,670,582"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"JCB, Incorporated v. Horsburgh & Scott Company"},"decision_date":{"kind":"string","value":"2019-10-17"},"docket_number":{"kind":"string","value":"17-51023"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before HAYNES, HO, and DUNCAN, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JAMES C. HO, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-51023 Document: 00515163443 Page: 1 Date Filed: 10/17/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n October 17, 2019\\n No. 17-51023\\n Lyle W. Cayce\\n Clerk\\nJCB, INCORPORATED, doing business as Conveying & Power Transmission\\nSolutions,\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nTHE HORSBURGH & SCOTT COMPANY,\\n\\n Defendant - Appellee\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore HAYNES, HO, and DUNCAN, Circuit Judges.\\nJAMES C. HO, Circuit Judge:\\n This case is a perfect example of when we should certify cases, and why\\ncertification is valuable. We are presented with a question of pure statutory\\ninterpretation on a recurring issue of interest to citizens and businesses across\\nTexas. What’s more, it is a question that divided judges on this court. As\\nreflected in our competing concurring opinions, different judges on this court\\nhave disagreed about whether the district court correctly interpreted the Texas\\nSales Representative Act (“TSRA”). See JCB, Inc. v. Horsburgh & Scott Co.,\\n912 F.3d 238, 241–46 (5th Cir. 2018) (Ho & Duncan, JJ., individually\\nconcurring) (“Horsburgh I”). But we all agreed that reasonable minds could\\n\\f Case: 17-51023 Document: 00515163443 Page: 2 Date Filed: 10/17/2019\\n\\n\\n\\n No. 17-51023\\ndiffer. So rather than provide a partial answer—binding only litigants who file\\nin federal court, not those in state court— we instead certified the question to\\nthe Supreme Court of Texas, which can speak with authority for all litigants,\\nin state and federal court alike. See, e.g., id. at 243 (Ho, J., concurring).\\n We now have that answer, and accordingly affirm in part and reverse\\nand remand in part.\\n Conveying & Power Transmission Solutions (“CPTS”) was an\\nindependent sales representative for the Horsburgh & Scott Company, earning\\na commission on every sale. After the parties terminated their agreement,\\nHorsburgh owed CPTS approximately $280,000 in commissions. Over the next\\nyear and a half, Horsburgh made consistent but untimely payments.\\nEventually, CPTS sued Horsburgh in Texas state court under, inter alia, the\\nTSRA. Horsburgh removed to federal court. While the lawsuit was pending,\\nHorsburgh paid off the rest of its outstanding commissions.\\n The district court granted summary judgment to Horsburgh. In relevant\\npart, it determined that the TSRA only allows for treble damages for “unpaid\\ncommissions due.” According to the court, Horsburgh had paid all of its past-\\ndue commissions, so there was no longer anything “unpaid” or “due.” CPTS\\nappealed solely with respect to its TSRA claim.\\n The TSRA provides:\\n A principal who fails to comply with a provision of a contract under\\n Section 54.002 relating to payment of a commission . . . is liable to\\n the sales representative in a civil action for: (1) three times the\\n unpaid commission due the sales representative; and (2)\\n reasonable attorney’s fees and costs.\\n\\nTEX. BUS. & COM. CODE § 54.004. The only questions in dispute are (1) whether\\nthere are any “unpaid commissions due” to treble, and (2) whether, in the\\nabsence of a treble damages award, CPTS is nevertheless entitled to attorney’s\\nfees.\\n 2\\n\\f Case: 17-51023 Document: 00515163443 Page: 3 Date Filed: 10/17/2019\\n\\n\\n\\n No. 17-51023\\n We concluded that § 54.004(1) is ambiguous because it is unclear “[a]t\\nwhat moment in time” courts must “determine the amount of any ‘unpaid\\ncommission due’” subject to trebling. See Horsburgh I, 912 F.3d at 239.\\nFurther, we determined it was “not clear” whether the TSRA provides for\\nattorney’s fees when the plaintiff is not entitled to treble damages. See id. at\\n241.\\n So we certified two questions to the Supreme Court of Texas:\\n (1) What timing standard should courts use to determine the\\n existence and amount of any “unpaid commissions due” under the\\n treble damages provision of TEX. BUS. & COM. CODE § 54.004(1)?\\n (2) May a plaintiff recover reasonable attorney’s fees and costs\\n under TEX. BUS. & COM. CODE § 54.004(2), if the plaintiff does not\\n receive a treble damages award under TEX. BUS. & COM. CODE\\n § 54.004(1), and under what conditions?\\n\\nId. After full briefing and oral argument, the Supreme Court of Texas\\nresponded.\\n First, it held that “the time for determining the existence and amount of\\n‘unpaid commission due’ under section 54.001(1) is the time the jury or trial\\ncourt determines the liability of the defendant, whether at trial or through\\nanother dispositive trial-court process such as a summary judgment.” JCB,\\nInc. v. The Horsburgh & Scott Company, 2019 WL 2406971, at *7 (Tex. June\\n7, 2019), reh’g denied (Oct. 4, 2019).\\n Here, there were no “unpaid commissions due” at the time of judgment,\\nbecause Horsburgh had already paid all of its outstanding commissions, plus\\ninterest. Accordingly, CPTS was not entitled to treble damages, and the\\ndistrict court was therefore correct to grant summary judgment to Horsburgh\\non the treble damages claim.\\n Second, the court held that “a plaintiff may recover attorney’s fees and\\ncosts under TEX. BUS. & COM. CODE § 54.004(2) even if the plaintiff does not\\nreceive treble damages, if the factfinder determines that the fees and costs\\n 3\\n\\f Case: 17-51023 Document: 00515163443 Page: 4 Date Filed: 10/17/2019\\n\\n\\n\\n No. 17-51023\\nwere reasonably incurred under the circumstances.” Id. at *9. The court\\ncautioned that the “reasonableness” requirement is a “very real limitation” on\\nthe “otherwise unbounded grant of attorney’s fees and costs to the sales\\nrepresentative.” Id. at *8.\\n So CPTS is eligible for attorney’s fees simply by virtue of Horsburgh’s\\nbreach. See id. at *9. The award of attorney’s fees must be reasonable,\\nhowever. To determine reasonableness, the district court on remand must\\naccount (in addition to the usual considerations) for two things. First, this\\nlawsuit, and the threat of treble damages, might have ensured Horsburgh’s\\nfull payment. Second, litigation continued even after CPTS was fully\\ncompensated. As the Texas Supreme Court observed:\\n [CPTS] lost in its bid to add treble damages to its fully paid\\n commissions, and we cannot envision a scenario in which fees\\n expended in pursuit of [CPTS’s] invalid theory of treble-damages\\n liability could ever be reasonable. . . . According to Horsburgh,\\n after [CPTS] sued in May 2016, Horsburgh fully paid\\n approximately $90,000 in late commissions by August 2016,\\n several months after [CPTS] filed suit. Attorney’s fees spent\\n pursuing that amount may be reasonable, assuming they satisfy\\n other legal and factual standards applicable to reasonable fee\\n awards. On the other hand, attorney’s fees spent continuing to press\\n for treble damages after the defendant paid all commissions due\\n plus interest are likely not reasonable, because at that point the\\n case should have been finished.\\n\\nId. at *8 (emphasis added). See also Gurule v. Land Guardian, Inc., 912 F.3d\\n252, 262 (5th Cir. 2018) (Ho, J., concurring) (“To state the obvious, it is not\\nreasonable for an attorney to charge for time spent on tasks that lack any\\nreasonable prospect of creating value for the client. After all, to charge for that\\ntime would benefit only the attorney, not the client.”).\\n ***\\n In sum, the district court correctly concluded that CPTS was not entitled\\nto treble damages. But it erred by granting summary to Horsburgh without\\n 4\\n\\f Case: 17-51023 Document: 00515163443 Page: 5 Date Filed: 10/17/2019\\n\\n\\n\\n No. 17-51023\\nawarding CPTS reasonable attorney’s fees and costs. Accordingly, we affirm\\nthe judgment as to the denial of the treble damages award, vacate as to the\\ndenial of attorney’s fees, and remand for further proceedings consistent with\\nthis opinion.\\n\\n\\n\\n\\n 5\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4447835/\", \"author_raw\": \"JAMES C. HO, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"HAYNES"},"judge2":{"kind":"string","value":"HO"},"judge3":{"kind":"string","value":"DUNCAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"HAYNES\": \", Circuit\", \"HO\": \", Circuit\", \"DUNCAN\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4670582/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: JCB, Incorporated v. Horsburgh & Scott Company\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-51023 Document: 00515163443 Page: 1 Date Filed: 10/17/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n October 17, 2019\n No. 17-51023\n Lyle W. Cayce\n Clerk\nJCB, INCORPORATED, doing business as Conveying & Power Transmission\nSolutions,\n\n Plaintiff - Appellant\n\nv.\n\nTHE HORSBURGH & SCOTT COMPANY,\n\n Defendant - Appellee\n\n\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n\n\nBefore HAYNES, HO, and DUNCAN, Circuit Judges.\nJAMES C. HO, Circuit Judge:\n This case is a perfect example of when we should certify cases, and why\ncertification is valuable. We are presented with a question of pure statutory\ninterpretation on a recurring issue of interest to citizens and businesses across\nTexas. What’s more, it is a question that divided judges on this court. As\nreflected in our competing concurring opinions, different judges on this court\nhave disagreed about whether the district court correctly interpreted the Texas\nSales Representative Act (“TSRA”). See JCB, Inc. v. Horsburgh & Scott Co.,\n912 F.3d 238, 241–46 (5th Cir. 2018) (Ho & Duncan, JJ., individually\nconcurring) (“Horsburgh I”). But we all agreed that reasonable minds could\n\f Case: 17-51023 Document: 00515163443 Page: 2 Date Filed: 10/17/2019\n\n\n\n No. 17-51023\ndiffer. So rather than provide a partial answer—binding only litigants who file\nin federal court, not those in state court— we instead certified the question to\nthe Supreme Court of Texas, which can speak with authority for all litigants,\nin state and federal court alike. See, e.g., id. at 243 (Ho, J., concurring).\n We now have that answer, and accordingly affirm in part and reverse\nand remand in part.\n Conveying & Power Transmission Solutions (“CPTS”) was an\nindependent sales representative for the Horsburgh & Scott Company, earning\na commission on every sale. After the parties terminated their agreement,\nHorsburgh owed CPTS approximately $280,000 in commissions. Over the next\nyear and a half, Horsburgh made consistent but untimely payments.\nEventually, CPTS sued Horsburgh in Texas state court under, inter alia, the\nTSRA. Horsburgh removed to federal court. While the lawsuit was pending,\nHorsburgh paid off the rest of its outstanding commissions.\n The district court granted summary judgment to Horsburgh. In relevant\npart, it determined that the TSRA only allows for treble damages for “unpaid\ncommissions due.” According to the court, Horsburgh had paid all of its past-\ndue commissions, so there was no longer anything “unpaid” or “due.” CPTS\nappealed solely with respect to its TSRA claim.\n The TSRA provides:\n A principal who fails to comply with a provision of a contract under\n Section 54.002 relating to payment of a commission . . . is liable to\n the sales representative in a civil action for: (1) three times the\n unpaid commission due the sales representative; and (2)\n reasonable attorney’s fees and costs.\n\nTEX. BUS. & COM. CODE § 54.004. The only questions in dispute are (1) whether\nthere are any “unpaid commissions due” to treble, and (2) whether, in the\nabsence of a treble damages award, CPTS is nevertheless entitled to attorney’s\nfees.\n 2\n\f Case: 17-51023 Document: 00515163443 Page: 3 Date Filed: 10/17/2019\n\n\n\n No. 17-51023\n We concluded that § 54.004(1) is ambiguous because it is unclear “[a]t\nwhat moment in time” courts must “determine the amount of any ‘unpaid\ncommission due’” subject to trebling. See Horsburgh I, 912 F.3d at 239.\nFurther, we determined it was “not clear” whether the TSRA provides for\nattorney’s fees when the plaintiff is not entitled to treble damages. See id. at\n241.\n So we certified two questions to the Supreme Court of Texas:\n (1) What timing standard should courts use to determine the\n existence and amount of any “unpaid commissions due” under the\n treble damages provision of TEX. BUS. & COM. CODE § 54.004(1)?\n (2) May a plaintiff recover reasonable attorney’s fees and costs\n under TEX. BUS. & COM. CODE § 54.004(2), if the plaintiff does not\n receive a treble damages award under TEX. BUS. & COM. CODE\n § 54.004(1), and under what conditions?\n\nId. After full briefing and oral argument, the Supreme Court of Texas\nresponded.\n First, it held that “the time for determining the existence and amount of\n‘unpaid commission due’ under section 54.001(1) is the time the jury or trial\ncourt determines the liability of the defendant, whether at trial or through\nanother dispositive trial-court process such as a summary judgment.” JCB,\nInc. v. The Horsburgh & Scott Company, 2019 WL 2406971, at *7 (Tex. June\n7, 2019), reh’g denied (Oct. 4, 2019).\n Here, there were no “unpaid commissions due” at the time of judgment,\nbecause Horsburgh had already paid all of its outstanding commissions, plus\ninterest. Accordingly, CPTS was not entitled to treble damages, and the\ndistrict court was therefore correct to grant summary judgment to Horsburgh\non the treble damages claim.\n Second, the court held that “a plaintiff may recover attorney’s fees and\ncosts under TEX. BUS. & COM. CODE § 54.004(2) even if the plaintiff does not\nreceive treble damages, if the factfinder determines that the fees and costs\n 3\n\f Case: 17-51023 Document: 00515163443 Page: 4 Date Filed: 10/17/2019\n\n\n\n No. 17-51023\nwere reasonably incurred under the circumstances.” Id. at *9. The court\ncautioned that the “reasonableness” requirement is a “very real limitation” on\nthe “otherwise unbounded grant of attorney’s fees and costs to the sales\nrepresentative.” Id. at *8.\n So CPTS is eligible for attorney’s fees simply by virtue of Horsburgh’s\nbreach. See id. at *9. The award of attorney’s fees must be reasonable,\nhowever. To determine reasonableness, the district court on remand must\naccount (in addition to the usual considerations) for two things. First, this\nlawsuit, and the threat of treble damages, might have ensured Horsburgh’s\nfull payment. Second, litigation continued even after CPTS was fully\ncompensated. As the Texas Supreme Court observed:\n [CPTS] lost in its bid to add treble damages to its fully paid\n commissions, and we cannot envision a scenario in which fees\n expended in pursuit of [CPTS’s] invalid theory of treble-damages\n liability could ever be reasonable. . . . According to Horsburgh,\n after [CPTS] sued in May 2016, Horsburgh fully paid\n approximately $90,000 in late commissions by August 2016,\n several months after [CPTS] filed suit. Attorney’s fees spent\n pursuing that amount may be reasonable, assuming they satisfy\n other legal and factual standards applicable to reasonable fee\n awards. On the other hand, attorney’s fees spent continuing to press\n for treble damages after the defendant paid all commissions due\n plus interest are likely not reasonable, because at that point the\n case should have been finished.\n\nId. at *8 (emphasis added). See also Gurule v. Land Guardian, Inc., 912 F.3d\n252, 262 (5th Cir. 2018) (Ho, J., concurring) (“To state the obvious, it is not\nreasonable for an attorney to charge for time spent on tasks that lack any\nreasonable prospect of creating value for the client. After all, to charge for that\ntime would benefit only the attorney, not the client.”).\n ***\n In sum, the district court correctly concluded that CPTS was not entitled\nto treble damages. But it erred by granting summary to Horsburgh without\n 4\n\f Case: 17-51023 Document: 00515163443 Page: 5 Date Filed: 10/17/2019\n\n\n\n No. 17-51023\nawarding CPTS reasonable attorney’s fees and costs. Accordingly, we affirm\nthe judgment as to the denial of the treble damages award, vacate as to the\ndenial of attorney’s fees, and remand for further proceedings consistent with\nthis opinion.\n\n\n\n\n 5\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: JCB, Incorporated v. Horsburgh & Scott Company\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-51023 Document: 00515163443 Page: 1 Date Filed: 10/17/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n October 17, 2019\\n No. 17-51023\\n Lyle W. Cayce\\n Clerk\\nJCB, INCORPORATED, doing business as Conveying & Power Transmission\\nSolutions,\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nTHE HORSBURGH & SCOTT COMPANY,\\n\\n Defendant - Appellee\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore HAYNES, HO, and DUNCAN, Circuit Judges.\\nJAMES C. HO, Circuit Judge:\\n This case is a perfect example of when we should certify cases, and why\\ncertification is valuable. We are presented with a question of pure statutory\\ninterpretation on a recurring issue of interest to citizens and businesses across\\nTexas. What’s more, it is a question that divided judges on this court. As\\nreflected in our competing concurring opinions, different judges on this court\\nhave disagreed about whether the district court correctly interpreted the Texas\\nSales Representative Act (“TSRA”). See JCB, Inc. v. Horsburgh & Scott Co.,\\n912 F.3d 238, 241–46 (5th Cir. 2018) (Ho & Duncan, JJ., individually\\nconcurring) (“Horsburgh I”). But we all agreed that reasonable minds could\\n\\f Case: 17-51023 Document: 00515163443 Page: 2 Date Filed: 10/17/2019\\n\\n\\n\\n No. 17-51023\\ndiffer. So rather than provide a partial answer—binding only litigants who file\\nin federal court, not those in state court— we instead certified the question to\\nthe Supreme Court of Texas, which can speak with authority for all litigants,\\nin state and federal court alike. See, e.g., id. at 243 (Ho, J., concurring).\\n We now have that answer, and accordingly affirm in part and reverse\\nand remand in part.\\n Conveying & Power Transmission Solutions (“CPTS”) was an\\nindependent sales representative for the Horsburgh & Scott Company, earning\\na commission on every sale. After the parties terminated their agreement,\\nHorsburgh owed CPTS approximately $280,000 in commissions. Over the next\\nyear and a half, Horsburgh made consistent but untimely payments.\\nEventually, CPTS sued Horsburgh in Texas state court under, inter alia, the\\nTSRA. Horsburgh removed to federal court. While the lawsuit was pending,\\nHorsburgh paid off the rest of its outstanding commissions.\\n The district court granted summary judgment to Horsburgh. In relevant\\npart, it determined that the TSRA only allows for treble damages for “unpaid\\ncommissions due.” According to the court, Horsburgh had paid all of its past-\\ndue commissions, so there was no longer anything “unpaid” or “due.” CPTS\\nappealed solely with respect to its TSRA claim.\\n The TSRA provides:\\n A principal who fails to comply with a provision of a contract under\\n Section 54.002 relating to payment of a commission . . . is liable to\\n the sales representative in a civil action for: (1) three times the\\n unpaid commission due the sales representative; and (2)\\n reasonable attorney’s fees and costs.\\n\\nTEX. BUS. & COM. CODE § 54.004. The only questions in dispute are (1) whether\\nthere are any “unpaid commissions due” to treble, and (2) whether, in the\\nabsence of a treble damages award, CPTS is nevertheless entitled to attorney’s\\nfees.\\n 2\\n\\f Case: 17-51023 Document: 00515163443 Page: 3 Date Filed: 10/17/2019\\n\\n\\n\\n No. 17-51023\\n We concluded that § 54.004(1) is ambiguous because it is unclear “[a]t\\nwhat moment in time” courts must “determine the amount of any ‘unpaid\\ncommission due’” subject to trebling. See Horsburgh I, 912 F.3d at 239.\\nFurther, we determined it was “not clear” whether the TSRA provides for\\nattorney’s fees when the plaintiff is not entitled to treble damages. See id. at\\n241.\\n So we certified two questions to the Supreme Court of Texas:\\n (1) What timing standard should courts use to determine the\\n existence and amount of any “unpaid commissions due” under the\\n treble damages provision of TEX. BUS. & COM. CODE § 54.004(1)?\\n (2) May a plaintiff recover reasonable attorney’s fees and costs\\n under TEX. BUS. & COM. CODE § 54.004(2), if the plaintiff does not\\n receive a treble damages award under TEX. BUS. & COM. CODE\\n § 54.004(1), and under what conditions?\\n\\nId. After full briefing and oral argument, the Supreme Court of Texas\\nresponded.\\n First, it held that “the time for determining the existence and amount of\\n‘unpaid commission due’ under section 54.001(1) is the time the jury or trial\\ncourt determines the liability of the defendant, whether at trial or through\\nanother dispositive trial-court process such as a summary judgment.” JCB,\\nInc. v. The Horsburgh & Scott Company, 2019 WL 2406971, at *7 (Tex. June\\n7, 2019), reh’g denied (Oct. 4, 2019).\\n Here, there were no “unpaid commissions due” at the time of judgment,\\nbecause Horsburgh had already paid all of its outstanding commissions, plus\\ninterest. Accordingly, CPTS was not entitled to treble damages, and the\\ndistrict court was therefore correct to grant summary judgment to Horsburgh\\non the treble damages claim.\\n Second, the court held that “a plaintiff may recover attorney’s fees and\\ncosts under TEX. BUS. & COM. CODE § 54.004(2) even if the plaintiff does not\\nreceive treble damages, if the factfinder determines that the fees and costs\\n 3\\n\\f Case: 17-51023 Document: 00515163443 Page: 4 Date Filed: 10/17/2019\\n\\n\\n\\n No. 17-51023\\nwere reasonably incurred under the circumstances.” Id. at *9. The court\\ncautioned that the “reasonableness” requirement is a “very real limitation” on\\nthe “otherwise unbounded grant of attorney’s fees and costs to the sales\\nrepresentative.” Id. at *8.\\n So CPTS is eligible for attorney’s fees simply by virtue of Horsburgh’s\\nbreach. See id. at *9. The award of attorney’s fees must be reasonable,\\nhowever. To determine reasonableness, the district court on remand must\\naccount (in addition to the usual considerations) for two things. First, this\\nlawsuit, and the threat of treble damages, might have ensured Horsburgh’s\\nfull payment. Second, litigation continued even after CPTS was fully\\ncompensated. As the Texas Supreme Court observed:\\n [CPTS] lost in its bid to add treble damages to its fully paid\\n commissions, and we cannot envision a scenario in which fees\\n expended in pursuit of [CPTS’s] invalid theory of treble-damages\\n liability could ever be reasonable. . . . According to Horsburgh,\\n after [CPTS] sued in May 2016, Horsburgh fully paid\\n approximately $90,000 in late commissions by August 2016,\\n several months after [CPTS] filed suit. Attorney’s fees spent\\n pursuing that amount may be reasonable, assuming they satisfy\\n other legal and factual standards applicable to reasonable fee\\n awards. On the other hand, attorney’s fees spent continuing to press\\n for treble damages after the defendant paid all commissions due\\n plus interest are likely not reasonable, because at that point the\\n case should have been finished.\\n\\nId. at *8 (emphasis added). See also Gurule v. Land Guardian, Inc., 912 F.3d\\n252, 262 (5th Cir. 2018) (Ho, J., concurring) (“To state the obvious, it is not\\nreasonable for an attorney to charge for time spent on tasks that lack any\\nreasonable prospect of creating value for the client. After all, to charge for that\\ntime would benefit only the attorney, not the client.”).\\n ***\\n In sum, the district court correctly concluded that CPTS was not entitled\\nto treble damages. But it erred by granting summary to Horsburgh without\\n 4\\n\\f Case: 17-51023 Document: 00515163443 Page: 5 Date Filed: 10/17/2019\\n\\n\\n\\n No. 17-51023\\nawarding CPTS reasonable attorney’s fees and costs. Accordingly, we affirm\\nthe judgment as to the denial of the treble damages award, vacate as to the\\ndenial of attorney’s fees, and remand for further proceedings consistent with\\nthis opinion.\\n\\n\\n\\n\\n 5\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4588,"cells":{"id":{"kind":"number","value":4670859,"string":"4,670,859"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Rebekah Gee"},"decision_date":{"kind":"string","value":"2019-10-18"},"docket_number":{"kind":"string","value":"19-30353"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before OWEN, Chief Judge, and WILLETT and OLDHAM, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"Case: 19-30353 Document: 00515163811 Page: 1 Date Filed: 10/18/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n October 18, 2019\\n No. 19-30353\\n Lyle W. Cayce\\n Clerk\\nIn re: REBEKAH GEE, in her official capacity as Secretary of the Louisiana\\nDepartment of Health; JAMES E. STEWART, SR., in his official capacity as\\nDistrict Attorney for Caddo Parish,\\n\\n Petitioners.\\n\\n\\n Petition for a Writ of Mandamus\\n to the United States District Court for the\\n Middle District of Louisiana\\n\\n\\nBefore OWEN, Chief Judge, and WILLETT and OLDHAM, Circuit Judges.\\nPER CURIAM:\\n This is an extraordinary case. An abortion clinic and two of its doctors\\nseek a federal injunction against virtually all of Louisiana’s legal framework\\nfor regulating abortion. As part of this effort, Plaintiffs challenge legal\\nprovisions that do not injure them now and could not ever injure them. The\\ndistrict court, however, concluded it would be “untenable” to make Plaintiffs\\nestablish their standing because doing so would make it more difficult for them\\nto succeed on the merits. That was obvious error. Still, we exercise our\\ndiscretion not to grant Defendants’ mandamus petition at this time because we\\nare confident it is unnecessary.\\n I.\\n Plaintiffs brought a “cumulative-effects challenge” to Louisiana’s laws\\nregulating abortion. They argued the provisions taken as a whole were\\nunconstitutional, even if the individual provisions were not. Louisiana moved\\n\\f Case: 19-30353 Document: 00515163811 Page: 2 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nto dismiss on jurisdictional grounds and because Plaintiffs’ theory is foreclosed\\nby precedent. The district court denied the motion to dismiss but certified its\\norder for interlocutory appeal under 28 U.S.C. § 1292(b). The court explained\\nthe cumulative-effects issue is one “of first impression that requires the\\ninterpretation of recent Supreme Court precedent without the benefit of\\nclarification from the [Fifth Circuit].” May 15, 2018 Order, Doc. 76 at 3.\\n Plaintiffs then persuaded the district court to rescind the certification so\\nthey could amend their complaint to add individual-effect challenges to some\\nof the provisions. After Plaintiffs amended their complaint, Louisiana again\\nmoved to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil\\nProcedure. The district court again denied the motion. But this time, the\\ndistrict court did not certify its decision for interlocutory appeal. It’s difficult\\nto understand why because the court found that the Amended Complaint still\\ncontained a “cumulative effects cause of action” and that “[w]ith respect to the\\napplicable law which guides this Court, nothing has appreciably changed.”\\nMarch 29, 2019 Order, Doc. 103 at 13, 20. Without explaining its change of\\nheart, the district court concluded “this is not a case of first impression.” Id.\\nat 20.\\n Stranger still, the district court refused to consider Louisiana’s\\njurisdictional arguments because doing so might make it difficult for Plaintiffs\\nto prevail on the merits. Id. at 15. The court acknowledged Louisiana’s\\nargument that Plaintiffs’ challenges to certain provisions “could not possibly\\nbe justiciable” and said that argument “appear[ed] persuasive” “[i]n a vacuum.”\\nId. at 14; see also id. at 11 (“Defendants also claim that the Court lacks Article\\nIII jurisdiction to consider a challenge to many of the individual laws included\\nin Plaintiffs’ cumulative effects challenge.”). The court nonetheless refused to\\nanalyze Plaintiffs’ standing to challenge each provision included in their\\n\\n 2\\n\\f Case: 19-30353 Document: 00515163811 Page: 3 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\ncumulative-effects challenge: “[T]o take on each regulation, individually and\\nseparately,” would place Plaintiffs “in an untenable position where they are\\nforced to individually challenge many facially valid regulations, despite the\\nfact that, taken together, such provisions may violate the directives of both\\nPlanned Parenthood and Casey [sic].” Id. at 14–15.\\n Louisiana petitioned this Court for a writ of mandamus. 1 With\\nMississippi and Texas both supporting the petition as amici, all three States\\nin our Circuit have asked us to intervene. Louisiana asks us, among other\\nthings, to use the writ of mandamus to dismiss two counts in the Amended\\nComplaint.\\n II.\\n Under the All Writs Act, federal courts “may issue all writs necessary or\\nappropriate in aid of their respective jurisdictions and agreeable to the usages\\nand principles of law.” 28 U.S.C. § 1651(a). That includes the writ of\\nmandamus requested here. See, e.g., Cheney v. U.S. Dist. Court for D.C., 542\\nU.S. 367, 380 (2004). But because mandamus “is one of the most potent\\nweapons in the judicial arsenal, three conditions must be satisfied before it\\nmay issue.” Ibid. (quotation omitted). The Supreme Court has explained:\\n First, the party seeking issuance of the writ [must] have no other\\n adequate means to attain the relief he desires—a condition\\n designed to ensure that the writ will not be used as a substitute\\n for the regular appeals process. Second, the petitioner must satisfy\\n the burden of showing that [his] right to issuance of the writ is\\n clear and indisputable. Third, even if the first two prerequisites\\n have been met, the issuing court, in the exercise of its discretion,\\n\\n\\n 1 The named defendants are two Louisiana officials, but that is only because Ex parte\\nYoung allows injunctive relief against the State in suits against state officers in their official\\ncapacities. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 114 n.25 (1984)\\n(“To say that injunctive relief against State officials acting in their official capacity does not\\nrun against the State is to resort to the fictions that characterize the dissent’s theories.”).\\n 3\\n\\f Case: 19-30353 Document: 00515163811 Page: 4 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n must be satisfied that the writ is appropriate under the\\n circumstances.\\nId. at 380–81 (alterations in original) (quotations omitted).\\n “These hurdles, however demanding, are not insuperable.” Id. at 381.\\nThey simply reserve the writ “for really extraordinary causes.” Id. at 380\\n(quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947)). And in extraordinary\\ncases, mandamus petitions “serve as useful ‘safety valve[s]’ for promptly\\ncorrecting serious errors.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 111\\n(2009) (alteration in original).\\n “The clearest traditional office of mandamus and prohibition has been to\\ncontrol jurisdictional excesses, whether the lower court has acted without\\npower or has refused to act when it had no power to refuse.” 16 CHARLES ALAN\\nWRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3933.1 (3d ed.)\\n[hereinafter WRIGHT & MILLER]. That was true at common law. See 3 WILLIAM\\nBLACKSTONE, COMMENTARIES *112 (explaining the writ of prohibition issued\\nto “any inferior court, commanding them to cease” a case that did “not belong\\nto that jurisdiction”). 2 And it’s true today. “The traditional use of the writ in\\naid of appellate jurisdiction both at common law and in the federal courts has\\nbeen to confine [the court against which mandamus is sought] to a lawful\\nexercise of its prescribed jurisdiction.” Cheney, 542 U.S. at 380 (quoting Roche\\nv. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943)); see also 16 WRIGHT & MILLER\\n§ 3932 (“The most common traditional statement is that the extraordinary\\nwrits are available to a court of appeals to prevent a district court from acting\\n\\n\\n 2 In keeping with modern practice, we do not distinguish between mandamus and\\nprohibition. “Once power is found to issue a writ, little concern is shown to define the possible\\ntechnical and historic differences between mandamus and prohibition.” 16 WRIGHT &\\nMILLER § 3932.2. Considering a petition for mandamus, or prohibition in the alternative, the\\nSupreme Court explained that “[i]t does not matter very much in what form an extraordinary\\nremedy is afforded.” In re Simons, 247 U.S. 231, 239–40 (1918).\\n 4\\n\\f Case: 19-30353 Document: 00515163811 Page: 5 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nbeyond its jurisdiction, or to compel it to take action that it lacks power to\\nwithhold.”).\\n That’s not to say mandamus was or is limited to jurisdictional issues.\\nAlthough it issued “in theory to prevent [a judge] from exceeding his\\njurisdiction or to require him to exercise it,” it issued “[i]n practice” for “all\\nmanner of errors.” Pulliam v. Allen, 466 U.S. 522, 532–33 (1984). But even as\\nthe use of mandamus expanded, the jurisdictional core remained. That’s why\\nmandamus is described as “an expeditious and effective means of confining the\\ninferior court to a lawful exercise of its prescribed jurisdiction, or of compelling\\nit to exercise its authority when it is its duty to do so.” Ex parte Republic of\\nPeru, 318 U.S. 578, 583 (1943).\\n III.\\n In keeping with the traditional office of the writ of mandamus, we start\\nwith the jurisdictional errors below. And we consider whether, in the\\nextraordinary circumstances presented here, those jurisdictional errors give\\nthe State a right to the writ. It’s a close question, even in these extraordinary\\ncircumstances. But in our view, the State has carried its burden on the first\\nprong of the mandamus standard.\\n A.\\n Our mandamus precedent has long distinguished between discretionary\\ndecisions and non-discretionary duties. If the issue “is one committed to the\\ndiscretion of the trial court, a clear and indisputable right to the issuance of\\nthe writ of mandamus will arise only if the district court has clearly abused its\\ndiscretion, such that it amounts to a judicial usurpation of power.” In re First\\nS. Sav. Ass’n, 820 F.2d 700, 707 (5th Cir. 1987). But if the district court has\\nviolated a non-discretionary duty, the petitioner necessarily has a clear and\\nindisputable right to relief. See United States ex rel. Bernardin v. Duell, 172\\n\\n 5\\n\\f Case: 19-30353 Document: 00515163811 Page: 6 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nU.S. 576, 582 (1899) (holding “the writ of mandamus will not ordinarily be\\ngranted . . . unless the duty sought to be enforced is clear and indisputable”);\\nIn re Digicon Marine, Inc., 966 F.2d 158, 160 (5th Cir. 1992) (granting\\nmandamus because “the district court had no discretion” (quotation omitted));\\nIn re Estelle, 516 F.2d 480, 483 (5th Cir. 1975) (“[A]n extraordinary Writ may\\nbe appropriate to prevent a trial court from making a discretionary decision\\nwhere a statute effectively removes the decision from the realm of discretion.”);\\nSEC v. Krentzman, 397 F.2d 55, 59 (5th Cir. 1968) (holding mandamus was\\nappropriate because the district court “exercised what he thought to be a\\ndiscretionary power which he did not possess”).\\n A district court’s obligation to consider a challenge to its jurisdiction is\\nnon-discretionary. When the defendant “challenge[s] the jurisdiction of the\\ndistrict court in an appropriate manner,” that court has a “duty of making\\nfurther inquiry as to its own jurisdiction.” Opelika Nursing Home, Inc. v.\\nRichardson, 448 F.2d 658, 666 (5th Cir. 1971). “[F]ederal courts are under an\\nindependent obligation to examine their own jurisdiction, and standing ‘is\\nperhaps the most important of [the jurisdictional] doctrines.’ ” FW/PBS, Inc.\\nv. City of Dallas, 493 U.S. 215, 231 (1990) (quoting Allen v. Wright, 468 U.S.\\n737, 750 (1984)); see also United States v. Hays, 515 U.S. 737, 742 (1995). This\\nobligation applies to each statute being challenged. See, e.g., Lewis v. Casey,\\n518 U.S. 343, 358 & n.6 (1996).\\n We hasten to emphasize, however, that a district court’s failure to\\nconsider jurisdiction does not always create a right to the writ. That failure is\\nextraordinary here for four reasons. First, Louisiana raised forceful objections\\nto the district court’s jurisdiction. The State filed a motion to dismiss the first\\ncomplaint and another jurisdictional challenge to the Amended Complaint.\\nSecond, the district court recognized the defendants’ jurisdictional objections\\n\\n 6\\n\\f Case: 19-30353 Document: 00515163811 Page: 7 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nand even said they appeared “persuasive.” Third, the court nonetheless found\\nit “untenable” to make Plaintiffs establish standing because doing so would\\nmake it harder for them to succeed on the merits. March 29, 2019 Order, Doc.\\n103 at 15. Fourth, as we explain in Part III.B below, at least some of the State’s\\njurisdictional arguments appear meritorious. This case is thus not about a\\nmere jurisdictional error. Nor is it about a mere failure to spot a jurisdictional\\nissue. It is closer to a “refusal to be guided by established doctrines governing\\njurisdiction.” Belcher v. Grooms, 406 F.2d 14, 16 (5th Cir. 1968). And as we\\nexplain in Part IV below, the failure to rule on these standing issues now—\\nstatute-by-statute and regulation-by-regulation—could result in significant\\ndiscovery costs borne by the State’s taxpayers. In these circumstances, the\\nfailure to perform a non-discretionary jurisdictional inquiry satisfies the first\\nprong of the mandamus standard.\\n B.\\n Our conclusion is reinforced by the obvious standing problems associated\\nwith some of Plaintiffs’ challenges.\\n 1.\\n It is now beyond cavil that plaintiffs must establish standing for each\\nand every provision they challenge. See, e.g., Gill v. Whitford, 138 S. Ct. 1916,\\n1934 (2018); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006); Lewis,\\n518 U.S. at 358 & n.6; Blum v. Yaretsky, 457 U.S. 991, 999 (1982). Take Lewis\\nv. Casey for example. In that case, 22 prisoners filed a class action against the\\nArizona Department of Corrections (“ADOC”) for violating their constitutional\\nright to access the courts. 518 U.S. at 346. The district court “identified a\\nvariety of shortcomings of the ADOC system, in matters ranging from the\\ntraining of library staff, to the updating of legal materials, to the availability\\nof photocopying services.” Ibid. It also found inmates in “lockdown” did not\\n\\n 7\\n\\f Case: 19-30353 Document: 00515163811 Page: 8 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nhave physical access to the prison library. Id. at 347. And illiterate or non-\\nEnglish-speaking inmates did not have adequate legal assistance. Ibid. So the\\ndistrict court appointed a special master, who conducted an eight-month\\ninvestigation of the prison system. Ibid. Then, working with the special\\nmaster, the district court imposed a 25-page injunction on ADOC. Among\\nother things:\\n [i]t specified in minute detail the times that libraries were to be\\n kept open, the number of hours of library use to which each inmate\\n was entitled (10 per week), the minimal educational requirements\\n for prison librarians (a library science degree, law degree, or\\n paralegal degree), the content of a videotaped legal-research\\n course for inmates (to be prepared by persons appointed by the\\n Special Master but funded by ADOC), and similar matters.\\nIbid. The district court said every prison library must contain, “inter alia, the\\nArizona Digest, the Modern Federal Practice Digest, Corpus Juris Secundum,\\nand a full set of the United States Code Annotated, and . . . provide a 30–40\\nhour videotaped legal research course covering relevant tort and civil law,\\nincluding immigration and family issues.” Id. at 355 n.5 (quotation omitted).\\n That is not how Article III works. In vacating the injunction, the\\nSupreme Court held that plaintiffs can seek judicial review of state laws and\\nregulations only insofar as they show a plaintiff was (or imminently will be)\\nactually injured by a particular legal provision. See id. at 349. It is not enough,\\nthe Court held, that the plaintiffs or the district court identified a\\nconstitutional problem with the ADOC libraries. See id. at 357. Nor could the\\nplaintiffs identify one injury and then bootstrap it to complain about others.\\nSee id. at 358. That’s because:\\n standing is not dispensed in gross. If the right to complain of one\\n administrative deficiency automatically conferred the right to\\n complain of all administrative deficiencies, any citizen aggrieved\\n in one respect could bring the whole structure of state\\n\\n 8\\n\\f Case: 19-30353 Document: 00515163811 Page: 9 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n administration before the courts for review. That is of course not\\n the law. As we have said, “[n]or does a plaintiff who has been\\n subject to injurious conduct of one kind possess by virtue of that\\n injury the necessary stake in litigating conduct of another kind,\\n although similar, to which he has not been subject.”\\nId. at 358 n.6 (emphasis added) (quoting Blum, 457 U.S. at 999). Applying that\\nrule, the Court identified only two plaintiffs who suffered actual injuries: A\\nprisoner named Bartholic needed “special services” to file an action because he\\nwas illiterate. Id. at 358. And a prisoner named Harris was unable to file an\\naction because he was a slow reader. Id. at 356. The plaintiffs were entitled\\nto invoke the powers of the federal courts to remedy only those actual injuries.\\n All of this makes sense because, “under our constitutional system[,]\\ncourts are not roving commissions assigned to pass judgment on the validity of\\nthe Nation’s laws.” Broadrick v. Oklahoma, 413 U.S. 601, 610–11 (1973).\\nInstead, federal courts are limited to deciding “cases” and “controversies.” U.S.\\nCONST. art. III, § 2. Indeed, “[n]o principle is more fundamental to the\\njudiciary’s proper role in our system of government than the constitutional\\nlimitation of federal-court jurisdiction to actual cases or controversies.” Simon\\nv. E. Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976). And “[t]o state a case or\\ncontroversy under Article III, a plaintiff must establish standing.” Ariz.\\nChristian Sch. Tuition Org. v. Winn, 563 U.S. 125, 132 (2011). Therefore, in\\nthe absence of standing, the court has no “power to declare the law.” Steel Co.\\nv. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (quoting Ex parte\\nMcCardle, 74 U.S. (7 Wall.) 506, 514 (1868)). The distinction between the\\ncourts and the political branches “would be obliterated if, to invoke\\nintervention of the courts, no actual or imminent harm were needed, but\\nmerely the status of being subject to a governmental institution that was not\\norganized or managed properly.” Lewis, 518 U.S. at 350.\\n\\n 9\\n\\f Case: 19-30353 Document: 00515163811 Page: 10 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n These same principles apply in abortion cases. For example, in K.P. v.\\nLeBlanc, 729 F.3d 427 (5th Cir. 2013), we analyzed abortion providers’\\nstanding as it related to each provision they challenged. Id. at 437. We\\nconcluded they lacked standing to challenge one of the provisions. Ibid. As a\\nresult, we vacated the district court’s judgment regarding that provision and\\n“dismiss[ed] that claim for want of jurisdiction.” Id. at 443. 3\\n 2.\\n In this case, Plaintiffs have proffered ample allegations to support their\\ncontention that the State of Louisiana is not regulating abortion properly. But\\nArticle III demands much more. See Lewis, 518 U.S. at 350. To ensure that\\nstanding is not dispensed in gross, the district court must analyze Plaintiffs’\\nstanding to challenge each provision of law at issue. 4 It did not do so. That’s\\n\\n\\n 3 At oral argument, Plaintiffs’ counsel insisted Doe v. Bolton, 410 U.S. 179 (1973), is\\nto the contrary. It is not. In that case, the Supreme Court said abortion providers had\\nstanding to challenge Georgia’s abortion laws, “despite the fact that the record does not\\ndisclose that any one of them has been prosecuted, or threatened with prosecution, for\\nviolation of the State’s abortion statutes.” Id. at 188. That is the well-settled rule—\\napplicable to abortion laws and others alike—that a would-be plaintiff need not violate a\\ncriminal provision and risk prosecution to challenge it. See, e.g., Abbott Labs. v. Gardner,\\n387 U.S. 136, 152–53 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99\\n(1977); cf. Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158, 163–64 (1967). In Doe, the\\nabortion providers alleged they wanted to do something—provide abortions—that the state\\nlaw prohibited. And the Court held that was a sufficient injury to justify their Article III\\nstanding. See 410 U.S. at 188–89. At no point did the Court suggest the Doe plaintiffs had\\nstanding to challenge state legal provisions that the plaintiffs did not want to violate. Doe\\ntherefore does not stand for the proposition that plaintiffs can challenge provisions that do\\nnot affect or injure them in any way.\\n 4 Our understanding of each provision at issue differs somewhat from Plaintiffs’. In\\nthe “preliminary statement” of their operative complaint, Plaintiffs say they are challenging\\n“twenty-six laws.” E.g., Am. Compl. ¶ 3. But in the body of the complaint, Plaintiffs\\nsometimes count one regulation as a single “law”; other times they count a handful of\\nsubsections as a single “law”; other times they count multiple regulations as a single “law”;\\nand still other times they count a single subsection as a single “law.” E.g., id. ¶¶ 57, 59(a),\\n59(b), 59(i), 59(j), 60(c), 60(d), 60(f), 60(g), 60(h), 60(i). That’s confusing. By our count,\\nPlaintiffs’ complaint challenges many more than “twenty-six laws.” Some of the provisions\\n\\n 10\\n\\f Case: 19-30353 Document: 00515163811 Page: 11 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nespecially problematic, because at least four categories of Plaintiffs’ legal\\nchallenges appear to fall short of Article III’s demands.\\n First, Plaintiffs challenge some legal provisions that do not appear to do\\nanything. For example, they challenge the statutory title. See LA. REV. STAT.\\n§ 40:2175.1 (“This Part may be cited as the ‘Outpatient Abortion Facility\\nLicensing Law.’ ”); Am. Compl. ¶¶ 5(i), 57 (challenging § 40:2175.1). They\\nchallenge the statutory purpose. See LA. REV. STAT. § 40:2175.2 (noting the\\npurpose of the law is to provide safe access to abortion and that rules\\npromulgated to implement the law “shall not impose a legally significant\\nburden on a woman’s freedom to decide whether to terminate her pregnancy”);\\nAm. Compl. ¶¶ 5(i), 57 (challenging § 40:2175.2). And they challenge each and\\nevery regulatory definition. See LA. ADMIN. CODE tit. 48, pt. I, § 4401\\n(providing numerous definitions, including defining “Patient” as “the woman\\nreceiving services from an outpatient abortion facility”); Am. Compl. ¶¶ 5(ii),\\n58–59(a) (challenging the entirety of § 4401). If Plaintiffs want to include these\\nprovisions in their omnibus challenge, they must now plead (and later prove)\\nthat they suffer injury traceable to these provisions and redressable by an\\ninjunction against them. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555,\\n561 (1992).\\n\\n\\n\\n\\nthey challenge as “one”—such as title 48 of the Louisiana Administrative Code, part I,\\n§ 4445—in fact contain numerous separate legal requirements. See Am. Compl.\\n¶¶ 5(ii), 59(k) (challenging § 4445). It is irrelevant for purposes of standing that separate\\nlegal requirements are grouped together in a single section of the code. After all, a single\\nsection of a statutory code can be the product of many bills passed over many years, and a\\nsingle section of an administrative code can be the result of several rulemakings. Plaintiffs\\nmust demonstrate all the elements of standing for each provision they seek to challenge. And\\nthey must do so at the same level of granularity we use in the following pages.\\n 11\\n\\f Case: 19-30353 Document: 00515163811 Page: 12 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n Second, Plaintiffs challenge a bevy of legal provisions that appear\\nincapable of injuring them. For example, they challenge individual provisions\\nrequiring:\\n • an abortion facility to have a distinct name that does not “mislead the\\n patient or their family into believing it is owned, endorsed, or\\n operated by the state of Louisiana,” LA. ADMIN. CODE tit. 48, pt. I,\\n § 4403(F);\\n • an abortion facility to maintain the “privacy and confidentiality of\\n patient medical records,” LA. ADMIN. CODE tit. 48, pt. I, § 4425(A)(3);\\n • “safeguards” to protect patient records from “loss or damage,” LA.\\n ADMIN. CODE tit. 48, pt. I, § 4425(A)(4);\\n • an abortion facility to comply “with all applicable state laws for the\\n reporting of crimes against a child that include but are not limited to:\\n a. rape; b. sexual battery; c. incest; and d. carnal knowledge of a\\n juvenile,” LA. ADMIN. CODE tit. 48, pt. I, § 4425(F)(2);\\n • a physician to report an abortion to the Louisiana Department of\\n Health, LA. REV. STAT. § 40:1061.11(C); 5\\n • a physician to report “a serious adverse event” to the U.S. Food and\\n Drug Administration, LA. REV. STAT. § 40:1061.11(D); 6\\n • an abortion facility to have sanitary “toilet facilities,” including hot\\n and cold water and some method for drying users’ hands, LA. ADMIN.\\n CODE tit. 48, pt. I, § 4445(A)(5);\\n • an abortion facility to display a “Forced Abortion Prevention” sign,\\n LA. ADMIN. CODE tit. 48, pt. I, § 4445(G)(1); and\\n\\n\\n 5 Plaintiffs’ challenge to this provision is particularly difficult to understand because\\nthey do not challenge their independent reporting obligation under Louisiana Revised\\nStatute § 40:1061.21. Given that § 40:1061.21 requires abortion providers to report abortions\\nto the State, it would seem any burden associated with that reporting cannot be attributed\\nto § 40:1061.11(C). See, e.g., Clapper v. Amnesty Int’l USA, 568 U.S. 398, 412–13 (2013)\\n(holding injury cannot be attributed to law A if it could be caused by law B).\\n 6Plaintiffs’ challenge to this provision is also difficult to understand because they have\\nan independent obligation to report abortion complications under Louisiana Revised Statute\\n§ 40:1061.21. And yet they do not challenge that provision. See Clapper, 568 U.S. at 412–\\n13; supra note 5.\\n\\n 12\\n\\f Case: 19-30353 Document: 00515163811 Page: 13 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n • an abortion facility to “post information regarding the National\\n Human Trafficking Resource Center Hotline,” LA. ADMIN. CODE tit.\\n 48, pt. I, § 4445(H).\\nSee Am. Compl. ¶¶ 5, 59, 60 (challenging these provisions). Some of these\\nprovisions cannot apply to Plaintiffs. For example, Plaintiffs have not alleged\\nthat they began constructing or intended to construct an abortion facility after\\nthe enactment of a 2015 legal provision governing the standards for facility\\nconstruction. 7 And Plaintiffs do not allege that, but for Louisiana law, they\\nwould not have sanitary toilets, hot and cold water, and signs regarding forced\\nabortions and human trafficking. Nor do Plaintiffs allege that they would\\nprovide these things in a different way, but for Louisiana law. Similarly,\\nPlaintiffs do not allege any injury from their obligation to maintain the privacy\\nand confidentiality of their patients’ records—to the contrary, Plaintiffs say\\nthey want to “safeguard” this information. See Am. Compl. ¶ 132. To the\\nextent the challenged regulations require Plaintiffs to do what they’ve already\\nbeen doing and want to keep doing, they do not have standing to challenge\\nthem. 8 See Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009) (explaining\\nplaintiffs “can demonstrate standing only if application of the regulations by\\nthe Government will affect them” (emphasis omitted)).\\n\\n\\n\\n 7 Plaintiffs’ counsel indicated that the abortion facility has been in the same physical\\nspace since it began operations in 1980. Oral Argument at 24:48–25:01. But we do not hold\\nthat counsel’s statement constitutes a binding admission of fact.\\n 8 It is no answer to say the “[Outpatient Abortion Facility Licensing Law] permits a\\nclinic’s license to be revoked upon violation of any regulation, [so the Louisiana Department\\nof Health] could deny or revoke a license if a restroom were temporarily out of paper towels\\n. . . .” Am. Compl. ¶ 71. It is speculative to allege Plaintiffs would lose their license for\\ntemporarily running out of paper towels. See Lujan, 504 U.S. at 561 (holding the irreducible\\nconstitutional minimum injury for standing purposes cannot be “speculative”). And in all\\nevents, Plaintiffs separately challenge the license-revocation provision; whether they have\\nstanding to do so is separate and apart from whether they are injured by the requirement to\\nhave sanitary bathrooms.\\n 13\\n\\f Case: 19-30353 Document: 00515163811 Page: 14 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n Third, Plaintiffs challenge some legal provisions that theoretically could\\napply to them—but without any allegation that they would. For example, they\\nchallenge individual provisions requiring:\\n • a “plan review” for an “initial licensure, major renovation, and change\\n of location”—without any allegation that they need an initial license\\n or are planning a major renovation or change of location, LA. ADMIN.\\n CODE tit. 48, pt. I, § 4403(H);\\n • a “physical environment survey” for a major renovation or change of\\n location—without any allegation that they’re planning a major\\n renovation or change of location, LA. ADMIN. CODE tit. 48, pt. I,\\n §§ 4403(H)(3)(ii), 4407(D)(5);\\n • certain flooring and wall finishes for abortion facilities that undergo\\n a major renovation or change of location—without any allegation that\\n they’re planning a major renovation or change of location, LA. ADMIN.\\n CODE tit. 48, pt. I, § 4445(A)(6);\\n • a “soiled utility room” containing, among other things, a trash can in\\n abortion facilities that undergo a major renovation or change of\\n location—without any allegation that they’re planning a major\\n renovation or change of location, LA. ADMIN. CODE tit. 48, pt. I,\\n § 4445(E)(1);\\n • a stretcher, a wheelchair, and hallways to accommodate them in\\n abortion facilities that undergo a major renovation or change of\\n location—without any allegation that they’re planning a major\\n renovation or change of location, LA. ADMIN. CODE tit. 48, pt. I,\\n § 4445(E)(4)–(5);\\n • sanitary laundry facilities in abortion facilities that include an “in-\\n house laundry”—without any allegation they have an “in-house\\n laundry,” LA. ADMIN. CODE tit. 48, pt. I, § 4445(F);\\n • an abortion facility to have “qualified personnel” necessary to provide\\n patient care—without any allegation they want to hire unqualified\\n personnel, LA. ADMIN. CODE tit. 48, pt. I, § 4423(A);\\n • an abortion facility to “employ qualified medical staff ” and “qualified\\n nursing staff to meet the needs of the patients”—without any\\n allegation they want to hire unqualified medical staff or don’t wish to\\n meet the needs of patients, LA. ADMIN. CODE tit. 48, pt. I, § 4423(C)–\\n (D);\\n 14\\n\\f Case: 19-30353 Document: 00515163811 Page: 15 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n • an administrator to be at least 18 years old and to have a high school\\n diploma or the equivalent—without any allegation they wish to hire\\n an administrator who is under 18 or does not have a high school\\n diploma or the equivalent, LA. ADMIN. CODE tit. 48, pt. I, § 4423(B)(1);\\n • a “qualified person” to perform any ultrasound—without any\\n allegation they wish to hire an unqualified person to perform the\\n ultrasound, LA. REV. STAT. § 40:1061.10(D)(1); and\\n • the Louisiana Department of Health to promulgate rules for the safe\\n provision of abortion—without any allegation that the delegation of\\n rulemaking is unconstitutional independent of any particular rule,\\n LA. REV. STAT. § 40:2175.5.\\nSee Am. Compl. ¶¶ 5, 59, 60 (challenging these provisions). It’s theoretically\\npossible these provisions could injure Plaintiffs. But Article III requires more\\nthan theoretical possibilities. See Simon, 426 U.S. at 44 (“[U]nadorned\\nspeculation will not suffice to invoke the federal judicial power.”). Absent\\nallegations that Plaintiffs will trigger these requirements in the near future,\\nthey have no standing to challenge them. See Clapper, 568 U.S. at 409 (“[W]e\\nhave repeatedly reiterated that threatened injury must be certainly impending\\nto constitute injury in fact, and that allegations of possible future injury are\\nnot sufficient.” (quotations and brackets omitted)).\\n Fourth, Plaintiffs challenge some legal provisions that benefit rather\\nthan harm women seeking abortions. In Singleton v. Wulff, 428 U.S. 106\\n(1976), a plurality of the Court recognized abortion providers’ third-party\\nstanding to challenge laws that place undue burdens on women seeking\\nabortions. See id. at 118 (plurality opinion). That practice continues today.\\nSee, e.g., Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016); cf. June\\nMedical Services L.L.C. v. Gee, 905 F.3d 787 (5th Cir. 2018), cert. granted, 2019\\nWL 4889928 (U.S. Oct. 4, 2019) (No. 18-1460) (granting certiorari to consider\\nwhether abortion providers can be presumed to have third-party standing).\\nThe rationale appears to be that abortion providers and women seeking\\n 15\\n\\f Case: 19-30353 Document: 00515163811 Page: 16 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nabortions have a unity of interest in challenging laws that regulate the\\nprocedure. Whatever the wisdom of that rationale, see Whole Woman’s Health,\\n136 S. Ct. at 2322–23 (Thomas, J., dissenting), some of Plaintiffs’ challenges\\nseem inconsistent with it. For example, they challenge a provision that\\nprohibits them from charging for an abortion in the 24 hours after a woman\\ngives informed consent. See LA. ADMIN. CODE tit. 48, pt. I, § 4431(G)(5)(c); Am.\\nCompl. ¶ 59(f). Plaintiffs challenge another provision requiring them to give\\nwomen instructions for post-operative follow-up care. See LA. ADMIN. CODE tit.\\n48, pt. I, § 4437(B)(1); Am. Compl. ¶ 59(j). It is not obvious how these\\nprovisions could injure women seeking abortions. They might injure abortion\\nproviders who’d otherwise demand money during the 24-hour post-consent\\nperiod or who’d otherwise not give women instructions for post-operative\\nfollow-up care. But Plaintiffs do not allege they fall in either category. And\\neven if they did, it’s not obvious they have standing to challenge laws that help\\nwomen.\\n The foregoing is not meant to be an exhaustive jurisdictional analysis of\\nPlaintiffs’ allegations. Perhaps they lack standing in ways not explored here.\\nPerhaps they have standing in others. We leave that for the district court to\\ndecide on a provision-by-provision basis. See supra note 4. We recognize that\\nanalyzing standing at this level of granularity can be tedious in a sweeping\\nchallenge like this one. But it’s what Article III requires.\\n IV.\\n To secure mandamus relief, Louisiana also must show it has “no other\\nadequate means to attain the relief [it] desires.” Cheney, 542 U.S. at 380\\n(quotation omitted). This requirement “ensure[s] that the writ will not be used\\nas a substitute for the regular appeals process.” Id. at 380–81. Here, Louisiana\\n\\n\\n 16\\n\\f Case: 19-30353 Document: 00515163811 Page: 17 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nhas shown a later appeal would be inadequate to correct the jurisdictional\\nerrors described above.\\n A.\\n Ordinarily, a district court’s erroneous denial of a Rule 12(b)(1)\\njurisdictional objection does not satisfy the second mandamus requirement. It\\nis always true that an erroneous failure to dismiss will result in some\\ninconvenient discovery and unnecessary litigation. “But that inconvenience is\\none which we must take it Congress contemplated in providing that only final\\njudgments should be reviewable.” Roche, 319 U.S. at 30; see also Cheney, 542\\nU.S. at 381 (noting that “interlocutory appellate review is unavailable, through\\nmandamus or otherwise,” for “ordinary discovery orders” (emphasis added));\\nPlekowski v. Ralston-Purina Co., 557 F.2d 1218, 1220 (5th Cir. 1977) (similar).\\n Instead, we reserve this extraordinary remedy for special situations\\nwhere the unlawful exercise of federal jurisdiction imposes extraordinary\\nharms. For example, we have held mandamus can be appropriate in some\\ncircumstances to challenge the denial of venue-transfer motions. See, e.g., In\\nre Volkswagen of Am., Inc., 545 F.3d 304, 309 (5th Cir. 2008) (en banc); In re\\nHorseshoe Entm’t, 337 F.3d 429, 432 (5th Cir. 2003); 16 WRIGHT & MILLER\\n§ 3935.4. One of our sister circuits granted mandamus to direct the dismissal\\nof a complaint raising “a basic and undecided question” of civil procedure. In\\nre BP Lubricants USA Inc., 637 F.3d 1307, 1313 (Fed. Cir. 2011) (quotation\\nomitted). And the Supreme Court used mandamus to review the denial of a\\nmotion to dismiss for lack of jurisdiction over a foreign boat. See Republic of\\nPeru, 318 U.S. at 589–90.\\n The unlawful assertion of federal power over a matter of state\\nsovereignty qualifies as another such special situation. See In re Univ. of\\nMich., 936 F.3d 460, 465 (6th Cir. 2019) (holding federalism concerns justified\\n\\n 17\\n\\f Case: 19-30353 Document: 00515163811 Page: 18 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\ngranting mandamus when a district court improperly “invoke[ed] federal\\npower to haul a high-ranking state official into federal court”). That’s why the\\nSupreme Court “has issued the writ to restrain a lower court when its actions\\nwould threaten the separation of powers by embarrassing the executive arm of\\nthe Government, or result in the intrusion by the federal judiciary on a delicate\\narea of federal-state relations.” Cheney, 542 U.S. at 381 (emphasis added)\\n(quotations and brackets omitted). For example, in Maryland v. Soper, 270\\nU.S. 9 (1926), the State charged four federal prohibition agents with murder.\\nThe officers removed to federal court. Then the State petitioned for mandamus\\nto have the case remanded to state court. The officers opposed mandamus by\\narguing the removal was “a question within the regular judicial function of the\\nDistrict Court to decide, and that this court should not interfere thus\\nprematurely with its exercise.” Id. at 28. The Supreme Court rejected that\\nargument and held a later appeal was inadequate when “the jurisdiction of the\\ncourts of a state to try offenses against its own laws and in violation of its own\\npeace and dignity is wrested from it by the order of an inferior federal court.”\\nId. at 29. As one of our sister circuits has put it, “[t]he crux of these authorities”\\nis “that federalism concerns justify review by mandamus.” California v. Mesa,\\n813 F.2d 960, 963 (9th Cir. 1987), aff’d, 489 U.S. 121 (1989).\\n B.\\n Here, the combination of five federalism concerns makes this a special\\ncircumstance and distinguishes it from an ordinary case: (1) A sovereign State\\nis requesting the writ; (2) Plaintiffs seek sweeping review of an entire body of\\nstate law; (3) Plaintiffs seek structural injunctions that would give the district\\ncourt de facto control of state law; (4) the type of discovery waiting on the other\\nside of Louisiana’s motion to dismiss is categorically different than what\\n\\n\\n 18\\n\\f Case: 19-30353 Document: 00515163811 Page: 19 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nawaits an ordinary civil litigant; and (5) the ordinary civil litigant cannot\\ndemand attorneys’ fees from the State’s taxpayers.\\n First, the State of Louisiana is the true defendant in this case. See supra\\nnote 1. The Supreme Court has long “recognized that States are not normal\\nlitigants.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007); see also id. at 520\\n(holding States are “entitled to special solicitude in our standing analysis”).\\nThey’re “residuary sovereigns and joint participants in the governance of the\\nNation.” Alden v. Maine, 527 U.S. 706, 748 (1999). And, as a consequence, the\\nSupreme Court has long recognized States’ special rights to seek relief in\\nfederal court. See, e.g., Massachusetts, 549 U.S. at 519 (holding\\n“Massachusetts’ well-founded desire to preserve its sovereign territory” gives\\nit standing to challenge an EPA decision); Alfred L. Snapp & Son, Inc. v. Puerto\\nRico ex rel. Barez, 458 U.S. 592, 607 (1982) (noting a State can seek relief based\\non its “quasi-sovereign interest in not being discriminatorily denied its rightful\\nstatus in the federal system”); Texas v. United States, 809 F.3d 134, 153 (5th\\nCir. 2015) (“[S]tates have a sovereign interest in the power to create and\\nenforce a legal code.” (alteration in original) (quotation omitted)), aff’d by an\\nequally divided court, 136 S. Ct. 2271 (2016).\\n Second, Plaintiffs are seeking judicial review of an entire body of state\\nstatutory and regulatory law. See Am. Compl. at 58–60. Judicial review of any\\nstate law implicates obvious federalism concerns. See Morrow v. Harwell, 768\\nF.2d 619, 627 (5th Cir. 1985) (emphasizing the “extraordinary” nature of\\n“federal injunctive relief ” despite “its familiarity to federal courts, gained\\nparticularly in desegregation cases over the past thirty years”). Those concerns\\nare exponentially more acute when a federal court entertains a challenge to an\\nentire body of state law.\\n\\n\\n 19\\n\\f Case: 19-30353 Document: 00515163811 Page: 20 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n Third, Plaintiffs are seeking a structural injunction and continuing\\nfederal supervision of the State of Louisiana. Such expansive use of equitable\\nremedies has long been recognized as a threat to federalism. The Founders\\nworried “that the equity power would” so empower federal courts that it “would\\nresult in . . . the ‘entire subversion of the legislative, executive and judicial\\npowers of the individual states.’ ” Missouri v. Jenkins, 515 U.S. 70, 128–29\\n(1995) (Thomas, J., concurring) (quoting Brutus XI). Responding to Brutus\\nand defending the proposed Constitution, “Hamilton sought to narrow the\\nexpansive Anti-Federalist reading of inherent judicial equity power” and\\n“described Article III ‘equity’ as a jurisdiction over certain types of cases rather\\nthan as a broad remedial power.” Id. at 130 (describing The Federalist No. 83).\\n The same concerns apply today: Federalism is a “clear restraint[ ] on the\\nuse of equity power” because “[a] structural reform decree eviscerates a State’s\\ndiscretionary authority over its own program and budgets.” Id. at 131; see also\\nHorne v. Flores, 557 U.S. 433, 448 (2009) (“[I]nstitutional reform injunctions\\noften raise sensitive federalism concerns.”). Courts are properly reluctant to\\ngrant such relief because of the federalism burdens it imposes. See Morrow,\\n768 F.2d at 627 (“There is no question but that the passive remedy of a\\ndeclaratory judgment is far less intrusive into state functions than injunctive\\nrelief that affirmatively commands specific future behavior under the threat of\\nthe court’s contempt powers.”). The Supreme Court has made clear that\\nsweeping requests for “intrusive and unworkable” injunctions are\\nnonjusticiable because they threaten “the special delicacy of the adjustment to\\nbe preserved between federal equitable power and State administration of its\\nown law.” O’Shea v. Littleton, 414 U.S. 488, 500 (1974) (quotation and brackets\\nomitted). And the Court has even shaped substantive federal law around the\\nassumption that it must avoid “permanent judicial intervention in the conduct\\n\\n 20\\n\\f Case: 19-30353 Document: 00515163811 Page: 21 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nof governmental operations to a degree inconsistent with sound principles of\\nfederalism and the separation of powers.” Garcetti v. Ceballos, 547 U.S. 410,\\n423 (2006). After all, “[t]he Federal Government does not . . . have a general\\nright to review and veto state enactments before they go into effect.” Shelby\\nCounty v. Holder, 570 U.S. 529, 542 (2013).\\n Plaintiffs are seeking this same sort of sweeping federal supervision of\\nthe State. They want the district court to issue permanent injunctive relief\\nagainst a slew of state statutes and regulations, to “retain jurisdiction,” and to\\nprovide “judicial oversight” of state actors. Mem. in Opp’n to Mot. to Dismiss,\\nDoc. 32 at 10; Am. Compl. at 59–60. They treat the desegregation cases as\\nexemplars for court “supervision.” Mem. in Opp’n to Mot. to Dismiss, Doc. 32,\\nat 10. Regardless of whether the district court ever orders such sweeping\\nrelief, the mere prospect of it increases the stakes of this litigation\\nexponentially as compared to an ordinary civil case.\\n Fourth, discovery in this case would be categorically different from\\ndiscovery in an ordinary case. In the ordinary case, the plaintiff who defeats a\\nmotion to dismiss does not get to demand written discovery and depositions of\\nhigh-ranking government officials. Nor does the ordinary plaintiff get to\\ndemand access to documents and communications that would otherwise be\\nprotected by legislative and executive privilege. But such discovery demands\\nare all too common where, as here, plaintiffs claim the government acted with\\nan invidious purpose. See, e.g., Tummino v. Torti, 603 F. Supp. 2d 519\\n(E.D.N.Y. 2009) (detailing extensive discovery taken from senior FDA and\\nother executive branch officials in litigation over “Plan B” pill); cf. Texas v.\\nHolder, No. 12-128, 2012 WL 13070060 (D.D.C. June 5, 2012) (ordering\\nextensive discovery of state officials in voting-rights suit and ordering a second\\n\\n\\n 21\\n\\f Case: 19-30353 Document: 00515163811 Page: 22 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\ndeposition of a sitting state senator). For example, in an abortion case from\\none of our sister circuits:\\n [P]laintiffs spent much time on discovery. They noticed the\\n depositions of [Guam] Governor Joseph F. Ada; June S. Mair, a\\n legislative staffer to the senator who had sponsored the abortion\\n statute; and Police Chief Adolf P. Sgambelluri. They also sought\\n and obtained such items as drafts of the abortion bills; memos from\\n the attorney general to the police chief; crime statistics; memos\\n from the police chief to his staff; and copies of the governor’s\\n speeches. The discovery effort spawned a good bit of satellite\\n litigation. For example, the parties disagreed about whether\\n Governor Ada could be deposed. The matter was briefed and\\n argued and, in an inexplicable ruling, the district court permitted\\n the deposition.\\nGuam Soc’y of Obstetricians & Gynecologists v. Ada, 100 F.3d 691, 707 (9th\\nCir. 1996) (citations and footnotes omitted).\\n The plaintiffs in this case have propounded extensive initial discovery\\nrequests that likewise tread on sensitive areas of state decisionmaking. See\\nMot. for Partial Dismissal, Doc. 95-2 at 1–11. Numerous appellate courts have\\nrecognized the appropriateness of mandamus in a lawsuit involving discovery\\nthat would hamper important state interests. See, e.g., In re Lombardi, 741\\nF.3d 888, 895 (8th Cir. 2014) (en banc); In re County of Erie, 473 F.3d 413, 419\\n(2d Cir. 2007); In re Wilkinson, 137 F.3d 911, 914 (6th Cir. 1998).\\n Consider the recent case of In re Kemp, 894 F.3d 900 (8th Cir. 2018).\\nThere a state judge sued the Arkansas Supreme Court because it had removed\\nhim from certain cases. Id. at 904–05. The disgruntled judge sought extensive\\ndiscovery, and the district court denied a motion to dismiss. Seeking\\nmandamus to stop the discovery and dismiss the claims, the Arkansas\\nSupreme Court Justices argued that discovery of internal state deliberations\\nwould threaten “judicial independence and federalism.” Id. at 905 (emphasis\\nadded). The court expressed no opinion as to the propriety of the discovery\\n 22\\n\\f Case: 19-30353 Document: 00515163811 Page: 23 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nrequests but noted the requests implicated “significant and complex” concerns.\\nIbid. Moreover, the requests themselves justified the granting of mandamus\\nbecause their intrusive nature risked leading to “discovery of irrelevant\\ninformation” that would be “oppressive” to “important state interests.” Id. at\\n906. Mandamus was granted. Id. at 910. To our sister circuit, applicable\\nprivileges were not enough to protect the State’s interests. Id. at 906.\\n Similarly, the Supreme Court has told us the potential availability of\\nexecutive privilege is not an adequate protection against such discovery\\nrequests. See Cheney, 542 U.S. at 380–91. Instead, the primary protection\\ncomes from the exacting standards for Article III jurisdiction—enforceable by\\nmandamus if necessary. Cf. In re Univ. of Mich., 936 F.3d at 466–67. Where\\nthe discovery on the other side of a motion to dismiss is extraordinary, it is all\\nthe more important to apply the Constitution’s jurisdictional limits correctly\\nat the threshold.\\n The fifth and final federalism consideration that distinguishes this from\\nan ordinary civil case is fee-shifting. “In the United States, the prevailing\\nlitigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the\\nloser.” Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975).\\nBut that is not true in cases like this one. Here, Plaintiffs have sued state\\nofficials under 42 U.S.C. § 1983. And with that cause of action comes the\\ntantalizing promise of attorneys’ fees under 42 U.S.C. § 1988.\\n This means that the State of Louisiana could be on the hook for both\\nsides’ fees. At argument, Plaintiffs’ counsel wished for “a nickel for every time\\nI represented a defendant who is concerned about the time, cost, and burden\\nof discovery.” Oral Argument at 38:42–48. But unlike an ordinary private\\ndefendant, Louisiana is at risk of having to pay its costs and Plaintiffs’ fees\\nand expenses.\\n\\n 23\\n\\f Case: 19-30353 Document: 00515163811 Page: 24 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n Those fees and expenses can be astronomical. In Whole Woman’s Health\\nv. Hellerstedt—which Plaintiffs invoke as the principal precedent for this\\nsuit—the abortion clinic submitted a fee application for more than\\n$4.5 million. 9 That bill included over $1.6 million in fees and expenses for\\nMorrison & Foerster, the global law firm retained by the clinic. And the Whole\\nWoman’s Health plaintiffs did not attempt to invalidate the entirety of Texas’s\\nabortion laws or to place the State under federal judicial supervision.\\nRegardless of whether Plaintiffs prevail in this case, the mere prospect of\\nshifting Debevoise & Plimpton’s multi-million-dollar fee request to the\\nshoulders of Louisiana’s taxpayers will force the State to litigate this case in\\nways that are far from ordinary.\\n All five of these factors combine to make this an extraordinary case. And\\nit is one of the “special situations” in which a later appeal is in adequate. 16\\nWRIGHT & MILLER § 3932.1.\\n\\n\\n\\n\\n 9 The plaintiffs’ fee application included the following requests:\\n Attorneys’ fees for Center for Reproductive Rights $2,754,503.00\\n Expenses for Center for Reproductive Rights $70,462.41\\n Attorneys’ fees for Morrison & Foerster LLP $1,523,768.75\\n Expenses for Morrison & Foerster LLP $87,964.45\\n Attorneys’ fees for O’Connell & Soifer LLP $111,231.25\\n Attorneys’ fees for John H. Bucy II $3,152.50\\n Expenses for Leah M. Litman $357.20\\n Total $4,551,439.56\\nPlaintiffs’ Motion for Attorneys’ Fees at 1, Whole Woman’s Health v. Hellerstedt, No. 1:14-cv-\\n284-LY (W.D. Tex. Oct. 7, 2016), ECF No. 245. The fee application spawned additional\\nlitigation and a supplemental request for an additional $100,000 in fees and expenses. See\\nOrder at 14–15, Whole Woman’s Health v. Hellerstedt, No. 1:14-cv-284-LY (W.D. Tex. Aug. 9,\\n2019), ECF No. 297. Almost three years after the plaintiffs filed the application, the district\\ncourt issued a 46-page opinion awarding approximately $2.5 million in fees and expenses.\\nSee id. at 46.\\n 24\\n\\f Case: 19-30353 Document: 00515163811 Page: 25 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n V.\\n The district court’s failure to consider the State’s jurisdictional\\nchallenges and the inadequacy of a later appeal support issuance of the writ.\\nWe nonetheless exercise our discretion not to issue it at this time.\\n As Wright and Miller explain, the writ of mandamus is a discretionary\\none: “The availability of prerogative writ review has long been held a matter\\nof appellate discretion. Discretion is involved in defining both the\\ncircumstances that justify exercise of writ power and also the reasons that may\\njustify denial of a writ even though the circumstances might justify a grant.”\\n16 WRIGHT & MILLER § 3933; see also Cheney, 542 U.S. at 381 (noting “even if\\nthe first two prerequisites have been met, the issuing court, in the exercise of\\nits discretion, must be satisfied that the writ is appropriate under the\\ncircumstances”). Here, the State falls short. That’s for two reasons. First, it’s\\nnot clear from the district court’s order how it would resolve the State’s\\njurisdictional challenge. And second, much of the State’s argument in its\\nmandamus petition goes beyond jurisdiction. In particular, the State argues\\nthat Plaintiffs’ “cumulative-effects challenge” is not cognizable. But that\\nchallenge might change after the district court conducts its claim-by-claim\\nanalysis of Plaintiffs’ standing. So in our view, resolution of whether that\\nchallenge is cognizable should await the district court’s jurisdictional analysis.\\n A.\\n As noted above, the district court has not yet addressed the State’s\\njurisdictional arguments. The district court said it would be “untenable” to\\nconsider jurisdiction at this stage. That was wrong; the Supreme Court has\\nrepeatedly emphasized “the rule that Article III jurisdiction is always an\\nantecedent question” because “[h]ypothetical jurisdiction produces nothing\\nmore than a hypothetical judgment.” Steel Co., 523 U.S. at 101; see also, e.g.,\\n\\n 25\\n\\f Case: 19-30353 Document: 00515163811 Page: 26 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nFW/PBS, 493 U.S. at 231. This rule is binding not only on the district court\\nbut also on this one:\\n [E]very federal appellate court has a special obligation to satisfy\\n itself not only of its own jurisdiction, but also that of the lower\\n courts in a cause under review, even though the parties are\\n prepared to concede it. And if the record discloses that the lower\\n court was without jurisdiction this court will notice the defect,\\n although the parties make no contention concerning it. When the\\n lower federal court lacks jurisdiction, we have jurisdiction on\\n appeal, not of the merits but merely for the purpose of correcting\\n the error of the lower court in entertaining the suit.\\nBender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (quotations\\nand alterations omitted); accord Steel Co., 523 U.S. at 95; Arizonans for Official\\nEnglish v. Arizona, 520 U.S. 43, 73 (1997). And as we’ve explained above, some\\nof Plaintiffs’ claims have obvious standing problems. See supra Part III.B.\\n On the other hand, Plaintiffs might have standing to bring some of their\\nchallenges. For example, Count Four in the Amended Complaint challenges\\nthe State’s administrative inspection procedures under the Fourth\\nAmendment. See Am. Compl. ¶¶ 190–91. And in stark contrast to the\\nallegations regarding other claims, Plaintiffs make some specific allegations\\nthat they have been subjected to those procedures and injured by them. See\\nid. ¶¶ 120–52. The State does not contest Plaintiffs’ standing to mount that\\nchallenge. 10 Therefore, the State has not shown the district court is completely\\nwithout jurisdiction such that the writ should issue “almost as a matter of\\ncourse.” In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007) (per curiam);\\n\\n\\n 10 Of course, the State’s failure to contest standing does not mean there is standing.\\nSee, e.g., Bender, 475 U.S. at 541; MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d\\n310, 313 (5th Cir. 2019) (“Notwithstanding the parties’ agreement, we have an independent\\nobligation to assess our own jurisdiction before exercising the judicial power of the United\\nStates.”). Because we are denying the petition, we need not decide whether Plaintiffs have\\nshown standing to bring Count Four, nor do we need to assess the merits of that claim.\\n 26\\n\\f Case: 19-30353 Document: 00515163811 Page: 27 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\naccord In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987); United States v. Denson,\\n603 F.2d 1143, 1145 (5th Cir. 1979) (en banc). We therefore elect, in our\\ndiscretion, to allow the district court to consider the State’s jurisdictional\\nchallenges in the first instance. We think that’s particularly prudent because\\nPlaintiffs’ scores of legal challenges must be disentangled so standing can be\\nadjudicated for each one.\\n B.\\n We also think it prudent not to issue the writ at this time because much\\nof the State’s petition challenges the merits of Plaintiffs’ “cumulative-effects\\nchallenge.” The Plaintiffs’ theory, as we understand it, is that Louisiana’s\\nvarious laws and regulations regarding abortion cumulate to an undue burden.\\nBut before any federal court can analyze the “cumulative effects” of Louisiana’s\\nlaws, we must know which laws Plaintiffs have standing to challenge. Again,\\njurisdiction first.\\n A stylized example makes this plain. If Plaintiffs cannot plausibly allege\\nthat they were injured by Legal Requirement A, they don’t have standing to\\nchallenge A. See supra Part III.B.2. So Plaintiffs’ cumulative-effects challenge\\nwould no longer be: A + B + C + D = an undue burden. Instead, it would be: B\\n+ C + D = an undue burden. 11\\n Moreover, it is unclear from the record why the district court did not\\ncertify its cumulative-effects order for interlocutory appeal under 28 U.S.C.\\n\\n\\n 11And, of course, that’s still distinct from the following challenge: Legal Requirement\\nB = an undue burden in light of related requirements E and F. In assessing whether an\\nindividual provision is an undue burden, we consider the relevant “factual context in which\\nthe law operates.” Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 458 (5th Cir. 2014).\\nFor example, a court could consider the absence of a state law prohibiting hospitals from\\ndiscriminating against abortion providers in granting admitting privileges when assessing\\nthe burden of a related admitting-privileges requirement. Ibid. But that tells us nothing\\nabout whether unrelated requirements—regarding, say, admitting privileges and sanitary\\nbathrooms—impose an undue burden. Nor does it tell us whether such a claim is cognizable.\\n 27\\n\\f Case: 19-30353 Document: 00515163811 Page: 28 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n§ 1292(b). In its first § 1292(b) order, the district court certified the case\\nbecause “Plaintiffs present a difficult issue of first impression . . . .” May 15,\\n2018 Order, Doc. 76 at 3. And it noted the cumulative-effects issue lacked “the\\nbenefit of clarification from the [Fifth Circuit].” Ibid. Then, in a later § 1292(b)\\norder, the district court said the exact opposite: “[T]he Court finds that this is\\nnot a case of first impression.” March 29, 2019 Order, Doc. 103 at 20. The\\ndistrict court did not acknowledge its change of heart in that order, much less\\nexplain the basis for it. Nor did it mention our intervening decision in June\\nMedical Services, even though Louisiana brought it to the court’s attention.\\nSee Mot. to Dismiss Reply Br., Doc. 100 at 1.\\n Whatever the merits of Plaintiffs’ “cumulative-effects challenge,” they\\nare unprecedented. The Supreme Court has not blessed such a claim. To the\\ncontrary, the Court has analyzed abortion provisions separately rather than\\ncumulatively. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,\\n879–901 (1992) (evaluating the definition of “medical emergency,” the\\ninformed-consent requirement, the spousal-notification requirement, the\\nparental-consent provision, and recordkeeping and reporting requirements\\nseparately); Webster v. Reproductive Health Servs., 492 U.S. 490, 505–20\\n(1989) (evaluating four sections of the challenged law individually). And the\\nCourt’s consistent focus on individual legal requirements isn’t an accident. For\\nexample, in Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502 (1990),\\nthe majority analyzed a constructive-authorization provision, a bypass\\nprocedure, and pleading requirements separately. Id. at 515–17. The Court\\ndid so over the explicit complaints from dissenting justices who thought they\\nshould be considered cumulatively. Id. at 527 (Blackmun, J., dissenting) (“The\\nmajority considers each provision in a piecemeal fashion, never acknowledging\\n\\n\\n 28\\n\\f Case: 19-30353 Document: 00515163811 Page: 29 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nor assessing the ‘degree of burden that the entire regime of abortion\\nregulations places’ on the minor.”).\\n Our Court also considered a cumulative-effects argument in June\\nMedical Services. In that case, the district court considered a challenge to\\nLouisiana’s admitting-privileges requirement (“Act 620”). See June Med.\\nServs. L.L.C. v. Kliebert, 250 F. Supp. 3d 27 (M.D. La. 2017). It analyzed not\\nonly the burdens caused by Act 620 but also the burdens caused by unrelated\\nlaws—such as a 24-hour notification and waiting period—to conclude Act 620\\nwas unconstitutional. See id. at 88 (“The result of these burdens on women\\nand providers, taken together and in context, is that many women seeking a\\nsafe, legal abortion in Louisiana will be unable to obtain one.” (emphasis\\nadded)); id. at 40, 54–55, 82 (discussing other provisions and their impact on a\\nwoman’s right to seek an abortion). And the district court based this\\ncumulative-effects approach on its interpretation of Whole Woman’s Health.\\nSee June Med. Servs., 250 F. Supp. 3d at 35. We reversed. See June Med.\\nServs., 905 F.3d at 791. We specifically criticized the district court’s\\nconsideration of “unrelated” abortion laws in analyzing the burdens caused by\\nAct 620: “[O]ther abortion regulations are unrelated to admitting privileges\\nand therefore have no bearing on the constitutionality of Act 620.” Id. at 810\\nn.60 (citing Whole Woman’s Health, 136 S. Ct. at 2300).\\n It is possible the district court nonetheless thought Whole Woman’s\\nHealth serves as precedent for “cumulative-effects challenges.” See May 29,\\n2019 Order, Doc. 103 at 12–15. But in suggesting that, the district court relied\\non the severability analysis in Whole Woman’s Health. Severability obviously\\ngoverns the remedy after the finding of a constitutional violation; it plays no\\npart in finding a constitutional violation. The Whole Woman’s Health majority\\nfound (in relevant part) one constitutional violation: a single sentence in the\\n\\n 29\\n\\f Case: 19-30353 Document: 00515163811 Page: 30 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nTexas Health and Safety Code required abortion clinics to meet the standards\\nfor ambulatory surgical centers. See 136 S. Ct. at 2300 (citing TEX. HEALTH &\\nSAFETY CODE § 245.010(a)); id. at 2314 (describing § 245.010(a) as a single\\nchallenged requirement). Then, having found that violation, it held “[t]he\\nstatute was meant to require abortion facilities to meet the integrated surgical-\\ncenter standards—not some subset thereof,” and thus declined “to proceed in\\npiecemeal fashion” and choose what “minimum standards” for ambulatory\\nsurgical centers should apply to abortion facilities. Id. at 2319–20. The Court\\nthus refused “to devise a judicial remedy that . . . entail[s] quintessentially\\nlegislative work.” Id. at 2319 (quotation omitted). Regardless of whether\\nPlaintiffs’ “cumulative-effects challenges” are cognizable, Whole Woman’s\\nHealth is not a precedent for them. 12\\n Because it is unclear why the district court changed its mind between its\\norders under § 1292(b), and because it is unclear what relevance Whole\\nWoman’s Health played in the district court’s decision, we think it prudent not\\nto issue the writ at this time. If the district court chooses to certify its decision\\nfor interlocutory appeal, some or all of the State’s arguments could be resolved\\nwithout the need for mandamus.\\n\\n\\n\\n\\n 12 Indeed, the Whole Woman’s Health Court conducted the familiar undue-burden\\nanalysis and analyzed the two challenged laws separately. See 136 S. Ct. at 2300 (concluding\\n“neither of these provisions confers medical benefits sufficient to justify the burdens upon\\naccess that each imposes” and that “each constitutes an undue burden on abortion access”\\n(emphasis added)); id. at 2310 (analyzing whether the admitting-privileges requirement\\nimposed an undue burden); id. at 2318 (assessing whether the surgical-center requirement\\n“poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’\\non their constitutional right to do so”).\\n 30\\n\\f Case: 19-30353 Document: 00515163811 Page: 31 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n * * *\\n The petition for mandamus is DENIED WITHOUT PREJUDICE.\\n This panel will retain jurisdiction over the decision whether to grant any\\napplication for permission to appeal, should the district court grant\\ncertification pursuant to 28 U.S.C. § 1292(b), or any subsequent petition for\\nwrit of mandamus, should the district court deny certification or fail to resolve\\nthe State’s jurisdictional challenges. See In re Trump, --- F. App’x ---, No. 19-\\n5196, 2019 WL 3285234, at *1–2 (D.C. Cir. July 19, 2019) (per curiam).\\n\\n\\n\\n\\n 31\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4448112/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"OWEN"},"judge2":{"kind":"string","value":"WILLETT"},"judge3":{"kind":"string","value":"OLDHAM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"OWEN\": \", Chief\", \"WILLETT\": \", Circuit\", \"OLDHAM\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4670859/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Rebekah Gee\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 19-30353 Document: 00515163811 Page: 1 Date Filed: 10/18/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n October 18, 2019\n No. 19-30353\n Lyle W. Cayce\n Clerk\nIn re: REBEKAH GEE, in her official capacity as Secretary of the Louisiana\nDepartment of Health; JAMES E. STEWART, SR., in his official capacity as\nDistrict Attorney for Caddo Parish,\n\n Petitioners.\n\n\n Petition for a Writ of Mandamus\n to the United States District Court for the\n Middle District of Louisiana\n\n\nBefore OWEN, Chief Judge, and WILLETT and OLDHAM, Circuit Judges.\nPER CURIAM:\n This is an extraordinary case. An abortion clinic and two of its doctors\nseek a federal injunction against virtually all of Louisiana’s legal framework\nfor regulating abortion. As part of this effort, Plaintiffs challenge legal\nprovisions that do not injure them now and could not ever injure them. The\ndistrict court, however, concluded it would be “untenable” to make Plaintiffs\nestablish their standing because doing so would make it more difficult for them\nto succeed on the merits. That was obvious error. Still, we exercise our\ndiscretion not to grant Defendants’ mandamus petition at this time because we\nare confident it is unnecessary.\n I.\n Plaintiffs brought a “cumulative-effects challenge” to Louisiana’s laws\nregulating abortion. They argued the provisions taken as a whole were\nunconstitutional, even if the individual provisions were not. Louisiana moved\n\f Case: 19-30353 Document: 00515163811 Page: 2 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\nto dismiss on jurisdictional grounds and because Plaintiffs’ theory is foreclosed\nby precedent. The district court denied the motion to dismiss but certified its\norder for interlocutory appeal under 28 U.S.C. § 1292(b). The court explained\nthe cumulative-effects issue is one “of first impression that requires the\ninterpretation of recent Supreme Court precedent without the benefit of\nclarification from the [Fifth Circuit].” May 15, 2018 Order, Doc. 76 at 3.\n Plaintiffs then persuaded the district court to rescind the certification so\nthey could amend their complaint to add individual-effect challenges to some\nof the provisions. After Plaintiffs amended their complaint, Louisiana again\nmoved to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil\nProcedure. The district court again denied the motion. But this time, the\ndistrict court did not certify its decision for interlocutory appeal. It’s difficult\nto understand why because the court found that the Amended Complaint still\ncontained a “cumulative effects cause of action” and that “[w]ith respect to the\napplicable law which guides this Court, nothing has appreciably changed.”\nMarch 29, 2019 Order, Doc. 103 at 13, 20. Without explaining its change of\nheart, the district court concluded “this is not a case of first impression.” Id.\nat 20.\n Stranger still, the district court refused to consider Louisiana’s\njurisdictional arguments because doing so might make it difficult for Plaintiffs\nto prevail on the merits. Id. at 15. The court acknowledged Louisiana’s\nargument that Plaintiffs’ challenges to certain provisions “could not possibly\nbe justiciable” and said that argument “appear[ed] persuasive” “[i]n a vacuum.”\nId. at 14; see also id. at 11 (“Defendants also claim that the Court lacks Article\nIII jurisdiction to consider a challenge to many of the individual laws included\nin Plaintiffs’ cumulative effects challenge.”). The court nonetheless refused to\nanalyze Plaintiffs’ standing to challenge each provision included in their\n\n 2\n\f Case: 19-30353 Document: 00515163811 Page: 3 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\ncumulative-effects challenge: “[T]o take on each regulation, individually and\nseparately,” would place Plaintiffs “in an untenable position where they are\nforced to individually challenge many facially valid regulations, despite the\nfact that, taken together, such provisions may violate the directives of both\nPlanned Parenthood and Casey [sic].” Id. at 14–15.\n Louisiana petitioned this Court for a writ of mandamus. 1 With\nMississippi and Texas both supporting the petition as amici, all three States\nin our Circuit have asked us to intervene. Louisiana asks us, among other\nthings, to use the writ of mandamus to dismiss two counts in the Amended\nComplaint.\n II.\n Under the All Writs Act, federal courts “may issue all writs necessary or\nappropriate in aid of their respective jurisdictions and agreeable to the usages\nand principles of law.” 28 U.S.C. § 1651(a). That includes the writ of\nmandamus requested here. See, e.g., Cheney v. U.S. Dist. Court for D.C., 542\nU.S. 367, 380 (2004). But because mandamus “is one of the most potent\nweapons in the judicial arsenal, three conditions must be satisfied before it\nmay issue.” Ibid. (quotation omitted). The Supreme Court has explained:\n First, the party seeking issuance of the writ [must] have no other\n adequate means to attain the relief he desires—a condition\n designed to ensure that the writ will not be used as a substitute\n for the regular appeals process. Second, the petitioner must satisfy\n the burden of showing that [his] right to issuance of the writ is\n clear and indisputable. Third, even if the first two prerequisites\n have been met, the issuing court, in the exercise of its discretion,\n\n\n 1 The named defendants are two Louisiana officials, but that is only because Ex parte\nYoung allows injunctive relief against the State in suits against state officers in their official\ncapacities. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 114 n.25 (1984)\n(“To say that injunctive relief against State officials acting in their official capacity does not\nrun against the State is to resort to the fictions that characterize the dissent’s theories.”).\n 3\n\f Case: 19-30353 Document: 00515163811 Page: 4 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\n must be satisfied that the writ is appropriate under the\n circumstances.\nId. at 380–81 (alterations in original) (quotations omitted).\n “These hurdles, however demanding, are not insuperable.” Id. at 381.\nThey simply reserve the writ “for really extraordinary causes.” Id. at 380\n(quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947)). And in extraordinary\ncases, mandamus petitions “serve as useful ‘safety valve[s]’ for promptly\ncorrecting serious errors.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 111\n(2009) (alteration in original).\n “The clearest traditional office of mandamus and prohibition has been to\ncontrol jurisdictional excesses, whether the lower court has acted without\npower or has refused to act when it had no power to refuse.” 16 CHARLES ALAN\nWRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3933.1 (3d ed.)\n[hereinafter WRIGHT & MILLER]. That was true at common law. See 3 WILLIAM\nBLACKSTONE, COMMENTARIES *112 (explaining the writ of prohibition issued\nto “any inferior court, commanding them to cease” a case that did “not belong\nto that jurisdiction”). 2 And it’s true today. “The traditional use of the writ in\naid of appellate jurisdiction both at common law and in the federal courts has\nbeen to confine [the court against which mandamus is sought] to a lawful\nexercise of its prescribed jurisdiction.” Cheney, 542 U.S. at 380 (quoting Roche\nv. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943)); see also 16 WRIGHT & MILLER\n§ 3932 (“The most common traditional statement is that the extraordinary\nwrits are available to a court of appeals to prevent a district court from acting\n\n\n 2 In keeping with modern practice, we do not distinguish between mandamus and\nprohibition. “Once power is found to issue a writ, little concern is shown to define the possible\ntechnical and historic differences between mandamus and prohibition.” 16 WRIGHT &\nMILLER § 3932.2. Considering a petition for mandamus, or prohibition in the alternative, the\nSupreme Court explained that “[i]t does not matter very much in what form an extraordinary\nremedy is afforded.” In re Simons, 247 U.S. 231, 239–40 (1918).\n 4\n\f Case: 19-30353 Document: 00515163811 Page: 5 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\nbeyond its jurisdiction, or to compel it to take action that it lacks power to\nwithhold.”).\n That’s not to say mandamus was or is limited to jurisdictional issues.\nAlthough it issued “in theory to prevent [a judge] from exceeding his\njurisdiction or to require him to exercise it,” it issued “[i]n practice” for “all\nmanner of errors.” Pulliam v. Allen, 466 U.S. 522, 532–33 (1984). But even as\nthe use of mandamus expanded, the jurisdictional core remained. That’s why\nmandamus is described as “an expeditious and effective means of confining the\ninferior court to a lawful exercise of its prescribed jurisdiction, or of compelling\nit to exercise its authority when it is its duty to do so.” Ex parte Republic of\nPeru, 318 U.S. 578, 583 (1943).\n III.\n In keeping with the traditional office of the writ of mandamus, we start\nwith the jurisdictional errors below. And we consider whether, in the\nextraordinary circumstances presented here, those jurisdictional errors give\nthe State a right to the writ. It’s a close question, even in these extraordinary\ncircumstances. But in our view, the State has carried its burden on the first\nprong of the mandamus standard.\n A.\n Our mandamus precedent has long distinguished between discretionary\ndecisions and non-discretionary duties. If the issue “is one committed to the\ndiscretion of the trial court, a clear and indisputable right to the issuance of\nthe writ of mandamus will arise only if the district court has clearly abused its\ndiscretion, such that it amounts to a judicial usurpation of power.” In re First\nS. Sav. Ass’n, 820 F.2d 700, 707 (5th Cir. 1987). But if the district court has\nviolated a non-discretionary duty, the petitioner necessarily has a clear and\nindisputable right to relief. See United States ex rel. Bernardin v. Duell, 172\n\n 5\n\f Case: 19-30353 Document: 00515163811 Page: 6 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\nU.S. 576, 582 (1899) (holding “the writ of mandamus will not ordinarily be\ngranted . . . unless the duty sought to be enforced is clear and indisputable”);\nIn re Digicon Marine, Inc., 966 F.2d 158, 160 (5th Cir. 1992) (granting\nmandamus because “the district court had no discretion” (quotation omitted));\nIn re Estelle, 516 F.2d 480, 483 (5th Cir. 1975) (“[A]n extraordinary Writ may\nbe appropriate to prevent a trial court from making a discretionary decision\nwhere a statute effectively removes the decision from the realm of discretion.”);\nSEC v. Krentzman, 397 F.2d 55, 59 (5th Cir. 1968) (holding mandamus was\nappropriate because the district court “exercised what he thought to be a\ndiscretionary power which he did not possess”).\n A district court’s obligation to consider a challenge to its jurisdiction is\nnon-discretionary. When the defendant “challenge[s] the jurisdiction of the\ndistrict court in an appropriate manner,” that court has a “duty of making\nfurther inquiry as to its own jurisdiction.” Opelika Nursing Home, Inc. v.\nRichardson, 448 F.2d 658, 666 (5th Cir. 1971). “[F]ederal courts are under an\nindependent obligation to examine their own jurisdiction, and standing ‘is\nperhaps the most important of [the jurisdictional] doctrines.’ ” FW/PBS, Inc.\nv. City of Dallas, 493 U.S. 215, 231 (1990) (quoting Allen v. Wright, 468 U.S.\n737, 750 (1984)); see also United States v. Hays, 515 U.S. 737, 742 (1995). This\nobligation applies to each statute being challenged. See, e.g., Lewis v. Casey,\n518 U.S. 343, 358 & n.6 (1996).\n We hasten to emphasize, however, that a district court’s failure to\nconsider jurisdiction does not always create a right to the writ. That failure is\nextraordinary here for four reasons. First, Louisiana raised forceful objections\nto the district court’s jurisdiction. The State filed a motion to dismiss the first\ncomplaint and another jurisdictional challenge to the Amended Complaint.\nSecond, the district court recognized the defendants’ jurisdictional objections\n\n 6\n\f Case: 19-30353 Document: 00515163811 Page: 7 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\nand even said they appeared “persuasive.” Third, the court nonetheless found\nit “untenable” to make Plaintiffs establish standing because doing so would\nmake it harder for them to succeed on the merits. March 29, 2019 Order, Doc.\n103 at 15. Fourth, as we explain in Part III.B below, at least some of the State’s\njurisdictional arguments appear meritorious. This case is thus not about a\nmere jurisdictional error. Nor is it about a mere failure to spot a jurisdictional\nissue. It is closer to a “refusal to be guided by established doctrines governing\njurisdiction.” Belcher v. Grooms, 406 F.2d 14, 16 (5th Cir. 1968). And as we\nexplain in Part IV below, the failure to rule on these standing issues now—\nstatute-by-statute and regulation-by-regulation—could result in significant\ndiscovery costs borne by the State’s taxpayers. In these circumstances, the\nfailure to perform a non-discretionary jurisdictional inquiry satisfies the first\nprong of the mandamus standard.\n B.\n Our conclusion is reinforced by the obvious standing problems associated\nwith some of Plaintiffs’ challenges.\n 1.\n It is now beyond cavil that plaintiffs must establish standing for each\nand every provision they challenge. See, e.g., Gill v. Whitford, 138 S. Ct. 1916,\n1934 (2018); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006); Lewis,\n518 U.S. at 358 & n.6; Blum v. Yaretsky, 457 U.S. 991, 999 (1982). Take Lewis\nv. Casey for example. In that case, 22 prisoners filed a class action against the\nArizona Department of Corrections (“ADOC”) for violating their constitutional\nright to access the courts. 518 U.S. at 346. The district court “identified a\nvariety of shortcomings of the ADOC system, in matters ranging from the\ntraining of library staff, to the updating of legal materials, to the availability\nof photocopying services.” Ibid. It also found inmates in “lockdown” did not\n\n 7\n\f Case: 19-30353 Document: 00515163811 Page: 8 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\nhave physical access to the prison library. Id. at 347. And illiterate or non-\nEnglish-speaking inmates did not have adequate legal assistance. Ibid. So the\ndistrict court appointed a special master, who conducted an eight-month\ninvestigation of the prison system. Ibid. Then, working with the special\nmaster, the district court imposed a 25-page injunction on ADOC. Among\nother things:\n [i]t specified in minute detail the times that libraries were to be\n kept open, the number of hours of library use to which each inmate\n was entitled (10 per week), the minimal educational requirements\n for prison librarians (a library science degree, law degree, or\n paralegal degree), the content of a videotaped legal-research\n course for inmates (to be prepared by persons appointed by the\n Special Master but funded by ADOC), and similar matters.\nIbid. The district court said every prison library must contain, “inter alia, the\nArizona Digest, the Modern Federal Practice Digest, Corpus Juris Secundum,\nand a full set of the United States Code Annotated, and . . . provide a 30–40\nhour videotaped legal research course covering relevant tort and civil law,\nincluding immigration and family issues.” Id. at 355 n.5 (quotation omitted).\n That is not how Article III works. In vacating the injunction, the\nSupreme Court held that plaintiffs can seek judicial review of state laws and\nregulations only insofar as they show a plaintiff was (or imminently will be)\nactually injured by a particular legal provision. See id. at 349. It is not enough,\nthe Court held, that the plaintiffs or the district court identified a\nconstitutional problem with the ADOC libraries. See id. at 357. Nor could the\nplaintiffs identify one injury and then bootstrap it to complain about others.\nSee id. at 358. That’s because:\n standing is not dispensed in gross. If the right to complain of one\n administrative deficiency automatically conferred the right to\n complain of all administrative deficiencies, any citizen aggrieved\n in one respect could bring the whole structure of state\n\n 8\n\f Case: 19-30353 Document: 00515163811 Page: 9 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\n administration before the courts for review. That is of course not\n the law. As we have said, “[n]or does a plaintiff who has been\n subject to injurious conduct of one kind possess by virtue of that\n injury the necessary stake in litigating conduct of another kind,\n although similar, to which he has not been subject.”\nId. at 358 n.6 (emphasis added) (quoting Blum, 457 U.S. at 999). Applying that\nrule, the Court identified only two plaintiffs who suffered actual injuries: A\nprisoner named Bartholic needed “special services” to file an action because he\nwas illiterate. Id. at 358. And a prisoner named Harris was unable to file an\naction because he was a slow reader. Id. at 356. The plaintiffs were entitled\nto invoke the powers of the federal courts to remedy only those actual injuries.\n All of this makes sense because, “under our constitutional system[,]\ncourts are not roving commissions assigned to pass judgment on the validity of\nthe Nation’s laws.” Broadrick v. Oklahoma, 413 U.S. 601, 610–11 (1973).\nInstead, federal courts are limited to deciding “cases” and “controversies.” U.S.\nCONST. art. III, § 2. Indeed, “[n]o principle is more fundamental to the\njudiciary’s proper role in our system of government than the constitutional\nlimitation of federal-court jurisdiction to actual cases or controversies.” Simon\nv. E. Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976). And “[t]o state a case or\ncontroversy under Article III, a plaintiff must establish standing.” Ariz.\nChristian Sch. Tuition Org. v. Winn, 563 U.S. 125, 132 (2011). Therefore, in\nthe absence of standing, the court has no “power to declare the law.” Steel Co.\nv. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (quoting Ex parte\nMcCardle, 74 U.S. (7 Wall.) 506, 514 (1868)). The distinction between the\ncourts and the political branches “would be obliterated if, to invoke\nintervention of the courts, no actual or imminent harm were needed, but\nmerely the status of being subject to a governmental institution that was not\norganized or managed properly.” Lewis, 518 U.S. at 350.\n\n 9\n\f Case: 19-30353 Document: 00515163811 Page: 10 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\n These same principles apply in abortion cases. For example, in K.P. v.\nLeBlanc, 729 F.3d 427 (5th Cir. 2013), we analyzed abortion providers’\nstanding as it related to each provision they challenged. Id. at 437. We\nconcluded they lacked standing to challenge one of the provisions. Ibid. As a\nresult, we vacated the district court’s judgment regarding that provision and\n“dismiss[ed] that claim for want of jurisdiction.” Id. at 443. 3\n 2.\n In this case, Plaintiffs have proffered ample allegations to support their\ncontention that the State of Louisiana is not regulating abortion properly. But\nArticle III demands much more. See Lewis, 518 U.S. at 350. To ensure that\nstanding is not dispensed in gross, the district court must analyze Plaintiffs’\nstanding to challenge each provision of law at issue. 4 It did not do so. That’s\n\n\n 3 At oral argument, Plaintiffs’ counsel insisted Doe v. Bolton, 410 U.S. 179 (1973), is\nto the contrary. It is not. In that case, the Supreme Court said abortion providers had\nstanding to challenge Georgia’s abortion laws, “despite the fact that the record does not\ndisclose that any one of them has been prosecuted, or threatened with prosecution, for\nviolation of the State’s abortion statutes.” Id. at 188. That is the well-settled rule—\napplicable to abortion laws and others alike—that a would-be plaintiff need not violate a\ncriminal provision and risk prosecution to challenge it. See, e.g., Abbott Labs. v. Gardner,\n387 U.S. 136, 152–53 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99\n(1977); cf. Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158, 163–64 (1967). In Doe, the\nabortion providers alleged they wanted to do something—provide abortions—that the state\nlaw prohibited. And the Court held that was a sufficient injury to justify their Article III\nstanding. See 410 U.S. at 188–89. At no point did the Court suggest the Doe plaintiffs had\nstanding to challenge state legal provisions that the plaintiffs did not want to violate. Doe\ntherefore does not stand for the proposition that plaintiffs can challenge provisions that do\nnot affect or injure them in any way.\n 4 Our understanding of each provision at issue differs somewhat from Plaintiffs’. In\nthe “preliminary statement” of their operative complaint, Plaintiffs say they are challenging\n“twenty-six laws.” E.g., Am. Compl. ¶ 3. But in the body of the complaint, Plaintiffs\nsometimes count one regulation as a single “law”; other times they count a handful of\nsubsections as a single “law”; other times they count multiple regulations as a single “law”;\nand still other times they count a single subsection as a single “law.” E.g., id. ¶¶ 57, 59(a),\n59(b), 59(i), 59(j), 60(c), 60(d), 60(f), 60(g), 60(h), 60(i). That’s confusing. By our count,\nPlaintiffs’ complaint challenges many more than “twenty-six laws.” Some of the provisions\n\n 10\n\f Case: 19-30353 Document: 00515163811 Page: 11 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\nespecially problematic, because at least four categories of Plaintiffs’ legal\nchallenges appear to fall short of Article III’s demands.\n First, Plaintiffs challenge some legal provisions that do not appear to do\nanything. For example, they challenge the statutory title. See LA. REV. STAT.\n§ 40:2175.1 (“This Part may be cited as the ‘Outpatient Abortion Facility\nLicensing Law.’ ”); Am. Compl. ¶¶ 5(i), 57 (challenging § 40:2175.1). They\nchallenge the statutory purpose. See LA. REV. STAT. § 40:2175.2 (noting the\npurpose of the law is to provide safe access to abortion and that rules\npromulgated to implement the law “shall not impose a legally significant\nburden on a woman’s freedom to decide whether to terminate her pregnancy”);\nAm. Compl. ¶¶ 5(i), 57 (challenging § 40:2175.2). And they challenge each and\nevery regulatory definition. See LA. ADMIN. CODE tit. 48, pt. I, § 4401\n(providing numerous definitions, including defining “Patient” as “the woman\nreceiving services from an outpatient abortion facility”); Am. Compl. ¶¶ 5(ii),\n58–59(a) (challenging the entirety of § 4401). If Plaintiffs want to include these\nprovisions in their omnibus challenge, they must now plead (and later prove)\nthat they suffer injury traceable to these provisions and redressable by an\ninjunction against them. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555,\n561 (1992).\n\n\n\n\nthey challenge as “one”—such as title 48 of the Louisiana Administrative Code, part I,\n§ 4445—in fact contain numerous separate legal requirements. See Am. Compl.\n¶¶ 5(ii), 59(k) (challenging § 4445). It is irrelevant for purposes of standing that separate\nlegal requirements are grouped together in a single section of the code. After all, a single\nsection of a statutory code can be the product of many bills passed over many years, and a\nsingle section of an administrative code can be the result of several rulemakings. Plaintiffs\nmust demonstrate all the elements of standing for each provision they seek to challenge. And\nthey must do so at the same level of granularity we use in the following pages.\n 11\n\f Case: 19-30353 Document: 00515163811 Page: 12 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\n Second, Plaintiffs challenge a bevy of legal provisions that appear\nincapable of injuring them. For example, they challenge individual provisions\nrequiring:\n • an abortion facility to have a distinct name that does not “mislead the\n patient or their family into believing it is owned, endorsed, or\n operated by the state of Louisiana,” LA. ADMIN. CODE tit. 48, pt. I,\n § 4403(F);\n • an abortion facility to maintain the “privacy and confidentiality of\n patient medical records,” LA. ADMIN. CODE tit. 48, pt. I, § 4425(A)(3);\n • “safeguards” to protect patient records from “loss or damage,” LA.\n ADMIN. CODE tit. 48, pt. I, § 4425(A)(4);\n • an abortion facility to comply “with all applicable state laws for the\n reporting of crimes against a child that include but are not limited to:\n a. rape; b. sexual battery; c. incest; and d. carnal knowledge of a\n juvenile,” LA. ADMIN. CODE tit. 48, pt. I, § 4425(F)(2);\n • a physician to report an abortion to the Louisiana Department of\n Health, LA. REV. STAT. § 40:1061.11(C); 5\n • a physician to report “a serious adverse event” to the U.S. Food and\n Drug Administration, LA. REV. STAT. § 40:1061.11(D); 6\n • an abortion facility to have sanitary “toilet facilities,” including hot\n and cold water and some method for drying users’ hands, LA. ADMIN.\n CODE tit. 48, pt. I, § 4445(A)(5);\n • an abortion facility to display a “Forced Abortion Prevention” sign,\n LA. ADMIN. CODE tit. 48, pt. I, § 4445(G)(1); and\n\n\n 5 Plaintiffs’ challenge to this provision is particularly difficult to understand because\nthey do not challenge their independent reporting obligation under Louisiana Revised\nStatute § 40:1061.21. Given that § 40:1061.21 requires abortion providers to report abortions\nto the State, it would seem any burden associated with that reporting cannot be attributed\nto § 40:1061.11(C). See, e.g., Clapper v. Amnesty Int’l USA, 568 U.S. 398, 412–13 (2013)\n(holding injury cannot be attributed to law A if it could be caused by law B).\n 6Plaintiffs’ challenge to this provision is also difficult to understand because they have\nan independent obligation to report abortion complications under Louisiana Revised Statute\n§ 40:1061.21. And yet they do not challenge that provision. See Clapper, 568 U.S. at 412–\n13; supra note 5.\n\n 12\n\f Case: 19-30353 Document: 00515163811 Page: 13 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\n • an abortion facility to “post information regarding the National\n Human Trafficking Resource Center Hotline,” LA. ADMIN. CODE tit.\n 48, pt. I, § 4445(H).\nSee Am. Compl. ¶¶ 5, 59, 60 (challenging these provisions). Some of these\nprovisions cannot apply to Plaintiffs. For example, Plaintiffs have not alleged\nthat they began constructing or intended to construct an abortion facility after\nthe enactment of a 2015 legal provision governing the standards for facility\nconstruction. 7 And Plaintiffs do not allege that, but for Louisiana law, they\nwould not have sanitary toilets, hot and cold water, and signs regarding forced\nabortions and human trafficking. Nor do Plaintiffs allege that they would\nprovide these things in a different way, but for Louisiana law. Similarly,\nPlaintiffs do not allege any injury from their obligation to maintain the privacy\nand confidentiality of their patients’ records—to the contrary, Plaintiffs say\nthey want to “safeguard” this information. See Am. Compl. ¶ 132. To the\nextent the challenged regulations require Plaintiffs to do what they’ve already\nbeen doing and want to keep doing, they do not have standing to challenge\nthem. 8 See Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009) (explaining\nplaintiffs “can demonstrate standing only if application of the regulations by\nthe Government will affect them” (emphasis omitted)).\n\n\n\n 7 Plaintiffs’ counsel indicated that the abortion facility has been in the same physical\nspace since it began operations in 1980. Oral Argument at 24:48–25:01. But we do not hold\nthat counsel’s statement constitutes a binding admission of fact.\n 8 It is no answer to say the “[Outpatient Abortion Facility Licensing Law] permits a\nclinic’s license to be revoked upon violation of any regulation, [so the Louisiana Department\nof Health] could deny or revoke a license if a restroom were temporarily out of paper towels\n. . . .” Am. Compl. ¶ 71. It is speculative to allege Plaintiffs would lose their license for\ntemporarily running out of paper towels. See Lujan, 504 U.S. at 561 (holding the irreducible\nconstitutional minimum injury for standing purposes cannot be “speculative”). And in all\nevents, Plaintiffs separately challenge the license-revocation provision; whether they have\nstanding to do so is separate and apart from whether they are injured by the requirement to\nhave sanitary bathrooms.\n 13\n\f Case: 19-30353 Document: 00515163811 Page: 14 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\n Third, Plaintiffs challenge some legal provisions that theoretically could\napply to them—but without any allegation that they would. For example, they\nchallenge individual provisions requiring:\n • a “plan review” for an “initial licensure, major renovation, and change\n of location”—without any allegation that they need an initial license\n or are planning a major renovation or change of location, LA. ADMIN.\n CODE tit. 48, pt. I, § 4403(H);\n • a “physical environment survey” for a major renovation or change of\n location—without any allegation that they’re planning a major\n renovation or change of location, LA. ADMIN. CODE tit. 48, pt. I,\n §§ 4403(H)(3)(ii), 4407(D)(5);\n • certain flooring and wall finishes for abortion facilities that undergo\n a major renovation or change of location—without any allegation that\n they’re planning a major renovation or change of location, LA. ADMIN.\n CODE tit. 48, pt. I, § 4445(A)(6);\n • a “soiled utility room” containing, among other things, a trash can in\n abortion facilities that undergo a major renovation or change of\n location—without any allegation that they’re planning a major\n renovation or change of location, LA. ADMIN. CODE tit. 48, pt. I,\n § 4445(E)(1);\n • a stretcher, a wheelchair, and hallways to accommodate them in\n abortion facilities that undergo a major renovation or change of\n location—without any allegation that they’re planning a major\n renovation or change of location, LA. ADMIN. CODE tit. 48, pt. I,\n § 4445(E)(4)–(5);\n • sanitary laundry facilities in abortion facilities that include an “in-\n house laundry”—without any allegation they have an “in-house\n laundry,” LA. ADMIN. CODE tit. 48, pt. I, § 4445(F);\n • an abortion facility to have “qualified personnel” necessary to provide\n patient care—without any allegation they want to hire unqualified\n personnel, LA. ADMIN. CODE tit. 48, pt. I, § 4423(A);\n • an abortion facility to “employ qualified medical staff ” and “qualified\n nursing staff to meet the needs of the patients”—without any\n allegation they want to hire unqualified medical staff or don’t wish to\n meet the needs of patients, LA. ADMIN. CODE tit. 48, pt. I, § 4423(C)–\n (D);\n 14\n\f Case: 19-30353 Document: 00515163811 Page: 15 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\n • an administrator to be at least 18 years old and to have a high school\n diploma or the equivalent—without any allegation they wish to hire\n an administrator who is under 18 or does not have a high school\n diploma or the equivalent, LA. ADMIN. CODE tit. 48, pt. I, § 4423(B)(1);\n • a “qualified person” to perform any ultrasound—without any\n allegation they wish to hire an unqualified person to perform the\n ultrasound, LA. REV. STAT. § 40:1061.10(D)(1); and\n • the Louisiana Department of Health to promulgate rules for the safe\n provision of abortion—without any allegation that the delegation of\n rulemaking is unconstitutional independent of any particular rule,\n LA. REV. STAT. § 40:2175.5.\nSee Am. Compl. ¶¶ 5, 59, 60 (challenging these provisions). It’s theoretically\npossible these provisions could injure Plaintiffs. But Article III requires more\nthan theoretical possibilities. See Simon, 426 U.S. at 44 (“[U]nadorned\nspeculation will not suffice to invoke the federal judicial power.”). Absent\nallegations that Plaintiffs will trigger these requirements in the near future,\nthey have no standing to challenge them. See Clapper, 568 U.S. at 409 (“[W]e\nhave repeatedly reiterated that threatened injury must be certainly impending\nto constitute injury in fact, and that allegations of possible future injury are\nnot sufficient.” (quotations and brackets omitted)).\n Fourth, Plaintiffs challenge some legal provisions that benefit rather\nthan harm women seeking abortions. In Singleton v. Wulff, 428 U.S. 106\n(1976), a plurality of the Court recognized abortion providers’ third-party\nstanding to challenge laws that place undue burdens on women seeking\nabortions. See id. at 118 (plurality opinion). That practice continues today.\nSee, e.g., Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016); cf. June\nMedical Services L.L.C. v. Gee, 905 F.3d 787 (5th Cir. 2018), cert. granted, 2019\nWL 4889928 (U.S. Oct. 4, 2019) (No. 18-1460) (granting certiorari to consider\nwhether abortion providers can be presumed to have third-party standing).\nThe rationale appears to be that abortion providers and women seeking\n 15\n\f Case: 19-30353 Document: 00515163811 Page: 16 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\nabortions have a unity of interest in challenging laws that regulate the\nprocedure. Whatever the wisdom of that rationale, see Whole Woman’s Health,\n136 S. Ct. at 2322–23 (Thomas, J., dissenting), some of Plaintiffs’ challenges\nseem inconsistent with it. For example, they challenge a provision that\nprohibits them from charging for an abortion in the 24 hours after a woman\ngives informed consent. See LA. ADMIN. CODE tit. 48, pt. I, § 4431(G)(5)(c); Am.\nCompl. ¶ 59(f). Plaintiffs challenge another provision requiring them to give\nwomen instructions for post-operative follow-up care. See LA. ADMIN. CODE tit.\n48, pt. I, § 4437(B)(1); Am. Compl. ¶ 59(j). It is not obvious how these\nprovisions could injure women seeking abortions. They might injure abortion\nproviders who’d otherwise demand money during the 24-hour post-consent\nperiod or who’d otherwise not give women instructions for post-operative\nfollow-up care. But Plaintiffs do not allege they fall in either category. And\neven if they did, it’s not obvious they have standing to challenge laws that help\nwomen.\n The foregoing is not meant to be an exhaustive jurisdictional analysis of\nPlaintiffs’ allegations. Perhaps they lack standing in ways not explored here.\nPerhaps they have standing in others. We leave that for the district court to\ndecide on a provision-by-provision basis. See supra note 4. We recognize that\nanalyzing standing at this level of granularity can be tedious in a sweeping\nchallenge like this one. But it’s what Article III requires.\n IV.\n To secure mandamus relief, Louisiana also must show it has “no other\nadequate means to attain the relief [it] desires.” Cheney, 542 U.S. at 380\n(quotation omitted). This requirement “ensure[s] that the writ will not be used\nas a substitute for the regular appeals process.” Id. at 380–81. Here, Louisiana\n\n\n 16\n\f Case: 19-30353 Document: 00515163811 Page: 17 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\nhas shown a later appeal would be inadequate to correct the jurisdictional\nerrors described above.\n A.\n Ordinarily, a district court’s erroneous denial of a Rule 12(b)(1)\njurisdictional objection does not satisfy the second mandamus requirement. It\nis always true that an erroneous failure to dismiss will result in some\ninconvenient discovery and unnecessary litigation. “But that inconvenience is\none which we must take it Congress contemplated in providing that only final\njudgments should be reviewable.” Roche, 319 U.S. at 30; see also Cheney, 542\nU.S. at 381 (noting that “interlocutory appellate review is unavailable, through\nmandamus or otherwise,” for “ordinary discovery orders” (emphasis added));\nPlekowski v. Ralston-Purina Co., 557 F.2d 1218, 1220 (5th Cir. 1977) (similar).\n Instead, we reserve this extraordinary remedy for special situations\nwhere the unlawful exercise of federal jurisdiction imposes extraordinary\nharms. For example, we have held mandamus can be appropriate in some\ncircumstances to challenge the denial of venue-transfer motions. See, e.g., In\nre Volkswagen of Am., Inc., 545 F.3d 304, 309 (5th Cir. 2008) (en banc); In re\nHorseshoe Entm’t, 337 F.3d 429, 432 (5th Cir. 2003); 16 WRIGHT & MILLER\n§ 3935.4. One of our sister circuits granted mandamus to direct the dismissal\nof a complaint raising “a basic and undecided question” of civil procedure. In\nre BP Lubricants USA Inc., 637 F.3d 1307, 1313 (Fed. Cir. 2011) (quotation\nomitted). And the Supreme Court used mandamus to review the denial of a\nmotion to dismiss for lack of jurisdiction over a foreign boat. See Republic of\nPeru, 318 U.S. at 589–90.\n The unlawful assertion of federal power over a matter of state\nsovereignty qualifies as another such special situation. See In re Univ. of\nMich., 936 F.3d 460, 465 (6th Cir. 2019) (holding federalism concerns justified\n\n 17\n\f Case: 19-30353 Document: 00515163811 Page: 18 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\ngranting mandamus when a district court improperly “invoke[ed] federal\npower to haul a high-ranking state official into federal court”). That’s why the\nSupreme Court “has issued the writ to restrain a lower court when its actions\nwould threaten the separation of powers by embarrassing the executive arm of\nthe Government, or result in the intrusion by the federal judiciary on a delicate\narea of federal-state relations.” Cheney, 542 U.S. at 381 (emphasis added)\n(quotations and brackets omitted). For example, in Maryland v. Soper, 270\nU.S. 9 (1926), the State charged four federal prohibition agents with murder.\nThe officers removed to federal court. Then the State petitioned for mandamus\nto have the case remanded to state court. The officers opposed mandamus by\narguing the removal was “a question within the regular judicial function of the\nDistrict Court to decide, and that this court should not interfere thus\nprematurely with its exercise.” Id. at 28. The Supreme Court rejected that\nargument and held a later appeal was inadequate when “the jurisdiction of the\ncourts of a state to try offenses against its own laws and in violation of its own\npeace and dignity is wrested from it by the order of an inferior federal court.”\nId. at 29. As one of our sister circuits has put it, “[t]he crux of these authorities”\nis “that federalism concerns justify review by mandamus.” California v. Mesa,\n813 F.2d 960, 963 (9th Cir. 1987), aff’d, 489 U.S. 121 (1989).\n B.\n Here, the combination of five federalism concerns makes this a special\ncircumstance and distinguishes it from an ordinary case: (1) A sovereign State\nis requesting the writ; (2) Plaintiffs seek sweeping review of an entire body of\nstate law; (3) Plaintiffs seek structural injunctions that would give the district\ncourt de facto control of state law; (4) the type of discovery waiting on the other\nside of Louisiana’s motion to dismiss is categorically different than what\n\n\n 18\n\f Case: 19-30353 Document: 00515163811 Page: 19 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\nawaits an ordinary civil litigant; and (5) the ordinary civil litigant cannot\ndemand attorneys’ fees from the State’s taxpayers.\n First, the State of Louisiana is the true defendant in this case. See supra\nnote 1. The Supreme Court has long “recognized that States are not normal\nlitigants.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007); see also id. at 520\n(holding States are “entitled to special solicitude in our standing analysis”).\nThey’re “residuary sovereigns and joint participants in the governance of the\nNation.” Alden v. Maine, 527 U.S. 706, 748 (1999). And, as a consequence, the\nSupreme Court has long recognized States’ special rights to seek relief in\nfederal court. See, e.g., Massachusetts, 549 U.S. at 519 (holding\n“Massachusetts’ well-founded desire to preserve its sovereign territory” gives\nit standing to challenge an EPA decision); Alfred L. Snapp & Son, Inc. v. Puerto\nRico ex rel. Barez, 458 U.S. 592, 607 (1982) (noting a State can seek relief based\non its “quasi-sovereign interest in not being discriminatorily denied its rightful\nstatus in the federal system”); Texas v. United States, 809 F.3d 134, 153 (5th\nCir. 2015) (“[S]tates have a sovereign interest in the power to create and\nenforce a legal code.” (alteration in original) (quotation omitted)), aff’d by an\nequally divided court, 136 S. Ct. 2271 (2016).\n Second, Plaintiffs are seeking judicial review of an entire body of state\nstatutory and regulatory law. See Am. Compl. at 58–60. Judicial review of any\nstate law implicates obvious federalism concerns. See Morrow v. Harwell, 768\nF.2d 619, 627 (5th Cir. 1985) (emphasizing the “extraordinary” nature of\n“federal injunctive relief ” despite “its familiarity to federal courts, gained\nparticularly in desegregation cases over the past thirty years”). Those concerns\nare exponentially more acute when a federal court entertains a challenge to an\nentire body of state law.\n\n\n 19\n\f Case: 19-30353 Document: 00515163811 Page: 20 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\n Third, Plaintiffs are seeking a structural injunction and continuing\nfederal supervision of the State of Louisiana. Such expansive use of equitable\nremedies has long been recognized as a threat to federalism. The Founders\nworried “that the equity power would” so empower federal courts that it “would\nresult in . . . the ‘entire subversion of the legislative, executive and judicial\npowers of the individual states.’ ” Missouri v. Jenkins, 515 U.S. 70, 128–29\n(1995) (Thomas, J., concurring) (quoting Brutus XI). Responding to Brutus\nand defending the proposed Constitution, “Hamilton sought to narrow the\nexpansive Anti-Federalist reading of inherent judicial equity power” and\n“described Article III ‘equity’ as a jurisdiction over certain types of cases rather\nthan as a broad remedial power.” Id. at 130 (describing The Federalist No. 83).\n The same concerns apply today: Federalism is a “clear restraint[ ] on the\nuse of equity power” because “[a] structural reform decree eviscerates a State’s\ndiscretionary authority over its own program and budgets.” Id. at 131; see also\nHorne v. Flores, 557 U.S. 433, 448 (2009) (“[I]nstitutional reform injunctions\noften raise sensitive federalism concerns.”). Courts are properly reluctant to\ngrant such relief because of the federalism burdens it imposes. See Morrow,\n768 F.2d at 627 (“There is no question but that the passive remedy of a\ndeclaratory judgment is far less intrusive into state functions than injunctive\nrelief that affirmatively commands specific future behavior under the threat of\nthe court’s contempt powers.”). The Supreme Court has made clear that\nsweeping requests for “intrusive and unworkable” injunctions are\nnonjusticiable because they threaten “the special delicacy of the adjustment to\nbe preserved between federal equitable power and State administration of its\nown law.” O’Shea v. Littleton, 414 U.S. 488, 500 (1974) (quotation and brackets\nomitted). And the Court has even shaped substantive federal law around the\nassumption that it must avoid “permanent judicial intervention in the conduct\n\n 20\n\f Case: 19-30353 Document: 00515163811 Page: 21 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\nof governmental operations to a degree inconsistent with sound principles of\nfederalism and the separation of powers.” Garcetti v. Ceballos, 547 U.S. 410,\n423 (2006). After all, “[t]he Federal Government does not . . . have a general\nright to review and veto state enactments before they go into effect.” Shelby\nCounty v. Holder, 570 U.S. 529, 542 (2013).\n Plaintiffs are seeking this same sort of sweeping federal supervision of\nthe State. They want the district court to issue permanent injunctive relief\nagainst a slew of state statutes and regulations, to “retain jurisdiction,” and to\nprovide “judicial oversight” of state actors. Mem. in Opp’n to Mot. to Dismiss,\nDoc. 32 at 10; Am. Compl. at 59–60. They treat the desegregation cases as\nexemplars for court “supervision.” Mem. in Opp’n to Mot. to Dismiss, Doc. 32,\nat 10. Regardless of whether the district court ever orders such sweeping\nrelief, the mere prospect of it increases the stakes of this litigation\nexponentially as compared to an ordinary civil case.\n Fourth, discovery in this case would be categorically different from\ndiscovery in an ordinary case. In the ordinary case, the plaintiff who defeats a\nmotion to dismiss does not get to demand written discovery and depositions of\nhigh-ranking government officials. Nor does the ordinary plaintiff get to\ndemand access to documents and communications that would otherwise be\nprotected by legislative and executive privilege. But such discovery demands\nare all too common where, as here, plaintiffs claim the government acted with\nan invidious purpose. See, e.g., Tummino v. Torti, 603 F. Supp. 2d 519\n(E.D.N.Y. 2009) (detailing extensive discovery taken from senior FDA and\nother executive branch officials in litigation over “Plan B” pill); cf. Texas v.\nHolder, No. 12-128, 2012 WL 13070060 (D.D.C. June 5, 2012) (ordering\nextensive discovery of state officials in voting-rights suit and ordering a second\n\n\n 21\n\f Case: 19-30353 Document: 00515163811 Page: 22 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\ndeposition of a sitting state senator). For example, in an abortion case from\none of our sister circuits:\n [P]laintiffs spent much time on discovery. They noticed the\n depositions of [Guam] Governor Joseph F. Ada; June S. Mair, a\n legislative staffer to the senator who had sponsored the abortion\n statute; and Police Chief Adolf P. Sgambelluri. They also sought\n and obtained such items as drafts of the abortion bills; memos from\n the attorney general to the police chief; crime statistics; memos\n from the police chief to his staff; and copies of the governor’s\n speeches. The discovery effort spawned a good bit of satellite\n litigation. For example, the parties disagreed about whether\n Governor Ada could be deposed. The matter was briefed and\n argued and, in an inexplicable ruling, the district court permitted\n the deposition.\nGuam Soc’y of Obstetricians & Gynecologists v. Ada, 100 F.3d 691, 707 (9th\nCir. 1996) (citations and footnotes omitted).\n The plaintiffs in this case have propounded extensive initial discovery\nrequests that likewise tread on sensitive areas of state decisionmaking. See\nMot. for Partial Dismissal, Doc. 95-2 at 1–11. Numerous appellate courts have\nrecognized the appropriateness of mandamus in a lawsuit involving discovery\nthat would hamper important state interests. See, e.g., In re Lombardi, 741\nF.3d 888, 895 (8th Cir. 2014) (en banc); In re County of Erie, 473 F.3d 413, 419\n(2d Cir. 2007); In re Wilkinson, 137 F.3d 911, 914 (6th Cir. 1998).\n Consider the recent case of In re Kemp, 894 F.3d 900 (8th Cir. 2018).\nThere a state judge sued the Arkansas Supreme Court because it had removed\nhim from certain cases. Id. at 904–05. The disgruntled judge sought extensive\ndiscovery, and the district court denied a motion to dismiss. Seeking\nmandamus to stop the discovery and dismiss the claims, the Arkansas\nSupreme Court Justices argued that discovery of internal state deliberations\nwould threaten “judicial independence and federalism.” Id. at 905 (emphasis\nadded). The court expressed no opinion as to the propriety of the discovery\n 22\n\f Case: 19-30353 Document: 00515163811 Page: 23 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\nrequests but noted the requests implicated “significant and complex” concerns.\nIbid. Moreover, the requests themselves justified the granting of mandamus\nbecause their intrusive nature risked leading to “discovery of irrelevant\ninformation” that would be “oppressive” to “important state interests.” Id. at\n906. Mandamus was granted. Id. at 910. To our sister circuit, applicable\nprivileges were not enough to protect the State’s interests. Id. at 906.\n Similarly, the Supreme Court has told us the potential availability of\nexecutive privilege is not an adequate protection against such discovery\nrequests. See Cheney, 542 U.S. at 380–91. Instead, the primary protection\ncomes from the exacting standards for Article III jurisdiction—enforceable by\nmandamus if necessary. Cf. In re Univ. of Mich., 936 F.3d at 466–67. Where\nthe discovery on the other side of a motion to dismiss is extraordinary, it is all\nthe more important to apply the Constitution’s jurisdictional limits correctly\nat the threshold.\n The fifth and final federalism consideration that distinguishes this from\nan ordinary civil case is fee-shifting. “In the United States, the prevailing\nlitigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the\nloser.” Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975).\nBut that is not true in cases like this one. Here, Plaintiffs have sued state\nofficials under 42 U.S.C. § 1983. And with that cause of action comes the\ntantalizing promise of attorneys’ fees under 42 U.S.C. § 1988.\n This means that the State of Louisiana could be on the hook for both\nsides’ fees. At argument, Plaintiffs’ counsel wished for “a nickel for every time\nI represented a defendant who is concerned about the time, cost, and burden\nof discovery.” Oral Argument at 38:42–48. But unlike an ordinary private\ndefendant, Louisiana is at risk of having to pay its costs and Plaintiffs’ fees\nand expenses.\n\n 23\n\f Case: 19-30353 Document: 00515163811 Page: 24 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\n Those fees and expenses can be astronomical. In Whole Woman’s Health\nv. Hellerstedt—which Plaintiffs invoke as the principal precedent for this\nsuit—the abortion clinic submitted a fee application for more than\n$4.5 million. 9 That bill included over $1.6 million in fees and expenses for\nMorrison & Foerster, the global law firm retained by the clinic. And the Whole\nWoman’s Health plaintiffs did not attempt to invalidate the entirety of Texas’s\nabortion laws or to place the State under federal judicial supervision.\nRegardless of whether Plaintiffs prevail in this case, the mere prospect of\nshifting Debevoise & Plimpton’s multi-million-dollar fee request to the\nshoulders of Louisiana’s taxpayers will force the State to litigate this case in\nways that are far from ordinary.\n All five of these factors combine to make this an extraordinary case. And\nit is one of the “special situations” in which a later appeal is in adequate. 16\nWRIGHT & MILLER § 3932.1.\n\n\n\n\n 9 The plaintiffs’ fee application included the following requests:\n Attorneys’ fees for Center for Reproductive Rights $2,754,503.00\n Expenses for Center for Reproductive Rights $70,462.41\n Attorneys’ fees for Morrison & Foerster LLP $1,523,768.75\n Expenses for Morrison & Foerster LLP $87,964.45\n Attorneys’ fees for O’Connell & Soifer LLP $111,231.25\n Attorneys’ fees for John H. Bucy II $3,152.50\n Expenses for Leah M. Litman $357.20\n Total $4,551,439.56\nPlaintiffs’ Motion for Attorneys’ Fees at 1, Whole Woman’s Health v. Hellerstedt, No. 1:14-cv-\n284-LY (W.D. Tex. Oct. 7, 2016), ECF No. 245. The fee application spawned additional\nlitigation and a supplemental request for an additional $100,000 in fees and expenses. See\nOrder at 14–15, Whole Woman’s Health v. Hellerstedt, No. 1:14-cv-284-LY (W.D. Tex. Aug. 9,\n2019), ECF No. 297. Almost three years after the plaintiffs filed the application, the district\ncourt issued a 46-page opinion awarding approximately $2.5 million in fees and expenses.\nSee id. at 46.\n 24\n\f Case: 19-30353 Document: 00515163811 Page: 25 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\n V.\n The district court’s failure to consider the State’s jurisdictional\nchallenges and the inadequacy of a later appeal support issuance of the writ.\nWe nonetheless exercise our discretion not to issue it at this time.\n As Wright and Miller explain, the writ of mandamus is a discretionary\none: “The availability of prerogative writ review has long been held a matter\nof appellate discretion. Discretion is involved in defining both the\ncircumstances that justify exercise of writ power and also the reasons that may\njustify denial of a writ even though the circumstances might justify a grant.”\n16 WRIGHT & MILLER § 3933; see also Cheney, 542 U.S. at 381 (noting “even if\nthe first two prerequisites have been met, the issuing court, in the exercise of\nits discretion, must be satisfied that the writ is appropriate under the\ncircumstances”). Here, the State falls short. That’s for two reasons. First, it’s\nnot clear from the district court’s order how it would resolve the State’s\njurisdictional challenge. And second, much of the State’s argument in its\nmandamus petition goes beyond jurisdiction. In particular, the State argues\nthat Plaintiffs’ “cumulative-effects challenge” is not cognizable. But that\nchallenge might change after the district court conducts its claim-by-claim\nanalysis of Plaintiffs’ standing. So in our view, resolution of whether that\nchallenge is cognizable should await the district court’s jurisdictional analysis.\n A.\n As noted above, the district court has not yet addressed the State’s\njurisdictional arguments. The district court said it would be “untenable” to\nconsider jurisdiction at this stage. That was wrong; the Supreme Court has\nrepeatedly emphasized “the rule that Article III jurisdiction is always an\nantecedent question” because “[h]ypothetical jurisdiction produces nothing\nmore than a hypothetical judgment.” Steel Co., 523 U.S. at 101; see also, e.g.,\n\n 25\n\f Case: 19-30353 Document: 00515163811 Page: 26 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\nFW/PBS, 493 U.S. at 231. This rule is binding not only on the district court\nbut also on this one:\n [E]very federal appellate court has a special obligation to satisfy\n itself not only of its own jurisdiction, but also that of the lower\n courts in a cause under review, even though the parties are\n prepared to concede it. And if the record discloses that the lower\n court was without jurisdiction this court will notice the defect,\n although the parties make no contention concerning it. When the\n lower federal court lacks jurisdiction, we have jurisdiction on\n appeal, not of the merits but merely for the purpose of correcting\n the error of the lower court in entertaining the suit.\nBender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (quotations\nand alterations omitted); accord Steel Co., 523 U.S. at 95; Arizonans for Official\nEnglish v. Arizona, 520 U.S. 43, 73 (1997). And as we’ve explained above, some\nof Plaintiffs’ claims have obvious standing problems. See supra Part III.B.\n On the other hand, Plaintiffs might have standing to bring some of their\nchallenges. For example, Count Four in the Amended Complaint challenges\nthe State’s administrative inspection procedures under the Fourth\nAmendment. See Am. Compl. ¶¶ 190–91. And in stark contrast to the\nallegations regarding other claims, Plaintiffs make some specific allegations\nthat they have been subjected to those procedures and injured by them. See\nid. ¶¶ 120–52. The State does not contest Plaintiffs’ standing to mount that\nchallenge. 10 Therefore, the State has not shown the district court is completely\nwithout jurisdiction such that the writ should issue “almost as a matter of\ncourse.” In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007) (per curiam);\n\n\n 10 Of course, the State’s failure to contest standing does not mean there is standing.\nSee, e.g., Bender, 475 U.S. at 541; MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d\n310, 313 (5th Cir. 2019) (“Notwithstanding the parties’ agreement, we have an independent\nobligation to assess our own jurisdiction before exercising the judicial power of the United\nStates.”). Because we are denying the petition, we need not decide whether Plaintiffs have\nshown standing to bring Count Four, nor do we need to assess the merits of that claim.\n 26\n\f Case: 19-30353 Document: 00515163811 Page: 27 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\naccord In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987); United States v. Denson,\n603 F.2d 1143, 1145 (5th Cir. 1979) (en banc). We therefore elect, in our\ndiscretion, to allow the district court to consider the State’s jurisdictional\nchallenges in the first instance. We think that’s particularly prudent because\nPlaintiffs’ scores of legal challenges must be disentangled so standing can be\nadjudicated for each one.\n B.\n We also think it prudent not to issue the writ at this time because much\nof the State’s petition challenges the merits of Plaintiffs’ “cumulative-effects\nchallenge.” The Plaintiffs’ theory, as we understand it, is that Louisiana’s\nvarious laws and regulations regarding abortion cumulate to an undue burden.\nBut before any federal court can analyze the “cumulative effects” of Louisiana’s\nlaws, we must know which laws Plaintiffs have standing to challenge. Again,\njurisdiction first.\n A stylized example makes this plain. If Plaintiffs cannot plausibly allege\nthat they were injured by Legal Requirement A, they don’t have standing to\nchallenge A. See supra Part III.B.2. So Plaintiffs’ cumulative-effects challenge\nwould no longer be: A + B + C + D = an undue burden. Instead, it would be: B\n+ C + D = an undue burden. 11\n Moreover, it is unclear from the record why the district court did not\ncertify its cumulative-effects order for interlocutory appeal under 28 U.S.C.\n\n\n 11And, of course, that’s still distinct from the following challenge: Legal Requirement\nB = an undue burden in light of related requirements E and F. In assessing whether an\nindividual provision is an undue burden, we consider the relevant “factual context in which\nthe law operates.” Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 458 (5th Cir. 2014).\nFor example, a court could consider the absence of a state law prohibiting hospitals from\ndiscriminating against abortion providers in granting admitting privileges when assessing\nthe burden of a related admitting-privileges requirement. Ibid. But that tells us nothing\nabout whether unrelated requirements—regarding, say, admitting privileges and sanitary\nbathrooms—impose an undue burden. Nor does it tell us whether such a claim is cognizable.\n 27\n\f Case: 19-30353 Document: 00515163811 Page: 28 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\n§ 1292(b). In its first § 1292(b) order, the district court certified the case\nbecause “Plaintiffs present a difficult issue of first impression . . . .” May 15,\n2018 Order, Doc. 76 at 3. And it noted the cumulative-effects issue lacked “the\nbenefit of clarification from the [Fifth Circuit].” Ibid. Then, in a later § 1292(b)\norder, the district court said the exact opposite: “[T]he Court finds that this is\nnot a case of first impression.” March 29, 2019 Order, Doc. 103 at 20. The\ndistrict court did not acknowledge its change of heart in that order, much less\nexplain the basis for it. Nor did it mention our intervening decision in June\nMedical Services, even though Louisiana brought it to the court’s attention.\nSee Mot. to Dismiss Reply Br., Doc. 100 at 1.\n Whatever the merits of Plaintiffs’ “cumulative-effects challenge,” they\nare unprecedented. The Supreme Court has not blessed such a claim. To the\ncontrary, the Court has analyzed abortion provisions separately rather than\ncumulatively. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,\n879–901 (1992) (evaluating the definition of “medical emergency,” the\ninformed-consent requirement, the spousal-notification requirement, the\nparental-consent provision, and recordkeeping and reporting requirements\nseparately); Webster v. Reproductive Health Servs., 492 U.S. 490, 505–20\n(1989) (evaluating four sections of the challenged law individually). And the\nCourt’s consistent focus on individual legal requirements isn’t an accident. For\nexample, in Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502 (1990),\nthe majority analyzed a constructive-authorization provision, a bypass\nprocedure, and pleading requirements separately. Id. at 515–17. The Court\ndid so over the explicit complaints from dissenting justices who thought they\nshould be considered cumulatively. Id. at 527 (Blackmun, J., dissenting) (“The\nmajority considers each provision in a piecemeal fashion, never acknowledging\n\n\n 28\n\f Case: 19-30353 Document: 00515163811 Page: 29 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\nor assessing the ‘degree of burden that the entire regime of abortion\nregulations places’ on the minor.”).\n Our Court also considered a cumulative-effects argument in June\nMedical Services. In that case, the district court considered a challenge to\nLouisiana’s admitting-privileges requirement (“Act 620”). See June Med.\nServs. L.L.C. v. Kliebert, 250 F. Supp. 3d 27 (M.D. La. 2017). It analyzed not\nonly the burdens caused by Act 620 but also the burdens caused by unrelated\nlaws—such as a 24-hour notification and waiting period—to conclude Act 620\nwas unconstitutional. See id. at 88 (“The result of these burdens on women\nand providers, taken together and in context, is that many women seeking a\nsafe, legal abortion in Louisiana will be unable to obtain one.” (emphasis\nadded)); id. at 40, 54–55, 82 (discussing other provisions and their impact on a\nwoman’s right to seek an abortion). And the district court based this\ncumulative-effects approach on its interpretation of Whole Woman’s Health.\nSee June Med. Servs., 250 F. Supp. 3d at 35. We reversed. See June Med.\nServs., 905 F.3d at 791. We specifically criticized the district court’s\nconsideration of “unrelated” abortion laws in analyzing the burdens caused by\nAct 620: “[O]ther abortion regulations are unrelated to admitting privileges\nand therefore have no bearing on the constitutionality of Act 620.” Id. at 810\nn.60 (citing Whole Woman’s Health, 136 S. Ct. at 2300).\n It is possible the district court nonetheless thought Whole Woman’s\nHealth serves as precedent for “cumulative-effects challenges.” See May 29,\n2019 Order, Doc. 103 at 12–15. But in suggesting that, the district court relied\non the severability analysis in Whole Woman’s Health. Severability obviously\ngoverns the remedy after the finding of a constitutional violation; it plays no\npart in finding a constitutional violation. The Whole Woman’s Health majority\nfound (in relevant part) one constitutional violation: a single sentence in the\n\n 29\n\f Case: 19-30353 Document: 00515163811 Page: 30 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\nTexas Health and Safety Code required abortion clinics to meet the standards\nfor ambulatory surgical centers. See 136 S. Ct. at 2300 (citing TEX. HEALTH &\nSAFETY CODE § 245.010(a)); id. at 2314 (describing § 245.010(a) as a single\nchallenged requirement). Then, having found that violation, it held “[t]he\nstatute was meant to require abortion facilities to meet the integrated surgical-\ncenter standards—not some subset thereof,” and thus declined “to proceed in\npiecemeal fashion” and choose what “minimum standards” for ambulatory\nsurgical centers should apply to abortion facilities. Id. at 2319–20. The Court\nthus refused “to devise a judicial remedy that . . . entail[s] quintessentially\nlegislative work.” Id. at 2319 (quotation omitted). Regardless of whether\nPlaintiffs’ “cumulative-effects challenges” are cognizable, Whole Woman’s\nHealth is not a precedent for them. 12\n Because it is unclear why the district court changed its mind between its\norders under § 1292(b), and because it is unclear what relevance Whole\nWoman’s Health played in the district court’s decision, we think it prudent not\nto issue the writ at this time. If the district court chooses to certify its decision\nfor interlocutory appeal, some or all of the State’s arguments could be resolved\nwithout the need for mandamus.\n\n\n\n\n 12 Indeed, the Whole Woman’s Health Court conducted the familiar undue-burden\nanalysis and analyzed the two challenged laws separately. See 136 S. Ct. at 2300 (concluding\n“neither of these provisions confers medical benefits sufficient to justify the burdens upon\naccess that each imposes” and that “each constitutes an undue burden on abortion access”\n(emphasis added)); id. at 2310 (analyzing whether the admitting-privileges requirement\nimposed an undue burden); id. at 2318 (assessing whether the surgical-center requirement\n“poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’\non their constitutional right to do so”).\n 30\n\f Case: 19-30353 Document: 00515163811 Page: 31 Date Filed: 10/18/2019\n\n\n No. 19-30353\n\n * * *\n The petition for mandamus is DENIED WITHOUT PREJUDICE.\n This panel will retain jurisdiction over the decision whether to grant any\napplication for permission to appeal, should the district court grant\ncertification pursuant to 28 U.S.C. § 1292(b), or any subsequent petition for\nwrit of mandamus, should the district court deny certification or fail to resolve\nthe State’s jurisdictional challenges. See In re Trump, --- F. App’x ---, No. 19-\n5196, 2019 WL 3285234, at *1–2 (D.C. Cir. July 19, 2019) (per curiam).\n\n\n\n\n 31\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Rebekah Gee\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-18\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 19-30353 Document: 00515163811 Page: 1 Date Filed: 10/18/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n October 18, 2019\\n No. 19-30353\\n Lyle W. Cayce\\n Clerk\\nIn re: REBEKAH GEE, in her official capacity as Secretary of the Louisiana\\nDepartment of Health; JAMES E. STEWART, SR., in his official capacity as\\nDistrict Attorney for Caddo Parish,\\n\\n Petitioners.\\n\\n\\n Petition for a Writ of Mandamus\\n to the United States District Court for the\\n Middle District of Louisiana\\n\\n\\nBefore OWEN, Chief Judge, and WILLETT and OLDHAM, Circuit Judges.\\nPER CURIAM:\\n This is an extraordinary case. An abortion clinic and two of its doctors\\nseek a federal injunction against virtually all of Louisiana’s legal framework\\nfor regulating abortion. As part of this effort, Plaintiffs challenge legal\\nprovisions that do not injure them now and could not ever injure them. The\\ndistrict court, however, concluded it would be “untenable” to make Plaintiffs\\nestablish their standing because doing so would make it more difficult for them\\nto succeed on the merits. That was obvious error. Still, we exercise our\\ndiscretion not to grant Defendants’ mandamus petition at this time because we\\nare confident it is unnecessary.\\n I.\\n Plaintiffs brought a “cumulative-effects challenge” to Louisiana’s laws\\nregulating abortion. They argued the provisions taken as a whole were\\nunconstitutional, even if the individual provisions were not. Louisiana moved\\n\\f Case: 19-30353 Document: 00515163811 Page: 2 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nto dismiss on jurisdictional grounds and because Plaintiffs’ theory is foreclosed\\nby precedent. The district court denied the motion to dismiss but certified its\\norder for interlocutory appeal under 28 U.S.C. § 1292(b). The court explained\\nthe cumulative-effects issue is one “of first impression that requires the\\ninterpretation of recent Supreme Court precedent without the benefit of\\nclarification from the [Fifth Circuit].” May 15, 2018 Order, Doc. 76 at 3.\\n Plaintiffs then persuaded the district court to rescind the certification so\\nthey could amend their complaint to add individual-effect challenges to some\\nof the provisions. After Plaintiffs amended their complaint, Louisiana again\\nmoved to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil\\nProcedure. The district court again denied the motion. But this time, the\\ndistrict court did not certify its decision for interlocutory appeal. It’s difficult\\nto understand why because the court found that the Amended Complaint still\\ncontained a “cumulative effects cause of action” and that “[w]ith respect to the\\napplicable law which guides this Court, nothing has appreciably changed.”\\nMarch 29, 2019 Order, Doc. 103 at 13, 20. Without explaining its change of\\nheart, the district court concluded “this is not a case of first impression.” Id.\\nat 20.\\n Stranger still, the district court refused to consider Louisiana’s\\njurisdictional arguments because doing so might make it difficult for Plaintiffs\\nto prevail on the merits. Id. at 15. The court acknowledged Louisiana’s\\nargument that Plaintiffs’ challenges to certain provisions “could not possibly\\nbe justiciable” and said that argument “appear[ed] persuasive” “[i]n a vacuum.”\\nId. at 14; see also id. at 11 (“Defendants also claim that the Court lacks Article\\nIII jurisdiction to consider a challenge to many of the individual laws included\\nin Plaintiffs’ cumulative effects challenge.”). The court nonetheless refused to\\nanalyze Plaintiffs’ standing to challenge each provision included in their\\n\\n 2\\n\\f Case: 19-30353 Document: 00515163811 Page: 3 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\ncumulative-effects challenge: “[T]o take on each regulation, individually and\\nseparately,” would place Plaintiffs “in an untenable position where they are\\nforced to individually challenge many facially valid regulations, despite the\\nfact that, taken together, such provisions may violate the directives of both\\nPlanned Parenthood and Casey [sic].” Id. at 14–15.\\n Louisiana petitioned this Court for a writ of mandamus. 1 With\\nMississippi and Texas both supporting the petition as amici, all three States\\nin our Circuit have asked us to intervene. Louisiana asks us, among other\\nthings, to use the writ of mandamus to dismiss two counts in the Amended\\nComplaint.\\n II.\\n Under the All Writs Act, federal courts “may issue all writs necessary or\\nappropriate in aid of their respective jurisdictions and agreeable to the usages\\nand principles of law.” 28 U.S.C. § 1651(a). That includes the writ of\\nmandamus requested here. See, e.g., Cheney v. U.S. Dist. Court for D.C., 542\\nU.S. 367, 380 (2004). But because mandamus “is one of the most potent\\nweapons in the judicial arsenal, three conditions must be satisfied before it\\nmay issue.” Ibid. (quotation omitted). The Supreme Court has explained:\\n First, the party seeking issuance of the writ [must] have no other\\n adequate means to attain the relief he desires—a condition\\n designed to ensure that the writ will not be used as a substitute\\n for the regular appeals process. Second, the petitioner must satisfy\\n the burden of showing that [his] right to issuance of the writ is\\n clear and indisputable. Third, even if the first two prerequisites\\n have been met, the issuing court, in the exercise of its discretion,\\n\\n\\n 1 The named defendants are two Louisiana officials, but that is only because Ex parte\\nYoung allows injunctive relief against the State in suits against state officers in their official\\ncapacities. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 114 n.25 (1984)\\n(“To say that injunctive relief against State officials acting in their official capacity does not\\nrun against the State is to resort to the fictions that characterize the dissent’s theories.”).\\n 3\\n\\f Case: 19-30353 Document: 00515163811 Page: 4 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n must be satisfied that the writ is appropriate under the\\n circumstances.\\nId. at 380–81 (alterations in original) (quotations omitted).\\n “These hurdles, however demanding, are not insuperable.” Id. at 381.\\nThey simply reserve the writ “for really extraordinary causes.” Id. at 380\\n(quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947)). And in extraordinary\\ncases, mandamus petitions “serve as useful ‘safety valve[s]’ for promptly\\ncorrecting serious errors.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 111\\n(2009) (alteration in original).\\n “The clearest traditional office of mandamus and prohibition has been to\\ncontrol jurisdictional excesses, whether the lower court has acted without\\npower or has refused to act when it had no power to refuse.” 16 CHARLES ALAN\\nWRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3933.1 (3d ed.)\\n[hereinafter WRIGHT & MILLER]. That was true at common law. See 3 WILLIAM\\nBLACKSTONE, COMMENTARIES *112 (explaining the writ of prohibition issued\\nto “any inferior court, commanding them to cease” a case that did “not belong\\nto that jurisdiction”). 2 And it’s true today. “The traditional use of the writ in\\naid of appellate jurisdiction both at common law and in the federal courts has\\nbeen to confine [the court against which mandamus is sought] to a lawful\\nexercise of its prescribed jurisdiction.” Cheney, 542 U.S. at 380 (quoting Roche\\nv. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943)); see also 16 WRIGHT & MILLER\\n§ 3932 (“The most common traditional statement is that the extraordinary\\nwrits are available to a court of appeals to prevent a district court from acting\\n\\n\\n 2 In keeping with modern practice, we do not distinguish between mandamus and\\nprohibition. “Once power is found to issue a writ, little concern is shown to define the possible\\ntechnical and historic differences between mandamus and prohibition.” 16 WRIGHT &\\nMILLER § 3932.2. Considering a petition for mandamus, or prohibition in the alternative, the\\nSupreme Court explained that “[i]t does not matter very much in what form an extraordinary\\nremedy is afforded.” In re Simons, 247 U.S. 231, 239–40 (1918).\\n 4\\n\\f Case: 19-30353 Document: 00515163811 Page: 5 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nbeyond its jurisdiction, or to compel it to take action that it lacks power to\\nwithhold.”).\\n That’s not to say mandamus was or is limited to jurisdictional issues.\\nAlthough it issued “in theory to prevent [a judge] from exceeding his\\njurisdiction or to require him to exercise it,” it issued “[i]n practice” for “all\\nmanner of errors.” Pulliam v. Allen, 466 U.S. 522, 532–33 (1984). But even as\\nthe use of mandamus expanded, the jurisdictional core remained. That’s why\\nmandamus is described as “an expeditious and effective means of confining the\\ninferior court to a lawful exercise of its prescribed jurisdiction, or of compelling\\nit to exercise its authority when it is its duty to do so.” Ex parte Republic of\\nPeru, 318 U.S. 578, 583 (1943).\\n III.\\n In keeping with the traditional office of the writ of mandamus, we start\\nwith the jurisdictional errors below. And we consider whether, in the\\nextraordinary circumstances presented here, those jurisdictional errors give\\nthe State a right to the writ. It’s a close question, even in these extraordinary\\ncircumstances. But in our view, the State has carried its burden on the first\\nprong of the mandamus standard.\\n A.\\n Our mandamus precedent has long distinguished between discretionary\\ndecisions and non-discretionary duties. If the issue “is one committed to the\\ndiscretion of the trial court, a clear and indisputable right to the issuance of\\nthe writ of mandamus will arise only if the district court has clearly abused its\\ndiscretion, such that it amounts to a judicial usurpation of power.” In re First\\nS. Sav. Ass’n, 820 F.2d 700, 707 (5th Cir. 1987). But if the district court has\\nviolated a non-discretionary duty, the petitioner necessarily has a clear and\\nindisputable right to relief. See United States ex rel. Bernardin v. Duell, 172\\n\\n 5\\n\\f Case: 19-30353 Document: 00515163811 Page: 6 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nU.S. 576, 582 (1899) (holding “the writ of mandamus will not ordinarily be\\ngranted . . . unless the duty sought to be enforced is clear and indisputable”);\\nIn re Digicon Marine, Inc., 966 F.2d 158, 160 (5th Cir. 1992) (granting\\nmandamus because “the district court had no discretion” (quotation omitted));\\nIn re Estelle, 516 F.2d 480, 483 (5th Cir. 1975) (“[A]n extraordinary Writ may\\nbe appropriate to prevent a trial court from making a discretionary decision\\nwhere a statute effectively removes the decision from the realm of discretion.”);\\nSEC v. Krentzman, 397 F.2d 55, 59 (5th Cir. 1968) (holding mandamus was\\nappropriate because the district court “exercised what he thought to be a\\ndiscretionary power which he did not possess”).\\n A district court’s obligation to consider a challenge to its jurisdiction is\\nnon-discretionary. When the defendant “challenge[s] the jurisdiction of the\\ndistrict court in an appropriate manner,” that court has a “duty of making\\nfurther inquiry as to its own jurisdiction.” Opelika Nursing Home, Inc. v.\\nRichardson, 448 F.2d 658, 666 (5th Cir. 1971). “[F]ederal courts are under an\\nindependent obligation to examine their own jurisdiction, and standing ‘is\\nperhaps the most important of [the jurisdictional] doctrines.’ ” FW/PBS, Inc.\\nv. City of Dallas, 493 U.S. 215, 231 (1990) (quoting Allen v. Wright, 468 U.S.\\n737, 750 (1984)); see also United States v. Hays, 515 U.S. 737, 742 (1995). This\\nobligation applies to each statute being challenged. See, e.g., Lewis v. Casey,\\n518 U.S. 343, 358 & n.6 (1996).\\n We hasten to emphasize, however, that a district court’s failure to\\nconsider jurisdiction does not always create a right to the writ. That failure is\\nextraordinary here for four reasons. First, Louisiana raised forceful objections\\nto the district court’s jurisdiction. The State filed a motion to dismiss the first\\ncomplaint and another jurisdictional challenge to the Amended Complaint.\\nSecond, the district court recognized the defendants’ jurisdictional objections\\n\\n 6\\n\\f Case: 19-30353 Document: 00515163811 Page: 7 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nand even said they appeared “persuasive.” Third, the court nonetheless found\\nit “untenable” to make Plaintiffs establish standing because doing so would\\nmake it harder for them to succeed on the merits. March 29, 2019 Order, Doc.\\n103 at 15. Fourth, as we explain in Part III.B below, at least some of the State’s\\njurisdictional arguments appear meritorious. This case is thus not about a\\nmere jurisdictional error. Nor is it about a mere failure to spot a jurisdictional\\nissue. It is closer to a “refusal to be guided by established doctrines governing\\njurisdiction.” Belcher v. Grooms, 406 F.2d 14, 16 (5th Cir. 1968). And as we\\nexplain in Part IV below, the failure to rule on these standing issues now—\\nstatute-by-statute and regulation-by-regulation—could result in significant\\ndiscovery costs borne by the State’s taxpayers. In these circumstances, the\\nfailure to perform a non-discretionary jurisdictional inquiry satisfies the first\\nprong of the mandamus standard.\\n B.\\n Our conclusion is reinforced by the obvious standing problems associated\\nwith some of Plaintiffs’ challenges.\\n 1.\\n It is now beyond cavil that plaintiffs must establish standing for each\\nand every provision they challenge. See, e.g., Gill v. Whitford, 138 S. Ct. 1916,\\n1934 (2018); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006); Lewis,\\n518 U.S. at 358 & n.6; Blum v. Yaretsky, 457 U.S. 991, 999 (1982). Take Lewis\\nv. Casey for example. In that case, 22 prisoners filed a class action against the\\nArizona Department of Corrections (“ADOC”) for violating their constitutional\\nright to access the courts. 518 U.S. at 346. The district court “identified a\\nvariety of shortcomings of the ADOC system, in matters ranging from the\\ntraining of library staff, to the updating of legal materials, to the availability\\nof photocopying services.” Ibid. It also found inmates in “lockdown” did not\\n\\n 7\\n\\f Case: 19-30353 Document: 00515163811 Page: 8 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nhave physical access to the prison library. Id. at 347. And illiterate or non-\\nEnglish-speaking inmates did not have adequate legal assistance. Ibid. So the\\ndistrict court appointed a special master, who conducted an eight-month\\ninvestigation of the prison system. Ibid. Then, working with the special\\nmaster, the district court imposed a 25-page injunction on ADOC. Among\\nother things:\\n [i]t specified in minute detail the times that libraries were to be\\n kept open, the number of hours of library use to which each inmate\\n was entitled (10 per week), the minimal educational requirements\\n for prison librarians (a library science degree, law degree, or\\n paralegal degree), the content of a videotaped legal-research\\n course for inmates (to be prepared by persons appointed by the\\n Special Master but funded by ADOC), and similar matters.\\nIbid. The district court said every prison library must contain, “inter alia, the\\nArizona Digest, the Modern Federal Practice Digest, Corpus Juris Secundum,\\nand a full set of the United States Code Annotated, and . . . provide a 30–40\\nhour videotaped legal research course covering relevant tort and civil law,\\nincluding immigration and family issues.” Id. at 355 n.5 (quotation omitted).\\n That is not how Article III works. In vacating the injunction, the\\nSupreme Court held that plaintiffs can seek judicial review of state laws and\\nregulations only insofar as they show a plaintiff was (or imminently will be)\\nactually injured by a particular legal provision. See id. at 349. It is not enough,\\nthe Court held, that the plaintiffs or the district court identified a\\nconstitutional problem with the ADOC libraries. See id. at 357. Nor could the\\nplaintiffs identify one injury and then bootstrap it to complain about others.\\nSee id. at 358. That’s because:\\n standing is not dispensed in gross. If the right to complain of one\\n administrative deficiency automatically conferred the right to\\n complain of all administrative deficiencies, any citizen aggrieved\\n in one respect could bring the whole structure of state\\n\\n 8\\n\\f Case: 19-30353 Document: 00515163811 Page: 9 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n administration before the courts for review. That is of course not\\n the law. As we have said, “[n]or does a plaintiff who has been\\n subject to injurious conduct of one kind possess by virtue of that\\n injury the necessary stake in litigating conduct of another kind,\\n although similar, to which he has not been subject.”\\nId. at 358 n.6 (emphasis added) (quoting Blum, 457 U.S. at 999). Applying that\\nrule, the Court identified only two plaintiffs who suffered actual injuries: A\\nprisoner named Bartholic needed “special services” to file an action because he\\nwas illiterate. Id. at 358. And a prisoner named Harris was unable to file an\\naction because he was a slow reader. Id. at 356. The plaintiffs were entitled\\nto invoke the powers of the federal courts to remedy only those actual injuries.\\n All of this makes sense because, “under our constitutional system[,]\\ncourts are not roving commissions assigned to pass judgment on the validity of\\nthe Nation’s laws.” Broadrick v. Oklahoma, 413 U.S. 601, 610–11 (1973).\\nInstead, federal courts are limited to deciding “cases” and “controversies.” U.S.\\nCONST. art. III, § 2. Indeed, “[n]o principle is more fundamental to the\\njudiciary’s proper role in our system of government than the constitutional\\nlimitation of federal-court jurisdiction to actual cases or controversies.” Simon\\nv. E. Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976). And “[t]o state a case or\\ncontroversy under Article III, a plaintiff must establish standing.” Ariz.\\nChristian Sch. Tuition Org. v. Winn, 563 U.S. 125, 132 (2011). Therefore, in\\nthe absence of standing, the court has no “power to declare the law.” Steel Co.\\nv. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (quoting Ex parte\\nMcCardle, 74 U.S. (7 Wall.) 506, 514 (1868)). The distinction between the\\ncourts and the political branches “would be obliterated if, to invoke\\nintervention of the courts, no actual or imminent harm were needed, but\\nmerely the status of being subject to a governmental institution that was not\\norganized or managed properly.” Lewis, 518 U.S. at 350.\\n\\n 9\\n\\f Case: 19-30353 Document: 00515163811 Page: 10 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n These same principles apply in abortion cases. For example, in K.P. v.\\nLeBlanc, 729 F.3d 427 (5th Cir. 2013), we analyzed abortion providers’\\nstanding as it related to each provision they challenged. Id. at 437. We\\nconcluded they lacked standing to challenge one of the provisions. Ibid. As a\\nresult, we vacated the district court’s judgment regarding that provision and\\n“dismiss[ed] that claim for want of jurisdiction.” Id. at 443. 3\\n 2.\\n In this case, Plaintiffs have proffered ample allegations to support their\\ncontention that the State of Louisiana is not regulating abortion properly. But\\nArticle III demands much more. See Lewis, 518 U.S. at 350. To ensure that\\nstanding is not dispensed in gross, the district court must analyze Plaintiffs’\\nstanding to challenge each provision of law at issue. 4 It did not do so. That’s\\n\\n\\n 3 At oral argument, Plaintiffs’ counsel insisted Doe v. Bolton, 410 U.S. 179 (1973), is\\nto the contrary. It is not. In that case, the Supreme Court said abortion providers had\\nstanding to challenge Georgia’s abortion laws, “despite the fact that the record does not\\ndisclose that any one of them has been prosecuted, or threatened with prosecution, for\\nviolation of the State’s abortion statutes.” Id. at 188. That is the well-settled rule—\\napplicable to abortion laws and others alike—that a would-be plaintiff need not violate a\\ncriminal provision and risk prosecution to challenge it. See, e.g., Abbott Labs. v. Gardner,\\n387 U.S. 136, 152–53 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99\\n(1977); cf. Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158, 163–64 (1967). In Doe, the\\nabortion providers alleged they wanted to do something—provide abortions—that the state\\nlaw prohibited. And the Court held that was a sufficient injury to justify their Article III\\nstanding. See 410 U.S. at 188–89. At no point did the Court suggest the Doe plaintiffs had\\nstanding to challenge state legal provisions that the plaintiffs did not want to violate. Doe\\ntherefore does not stand for the proposition that plaintiffs can challenge provisions that do\\nnot affect or injure them in any way.\\n 4 Our understanding of each provision at issue differs somewhat from Plaintiffs’. In\\nthe “preliminary statement” of their operative complaint, Plaintiffs say they are challenging\\n“twenty-six laws.” E.g., Am. Compl. ¶ 3. But in the body of the complaint, Plaintiffs\\nsometimes count one regulation as a single “law”; other times they count a handful of\\nsubsections as a single “law”; other times they count multiple regulations as a single “law”;\\nand still other times they count a single subsection as a single “law.” E.g., id. ¶¶ 57, 59(a),\\n59(b), 59(i), 59(j), 60(c), 60(d), 60(f), 60(g), 60(h), 60(i). That’s confusing. By our count,\\nPlaintiffs’ complaint challenges many more than “twenty-six laws.” Some of the provisions\\n\\n 10\\n\\f Case: 19-30353 Document: 00515163811 Page: 11 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nespecially problematic, because at least four categories of Plaintiffs’ legal\\nchallenges appear to fall short of Article III’s demands.\\n First, Plaintiffs challenge some legal provisions that do not appear to do\\nanything. For example, they challenge the statutory title. See LA. REV. STAT.\\n§ 40:2175.1 (“This Part may be cited as the ‘Outpatient Abortion Facility\\nLicensing Law.’ ”); Am. Compl. ¶¶ 5(i), 57 (challenging § 40:2175.1). They\\nchallenge the statutory purpose. See LA. REV. STAT. § 40:2175.2 (noting the\\npurpose of the law is to provide safe access to abortion and that rules\\npromulgated to implement the law “shall not impose a legally significant\\nburden on a woman’s freedom to decide whether to terminate her pregnancy”);\\nAm. Compl. ¶¶ 5(i), 57 (challenging § 40:2175.2). And they challenge each and\\nevery regulatory definition. See LA. ADMIN. CODE tit. 48, pt. I, § 4401\\n(providing numerous definitions, including defining “Patient” as “the woman\\nreceiving services from an outpatient abortion facility”); Am. Compl. ¶¶ 5(ii),\\n58–59(a) (challenging the entirety of § 4401). If Plaintiffs want to include these\\nprovisions in their omnibus challenge, they must now plead (and later prove)\\nthat they suffer injury traceable to these provisions and redressable by an\\ninjunction against them. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555,\\n561 (1992).\\n\\n\\n\\n\\nthey challenge as “one”—such as title 48 of the Louisiana Administrative Code, part I,\\n§ 4445—in fact contain numerous separate legal requirements. See Am. Compl.\\n¶¶ 5(ii), 59(k) (challenging § 4445). It is irrelevant for purposes of standing that separate\\nlegal requirements are grouped together in a single section of the code. After all, a single\\nsection of a statutory code can be the product of many bills passed over many years, and a\\nsingle section of an administrative code can be the result of several rulemakings. Plaintiffs\\nmust demonstrate all the elements of standing for each provision they seek to challenge. And\\nthey must do so at the same level of granularity we use in the following pages.\\n 11\\n\\f Case: 19-30353 Document: 00515163811 Page: 12 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n Second, Plaintiffs challenge a bevy of legal provisions that appear\\nincapable of injuring them. For example, they challenge individual provisions\\nrequiring:\\n • an abortion facility to have a distinct name that does not “mislead the\\n patient or their family into believing it is owned, endorsed, or\\n operated by the state of Louisiana,” LA. ADMIN. CODE tit. 48, pt. I,\\n § 4403(F);\\n • an abortion facility to maintain the “privacy and confidentiality of\\n patient medical records,” LA. ADMIN. CODE tit. 48, pt. I, § 4425(A)(3);\\n • “safeguards” to protect patient records from “loss or damage,” LA.\\n ADMIN. CODE tit. 48, pt. I, § 4425(A)(4);\\n • an abortion facility to comply “with all applicable state laws for the\\n reporting of crimes against a child that include but are not limited to:\\n a. rape; b. sexual battery; c. incest; and d. carnal knowledge of a\\n juvenile,” LA. ADMIN. CODE tit. 48, pt. I, § 4425(F)(2);\\n • a physician to report an abortion to the Louisiana Department of\\n Health, LA. REV. STAT. § 40:1061.11(C); 5\\n • a physician to report “a serious adverse event” to the U.S. Food and\\n Drug Administration, LA. REV. STAT. § 40:1061.11(D); 6\\n • an abortion facility to have sanitary “toilet facilities,” including hot\\n and cold water and some method for drying users’ hands, LA. ADMIN.\\n CODE tit. 48, pt. I, § 4445(A)(5);\\n • an abortion facility to display a “Forced Abortion Prevention” sign,\\n LA. ADMIN. CODE tit. 48, pt. I, § 4445(G)(1); and\\n\\n\\n 5 Plaintiffs’ challenge to this provision is particularly difficult to understand because\\nthey do not challenge their independent reporting obligation under Louisiana Revised\\nStatute § 40:1061.21. Given that § 40:1061.21 requires abortion providers to report abortions\\nto the State, it would seem any burden associated with that reporting cannot be attributed\\nto § 40:1061.11(C). See, e.g., Clapper v. Amnesty Int’l USA, 568 U.S. 398, 412–13 (2013)\\n(holding injury cannot be attributed to law A if it could be caused by law B).\\n 6Plaintiffs’ challenge to this provision is also difficult to understand because they have\\nan independent obligation to report abortion complications under Louisiana Revised Statute\\n§ 40:1061.21. And yet they do not challenge that provision. See Clapper, 568 U.S. at 412–\\n13; supra note 5.\\n\\n 12\\n\\f Case: 19-30353 Document: 00515163811 Page: 13 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n • an abortion facility to “post information regarding the National\\n Human Trafficking Resource Center Hotline,” LA. ADMIN. CODE tit.\\n 48, pt. I, § 4445(H).\\nSee Am. Compl. ¶¶ 5, 59, 60 (challenging these provisions). Some of these\\nprovisions cannot apply to Plaintiffs. For example, Plaintiffs have not alleged\\nthat they began constructing or intended to construct an abortion facility after\\nthe enactment of a 2015 legal provision governing the standards for facility\\nconstruction. 7 And Plaintiffs do not allege that, but for Louisiana law, they\\nwould not have sanitary toilets, hot and cold water, and signs regarding forced\\nabortions and human trafficking. Nor do Plaintiffs allege that they would\\nprovide these things in a different way, but for Louisiana law. Similarly,\\nPlaintiffs do not allege any injury from their obligation to maintain the privacy\\nand confidentiality of their patients’ records—to the contrary, Plaintiffs say\\nthey want to “safeguard” this information. See Am. Compl. ¶ 132. To the\\nextent the challenged regulations require Plaintiffs to do what they’ve already\\nbeen doing and want to keep doing, they do not have standing to challenge\\nthem. 8 See Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009) (explaining\\nplaintiffs “can demonstrate standing only if application of the regulations by\\nthe Government will affect them” (emphasis omitted)).\\n\\n\\n\\n 7 Plaintiffs’ counsel indicated that the abortion facility has been in the same physical\\nspace since it began operations in 1980. Oral Argument at 24:48–25:01. But we do not hold\\nthat counsel’s statement constitutes a binding admission of fact.\\n 8 It is no answer to say the “[Outpatient Abortion Facility Licensing Law] permits a\\nclinic’s license to be revoked upon violation of any regulation, [so the Louisiana Department\\nof Health] could deny or revoke a license if a restroom were temporarily out of paper towels\\n. . . .” Am. Compl. ¶ 71. It is speculative to allege Plaintiffs would lose their license for\\ntemporarily running out of paper towels. See Lujan, 504 U.S. at 561 (holding the irreducible\\nconstitutional minimum injury for standing purposes cannot be “speculative”). And in all\\nevents, Plaintiffs separately challenge the license-revocation provision; whether they have\\nstanding to do so is separate and apart from whether they are injured by the requirement to\\nhave sanitary bathrooms.\\n 13\\n\\f Case: 19-30353 Document: 00515163811 Page: 14 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n Third, Plaintiffs challenge some legal provisions that theoretically could\\napply to them—but without any allegation that they would. For example, they\\nchallenge individual provisions requiring:\\n • a “plan review” for an “initial licensure, major renovation, and change\\n of location”—without any allegation that they need an initial license\\n or are planning a major renovation or change of location, LA. ADMIN.\\n CODE tit. 48, pt. I, § 4403(H);\\n • a “physical environment survey” for a major renovation or change of\\n location—without any allegation that they’re planning a major\\n renovation or change of location, LA. ADMIN. CODE tit. 48, pt. I,\\n §§ 4403(H)(3)(ii), 4407(D)(5);\\n • certain flooring and wall finishes for abortion facilities that undergo\\n a major renovation or change of location—without any allegation that\\n they’re planning a major renovation or change of location, LA. ADMIN.\\n CODE tit. 48, pt. I, § 4445(A)(6);\\n • a “soiled utility room” containing, among other things, a trash can in\\n abortion facilities that undergo a major renovation or change of\\n location—without any allegation that they’re planning a major\\n renovation or change of location, LA. ADMIN. CODE tit. 48, pt. I,\\n § 4445(E)(1);\\n • a stretcher, a wheelchair, and hallways to accommodate them in\\n abortion facilities that undergo a major renovation or change of\\n location—without any allegation that they’re planning a major\\n renovation or change of location, LA. ADMIN. CODE tit. 48, pt. I,\\n § 4445(E)(4)–(5);\\n • sanitary laundry facilities in abortion facilities that include an “in-\\n house laundry”—without any allegation they have an “in-house\\n laundry,” LA. ADMIN. CODE tit. 48, pt. I, § 4445(F);\\n • an abortion facility to have “qualified personnel” necessary to provide\\n patient care—without any allegation they want to hire unqualified\\n personnel, LA. ADMIN. CODE tit. 48, pt. I, § 4423(A);\\n • an abortion facility to “employ qualified medical staff ” and “qualified\\n nursing staff to meet the needs of the patients”—without any\\n allegation they want to hire unqualified medical staff or don’t wish to\\n meet the needs of patients, LA. ADMIN. CODE tit. 48, pt. I, § 4423(C)–\\n (D);\\n 14\\n\\f Case: 19-30353 Document: 00515163811 Page: 15 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n • an administrator to be at least 18 years old and to have a high school\\n diploma or the equivalent—without any allegation they wish to hire\\n an administrator who is under 18 or does not have a high school\\n diploma or the equivalent, LA. ADMIN. CODE tit. 48, pt. I, § 4423(B)(1);\\n • a “qualified person” to perform any ultrasound—without any\\n allegation they wish to hire an unqualified person to perform the\\n ultrasound, LA. REV. STAT. § 40:1061.10(D)(1); and\\n • the Louisiana Department of Health to promulgate rules for the safe\\n provision of abortion—without any allegation that the delegation of\\n rulemaking is unconstitutional independent of any particular rule,\\n LA. REV. STAT. § 40:2175.5.\\nSee Am. Compl. ¶¶ 5, 59, 60 (challenging these provisions). It’s theoretically\\npossible these provisions could injure Plaintiffs. But Article III requires more\\nthan theoretical possibilities. See Simon, 426 U.S. at 44 (“[U]nadorned\\nspeculation will not suffice to invoke the federal judicial power.”). Absent\\nallegations that Plaintiffs will trigger these requirements in the near future,\\nthey have no standing to challenge them. See Clapper, 568 U.S. at 409 (“[W]e\\nhave repeatedly reiterated that threatened injury must be certainly impending\\nto constitute injury in fact, and that allegations of possible future injury are\\nnot sufficient.” (quotations and brackets omitted)).\\n Fourth, Plaintiffs challenge some legal provisions that benefit rather\\nthan harm women seeking abortions. In Singleton v. Wulff, 428 U.S. 106\\n(1976), a plurality of the Court recognized abortion providers’ third-party\\nstanding to challenge laws that place undue burdens on women seeking\\nabortions. See id. at 118 (plurality opinion). That practice continues today.\\nSee, e.g., Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016); cf. June\\nMedical Services L.L.C. v. Gee, 905 F.3d 787 (5th Cir. 2018), cert. granted, 2019\\nWL 4889928 (U.S. Oct. 4, 2019) (No. 18-1460) (granting certiorari to consider\\nwhether abortion providers can be presumed to have third-party standing).\\nThe rationale appears to be that abortion providers and women seeking\\n 15\\n\\f Case: 19-30353 Document: 00515163811 Page: 16 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nabortions have a unity of interest in challenging laws that regulate the\\nprocedure. Whatever the wisdom of that rationale, see Whole Woman’s Health,\\n136 S. Ct. at 2322–23 (Thomas, J., dissenting), some of Plaintiffs’ challenges\\nseem inconsistent with it. For example, they challenge a provision that\\nprohibits them from charging for an abortion in the 24 hours after a woman\\ngives informed consent. See LA. ADMIN. CODE tit. 48, pt. I, § 4431(G)(5)(c); Am.\\nCompl. ¶ 59(f). Plaintiffs challenge another provision requiring them to give\\nwomen instructions for post-operative follow-up care. See LA. ADMIN. CODE tit.\\n48, pt. I, § 4437(B)(1); Am. Compl. ¶ 59(j). It is not obvious how these\\nprovisions could injure women seeking abortions. They might injure abortion\\nproviders who’d otherwise demand money during the 24-hour post-consent\\nperiod or who’d otherwise not give women instructions for post-operative\\nfollow-up care. But Plaintiffs do not allege they fall in either category. And\\neven if they did, it’s not obvious they have standing to challenge laws that help\\nwomen.\\n The foregoing is not meant to be an exhaustive jurisdictional analysis of\\nPlaintiffs’ allegations. Perhaps they lack standing in ways not explored here.\\nPerhaps they have standing in others. We leave that for the district court to\\ndecide on a provision-by-provision basis. See supra note 4. We recognize that\\nanalyzing standing at this level of granularity can be tedious in a sweeping\\nchallenge like this one. But it’s what Article III requires.\\n IV.\\n To secure mandamus relief, Louisiana also must show it has “no other\\nadequate means to attain the relief [it] desires.” Cheney, 542 U.S. at 380\\n(quotation omitted). This requirement “ensure[s] that the writ will not be used\\nas a substitute for the regular appeals process.” Id. at 380–81. Here, Louisiana\\n\\n\\n 16\\n\\f Case: 19-30353 Document: 00515163811 Page: 17 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nhas shown a later appeal would be inadequate to correct the jurisdictional\\nerrors described above.\\n A.\\n Ordinarily, a district court’s erroneous denial of a Rule 12(b)(1)\\njurisdictional objection does not satisfy the second mandamus requirement. It\\nis always true that an erroneous failure to dismiss will result in some\\ninconvenient discovery and unnecessary litigation. “But that inconvenience is\\none which we must take it Congress contemplated in providing that only final\\njudgments should be reviewable.” Roche, 319 U.S. at 30; see also Cheney, 542\\nU.S. at 381 (noting that “interlocutory appellate review is unavailable, through\\nmandamus or otherwise,” for “ordinary discovery orders” (emphasis added));\\nPlekowski v. Ralston-Purina Co., 557 F.2d 1218, 1220 (5th Cir. 1977) (similar).\\n Instead, we reserve this extraordinary remedy for special situations\\nwhere the unlawful exercise of federal jurisdiction imposes extraordinary\\nharms. For example, we have held mandamus can be appropriate in some\\ncircumstances to challenge the denial of venue-transfer motions. See, e.g., In\\nre Volkswagen of Am., Inc., 545 F.3d 304, 309 (5th Cir. 2008) (en banc); In re\\nHorseshoe Entm’t, 337 F.3d 429, 432 (5th Cir. 2003); 16 WRIGHT & MILLER\\n§ 3935.4. One of our sister circuits granted mandamus to direct the dismissal\\nof a complaint raising “a basic and undecided question” of civil procedure. In\\nre BP Lubricants USA Inc., 637 F.3d 1307, 1313 (Fed. Cir. 2011) (quotation\\nomitted). And the Supreme Court used mandamus to review the denial of a\\nmotion to dismiss for lack of jurisdiction over a foreign boat. See Republic of\\nPeru, 318 U.S. at 589–90.\\n The unlawful assertion of federal power over a matter of state\\nsovereignty qualifies as another such special situation. See In re Univ. of\\nMich., 936 F.3d 460, 465 (6th Cir. 2019) (holding federalism concerns justified\\n\\n 17\\n\\f Case: 19-30353 Document: 00515163811 Page: 18 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\ngranting mandamus when a district court improperly “invoke[ed] federal\\npower to haul a high-ranking state official into federal court”). That’s why the\\nSupreme Court “has issued the writ to restrain a lower court when its actions\\nwould threaten the separation of powers by embarrassing the executive arm of\\nthe Government, or result in the intrusion by the federal judiciary on a delicate\\narea of federal-state relations.” Cheney, 542 U.S. at 381 (emphasis added)\\n(quotations and brackets omitted). For example, in Maryland v. Soper, 270\\nU.S. 9 (1926), the State charged four federal prohibition agents with murder.\\nThe officers removed to federal court. Then the State petitioned for mandamus\\nto have the case remanded to state court. The officers opposed mandamus by\\narguing the removal was “a question within the regular judicial function of the\\nDistrict Court to decide, and that this court should not interfere thus\\nprematurely with its exercise.” Id. at 28. The Supreme Court rejected that\\nargument and held a later appeal was inadequate when “the jurisdiction of the\\ncourts of a state to try offenses against its own laws and in violation of its own\\npeace and dignity is wrested from it by the order of an inferior federal court.”\\nId. at 29. As one of our sister circuits has put it, “[t]he crux of these authorities”\\nis “that federalism concerns justify review by mandamus.” California v. Mesa,\\n813 F.2d 960, 963 (9th Cir. 1987), aff’d, 489 U.S. 121 (1989).\\n B.\\n Here, the combination of five federalism concerns makes this a special\\ncircumstance and distinguishes it from an ordinary case: (1) A sovereign State\\nis requesting the writ; (2) Plaintiffs seek sweeping review of an entire body of\\nstate law; (3) Plaintiffs seek structural injunctions that would give the district\\ncourt de facto control of state law; (4) the type of discovery waiting on the other\\nside of Louisiana’s motion to dismiss is categorically different than what\\n\\n\\n 18\\n\\f Case: 19-30353 Document: 00515163811 Page: 19 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nawaits an ordinary civil litigant; and (5) the ordinary civil litigant cannot\\ndemand attorneys’ fees from the State’s taxpayers.\\n First, the State of Louisiana is the true defendant in this case. See supra\\nnote 1. The Supreme Court has long “recognized that States are not normal\\nlitigants.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007); see also id. at 520\\n(holding States are “entitled to special solicitude in our standing analysis”).\\nThey’re “residuary sovereigns and joint participants in the governance of the\\nNation.” Alden v. Maine, 527 U.S. 706, 748 (1999). And, as a consequence, the\\nSupreme Court has long recognized States’ special rights to seek relief in\\nfederal court. See, e.g., Massachusetts, 549 U.S. at 519 (holding\\n“Massachusetts’ well-founded desire to preserve its sovereign territory” gives\\nit standing to challenge an EPA decision); Alfred L. Snapp & Son, Inc. v. Puerto\\nRico ex rel. Barez, 458 U.S. 592, 607 (1982) (noting a State can seek relief based\\non its “quasi-sovereign interest in not being discriminatorily denied its rightful\\nstatus in the federal system”); Texas v. United States, 809 F.3d 134, 153 (5th\\nCir. 2015) (“[S]tates have a sovereign interest in the power to create and\\nenforce a legal code.” (alteration in original) (quotation omitted)), aff’d by an\\nequally divided court, 136 S. Ct. 2271 (2016).\\n Second, Plaintiffs are seeking judicial review of an entire body of state\\nstatutory and regulatory law. See Am. Compl. at 58–60. Judicial review of any\\nstate law implicates obvious federalism concerns. See Morrow v. Harwell, 768\\nF.2d 619, 627 (5th Cir. 1985) (emphasizing the “extraordinary” nature of\\n“federal injunctive relief ” despite “its familiarity to federal courts, gained\\nparticularly in desegregation cases over the past thirty years”). Those concerns\\nare exponentially more acute when a federal court entertains a challenge to an\\nentire body of state law.\\n\\n\\n 19\\n\\f Case: 19-30353 Document: 00515163811 Page: 20 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n Third, Plaintiffs are seeking a structural injunction and continuing\\nfederal supervision of the State of Louisiana. Such expansive use of equitable\\nremedies has long been recognized as a threat to federalism. The Founders\\nworried “that the equity power would” so empower federal courts that it “would\\nresult in . . . the ‘entire subversion of the legislative, executive and judicial\\npowers of the individual states.’ ” Missouri v. Jenkins, 515 U.S. 70, 128–29\\n(1995) (Thomas, J., concurring) (quoting Brutus XI). Responding to Brutus\\nand defending the proposed Constitution, “Hamilton sought to narrow the\\nexpansive Anti-Federalist reading of inherent judicial equity power” and\\n“described Article III ‘equity’ as a jurisdiction over certain types of cases rather\\nthan as a broad remedial power.” Id. at 130 (describing The Federalist No. 83).\\n The same concerns apply today: Federalism is a “clear restraint[ ] on the\\nuse of equity power” because “[a] structural reform decree eviscerates a State’s\\ndiscretionary authority over its own program and budgets.” Id. at 131; see also\\nHorne v. Flores, 557 U.S. 433, 448 (2009) (“[I]nstitutional reform injunctions\\noften raise sensitive federalism concerns.”). Courts are properly reluctant to\\ngrant such relief because of the federalism burdens it imposes. See Morrow,\\n768 F.2d at 627 (“There is no question but that the passive remedy of a\\ndeclaratory judgment is far less intrusive into state functions than injunctive\\nrelief that affirmatively commands specific future behavior under the threat of\\nthe court’s contempt powers.”). The Supreme Court has made clear that\\nsweeping requests for “intrusive and unworkable” injunctions are\\nnonjusticiable because they threaten “the special delicacy of the adjustment to\\nbe preserved between federal equitable power and State administration of its\\nown law.” O’Shea v. Littleton, 414 U.S. 488, 500 (1974) (quotation and brackets\\nomitted). And the Court has even shaped substantive federal law around the\\nassumption that it must avoid “permanent judicial intervention in the conduct\\n\\n 20\\n\\f Case: 19-30353 Document: 00515163811 Page: 21 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nof governmental operations to a degree inconsistent with sound principles of\\nfederalism and the separation of powers.” Garcetti v. Ceballos, 547 U.S. 410,\\n423 (2006). After all, “[t]he Federal Government does not . . . have a general\\nright to review and veto state enactments before they go into effect.” Shelby\\nCounty v. Holder, 570 U.S. 529, 542 (2013).\\n Plaintiffs are seeking this same sort of sweeping federal supervision of\\nthe State. They want the district court to issue permanent injunctive relief\\nagainst a slew of state statutes and regulations, to “retain jurisdiction,” and to\\nprovide “judicial oversight” of state actors. Mem. in Opp’n to Mot. to Dismiss,\\nDoc. 32 at 10; Am. Compl. at 59–60. They treat the desegregation cases as\\nexemplars for court “supervision.” Mem. in Opp’n to Mot. to Dismiss, Doc. 32,\\nat 10. Regardless of whether the district court ever orders such sweeping\\nrelief, the mere prospect of it increases the stakes of this litigation\\nexponentially as compared to an ordinary civil case.\\n Fourth, discovery in this case would be categorically different from\\ndiscovery in an ordinary case. In the ordinary case, the plaintiff who defeats a\\nmotion to dismiss does not get to demand written discovery and depositions of\\nhigh-ranking government officials. Nor does the ordinary plaintiff get to\\ndemand access to documents and communications that would otherwise be\\nprotected by legislative and executive privilege. But such discovery demands\\nare all too common where, as here, plaintiffs claim the government acted with\\nan invidious purpose. See, e.g., Tummino v. Torti, 603 F. Supp. 2d 519\\n(E.D.N.Y. 2009) (detailing extensive discovery taken from senior FDA and\\nother executive branch officials in litigation over “Plan B” pill); cf. Texas v.\\nHolder, No. 12-128, 2012 WL 13070060 (D.D.C. June 5, 2012) (ordering\\nextensive discovery of state officials in voting-rights suit and ordering a second\\n\\n\\n 21\\n\\f Case: 19-30353 Document: 00515163811 Page: 22 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\ndeposition of a sitting state senator). For example, in an abortion case from\\none of our sister circuits:\\n [P]laintiffs spent much time on discovery. They noticed the\\n depositions of [Guam] Governor Joseph F. Ada; June S. Mair, a\\n legislative staffer to the senator who had sponsored the abortion\\n statute; and Police Chief Adolf P. Sgambelluri. They also sought\\n and obtained such items as drafts of the abortion bills; memos from\\n the attorney general to the police chief; crime statistics; memos\\n from the police chief to his staff; and copies of the governor’s\\n speeches. The discovery effort spawned a good bit of satellite\\n litigation. For example, the parties disagreed about whether\\n Governor Ada could be deposed. The matter was briefed and\\n argued and, in an inexplicable ruling, the district court permitted\\n the deposition.\\nGuam Soc’y of Obstetricians & Gynecologists v. Ada, 100 F.3d 691, 707 (9th\\nCir. 1996) (citations and footnotes omitted).\\n The plaintiffs in this case have propounded extensive initial discovery\\nrequests that likewise tread on sensitive areas of state decisionmaking. See\\nMot. for Partial Dismissal, Doc. 95-2 at 1–11. Numerous appellate courts have\\nrecognized the appropriateness of mandamus in a lawsuit involving discovery\\nthat would hamper important state interests. See, e.g., In re Lombardi, 741\\nF.3d 888, 895 (8th Cir. 2014) (en banc); In re County of Erie, 473 F.3d 413, 419\\n(2d Cir. 2007); In re Wilkinson, 137 F.3d 911, 914 (6th Cir. 1998).\\n Consider the recent case of In re Kemp, 894 F.3d 900 (8th Cir. 2018).\\nThere a state judge sued the Arkansas Supreme Court because it had removed\\nhim from certain cases. Id. at 904–05. The disgruntled judge sought extensive\\ndiscovery, and the district court denied a motion to dismiss. Seeking\\nmandamus to stop the discovery and dismiss the claims, the Arkansas\\nSupreme Court Justices argued that discovery of internal state deliberations\\nwould threaten “judicial independence and federalism.” Id. at 905 (emphasis\\nadded). The court expressed no opinion as to the propriety of the discovery\\n 22\\n\\f Case: 19-30353 Document: 00515163811 Page: 23 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nrequests but noted the requests implicated “significant and complex” concerns.\\nIbid. Moreover, the requests themselves justified the granting of mandamus\\nbecause their intrusive nature risked leading to “discovery of irrelevant\\ninformation” that would be “oppressive” to “important state interests.” Id. at\\n906. Mandamus was granted. Id. at 910. To our sister circuit, applicable\\nprivileges were not enough to protect the State’s interests. Id. at 906.\\n Similarly, the Supreme Court has told us the potential availability of\\nexecutive privilege is not an adequate protection against such discovery\\nrequests. See Cheney, 542 U.S. at 380–91. Instead, the primary protection\\ncomes from the exacting standards for Article III jurisdiction—enforceable by\\nmandamus if necessary. Cf. In re Univ. of Mich., 936 F.3d at 466–67. Where\\nthe discovery on the other side of a motion to dismiss is extraordinary, it is all\\nthe more important to apply the Constitution’s jurisdictional limits correctly\\nat the threshold.\\n The fifth and final federalism consideration that distinguishes this from\\nan ordinary civil case is fee-shifting. “In the United States, the prevailing\\nlitigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the\\nloser.” Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975).\\nBut that is not true in cases like this one. Here, Plaintiffs have sued state\\nofficials under 42 U.S.C. § 1983. And with that cause of action comes the\\ntantalizing promise of attorneys’ fees under 42 U.S.C. § 1988.\\n This means that the State of Louisiana could be on the hook for both\\nsides’ fees. At argument, Plaintiffs’ counsel wished for “a nickel for every time\\nI represented a defendant who is concerned about the time, cost, and burden\\nof discovery.” Oral Argument at 38:42–48. But unlike an ordinary private\\ndefendant, Louisiana is at risk of having to pay its costs and Plaintiffs’ fees\\nand expenses.\\n\\n 23\\n\\f Case: 19-30353 Document: 00515163811 Page: 24 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n Those fees and expenses can be astronomical. In Whole Woman’s Health\\nv. Hellerstedt—which Plaintiffs invoke as the principal precedent for this\\nsuit—the abortion clinic submitted a fee application for more than\\n$4.5 million. 9 That bill included over $1.6 million in fees and expenses for\\nMorrison & Foerster, the global law firm retained by the clinic. And the Whole\\nWoman’s Health plaintiffs did not attempt to invalidate the entirety of Texas’s\\nabortion laws or to place the State under federal judicial supervision.\\nRegardless of whether Plaintiffs prevail in this case, the mere prospect of\\nshifting Debevoise & Plimpton’s multi-million-dollar fee request to the\\nshoulders of Louisiana’s taxpayers will force the State to litigate this case in\\nways that are far from ordinary.\\n All five of these factors combine to make this an extraordinary case. And\\nit is one of the “special situations” in which a later appeal is in adequate. 16\\nWRIGHT & MILLER § 3932.1.\\n\\n\\n\\n\\n 9 The plaintiffs’ fee application included the following requests:\\n Attorneys’ fees for Center for Reproductive Rights $2,754,503.00\\n Expenses for Center for Reproductive Rights $70,462.41\\n Attorneys’ fees for Morrison & Foerster LLP $1,523,768.75\\n Expenses for Morrison & Foerster LLP $87,964.45\\n Attorneys’ fees for O’Connell & Soifer LLP $111,231.25\\n Attorneys’ fees for John H. Bucy II $3,152.50\\n Expenses for Leah M. Litman $357.20\\n Total $4,551,439.56\\nPlaintiffs’ Motion for Attorneys’ Fees at 1, Whole Woman’s Health v. Hellerstedt, No. 1:14-cv-\\n284-LY (W.D. Tex. Oct. 7, 2016), ECF No. 245. The fee application spawned additional\\nlitigation and a supplemental request for an additional $100,000 in fees and expenses. See\\nOrder at 14–15, Whole Woman’s Health v. Hellerstedt, No. 1:14-cv-284-LY (W.D. Tex. Aug. 9,\\n2019), ECF No. 297. Almost three years after the plaintiffs filed the application, the district\\ncourt issued a 46-page opinion awarding approximately $2.5 million in fees and expenses.\\nSee id. at 46.\\n 24\\n\\f Case: 19-30353 Document: 00515163811 Page: 25 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n V.\\n The district court’s failure to consider the State’s jurisdictional\\nchallenges and the inadequacy of a later appeal support issuance of the writ.\\nWe nonetheless exercise our discretion not to issue it at this time.\\n As Wright and Miller explain, the writ of mandamus is a discretionary\\none: “The availability of prerogative writ review has long been held a matter\\nof appellate discretion. Discretion is involved in defining both the\\ncircumstances that justify exercise of writ power and also the reasons that may\\njustify denial of a writ even though the circumstances might justify a grant.”\\n16 WRIGHT & MILLER § 3933; see also Cheney, 542 U.S. at 381 (noting “even if\\nthe first two prerequisites have been met, the issuing court, in the exercise of\\nits discretion, must be satisfied that the writ is appropriate under the\\ncircumstances”). Here, the State falls short. That’s for two reasons. First, it’s\\nnot clear from the district court’s order how it would resolve the State’s\\njurisdictional challenge. And second, much of the State’s argument in its\\nmandamus petition goes beyond jurisdiction. In particular, the State argues\\nthat Plaintiffs’ “cumulative-effects challenge” is not cognizable. But that\\nchallenge might change after the district court conducts its claim-by-claim\\nanalysis of Plaintiffs’ standing. So in our view, resolution of whether that\\nchallenge is cognizable should await the district court’s jurisdictional analysis.\\n A.\\n As noted above, the district court has not yet addressed the State’s\\njurisdictional arguments. The district court said it would be “untenable” to\\nconsider jurisdiction at this stage. That was wrong; the Supreme Court has\\nrepeatedly emphasized “the rule that Article III jurisdiction is always an\\nantecedent question” because “[h]ypothetical jurisdiction produces nothing\\nmore than a hypothetical judgment.” Steel Co., 523 U.S. at 101; see also, e.g.,\\n\\n 25\\n\\f Case: 19-30353 Document: 00515163811 Page: 26 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nFW/PBS, 493 U.S. at 231. This rule is binding not only on the district court\\nbut also on this one:\\n [E]very federal appellate court has a special obligation to satisfy\\n itself not only of its own jurisdiction, but also that of the lower\\n courts in a cause under review, even though the parties are\\n prepared to concede it. And if the record discloses that the lower\\n court was without jurisdiction this court will notice the defect,\\n although the parties make no contention concerning it. When the\\n lower federal court lacks jurisdiction, we have jurisdiction on\\n appeal, not of the merits but merely for the purpose of correcting\\n the error of the lower court in entertaining the suit.\\nBender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (quotations\\nand alterations omitted); accord Steel Co., 523 U.S. at 95; Arizonans for Official\\nEnglish v. Arizona, 520 U.S. 43, 73 (1997). And as we’ve explained above, some\\nof Plaintiffs’ claims have obvious standing problems. See supra Part III.B.\\n On the other hand, Plaintiffs might have standing to bring some of their\\nchallenges. For example, Count Four in the Amended Complaint challenges\\nthe State’s administrative inspection procedures under the Fourth\\nAmendment. See Am. Compl. ¶¶ 190–91. And in stark contrast to the\\nallegations regarding other claims, Plaintiffs make some specific allegations\\nthat they have been subjected to those procedures and injured by them. See\\nid. ¶¶ 120–52. The State does not contest Plaintiffs’ standing to mount that\\nchallenge. 10 Therefore, the State has not shown the district court is completely\\nwithout jurisdiction such that the writ should issue “almost as a matter of\\ncourse.” In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007) (per curiam);\\n\\n\\n 10 Of course, the State’s failure to contest standing does not mean there is standing.\\nSee, e.g., Bender, 475 U.S. at 541; MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d\\n310, 313 (5th Cir. 2019) (“Notwithstanding the parties’ agreement, we have an independent\\nobligation to assess our own jurisdiction before exercising the judicial power of the United\\nStates.”). Because we are denying the petition, we need not decide whether Plaintiffs have\\nshown standing to bring Count Four, nor do we need to assess the merits of that claim.\\n 26\\n\\f Case: 19-30353 Document: 00515163811 Page: 27 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\naccord In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987); United States v. Denson,\\n603 F.2d 1143, 1145 (5th Cir. 1979) (en banc). We therefore elect, in our\\ndiscretion, to allow the district court to consider the State’s jurisdictional\\nchallenges in the first instance. We think that’s particularly prudent because\\nPlaintiffs’ scores of legal challenges must be disentangled so standing can be\\nadjudicated for each one.\\n B.\\n We also think it prudent not to issue the writ at this time because much\\nof the State’s petition challenges the merits of Plaintiffs’ “cumulative-effects\\nchallenge.” The Plaintiffs’ theory, as we understand it, is that Louisiana’s\\nvarious laws and regulations regarding abortion cumulate to an undue burden.\\nBut before any federal court can analyze the “cumulative effects” of Louisiana’s\\nlaws, we must know which laws Plaintiffs have standing to challenge. Again,\\njurisdiction first.\\n A stylized example makes this plain. If Plaintiffs cannot plausibly allege\\nthat they were injured by Legal Requirement A, they don’t have standing to\\nchallenge A. See supra Part III.B.2. So Plaintiffs’ cumulative-effects challenge\\nwould no longer be: A + B + C + D = an undue burden. Instead, it would be: B\\n+ C + D = an undue burden. 11\\n Moreover, it is unclear from the record why the district court did not\\ncertify its cumulative-effects order for interlocutory appeal under 28 U.S.C.\\n\\n\\n 11And, of course, that’s still distinct from the following challenge: Legal Requirement\\nB = an undue burden in light of related requirements E and F. In assessing whether an\\nindividual provision is an undue burden, we consider the relevant “factual context in which\\nthe law operates.” Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 458 (5th Cir. 2014).\\nFor example, a court could consider the absence of a state law prohibiting hospitals from\\ndiscriminating against abortion providers in granting admitting privileges when assessing\\nthe burden of a related admitting-privileges requirement. Ibid. But that tells us nothing\\nabout whether unrelated requirements—regarding, say, admitting privileges and sanitary\\nbathrooms—impose an undue burden. Nor does it tell us whether such a claim is cognizable.\\n 27\\n\\f Case: 19-30353 Document: 00515163811 Page: 28 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n§ 1292(b). In its first § 1292(b) order, the district court certified the case\\nbecause “Plaintiffs present a difficult issue of first impression . . . .” May 15,\\n2018 Order, Doc. 76 at 3. And it noted the cumulative-effects issue lacked “the\\nbenefit of clarification from the [Fifth Circuit].” Ibid. Then, in a later § 1292(b)\\norder, the district court said the exact opposite: “[T]he Court finds that this is\\nnot a case of first impression.” March 29, 2019 Order, Doc. 103 at 20. The\\ndistrict court did not acknowledge its change of heart in that order, much less\\nexplain the basis for it. Nor did it mention our intervening decision in June\\nMedical Services, even though Louisiana brought it to the court’s attention.\\nSee Mot. to Dismiss Reply Br., Doc. 100 at 1.\\n Whatever the merits of Plaintiffs’ “cumulative-effects challenge,” they\\nare unprecedented. The Supreme Court has not blessed such a claim. To the\\ncontrary, the Court has analyzed abortion provisions separately rather than\\ncumulatively. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,\\n879–901 (1992) (evaluating the definition of “medical emergency,” the\\ninformed-consent requirement, the spousal-notification requirement, the\\nparental-consent provision, and recordkeeping and reporting requirements\\nseparately); Webster v. Reproductive Health Servs., 492 U.S. 490, 505–20\\n(1989) (evaluating four sections of the challenged law individually). And the\\nCourt’s consistent focus on individual legal requirements isn’t an accident. For\\nexample, in Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502 (1990),\\nthe majority analyzed a constructive-authorization provision, a bypass\\nprocedure, and pleading requirements separately. Id. at 515–17. The Court\\ndid so over the explicit complaints from dissenting justices who thought they\\nshould be considered cumulatively. Id. at 527 (Blackmun, J., dissenting) (“The\\nmajority considers each provision in a piecemeal fashion, never acknowledging\\n\\n\\n 28\\n\\f Case: 19-30353 Document: 00515163811 Page: 29 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nor assessing the ‘degree of burden that the entire regime of abortion\\nregulations places’ on the minor.”).\\n Our Court also considered a cumulative-effects argument in June\\nMedical Services. In that case, the district court considered a challenge to\\nLouisiana’s admitting-privileges requirement (“Act 620”). See June Med.\\nServs. L.L.C. v. Kliebert, 250 F. Supp. 3d 27 (M.D. La. 2017). It analyzed not\\nonly the burdens caused by Act 620 but also the burdens caused by unrelated\\nlaws—such as a 24-hour notification and waiting period—to conclude Act 620\\nwas unconstitutional. See id. at 88 (“The result of these burdens on women\\nand providers, taken together and in context, is that many women seeking a\\nsafe, legal abortion in Louisiana will be unable to obtain one.” (emphasis\\nadded)); id. at 40, 54–55, 82 (discussing other provisions and their impact on a\\nwoman’s right to seek an abortion). And the district court based this\\ncumulative-effects approach on its interpretation of Whole Woman’s Health.\\nSee June Med. Servs., 250 F. Supp. 3d at 35. We reversed. See June Med.\\nServs., 905 F.3d at 791. We specifically criticized the district court’s\\nconsideration of “unrelated” abortion laws in analyzing the burdens caused by\\nAct 620: “[O]ther abortion regulations are unrelated to admitting privileges\\nand therefore have no bearing on the constitutionality of Act 620.” Id. at 810\\nn.60 (citing Whole Woman’s Health, 136 S. Ct. at 2300).\\n It is possible the district court nonetheless thought Whole Woman’s\\nHealth serves as precedent for “cumulative-effects challenges.” See May 29,\\n2019 Order, Doc. 103 at 12–15. But in suggesting that, the district court relied\\non the severability analysis in Whole Woman’s Health. Severability obviously\\ngoverns the remedy after the finding of a constitutional violation; it plays no\\npart in finding a constitutional violation. The Whole Woman’s Health majority\\nfound (in relevant part) one constitutional violation: a single sentence in the\\n\\n 29\\n\\f Case: 19-30353 Document: 00515163811 Page: 30 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\nTexas Health and Safety Code required abortion clinics to meet the standards\\nfor ambulatory surgical centers. See 136 S. Ct. at 2300 (citing TEX. HEALTH &\\nSAFETY CODE § 245.010(a)); id. at 2314 (describing § 245.010(a) as a single\\nchallenged requirement). Then, having found that violation, it held “[t]he\\nstatute was meant to require abortion facilities to meet the integrated surgical-\\ncenter standards—not some subset thereof,” and thus declined “to proceed in\\npiecemeal fashion” and choose what “minimum standards” for ambulatory\\nsurgical centers should apply to abortion facilities. Id. at 2319–20. The Court\\nthus refused “to devise a judicial remedy that . . . entail[s] quintessentially\\nlegislative work.” Id. at 2319 (quotation omitted). Regardless of whether\\nPlaintiffs’ “cumulative-effects challenges” are cognizable, Whole Woman’s\\nHealth is not a precedent for them. 12\\n Because it is unclear why the district court changed its mind between its\\norders under § 1292(b), and because it is unclear what relevance Whole\\nWoman’s Health played in the district court’s decision, we think it prudent not\\nto issue the writ at this time. If the district court chooses to certify its decision\\nfor interlocutory appeal, some or all of the State’s arguments could be resolved\\nwithout the need for mandamus.\\n\\n\\n\\n\\n 12 Indeed, the Whole Woman’s Health Court conducted the familiar undue-burden\\nanalysis and analyzed the two challenged laws separately. See 136 S. Ct. at 2300 (concluding\\n“neither of these provisions confers medical benefits sufficient to justify the burdens upon\\naccess that each imposes” and that “each constitutes an undue burden on abortion access”\\n(emphasis added)); id. at 2310 (analyzing whether the admitting-privileges requirement\\nimposed an undue burden); id. at 2318 (assessing whether the surgical-center requirement\\n“poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’\\non their constitutional right to do so”).\\n 30\\n\\f Case: 19-30353 Document: 00515163811 Page: 31 Date Filed: 10/18/2019\\n\\n\\n No. 19-30353\\n\\n * * *\\n The petition for mandamus is DENIED WITHOUT PREJUDICE.\\n This panel will retain jurisdiction over the decision whether to grant any\\napplication for permission to appeal, should the district court grant\\ncertification pursuant to 28 U.S.C. § 1292(b), or any subsequent petition for\\nwrit of mandamus, should the district court deny certification or fail to resolve\\nthe State’s jurisdictional challenges. See In re Trump, --- F. App’x ---, No. 19-\\n5196, 2019 WL 3285234, at *1–2 (D.C. Cir. July 19, 2019) (per curiam).\\n\\n\\n\\n\\n 31\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4589,"cells":{"id":{"kind":"number","value":4670999,"string":"4,670,999"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Michael Herrold"},"decision_date":{"kind":"string","value":"2019-10-18"},"docket_number":{"kind":"string","value":"14-11317"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before OWEN, Chief Judge, and JOLLY, HIGGINBOTHAM, JONES, SMITH, STEWART, DENNIS, CLEMENT, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 14-11317 Document: 00515165055 Page: 1 Date Filed: 10/18/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n\\n No. 14-11317\\n Fifth Circuit\\n\\n FILED\\n October 18, 2019\\n\\nUNITED STATES OF AMERICA, Lyle W. Cayce\\n Clerk\\n Plaintiff - Appellee\\n\\nv.\\n\\nMICHAEL HERROLD,\\n\\n Defendant - Appellant\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\n ON REMAND FROM THE UNITED STATES SUPREME COURT\\n\\nBefore OWEN, Chief Judge, and JOLLY, HIGGINBOTHAM, JONES, SMITH,\\nSTEWART, DENNIS, CLEMENT, ELROD, SOUTHWICK, HAYNES,\\nGRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT,\\nand OLDHAM, Circuit Judges.\\n\\n\\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\\n If the Texas burglary statute 1 is “generic” burglary, as the Armed Career\\nCriminal Act case law has defined it, Michael Herrold will receive a 15-year\\nsentence enhancement. When Herrold pled guilty in 2014 to possession of a\\nfirearm by a former felon, he had three prior felony convictions from 1992—for\\npossession of LSD with intent to deliver, for burglary of a building, and for\\n\\n\\n\\n 1 TEX. PENAL CODE § 30.02(a).\\n\\f Case: 14-11317 Document: 00515165055 Page: 2 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\nburglary of a habitation. 2\\n Determining whether these burglary convictions count toward Herrold’s\\ntally of predicate convictions under the ACCA has set this case on a winding\\npath. Since we last considered the issue, two Supreme Court decisions have\\nforeclosed Herrold’s prior arguments. We now consider whether his remaining\\narguments offer an escape from the sentencing enhancement. They do not.\\n I.\\n A panel originally affirmed the district court’s application of the ACCA\\nenhancement. 3 Then the Supreme Court—based on its intervening decision in\\nMathis v. United States 4— issued an order granting cert, vacating the lower\\ncourt, and remanding for further proceedings (collectively known as a GVR\\norder). 5 Still, bound by our decision in United States v. Uribe, 6 the panel again\\naffirmed. 7 Hearing the case en banc, however, we vacated that decision 8 and\\nabrogated the district court. 9\\n In our en banc decision, we reversed Uribe in holding that the Texas\\n\\n\\n\\n\\n 2 The ACCA enhancement is triggered by three previous “violent felony” or “serious\\ndrug offense” convictions. 18 U.S.C. § 924(e)(1). The possession of LSD conviction is a serious\\ndrug offense. Thus, if Herrold’s burglary convictions are violent felonies, the enhancement\\napplies. The “violent felony” definition enumerates “burglary, arson, [and] extortion,” id.\\n§ 924(e)(2)(B)(ii), but only “crimes having certain specified elements” count as predicates, not\\n“crimes that happen[] to be labeled ‘robbery’ and ‘burglary’” by the state in question, Taylor\\nv. United States, 495 U.S. 575, 588–89 (1990). Burglary under the ACCA requires “unlawful\\nor unprivileged entry into, or remaining in, a building or other structure, with intent to\\ncommit a crime.” Id. at 598. Burglary statutes no broader than this formulation are deemed\\n“generic”; those broader “non-generic.” Convictions under non-generic statutes do not count\\ntoward an ACCA sentencing enhancement.\\n 3 United States v. Herrold, 813 F.3d 595 (5th Cir. 2016).\\n 4 136 S. Ct. 2243 (2016).\\n 5 Herrold v. United States, 137 S. Ct. 310 (2016).\\n 6 838 F.3d 667, 671 (5th Cir. 2016) (holding that Section 30.02(a) is divisible and that\\n\\nSection 30.02(a)(1) is generic).\\n 7 United States v. Herrold, 685 F. App’x 302 (5th Cir. 2017).\\n 8 United States v. Herrold, 693 F. App’x 272 (5th Cir. 2017) (en banc).\\n 9 United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc).\\n\\n 2\\n\\f Case: 14-11317 Document: 00515165055 Page: 3 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\nburglary statute, Section 30.02(a), was indivisible. 10 Next, we concluded that\\n“to be guilty of generic burglary, a defendant must have the intent to commit\\na crime when he enters or remains in the building or structure.” 11 We held that\\nSection 30.02(a)(3), by contrast, “contains no textual requirement that a\\ndefendant’s intent to commit a crime contemporaneously accompany a\\ndefendant’s unauthorized entry.” 12 Section 30.02(a)(3) was thus non-generic,\\nwhich disqualified Herrold’s burglary convictions as ACCA enhancement\\npredicates, so we vacated his sentence and remanded to the district court for\\nre-sentencing. 13\\n We left another question unresolved: whether burglary of a “habitation”\\nunder Section 30.02(a)(1) is broader than generic burglary, given that\\n“habitation” is defined to apply to vehicles that are “adapted for overnight\\naccommodations of persons” as well as conventional buildings. 14 As its\\nresolution was not required, we detailed the “powerful arguments on both sides\\nof the question” but did not decide it. 15\\n\\n\\n 10 Id. at 523. We considered whether Section 30.02(a) sets out alternative means of\\ncommitting a single substantive crime—making the statute “indivisible”—or whether it sets\\nout separate elements—effectively defining distinct offenses, making the statute “divisible.”\\nMathis, 138 S. Ct. at 2248–49. For indivisible statutes, we compare the whole statute to the\\ngeneric definition. For divisible statutes, we apply the generic definition only to the\\nalternative under which the defendant was convicted.\\n The Texas burglary statute, TEX. PENAL CODE § 30.02(a), reads:\\n(a) A person commits an offense if, without the effective consent of the\\nowner, the person:\\n (1) enters a habitation, or a building (or any portion of a building)\\n not then open to the public, with intent to commit a felony, theft, or an\\n assault; or\\n (2) remains concealed, with intent to commit a felony, theft, or an\\n assault, in a building or habitation; or\\n (3) enters a building or habitation and commits or attempts to\\n commit a felony, theft, or an assault.\\n 11 Herrold, 883 F.3d at 531.\\n 12 Id.\\n 13 Id. at 541–42.\\n 14 See TEX. PENAL CODE § 30.01(1).\\n 15 Herrold, 883 F.3d at 537.\\n\\n 3\\n\\f Case: 14-11317 Document: 00515165055 Page: 4 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\n On remand after the en banc decision, the district court sentenced\\nHerrold to time served. 16 Meanwhile, the Government filed a petition for\\ncertiorari. Two intervening Supreme Court decisions, Quarles v. United\\nStates 17 and United States v. Stitt, 18 foreclosed the two principal grounds on\\nwhich Herrold contested his ACCA sentencing enhancement, so the Court\\nissued another GVR order. 19\\n First, in Stitt, the Supreme Court answered the “habitation” question we\\nleft unresolved. The Court considered whether burglary of a “nonpermanent or\\nmobile structure that is adapted or used for overnight accommodation can\\nqualify as ‘burglary’ under the [ACCA].” 20 It did so in the context of two state\\nburglary statutes that apply to vehicles or structures “designed or adapted for\\nthe overnight accommodation of persons” (Tennessee) 21 and those “customarily\\nused for overnight accommodation of a person whether or not a person is\\nactually present” (Arkansas). 22 For reference, the language in the Texas\\nstatute—defining “habitation” as “a structure or vehicle that is adapted for the\\novernight accommodation of persons”—matches that in the Tennessee statute;\\nif Tennessee’s statute is generic on this ground, so is Texas’s.\\n The Stitt Court held that the Tennessee and Arkansas statutes fell\\nwithin generic burglary. It reasoned that burglaries of homes and RVs, for\\nexample, pose similar risks of violent confrontation, and that most state\\nburglary statutes covered vehicles adapted or customarily used for lodging\\n\\n\\n\\n\\n 16 See Amended Judgment, United States v. Herrold, No. 3:13-CR-225 (N.D. Tex. April\\n10, 2018).\\n 17 139 S. Ct. 1872 (2019).\\n 18 139 S. Ct. 399 (2018).\\n 19 United States v. Herrold, 139 S. Ct. 2712 (2019) (mem.).\\n 20 Stitt, 139 S. Ct. at 404.\\n 21 TENN. CODE ANN. §§ 39–14–401(1)(A), (B).\\n 22 ARK. CODE ANN. § 5–39–101(8)(A)(ii).\\n\\n 4\\n\\f Case: 14-11317 Document: 00515165055 Page: 5 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\nwhen Taylor was decided in 1986. 23\\n Next, in Quarles, the Supreme Court chose between the broad and\\nnarrow interpretations of the intent required for generic remaining-in\\nburglary. 24 Our earlier en banc decision in this case considered the same\\nquestion: whether generic remaining-in burglary occurs only when the intent\\nto commit a crime forms at the moment the defendant first unlawfully remains\\nin a building, or whether it occurs when the defendant forms this intent at any\\ntime while unlawfully present. We chose the narrower view, but the Supreme\\nCourt chose the broader. Quarles considered a Michigan statute, which stated\\na person commits home invasion when that person “breaks and enters a\\ndwelling or enters a dwelling without permission and, at any time while he or\\nshe is entering, present in, or exiting the dwelling, commits a misdemeanor.” 25\\nRelying on “the common understanding of ‘remaining in’ as a continuous\\nevent,” the Quarles Court held that generic burglary occurs “if the defendant\\nforms the intent to commit a crime at any time during the continuous event of\\nunlawfully remaining in a building or structure.” 26\\n After Quarles, Texas’s statute is generic even though it lacks the\\ncontemporaneity requirement the en banc court considered necessary. And\\nafter Stitt, the alternative ground we might have otherwise reached—related\\nto the “habitation” definition—is also foreclosed. Still, Herrold maintains\\nSection 30.02(a) is non-generic for reasons unaffected by Quarles or Stitt.\\n Finally, because neither Quarles nor Stitt calls into question our holding\\nthat the Texas burglary statute is indivisible, we reinstate that section (Part\\nII) of our en banc decision. 27\\n\\n\\n 23 Stitt, 139 S. Ct. at 406.\\n 24 Quarles, 139 S. Ct. at 1877.\\n 25 MICH. COMP. LAWS ANN. § 750.110a(4)(a).\\n 26 Id. at 1877.\\n 27 Herrold, 883 F.3d at 521–29.\\n\\n 5\\n\\f Case: 14-11317 Document: 00515165055 Page: 6 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\n II.\\n Herrold’s chief argument has not changed, but now attacks different\\naspects of the Section 30.02(a)(3) formulation: its alleged lack of specific-intent\\nand unlawful-breaking requirements. 28 Alternatively, Herrold argues the term\\n“burglary”—as used in the ACCA and construed by courts—is\\nunconstitutionally vague and deprives defendants of fair notice as to which\\nconvictions will count toward an ACCA-enhanced sentence. Essentially, the\\neffort is to clip “burglary” from the statute as Johnson v. United States did with\\nthe residual clause in the same provision. 29\\n A.\\n Herrold first argues that Section 30.02(a)(3) lacks a requirement that an\\noffender form a specific intent to commit another crime; that generic burglary\\nrequires a plan to commit another crime, while Section 30.02(a)(3) requires\\nonly that one “commit[] or attempt[] to commit a felony, theft, or an assault.” 30\\nHerrold identifies several felonies that fit in this enumerated list but do not\\nrequire “the intent to commit a crime.” For example, assault requires only\\nrecklessness, 31 and endangering a child requires only recklessness or criminal\\nnegligence. 32 He dubs Section 30.02(a)(3) a “trespass-plus-crime” formulation,\\nat once unusually broad and relatively rare as a theory of burglary, adopted\\nonly by Texas, Minnesota, Montana, and Tennessee.\\n\\n\\n\\n 28 Despite Herrold’s contention that the Government waived its argument that Section\\n30.02(a)(3) is generic because it waited until its September 2017 en banc brief to raise it, the\\ncentral arguments in the supplemental briefing are all properly before us. The Government’s\\nstatement at the 2014 sentencing hearing merely recognized that we had held Section\\n30.02(a)(3) was non-generic in United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008).\\nThe Government then, at its first opportunity during the en banc proceeding, asked that this\\nprecedent be reconsidered.\\n 29 See 135 S.Ct. 2551, 2557 (2015).\\n 30 TEX. PENAL CODE § 30.02(a)(3).\\n 31 Id. § 22.01(a)(1).\\n 32 Id. § 22.041(c).\\n\\n 6\\n\\f Case: 14-11317 Document: 00515165055 Page: 7 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\n The Seventh Circuit adopted similar reasoning in holding that the\\nMinnesota trespass-plus-crime statute is non-generic. In Van Cannon v.\\nUnited States, it held the statute is non-generic because it does not require\\nintent at the moment of entry, the same argument adopted by the Herrold en\\nbanc court and rejected by the Quarles Court. 33 It also concluded that the\\nstatute “doesn’t require proof of intent to commit a crime at all—not at any\\npoint during the offense conduct.” 34 The Van Cannon court rejected the\\ngovernment’s argument that intent to commit a crime is implicit in the\\nrequirement of proof of a completed crime, reasoning that “not all crimes are\\nintentional; some require only recklessness or criminal negligence.” 35\\n Quarles tried to raise this issue, but the Supreme Court considered it\\nwaived. 36 So Quarles did not foreclose this argument, and unlike Quarles,\\nHerrold did not waive it. Further, in September 2019, after Quarles and after\\nsupplemental briefing was completed in our case, the Seventh Circuit (1)\\nconfirmed that its conclusion that Minnesota burglary requires no “intent to\\ncommit a crime at all” was a holding, not dicta, and (2) confirmed that this\\nholding was not affected by Quarles. 37\\n Herrold urges us not to create a circuit split on this point, but his\\nargument fails for lack of supportive Texas cases. In United States v. Castillo-\\nRivera, we warned that “[a] defendant who argues that a state statute is\\n\\n\\n\\n 33 Van Cannon v. United States, 890 F.3d 656, 663–64 (7th Cir. 2018) (considering\\nMINN. STAT. § 609.582(2)(a), which stated one who “enters a building without consent and\\ncommits a crime while in the building” commits burglary).\\n 34 Id. at 664.\\n 35 Id.\\n 36 Quarles, 139 S. Ct. at 1880 n.2.\\n 37 See Chazen v. Marske, No. 18-3268, 2019 WL 4254295, at *7–8 (7th Cir. Sept. 9,\\n\\n2019) (“What we can say with confidence is that Quarles did not abrogate Van Cannon's\\nconclusion that Minnesota burglary is broader than generic burglary because the state\\nstatute does not require proof of any intent at any point. Indeed, the Court expressly declined\\nto address this issue in Quarles.”).\\n 7\\n\\f Case: 14-11317 Document: 00515165055 Page: 8 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\nnongeneric cannot simply rest on plausible interpretations of statutory text\\nmade in a vacuum.” 38 Instead, that defendant must show “a realistic\\nprobability, not a theoretical possibility, that the State would apply its statute\\nto conduct that falls outside the generic definition of the crime.” 39 It is\\nincumbent on the defendant to point to “cases in which the state courts in fact\\ndid apply the statute in the special (nongeneric) manner for which he argues.” 40\\nThis is so “even where the state statute may be plausibly interpreted as\\nbroader on its face.” 41\\n Herrold claims Texas courts could uphold burglary convictions under\\nSection 30.02(a)(3) that involve crimes with lesser mens rea requirements; he\\ndoes not point to any convictions matching this description, nor does he cite a\\nsingle Texas case. He rather rests on the definitions of several provisions in\\nthe Texas Penal Code.\\n We need look no further, but even if we did, Texas law rejects Herrold’s\\nno-intent interpretation. The Government relies on DeVaughn v. State, in\\nwhich the Texas Court of Criminal Appeals, contrasting Section 30.02(a)(3)\\nwith the first two subsections, concluded that the requirement in (a)(3) of an\\n“attempted or completed theft or felony . . . merely supplants the specific intent\\nwhich accompanies entry” in (a)(1) and (a)(2). 42 Immediately afterward, the\\nDeVaughn court quoted with approval the Practice Commentary\\naccompanying (a)(3) and interpreted (a)(3) burglary as “the conduct of one who\\nenters without effective consent but, lacking intent to commit any crime upon\\nhis entry, subsequently forms that intent and commits or attempts a felony or\\n\\n\\n\\n\\n 38 853 F.3d 218, 222 (5th Cir. 2017) (en banc).\\n 39 Id. (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).\\n 40 Id. (emphasis omitted).\\n 41 Id. at 224 n.4.\\n 42 DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988).\\n\\n 8\\n\\f Case: 14-11317 Document: 00515165055 Page: 9 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\ntheft.” 43 Cases from the Texas Court of Appeals mirror this formulation. 44\\n The Government’s position is that we should defer—and indeed already\\nhave deferred—to this construction from DeVaughn. In the Government’s\\nview, whether intent to commit a crime must form at the moment the burglar\\nremains in or at any time during the improper remaining-in divided the en\\nbanc court—but all judges implicitly agreed that intent was necessary\\nsometime. The Herrold majority interpreted Section 3.02(a)(3) as criminalizing\\n“entry and subsequent intent formation.” 45 The dissent, meanwhile, noted\\nthat, before Herrold, the Fourth Circuit held Section 30.02(a)(3) generic in\\nUnited States v. Bonilla, 46 as did the Sixth Circuit with the substantially\\nsimilar Tennessee statute in United States v. Priddy. 47 As summarized by the\\ndissent,\\n the Fourth Circuit [in Bonilla] reasoned that because (a)(3) only\\n applies where a defendant’s presence in a building is unlawful, a\\n completed or attempted felony therein necessarily requires intent\\n to commit the felony either prior to unlawful entry or while\\n unlawfully remaining in the building, which is all Taylor requires.\\n [Bonilla, 687 F.3d at 193.] In other words, (a)(3) substantively\\n contains the requisite intent element because to attempt or\\n complete a crime requires intent to commit the crime. 48\\n\\n The dissent reasoned that Section 30.02(a)(3) “requires an unlawful or\\n\\n\\n 43 Id. (emphasis added) (quoting TEX. PENAL CODE ANN. § 30.02 practice cmt. at 144\\n(West 1974)).\\n 44 See Flores v. State, 902 S.W.2d 618, 620 (Tex. App.—Austin 1995, pet. ref’d) (citing\\n\\nthe Practice Commentary for the proposition that “[p]rosecution under section 30.02(a)(3) is\\nappropriate when the accused enters without effective consent and, lacking intent to commit\\nany crime upon his entry, subsequently forms that intent and commits or attempts to commit\\na felony or theft”); see also Leaks v. State, 2005 WL 704409, at *2 (Tex. App.—Corpus Christi\\nMar. 24, 2005, pet. ref’d) (noting that under Section 30.02(a)(3), the State must prove “that,\\nafter entry into the habitation, appellant formed an intent to commit, and did commit, a\\nfelony, theft or an assault”) (emphasis added) (citations omitted).\\n 45 Herrold, 883 F.3d at 545–46.\\n 46 Id. at 546 (Haynes, J., dissenting) (citing Bonilla, 687 F.3d 188 (4th Cir. 2012)).\\n 47 Id. (citing Priddy, 808 F.3d 676 (6th Cir. 2015)).\\n 48 Id.\\n\\n 9\\n\\f Case: 14-11317 Document: 00515165055 Page: 10 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\nunprivileged entry AND the actual commission or attempted commission of a\\ncrime; mere intent is not enough.” 49 In the dissent’s view, the statute thus\\nincludes all necessary generic elements—including the intent to commit a\\ncrime, “here as evidenced by the actual commission or attempted commission\\nof the crime, not mere intent.” 50 For these reasons, mindful of the constraints\\nof Castillo-Rivera, Van Cannon has little relevance here, despite the\\nsimilarities of the Minnesota and Texas statutes.\\n B.\\n Next, Herrold argues generic burglary requires “breaking and entering\\nor similarly unlawful activity,” while Section 30.02(a)(3) requires none. In\\nDescamps v. United States, the Supreme Court held that the California\\nburglary statute was non-generic because it lacked this requirement. 51 Herrold\\nurges that the same result should follow here.\\n The California statute at issue in Descamps states that a “person who\\nenters” certain locations “with intent to commit grand or petit larceny or any\\nfelony is guilty of burglary.” 52 Nothing in the statute modifies “enters”—it is\\nnot required that the person enter unlawfully, without consent, or by breaking\\nand entering. Generic burglary, though, “requires an unlawful entry along the\\nlines of breaking and entering.” 53 Because California burglary “does not, and\\nindeed covers simple shoplifting,” it was non-generic. 54\\n Herrold cannot tie this holding to Section 30.02(a)(3), which labels as\\nburglary an entrance “without the effective consent of the owner” but does not\\nrequire a breaking. Statutes that require proof of unlawful or unconsented\\n\\n\\n\\n 49 Id.\\n 50 Id.\\n 51 570 U.S. 254, 277 (2013).\\n 52 CAL. PENAL CODE § 459.\\n 53 Descamps, 570 U.S. at 264.\\n 54 Id.\\n\\n 10\\n\\f Case: 14-11317 Document: 00515165055 Page: 11 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\nentry have not been held non-generic on that basis, unlike statutes like\\nCalifornia’s that require nothing more than entry. 55\\n Given that Taylor reads generic burglary to “include not only aggravated\\nburglaries, but also run-of-the-mill burglaries involving an unarmed offender,\\nan unoccupied building, and no use or threat of force,” 56 the Seventh Circuit\\nconcluded that unlawful or unauthorized entry is “the practical equivalent of\\nthe older term ‘breaking and entering.’” 57 Thus, entering a building “without\\nauthority” satisfied the Descamps requirement of “an unlawful entry along the\\nlines of breaking and entering.” 58\\n The Sixth Circuit similarly rejected the argument that Descamps\\nrenders the Tennessee burglary statute non-generic, and Tennessee’s and\\nTexas’s statutes both contain the “without the effective consent of the property\\nowner” language. 59 On remand after the Supreme Court’s decision in Stitt, the\\nSixth Circuit stated Descamps did not “comprehensively define generic\\nburglary.” 60 Instead, it “merely concluded that California’s burglary statute,\\nwhich did not require any unlawful or unprivileged entry (either by affirmative\\nor passive acts of deception)” was non-generic. 61 The Sixth Circuit in Stitt noted\\n\\n\\n 55 Compare Dawkins v. United States, 809 F.3d 953, 954 (7th Cir. 2016) (rejecting the\\nargument that Descamps made an entry “without authority” non-generic), and United States\\nv. Mungro, 754 F.3d 267, 270 (4th Cir. 2014) (concluding that because North Carolina’s\\nstatute prohibited breaking or entering without the consent of the owner, it constituted\\ngeneric burglary, even after Descamps), with United States v. Hiser, 532 Fed. App’x 648,\\n(Mem)–649 (9th Cir. 2013) (concluding a Nevada statute, which allowed for convictions that\\ndid not include unlawful entry, was “quite similar to that of California’s” and non-generic in\\nlight of Descamps).\\n 56 Taylor, 495 U.S. at 597.\\n 57 Dawkins, 809 F.3d at 956.\\n 58 Id.\\n 59 United States v. Stitt, No. 14-6158, 2019 WL 3074788, at *2 (6th Cir. July 15, 2019)\\n\\n(unpublished).\\n 60 Id. at *3.\\n 61 Id. (“[T]he Supreme Court was not presented with—and therefore did not provide\\n\\nany holding regarding—the fine distinctions between ‘unlawful entry’ and ‘breaking and\\nentering or similar conduct’ or between passive and affirmative acts of deception.”).\\n 11\\n\\f Case: 14-11317 Document: 00515165055 Page: 12 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\nother circuits “have generally concluded that when someone enters a building\\n‘without consent’ and with the intent to commit a burglary, they have\\nnecessarily entered the building ‘unlawfully’ pursuant to generic burglary.” 62\\n It follows that Descamps cannot do the work in this case that Herrold\\nasks. No Texas burglary conviction can stand without proof that the entry or\\nremaining-in was without the owner’s effective consent. This satisfies the\\ngeneric burglary definition of Taylor, including the requirement of unlawful\\nbreaking or similar activity noted in Descamps.\\n Herrold raises two additional arguments related to the “entry” element.\\nOne is that the statute contemplates burglary of a facility open to the public,\\nwhich Descamps bars. 63 But the requirement that entry be “without the\\neffective consent of the owner” adequately incorporates this principle. One who\\nenters a public facility has consent to do so. We are pointed to no case holding\\notherwise. Herrold’s last argument as to entry is that the statute allows\\nconviction where the burglar has legal authority to enter the facility, relying\\non Mack v. State, where the defendant’s name was on the apartment lease but\\nhe had moved out and stopped paying rent. 64 But this contention is also\\nexplained by the effective-consent requirement. None of the cases Herrold\\nrelies on go beyond generic burglary’s unlawful-entry requirement. He cannot\\nsatisfy Castillo-Rivera.\\n C.\\n Finally, Herrold argues “burglary,” as used in the ACCA, is\\nunconstitutionally vague. A violent felony is one that is: “burglary, arson, or\\nextortion, involves use of explosives, or otherwise involves conduct that\\n\\n\\n\\n 62 Id. at *4.\\n 63 Descamps, 570 U.S. at 275 (“[G]eneric burglary’s unlawful-entry element excludes\\nany cases in which a person enters premises open to the public, no matter his intent.”).\\n 64 Mack v. State, 928 S.W.2d 219 (Tex. App.—Austin 1996, pet ref’d)).\\n\\n 12\\n\\f Case: 14-11317 Document: 00515165055 Page: 13 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\npresents a serious potential risk of physical injury to another.” 65 The latter\\nclause was known as the residual clause, and in Johnson the Supreme Court\\nheld it was unconstitutionally vague. 66 The Johnson Court was “convinced that\\nthe indeterminacy of the wide-ranging inquiry required by the residual clause\\nboth denies fair notice to defendants and invites arbitrary enforcement by\\njudges.” 67 Herrold essentially asks us to extend the Johnson reasoning to\\n“burglary.” But Johnson stated that it “does not call into question application\\nof the Act to the four enumerated offenses,” 68 and we take it at its word. The\\nterm “burglary”—despite the difficulties of defining its contours, holding them\\nin focus, and applying them to varied state statutes—does not bring the\\ndifficulties attending a felony that “involves conduct that presents a serious\\npotential risk of physical injury to another.”\\n Herrold points to the precedential changes over this litigation, but as the\\nGovernment notes, the sequence of events undercuts Herrold’s fair-notice\\nargument. His prior burglary convictions were under Section 30.02(a)(1),\\nwhich was and is generic burglary. So when he unlawfully possessed a gun in\\n2012, he had fair notice that, if caught, his prior burglary convictions would be\\nACCA predicates.\\n III.\\n Before Quarles and Stitt, we held that the Texas burglary statute is non-\\ngeneric “because it criminalizes entry and subsequent intent formation rather\\nthan entry with intent to commit a crime.” 69 Herrold’s old arguments no longer\\navail and his new ones lack merit. We hold that Section 30.02(a)(3) is generic—\\nand Herrold’s three prior felonies are therefore qualifying predicates for a\\n\\n\\n 65 18 U.S.C. § 924(e)(2)(B)(ii).\\n 66 135 S. Ct. 2551, 2557 (2015).\\n 67 Id.\\n 68 Id. at 2563.\\n 69 Herrold, 883 F.3d at 541.\\n\\n 13\\n\\f Case: 14-11317 Document: 00515165055 Page: 14 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\nsentence enhancement under the ACCA. The judgment of conviction and\\nsentence is AFFIRMED. The mandate shall issue forthwith.\\n\\n\\n\\n\\n 14\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4448252/\", \"author_raw\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"OWEN"},"judge2":{"kind":"string","value":"JOLLY"},"judge3":{"kind":"string","value":"HIGGINBOTHAM"},"exactly_three_caps":{"kind":"number","value":2,"string":"2"},"extra_judges":{"kind":"string","value":"JONES; SMITH; STEWART; DENNIS; CLEMENT; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; HO; DUNCAN; ENGELHARDT; OLDHAM"},"judge_designations":{"kind":"string","value":"{\"OWEN\": \", Chief\", \"JOLLY\": \", Circuit\", \"HIGGINBOTHAM\": \", Circuit\", \"JONES\": \", Circuit\", \"SMITH\": \", Circuit\", \"STEWART\": \", Circuit\", \"DENNIS\": \", Circuit\", \"CLEMENT\": \", Circuit\", \"ELROD\": \", Circuit\", \"SOUTHWICK\": \", Circuit\", \"HAYNES\": \", Circuit\", \"GRAVES\": \", Circuit\", \"HIGGINSON\": \", Circuit\", \"COSTA\": \", Circuit\", \"WILLETT\": \", Circuit\", \"HO\": \", Circuit\", \"DUNCAN\": \", Circuit\", \"ENGELHARDT\": \", Circuit\", \"OLDHAM\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4670999/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Michael Herrold\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 14-11317 Document: 00515165055 Page: 1 Date Filed: 10/18/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n\n No. 14-11317\n Fifth Circuit\n\n FILED\n October 18, 2019\n\nUNITED STATES OF AMERICA, Lyle W. Cayce\n Clerk\n Plaintiff - Appellee\n\nv.\n\nMICHAEL HERROLD,\n\n Defendant - Appellant\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\n ON REMAND FROM THE UNITED STATES SUPREME COURT\n\nBefore OWEN, Chief Judge, and JOLLY, HIGGINBOTHAM, JONES, SMITH,\nSTEWART, DENNIS, CLEMENT, ELROD, SOUTHWICK, HAYNES,\nGRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT,\nand OLDHAM, Circuit Judges.\n\n\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\n If the Texas burglary statute 1 is “generic” burglary, as the Armed Career\nCriminal Act case law has defined it, Michael Herrold will receive a 15-year\nsentence enhancement. When Herrold pled guilty in 2014 to possession of a\nfirearm by a former felon, he had three prior felony convictions from 1992—for\npossession of LSD with intent to deliver, for burglary of a building, and for\n\n\n\n 1 TEX. PENAL CODE § 30.02(a).\n\f Case: 14-11317 Document: 00515165055 Page: 2 Date Filed: 10/18/2019\n\n\n\n No. 14-11317\nburglary of a habitation. 2\n Determining whether these burglary convictions count toward Herrold’s\ntally of predicate convictions under the ACCA has set this case on a winding\npath. Since we last considered the issue, two Supreme Court decisions have\nforeclosed Herrold’s prior arguments. We now consider whether his remaining\narguments offer an escape from the sentencing enhancement. They do not.\n I.\n A panel originally affirmed the district court’s application of the ACCA\nenhancement. 3 Then the Supreme Court—based on its intervening decision in\nMathis v. United States 4— issued an order granting cert, vacating the lower\ncourt, and remanding for further proceedings (collectively known as a GVR\norder). 5 Still, bound by our decision in United States v. Uribe, 6 the panel again\naffirmed. 7 Hearing the case en banc, however, we vacated that decision 8 and\nabrogated the district court. 9\n In our en banc decision, we reversed Uribe in holding that the Texas\n\n\n\n\n 2 The ACCA enhancement is triggered by three previous “violent felony” or “serious\ndrug offense” convictions. 18 U.S.C. § 924(e)(1). The possession of LSD conviction is a serious\ndrug offense. Thus, if Herrold’s burglary convictions are violent felonies, the enhancement\napplies. The “violent felony” definition enumerates “burglary, arson, [and] extortion,” id.\n§ 924(e)(2)(B)(ii), but only “crimes having certain specified elements” count as predicates, not\n“crimes that happen[] to be labeled ‘robbery’ and ‘burglary’” by the state in question, Taylor\nv. United States, 495 U.S. 575, 588–89 (1990). Burglary under the ACCA requires “unlawful\nor unprivileged entry into, or remaining in, a building or other structure, with intent to\ncommit a crime.” Id. at 598. Burglary statutes no broader than this formulation are deemed\n“generic”; those broader “non-generic.” Convictions under non-generic statutes do not count\ntoward an ACCA sentencing enhancement.\n 3 United States v. Herrold, 813 F.3d 595 (5th Cir. 2016).\n 4 136 S. Ct. 2243 (2016).\n 5 Herrold v. United States, 137 S. Ct. 310 (2016).\n 6 838 F.3d 667, 671 (5th Cir. 2016) (holding that Section 30.02(a) is divisible and that\n\nSection 30.02(a)(1) is generic).\n 7 United States v. Herrold, 685 F. App’x 302 (5th Cir. 2017).\n 8 United States v. Herrold, 693 F. App’x 272 (5th Cir. 2017) (en banc).\n 9 United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc).\n\n 2\n\f Case: 14-11317 Document: 00515165055 Page: 3 Date Filed: 10/18/2019\n\n\n\n No. 14-11317\nburglary statute, Section 30.02(a), was indivisible. 10 Next, we concluded that\n“to be guilty of generic burglary, a defendant must have the intent to commit\na crime when he enters or remains in the building or structure.” 11 We held that\nSection 30.02(a)(3), by contrast, “contains no textual requirement that a\ndefendant’s intent to commit a crime contemporaneously accompany a\ndefendant’s unauthorized entry.” 12 Section 30.02(a)(3) was thus non-generic,\nwhich disqualified Herrold’s burglary convictions as ACCA enhancement\npredicates, so we vacated his sentence and remanded to the district court for\nre-sentencing. 13\n We left another question unresolved: whether burglary of a “habitation”\nunder Section 30.02(a)(1) is broader than generic burglary, given that\n“habitation” is defined to apply to vehicles that are “adapted for overnight\naccommodations of persons” as well as conventional buildings. 14 As its\nresolution was not required, we detailed the “powerful arguments on both sides\nof the question” but did not decide it. 15\n\n\n 10 Id. at 523. We considered whether Section 30.02(a) sets out alternative means of\ncommitting a single substantive crime—making the statute “indivisible”—or whether it sets\nout separate elements—effectively defining distinct offenses, making the statute “divisible.”\nMathis, 138 S. Ct. at 2248–49. For indivisible statutes, we compare the whole statute to the\ngeneric definition. For divisible statutes, we apply the generic definition only to the\nalternative under which the defendant was convicted.\n The Texas burglary statute, TEX. PENAL CODE § 30.02(a), reads:\n(a) A person commits an offense if, without the effective consent of the\nowner, the person:\n (1) enters a habitation, or a building (or any portion of a building)\n not then open to the public, with intent to commit a felony, theft, or an\n assault; or\n (2) remains concealed, with intent to commit a felony, theft, or an\n assault, in a building or habitation; or\n (3) enters a building or habitation and commits or attempts to\n commit a felony, theft, or an assault.\n 11 Herrold, 883 F.3d at 531.\n 12 Id.\n 13 Id. at 541–42.\n 14 See TEX. PENAL CODE § 30.01(1).\n 15 Herrold, 883 F.3d at 537.\n\n 3\n\f Case: 14-11317 Document: 00515165055 Page: 4 Date Filed: 10/18/2019\n\n\n\n No. 14-11317\n On remand after the en banc decision, the district court sentenced\nHerrold to time served. 16 Meanwhile, the Government filed a petition for\ncertiorari. Two intervening Supreme Court decisions, Quarles v. United\nStates 17 and United States v. Stitt, 18 foreclosed the two principal grounds on\nwhich Herrold contested his ACCA sentencing enhancement, so the Court\nissued another GVR order. 19\n First, in Stitt, the Supreme Court answered the “habitation” question we\nleft unresolved. The Court considered whether burglary of a “nonpermanent or\nmobile structure that is adapted or used for overnight accommodation can\nqualify as ‘burglary’ under the [ACCA].” 20 It did so in the context of two state\nburglary statutes that apply to vehicles or structures “designed or adapted for\nthe overnight accommodation of persons” (Tennessee) 21 and those “customarily\nused for overnight accommodation of a person whether or not a person is\nactually present” (Arkansas). 22 For reference, the language in the Texas\nstatute—defining “habitation” as “a structure or vehicle that is adapted for the\novernight accommodation of persons”—matches that in the Tennessee statute;\nif Tennessee’s statute is generic on this ground, so is Texas’s.\n The Stitt Court held that the Tennessee and Arkansas statutes fell\nwithin generic burglary. It reasoned that burglaries of homes and RVs, for\nexample, pose similar risks of violent confrontation, and that most state\nburglary statutes covered vehicles adapted or customarily used for lodging\n\n\n\n\n 16 See Amended Judgment, United States v. Herrold, No. 3:13-CR-225 (N.D. Tex. April\n10, 2018).\n 17 139 S. Ct. 1872 (2019).\n 18 139 S. Ct. 399 (2018).\n 19 United States v. Herrold, 139 S. Ct. 2712 (2019) (mem.).\n 20 Stitt, 139 S. Ct. at 404.\n 21 TENN. CODE ANN. §§ 39–14–401(1)(A), (B).\n 22 ARK. CODE ANN. § 5–39–101(8)(A)(ii).\n\n 4\n\f Case: 14-11317 Document: 00515165055 Page: 5 Date Filed: 10/18/2019\n\n\n\n No. 14-11317\nwhen Taylor was decided in 1986. 23\n Next, in Quarles, the Supreme Court chose between the broad and\nnarrow interpretations of the intent required for generic remaining-in\nburglary. 24 Our earlier en banc decision in this case considered the same\nquestion: whether generic remaining-in burglary occurs only when the intent\nto commit a crime forms at the moment the defendant first unlawfully remains\nin a building, or whether it occurs when the defendant forms this intent at any\ntime while unlawfully present. We chose the narrower view, but the Supreme\nCourt chose the broader. Quarles considered a Michigan statute, which stated\na person commits home invasion when that person “breaks and enters a\ndwelling or enters a dwelling without permission and, at any time while he or\nshe is entering, present in, or exiting the dwelling, commits a misdemeanor.” 25\nRelying on “the common understanding of ‘remaining in’ as a continuous\nevent,” the Quarles Court held that generic burglary occurs “if the defendant\nforms the intent to commit a crime at any time during the continuous event of\nunlawfully remaining in a building or structure.” 26\n After Quarles, Texas’s statute is generic even though it lacks the\ncontemporaneity requirement the en banc court considered necessary. And\nafter Stitt, the alternative ground we might have otherwise reached—related\nto the “habitation” definition—is also foreclosed. Still, Herrold maintains\nSection 30.02(a) is non-generic for reasons unaffected by Quarles or Stitt.\n Finally, because neither Quarles nor Stitt calls into question our holding\nthat the Texas burglary statute is indivisible, we reinstate that section (Part\nII) of our en banc decision. 27\n\n\n 23 Stitt, 139 S. Ct. at 406.\n 24 Quarles, 139 S. Ct. at 1877.\n 25 MICH. COMP. LAWS ANN. § 750.110a(4)(a).\n 26 Id. at 1877.\n 27 Herrold, 883 F.3d at 521–29.\n\n 5\n\f Case: 14-11317 Document: 00515165055 Page: 6 Date Filed: 10/18/2019\n\n\n\n No. 14-11317\n II.\n Herrold’s chief argument has not changed, but now attacks different\naspects of the Section 30.02(a)(3) formulation: its alleged lack of specific-intent\nand unlawful-breaking requirements. 28 Alternatively, Herrold argues the term\n“burglary”—as used in the ACCA and construed by courts—is\nunconstitutionally vague and deprives defendants of fair notice as to which\nconvictions will count toward an ACCA-enhanced sentence. Essentially, the\neffort is to clip “burglary” from the statute as Johnson v. United States did with\nthe residual clause in the same provision. 29\n A.\n Herrold first argues that Section 30.02(a)(3) lacks a requirement that an\noffender form a specific intent to commit another crime; that generic burglary\nrequires a plan to commit another crime, while Section 30.02(a)(3) requires\nonly that one “commit[] or attempt[] to commit a felony, theft, or an assault.” 30\nHerrold identifies several felonies that fit in this enumerated list but do not\nrequire “the intent to commit a crime.” For example, assault requires only\nrecklessness, 31 and endangering a child requires only recklessness or criminal\nnegligence. 32 He dubs Section 30.02(a)(3) a “trespass-plus-crime” formulation,\nat once unusually broad and relatively rare as a theory of burglary, adopted\nonly by Texas, Minnesota, Montana, and Tennessee.\n\n\n\n 28 Despite Herrold’s contention that the Government waived its argument that Section\n30.02(a)(3) is generic because it waited until its September 2017 en banc brief to raise it, the\ncentral arguments in the supplemental briefing are all properly before us. The Government’s\nstatement at the 2014 sentencing hearing merely recognized that we had held Section\n30.02(a)(3) was non-generic in United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008).\nThe Government then, at its first opportunity during the en banc proceeding, asked that this\nprecedent be reconsidered.\n 29 See 135 S.Ct. 2551, 2557 (2015).\n 30 TEX. PENAL CODE § 30.02(a)(3).\n 31 Id. § 22.01(a)(1).\n 32 Id. § 22.041(c).\n\n 6\n\f Case: 14-11317 Document: 00515165055 Page: 7 Date Filed: 10/18/2019\n\n\n\n No. 14-11317\n The Seventh Circuit adopted similar reasoning in holding that the\nMinnesota trespass-plus-crime statute is non-generic. In Van Cannon v.\nUnited States, it held the statute is non-generic because it does not require\nintent at the moment of entry, the same argument adopted by the Herrold en\nbanc court and rejected by the Quarles Court. 33 It also concluded that the\nstatute “doesn’t require proof of intent to commit a crime at all—not at any\npoint during the offense conduct.” 34 The Van Cannon court rejected the\ngovernment’s argument that intent to commit a crime is implicit in the\nrequirement of proof of a completed crime, reasoning that “not all crimes are\nintentional; some require only recklessness or criminal negligence.” 35\n Quarles tried to raise this issue, but the Supreme Court considered it\nwaived. 36 So Quarles did not foreclose this argument, and unlike Quarles,\nHerrold did not waive it. Further, in September 2019, after Quarles and after\nsupplemental briefing was completed in our case, the Seventh Circuit (1)\nconfirmed that its conclusion that Minnesota burglary requires no “intent to\ncommit a crime at all” was a holding, not dicta, and (2) confirmed that this\nholding was not affected by Quarles. 37\n Herrold urges us not to create a circuit split on this point, but his\nargument fails for lack of supportive Texas cases. In United States v. Castillo-\nRivera, we warned that “[a] defendant who argues that a state statute is\n\n\n\n 33 Van Cannon v. United States, 890 F.3d 656, 663–64 (7th Cir. 2018) (considering\nMINN. STAT. § 609.582(2)(a), which stated one who “enters a building without consent and\ncommits a crime while in the building” commits burglary).\n 34 Id. at 664.\n 35 Id.\n 36 Quarles, 139 S. Ct. at 1880 n.2.\n 37 See Chazen v. Marske, No. 18-3268, 2019 WL 4254295, at *7–8 (7th Cir. Sept. 9,\n\n2019) (“What we can say with confidence is that Quarles did not abrogate Van Cannon's\nconclusion that Minnesota burglary is broader than generic burglary because the state\nstatute does not require proof of any intent at any point. Indeed, the Court expressly declined\nto address this issue in Quarles.”).\n 7\n\f Case: 14-11317 Document: 00515165055 Page: 8 Date Filed: 10/18/2019\n\n\n\n No. 14-11317\nnongeneric cannot simply rest on plausible interpretations of statutory text\nmade in a vacuum.” 38 Instead, that defendant must show “a realistic\nprobability, not a theoretical possibility, that the State would apply its statute\nto conduct that falls outside the generic definition of the crime.” 39 It is\nincumbent on the defendant to point to “cases in which the state courts in fact\ndid apply the statute in the special (nongeneric) manner for which he argues.” 40\nThis is so “even where the state statute may be plausibly interpreted as\nbroader on its face.” 41\n Herrold claims Texas courts could uphold burglary convictions under\nSection 30.02(a)(3) that involve crimes with lesser mens rea requirements; he\ndoes not point to any convictions matching this description, nor does he cite a\nsingle Texas case. He rather rests on the definitions of several provisions in\nthe Texas Penal Code.\n We need look no further, but even if we did, Texas law rejects Herrold’s\nno-intent interpretation. The Government relies on DeVaughn v. State, in\nwhich the Texas Court of Criminal Appeals, contrasting Section 30.02(a)(3)\nwith the first two subsections, concluded that the requirement in (a)(3) of an\n“attempted or completed theft or felony . . . merely supplants the specific intent\nwhich accompanies entry” in (a)(1) and (a)(2). 42 Immediately afterward, the\nDeVaughn court quoted with approval the Practice Commentary\naccompanying (a)(3) and interpreted (a)(3) burglary as “the conduct of one who\nenters without effective consent but, lacking intent to commit any crime upon\nhis entry, subsequently forms that intent and commits or attempts a felony or\n\n\n\n\n 38 853 F.3d 218, 222 (5th Cir. 2017) (en banc).\n 39 Id. (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).\n 40 Id. (emphasis omitted).\n 41 Id. at 224 n.4.\n 42 DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988).\n\n 8\n\f Case: 14-11317 Document: 00515165055 Page: 9 Date Filed: 10/18/2019\n\n\n\n No. 14-11317\ntheft.” 43 Cases from the Texas Court of Appeals mirror this formulation. 44\n The Government’s position is that we should defer—and indeed already\nhave deferred—to this construction from DeVaughn. In the Government’s\nview, whether intent to commit a crime must form at the moment the burglar\nremains in or at any time during the improper remaining-in divided the en\nbanc court—but all judges implicitly agreed that intent was necessary\nsometime. The Herrold majority interpreted Section 3.02(a)(3) as criminalizing\n“entry and subsequent intent formation.” 45 The dissent, meanwhile, noted\nthat, before Herrold, the Fourth Circuit held Section 30.02(a)(3) generic in\nUnited States v. Bonilla, 46 as did the Sixth Circuit with the substantially\nsimilar Tennessee statute in United States v. Priddy. 47 As summarized by the\ndissent,\n the Fourth Circuit [in Bonilla] reasoned that because (a)(3) only\n applies where a defendant’s presence in a building is unlawful, a\n completed or attempted felony therein necessarily requires intent\n to commit the felony either prior to unlawful entry or while\n unlawfully remaining in the building, which is all Taylor requires.\n [Bonilla, 687 F.3d at 193.] In other words, (a)(3) substantively\n contains the requisite intent element because to attempt or\n complete a crime requires intent to commit the crime. 48\n\n The dissent reasoned that Section 30.02(a)(3) “requires an unlawful or\n\n\n 43 Id. (emphasis added) (quoting TEX. PENAL CODE ANN. § 30.02 practice cmt. at 144\n(West 1974)).\n 44 See Flores v. State, 902 S.W.2d 618, 620 (Tex. App.—Austin 1995, pet. ref’d) (citing\n\nthe Practice Commentary for the proposition that “[p]rosecution under section 30.02(a)(3) is\nappropriate when the accused enters without effective consent and, lacking intent to commit\nany crime upon his entry, subsequently forms that intent and commits or attempts to commit\na felony or theft”); see also Leaks v. State, 2005 WL 704409, at *2 (Tex. App.—Corpus Christi\nMar. 24, 2005, pet. ref’d) (noting that under Section 30.02(a)(3), the State must prove “that,\nafter entry into the habitation, appellant formed an intent to commit, and did commit, a\nfelony, theft or an assault”) (emphasis added) (citations omitted).\n 45 Herrold, 883 F.3d at 545–46.\n 46 Id. at 546 (Haynes, J., dissenting) (citing Bonilla, 687 F.3d 188 (4th Cir. 2012)).\n 47 Id. (citing Priddy, 808 F.3d 676 (6th Cir. 2015)).\n 48 Id.\n\n 9\n\f Case: 14-11317 Document: 00515165055 Page: 10 Date Filed: 10/18/2019\n\n\n\n No. 14-11317\nunprivileged entry AND the actual commission or attempted commission of a\ncrime; mere intent is not enough.” 49 In the dissent’s view, the statute thus\nincludes all necessary generic elements—including the intent to commit a\ncrime, “here as evidenced by the actual commission or attempted commission\nof the crime, not mere intent.” 50 For these reasons, mindful of the constraints\nof Castillo-Rivera, Van Cannon has little relevance here, despite the\nsimilarities of the Minnesota and Texas statutes.\n B.\n Next, Herrold argues generic burglary requires “breaking and entering\nor similarly unlawful activity,” while Section 30.02(a)(3) requires none. In\nDescamps v. United States, the Supreme Court held that the California\nburglary statute was non-generic because it lacked this requirement. 51 Herrold\nurges that the same result should follow here.\n The California statute at issue in Descamps states that a “person who\nenters” certain locations “with intent to commit grand or petit larceny or any\nfelony is guilty of burglary.” 52 Nothing in the statute modifies “enters”—it is\nnot required that the person enter unlawfully, without consent, or by breaking\nand entering. Generic burglary, though, “requires an unlawful entry along the\nlines of breaking and entering.” 53 Because California burglary “does not, and\nindeed covers simple shoplifting,” it was non-generic. 54\n Herrold cannot tie this holding to Section 30.02(a)(3), which labels as\nburglary an entrance “without the effective consent of the owner” but does not\nrequire a breaking. Statutes that require proof of unlawful or unconsented\n\n\n\n 49 Id.\n 50 Id.\n 51 570 U.S. 254, 277 (2013).\n 52 CAL. PENAL CODE § 459.\n 53 Descamps, 570 U.S. at 264.\n 54 Id.\n\n 10\n\f Case: 14-11317 Document: 00515165055 Page: 11 Date Filed: 10/18/2019\n\n\n\n No. 14-11317\nentry have not been held non-generic on that basis, unlike statutes like\nCalifornia’s that require nothing more than entry. 55\n Given that Taylor reads generic burglary to “include not only aggravated\nburglaries, but also run-of-the-mill burglaries involving an unarmed offender,\nan unoccupied building, and no use or threat of force,” 56 the Seventh Circuit\nconcluded that unlawful or unauthorized entry is “the practical equivalent of\nthe older term ‘breaking and entering.’” 57 Thus, entering a building “without\nauthority” satisfied the Descamps requirement of “an unlawful entry along the\nlines of breaking and entering.” 58\n The Sixth Circuit similarly rejected the argument that Descamps\nrenders the Tennessee burglary statute non-generic, and Tennessee’s and\nTexas’s statutes both contain the “without the effective consent of the property\nowner” language. 59 On remand after the Supreme Court’s decision in Stitt, the\nSixth Circuit stated Descamps did not “comprehensively define generic\nburglary.” 60 Instead, it “merely concluded that California’s burglary statute,\nwhich did not require any unlawful or unprivileged entry (either by affirmative\nor passive acts of deception)” was non-generic. 61 The Sixth Circuit in Stitt noted\n\n\n 55 Compare Dawkins v. United States, 809 F.3d 953, 954 (7th Cir. 2016) (rejecting the\nargument that Descamps made an entry “without authority” non-generic), and United States\nv. Mungro, 754 F.3d 267, 270 (4th Cir. 2014) (concluding that because North Carolina’s\nstatute prohibited breaking or entering without the consent of the owner, it constituted\ngeneric burglary, even after Descamps), with United States v. Hiser, 532 Fed. App’x 648,\n(Mem)–649 (9th Cir. 2013) (concluding a Nevada statute, which allowed for convictions that\ndid not include unlawful entry, was “quite similar to that of California’s” and non-generic in\nlight of Descamps).\n 56 Taylor, 495 U.S. at 597.\n 57 Dawkins, 809 F.3d at 956.\n 58 Id.\n 59 United States v. Stitt, No. 14-6158, 2019 WL 3074788, at *2 (6th Cir. July 15, 2019)\n\n(unpublished).\n 60 Id. at *3.\n 61 Id. (“[T]he Supreme Court was not presented with—and therefore did not provide\n\nany holding regarding—the fine distinctions between ‘unlawful entry’ and ‘breaking and\nentering or similar conduct’ or between passive and affirmative acts of deception.”).\n 11\n\f Case: 14-11317 Document: 00515165055 Page: 12 Date Filed: 10/18/2019\n\n\n\n No. 14-11317\nother circuits “have generally concluded that when someone enters a building\n‘without consent’ and with the intent to commit a burglary, they have\nnecessarily entered the building ‘unlawfully’ pursuant to generic burglary.” 62\n It follows that Descamps cannot do the work in this case that Herrold\nasks. No Texas burglary conviction can stand without proof that the entry or\nremaining-in was without the owner’s effective consent. This satisfies the\ngeneric burglary definition of Taylor, including the requirement of unlawful\nbreaking or similar activity noted in Descamps.\n Herrold raises two additional arguments related to the “entry” element.\nOne is that the statute contemplates burglary of a facility open to the public,\nwhich Descamps bars. 63 But the requirement that entry be “without the\neffective consent of the owner” adequately incorporates this principle. One who\nenters a public facility has consent to do so. We are pointed to no case holding\notherwise. Herrold’s last argument as to entry is that the statute allows\nconviction where the burglar has legal authority to enter the facility, relying\non Mack v. State, where the defendant’s name was on the apartment lease but\nhe had moved out and stopped paying rent. 64 But this contention is also\nexplained by the effective-consent requirement. None of the cases Herrold\nrelies on go beyond generic burglary’s unlawful-entry requirement. He cannot\nsatisfy Castillo-Rivera.\n C.\n Finally, Herrold argues “burglary,” as used in the ACCA, is\nunconstitutionally vague. A violent felony is one that is: “burglary, arson, or\nextortion, involves use of explosives, or otherwise involves conduct that\n\n\n\n 62 Id. at *4.\n 63 Descamps, 570 U.S. at 275 (“[G]eneric burglary’s unlawful-entry element excludes\nany cases in which a person enters premises open to the public, no matter his intent.”).\n 64 Mack v. State, 928 S.W.2d 219 (Tex. App.—Austin 1996, pet ref’d)).\n\n 12\n\f Case: 14-11317 Document: 00515165055 Page: 13 Date Filed: 10/18/2019\n\n\n\n No. 14-11317\npresents a serious potential risk of physical injury to another.” 65 The latter\nclause was known as the residual clause, and in Johnson the Supreme Court\nheld it was unconstitutionally vague. 66 The Johnson Court was “convinced that\nthe indeterminacy of the wide-ranging inquiry required by the residual clause\nboth denies fair notice to defendants and invites arbitrary enforcement by\njudges.” 67 Herrold essentially asks us to extend the Johnson reasoning to\n“burglary.” But Johnson stated that it “does not call into question application\nof the Act to the four enumerated offenses,” 68 and we take it at its word. The\nterm “burglary”—despite the difficulties of defining its contours, holding them\nin focus, and applying them to varied state statutes—does not bring the\ndifficulties attending a felony that “involves conduct that presents a serious\npotential risk of physical injury to another.”\n Herrold points to the precedential changes over this litigation, but as the\nGovernment notes, the sequence of events undercuts Herrold’s fair-notice\nargument. His prior burglary convictions were under Section 30.02(a)(1),\nwhich was and is generic burglary. So when he unlawfully possessed a gun in\n2012, he had fair notice that, if caught, his prior burglary convictions would be\nACCA predicates.\n III.\n Before Quarles and Stitt, we held that the Texas burglary statute is non-\ngeneric “because it criminalizes entry and subsequent intent formation rather\nthan entry with intent to commit a crime.” 69 Herrold’s old arguments no longer\navail and his new ones lack merit. We hold that Section 30.02(a)(3) is generic—\nand Herrold’s three prior felonies are therefore qualifying predicates for a\n\n\n 65 18 U.S.C. § 924(e)(2)(B)(ii).\n 66 135 S. Ct. 2551, 2557 (2015).\n 67 Id.\n 68 Id. at 2563.\n 69 Herrold, 883 F.3d at 541.\n\n 13\n\f Case: 14-11317 Document: 00515165055 Page: 14 Date Filed: 10/18/2019\n\n\n\n No. 14-11317\nsentence enhancement under the ACCA. The judgment of conviction and\nsentence is AFFIRMED. The mandate shall issue forthwith.\n\n\n\n\n 14\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Michael Herrold\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-18\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 14-11317 Document: 00515165055 Page: 1 Date Filed: 10/18/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n\\n No. 14-11317\\n Fifth Circuit\\n\\n FILED\\n October 18, 2019\\n\\nUNITED STATES OF AMERICA, Lyle W. Cayce\\n Clerk\\n Plaintiff - Appellee\\n\\nv.\\n\\nMICHAEL HERROLD,\\n\\n Defendant - Appellant\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\n ON REMAND FROM THE UNITED STATES SUPREME COURT\\n\\nBefore OWEN, Chief Judge, and JOLLY, HIGGINBOTHAM, JONES, SMITH,\\nSTEWART, DENNIS, CLEMENT, ELROD, SOUTHWICK, HAYNES,\\nGRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT,\\nand OLDHAM, Circuit Judges.\\n\\n\\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\\n If the Texas burglary statute 1 is “generic” burglary, as the Armed Career\\nCriminal Act case law has defined it, Michael Herrold will receive a 15-year\\nsentence enhancement. When Herrold pled guilty in 2014 to possession of a\\nfirearm by a former felon, he had three prior felony convictions from 1992—for\\npossession of LSD with intent to deliver, for burglary of a building, and for\\n\\n\\n\\n 1 TEX. PENAL CODE § 30.02(a).\\n\\f Case: 14-11317 Document: 00515165055 Page: 2 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\nburglary of a habitation. 2\\n Determining whether these burglary convictions count toward Herrold’s\\ntally of predicate convictions under the ACCA has set this case on a winding\\npath. Since we last considered the issue, two Supreme Court decisions have\\nforeclosed Herrold’s prior arguments. We now consider whether his remaining\\narguments offer an escape from the sentencing enhancement. They do not.\\n I.\\n A panel originally affirmed the district court’s application of the ACCA\\nenhancement. 3 Then the Supreme Court—based on its intervening decision in\\nMathis v. United States 4— issued an order granting cert, vacating the lower\\ncourt, and remanding for further proceedings (collectively known as a GVR\\norder). 5 Still, bound by our decision in United States v. Uribe, 6 the panel again\\naffirmed. 7 Hearing the case en banc, however, we vacated that decision 8 and\\nabrogated the district court. 9\\n In our en banc decision, we reversed Uribe in holding that the Texas\\n\\n\\n\\n\\n 2 The ACCA enhancement is triggered by three previous “violent felony” or “serious\\ndrug offense” convictions. 18 U.S.C. § 924(e)(1). The possession of LSD conviction is a serious\\ndrug offense. Thus, if Herrold’s burglary convictions are violent felonies, the enhancement\\napplies. The “violent felony” definition enumerates “burglary, arson, [and] extortion,” id.\\n§ 924(e)(2)(B)(ii), but only “crimes having certain specified elements” count as predicates, not\\n“crimes that happen[] to be labeled ‘robbery’ and ‘burglary’” by the state in question, Taylor\\nv. United States, 495 U.S. 575, 588–89 (1990). Burglary under the ACCA requires “unlawful\\nor unprivileged entry into, or remaining in, a building or other structure, with intent to\\ncommit a crime.” Id. at 598. Burglary statutes no broader than this formulation are deemed\\n“generic”; those broader “non-generic.” Convictions under non-generic statutes do not count\\ntoward an ACCA sentencing enhancement.\\n 3 United States v. Herrold, 813 F.3d 595 (5th Cir. 2016).\\n 4 136 S. Ct. 2243 (2016).\\n 5 Herrold v. United States, 137 S. Ct. 310 (2016).\\n 6 838 F.3d 667, 671 (5th Cir. 2016) (holding that Section 30.02(a) is divisible and that\\n\\nSection 30.02(a)(1) is generic).\\n 7 United States v. Herrold, 685 F. App’x 302 (5th Cir. 2017).\\n 8 United States v. Herrold, 693 F. App’x 272 (5th Cir. 2017) (en banc).\\n 9 United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc).\\n\\n 2\\n\\f Case: 14-11317 Document: 00515165055 Page: 3 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\nburglary statute, Section 30.02(a), was indivisible. 10 Next, we concluded that\\n“to be guilty of generic burglary, a defendant must have the intent to commit\\na crime when he enters or remains in the building or structure.” 11 We held that\\nSection 30.02(a)(3), by contrast, “contains no textual requirement that a\\ndefendant’s intent to commit a crime contemporaneously accompany a\\ndefendant’s unauthorized entry.” 12 Section 30.02(a)(3) was thus non-generic,\\nwhich disqualified Herrold’s burglary convictions as ACCA enhancement\\npredicates, so we vacated his sentence and remanded to the district court for\\nre-sentencing. 13\\n We left another question unresolved: whether burglary of a “habitation”\\nunder Section 30.02(a)(1) is broader than generic burglary, given that\\n“habitation” is defined to apply to vehicles that are “adapted for overnight\\naccommodations of persons” as well as conventional buildings. 14 As its\\nresolution was not required, we detailed the “powerful arguments on both sides\\nof the question” but did not decide it. 15\\n\\n\\n 10 Id. at 523. We considered whether Section 30.02(a) sets out alternative means of\\ncommitting a single substantive crime—making the statute “indivisible”—or whether it sets\\nout separate elements—effectively defining distinct offenses, making the statute “divisible.”\\nMathis, 138 S. Ct. at 2248–49. For indivisible statutes, we compare the whole statute to the\\ngeneric definition. For divisible statutes, we apply the generic definition only to the\\nalternative under which the defendant was convicted.\\n The Texas burglary statute, TEX. PENAL CODE § 30.02(a), reads:\\n(a) A person commits an offense if, without the effective consent of the\\nowner, the person:\\n (1) enters a habitation, or a building (or any portion of a building)\\n not then open to the public, with intent to commit a felony, theft, or an\\n assault; or\\n (2) remains concealed, with intent to commit a felony, theft, or an\\n assault, in a building or habitation; or\\n (3) enters a building or habitation and commits or attempts to\\n commit a felony, theft, or an assault.\\n 11 Herrold, 883 F.3d at 531.\\n 12 Id.\\n 13 Id. at 541–42.\\n 14 See TEX. PENAL CODE § 30.01(1).\\n 15 Herrold, 883 F.3d at 537.\\n\\n 3\\n\\f Case: 14-11317 Document: 00515165055 Page: 4 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\n On remand after the en banc decision, the district court sentenced\\nHerrold to time served. 16 Meanwhile, the Government filed a petition for\\ncertiorari. Two intervening Supreme Court decisions, Quarles v. United\\nStates 17 and United States v. Stitt, 18 foreclosed the two principal grounds on\\nwhich Herrold contested his ACCA sentencing enhancement, so the Court\\nissued another GVR order. 19\\n First, in Stitt, the Supreme Court answered the “habitation” question we\\nleft unresolved. The Court considered whether burglary of a “nonpermanent or\\nmobile structure that is adapted or used for overnight accommodation can\\nqualify as ‘burglary’ under the [ACCA].” 20 It did so in the context of two state\\nburglary statutes that apply to vehicles or structures “designed or adapted for\\nthe overnight accommodation of persons” (Tennessee) 21 and those “customarily\\nused for overnight accommodation of a person whether or not a person is\\nactually present” (Arkansas). 22 For reference, the language in the Texas\\nstatute—defining “habitation” as “a structure or vehicle that is adapted for the\\novernight accommodation of persons”—matches that in the Tennessee statute;\\nif Tennessee’s statute is generic on this ground, so is Texas’s.\\n The Stitt Court held that the Tennessee and Arkansas statutes fell\\nwithin generic burglary. It reasoned that burglaries of homes and RVs, for\\nexample, pose similar risks of violent confrontation, and that most state\\nburglary statutes covered vehicles adapted or customarily used for lodging\\n\\n\\n\\n\\n 16 See Amended Judgment, United States v. Herrold, No. 3:13-CR-225 (N.D. Tex. April\\n10, 2018).\\n 17 139 S. Ct. 1872 (2019).\\n 18 139 S. Ct. 399 (2018).\\n 19 United States v. Herrold, 139 S. Ct. 2712 (2019) (mem.).\\n 20 Stitt, 139 S. Ct. at 404.\\n 21 TENN. CODE ANN. §§ 39–14–401(1)(A), (B).\\n 22 ARK. CODE ANN. § 5–39–101(8)(A)(ii).\\n\\n 4\\n\\f Case: 14-11317 Document: 00515165055 Page: 5 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\nwhen Taylor was decided in 1986. 23\\n Next, in Quarles, the Supreme Court chose between the broad and\\nnarrow interpretations of the intent required for generic remaining-in\\nburglary. 24 Our earlier en banc decision in this case considered the same\\nquestion: whether generic remaining-in burglary occurs only when the intent\\nto commit a crime forms at the moment the defendant first unlawfully remains\\nin a building, or whether it occurs when the defendant forms this intent at any\\ntime while unlawfully present. We chose the narrower view, but the Supreme\\nCourt chose the broader. Quarles considered a Michigan statute, which stated\\na person commits home invasion when that person “breaks and enters a\\ndwelling or enters a dwelling without permission and, at any time while he or\\nshe is entering, present in, or exiting the dwelling, commits a misdemeanor.” 25\\nRelying on “the common understanding of ‘remaining in’ as a continuous\\nevent,” the Quarles Court held that generic burglary occurs “if the defendant\\nforms the intent to commit a crime at any time during the continuous event of\\nunlawfully remaining in a building or structure.” 26\\n After Quarles, Texas’s statute is generic even though it lacks the\\ncontemporaneity requirement the en banc court considered necessary. And\\nafter Stitt, the alternative ground we might have otherwise reached—related\\nto the “habitation” definition—is also foreclosed. Still, Herrold maintains\\nSection 30.02(a) is non-generic for reasons unaffected by Quarles or Stitt.\\n Finally, because neither Quarles nor Stitt calls into question our holding\\nthat the Texas burglary statute is indivisible, we reinstate that section (Part\\nII) of our en banc decision. 27\\n\\n\\n 23 Stitt, 139 S. Ct. at 406.\\n 24 Quarles, 139 S. Ct. at 1877.\\n 25 MICH. COMP. LAWS ANN. § 750.110a(4)(a).\\n 26 Id. at 1877.\\n 27 Herrold, 883 F.3d at 521–29.\\n\\n 5\\n\\f Case: 14-11317 Document: 00515165055 Page: 6 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\n II.\\n Herrold’s chief argument has not changed, but now attacks different\\naspects of the Section 30.02(a)(3) formulation: its alleged lack of specific-intent\\nand unlawful-breaking requirements. 28 Alternatively, Herrold argues the term\\n“burglary”—as used in the ACCA and construed by courts—is\\nunconstitutionally vague and deprives defendants of fair notice as to which\\nconvictions will count toward an ACCA-enhanced sentence. Essentially, the\\neffort is to clip “burglary” from the statute as Johnson v. United States did with\\nthe residual clause in the same provision. 29\\n A.\\n Herrold first argues that Section 30.02(a)(3) lacks a requirement that an\\noffender form a specific intent to commit another crime; that generic burglary\\nrequires a plan to commit another crime, while Section 30.02(a)(3) requires\\nonly that one “commit[] or attempt[] to commit a felony, theft, or an assault.” 30\\nHerrold identifies several felonies that fit in this enumerated list but do not\\nrequire “the intent to commit a crime.” For example, assault requires only\\nrecklessness, 31 and endangering a child requires only recklessness or criminal\\nnegligence. 32 He dubs Section 30.02(a)(3) a “trespass-plus-crime” formulation,\\nat once unusually broad and relatively rare as a theory of burglary, adopted\\nonly by Texas, Minnesota, Montana, and Tennessee.\\n\\n\\n\\n 28 Despite Herrold’s contention that the Government waived its argument that Section\\n30.02(a)(3) is generic because it waited until its September 2017 en banc brief to raise it, the\\ncentral arguments in the supplemental briefing are all properly before us. The Government’s\\nstatement at the 2014 sentencing hearing merely recognized that we had held Section\\n30.02(a)(3) was non-generic in United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008).\\nThe Government then, at its first opportunity during the en banc proceeding, asked that this\\nprecedent be reconsidered.\\n 29 See 135 S.Ct. 2551, 2557 (2015).\\n 30 TEX. PENAL CODE § 30.02(a)(3).\\n 31 Id. § 22.01(a)(1).\\n 32 Id. § 22.041(c).\\n\\n 6\\n\\f Case: 14-11317 Document: 00515165055 Page: 7 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\n The Seventh Circuit adopted similar reasoning in holding that the\\nMinnesota trespass-plus-crime statute is non-generic. In Van Cannon v.\\nUnited States, it held the statute is non-generic because it does not require\\nintent at the moment of entry, the same argument adopted by the Herrold en\\nbanc court and rejected by the Quarles Court. 33 It also concluded that the\\nstatute “doesn’t require proof of intent to commit a crime at all—not at any\\npoint during the offense conduct.” 34 The Van Cannon court rejected the\\ngovernment’s argument that intent to commit a crime is implicit in the\\nrequirement of proof of a completed crime, reasoning that “not all crimes are\\nintentional; some require only recklessness or criminal negligence.” 35\\n Quarles tried to raise this issue, but the Supreme Court considered it\\nwaived. 36 So Quarles did not foreclose this argument, and unlike Quarles,\\nHerrold did not waive it. Further, in September 2019, after Quarles and after\\nsupplemental briefing was completed in our case, the Seventh Circuit (1)\\nconfirmed that its conclusion that Minnesota burglary requires no “intent to\\ncommit a crime at all” was a holding, not dicta, and (2) confirmed that this\\nholding was not affected by Quarles. 37\\n Herrold urges us not to create a circuit split on this point, but his\\nargument fails for lack of supportive Texas cases. In United States v. Castillo-\\nRivera, we warned that “[a] defendant who argues that a state statute is\\n\\n\\n\\n 33 Van Cannon v. United States, 890 F.3d 656, 663–64 (7th Cir. 2018) (considering\\nMINN. STAT. § 609.582(2)(a), which stated one who “enters a building without consent and\\ncommits a crime while in the building” commits burglary).\\n 34 Id. at 664.\\n 35 Id.\\n 36 Quarles, 139 S. Ct. at 1880 n.2.\\n 37 See Chazen v. Marske, No. 18-3268, 2019 WL 4254295, at *7–8 (7th Cir. Sept. 9,\\n\\n2019) (“What we can say with confidence is that Quarles did not abrogate Van Cannon's\\nconclusion that Minnesota burglary is broader than generic burglary because the state\\nstatute does not require proof of any intent at any point. Indeed, the Court expressly declined\\nto address this issue in Quarles.”).\\n 7\\n\\f Case: 14-11317 Document: 00515165055 Page: 8 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\nnongeneric cannot simply rest on plausible interpretations of statutory text\\nmade in a vacuum.” 38 Instead, that defendant must show “a realistic\\nprobability, not a theoretical possibility, that the State would apply its statute\\nto conduct that falls outside the generic definition of the crime.” 39 It is\\nincumbent on the defendant to point to “cases in which the state courts in fact\\ndid apply the statute in the special (nongeneric) manner for which he argues.” 40\\nThis is so “even where the state statute may be plausibly interpreted as\\nbroader on its face.” 41\\n Herrold claims Texas courts could uphold burglary convictions under\\nSection 30.02(a)(3) that involve crimes with lesser mens rea requirements; he\\ndoes not point to any convictions matching this description, nor does he cite a\\nsingle Texas case. He rather rests on the definitions of several provisions in\\nthe Texas Penal Code.\\n We need look no further, but even if we did, Texas law rejects Herrold’s\\nno-intent interpretation. The Government relies on DeVaughn v. State, in\\nwhich the Texas Court of Criminal Appeals, contrasting Section 30.02(a)(3)\\nwith the first two subsections, concluded that the requirement in (a)(3) of an\\n“attempted or completed theft or felony . . . merely supplants the specific intent\\nwhich accompanies entry” in (a)(1) and (a)(2). 42 Immediately afterward, the\\nDeVaughn court quoted with approval the Practice Commentary\\naccompanying (a)(3) and interpreted (a)(3) burglary as “the conduct of one who\\nenters without effective consent but, lacking intent to commit any crime upon\\nhis entry, subsequently forms that intent and commits or attempts a felony or\\n\\n\\n\\n\\n 38 853 F.3d 218, 222 (5th Cir. 2017) (en banc).\\n 39 Id. (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).\\n 40 Id. (emphasis omitted).\\n 41 Id. at 224 n.4.\\n 42 DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988).\\n\\n 8\\n\\f Case: 14-11317 Document: 00515165055 Page: 9 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\ntheft.” 43 Cases from the Texas Court of Appeals mirror this formulation. 44\\n The Government’s position is that we should defer—and indeed already\\nhave deferred—to this construction from DeVaughn. In the Government’s\\nview, whether intent to commit a crime must form at the moment the burglar\\nremains in or at any time during the improper remaining-in divided the en\\nbanc court—but all judges implicitly agreed that intent was necessary\\nsometime. The Herrold majority interpreted Section 3.02(a)(3) as criminalizing\\n“entry and subsequent intent formation.” 45 The dissent, meanwhile, noted\\nthat, before Herrold, the Fourth Circuit held Section 30.02(a)(3) generic in\\nUnited States v. Bonilla, 46 as did the Sixth Circuit with the substantially\\nsimilar Tennessee statute in United States v. Priddy. 47 As summarized by the\\ndissent,\\n the Fourth Circuit [in Bonilla] reasoned that because (a)(3) only\\n applies where a defendant’s presence in a building is unlawful, a\\n completed or attempted felony therein necessarily requires intent\\n to commit the felony either prior to unlawful entry or while\\n unlawfully remaining in the building, which is all Taylor requires.\\n [Bonilla, 687 F.3d at 193.] In other words, (a)(3) substantively\\n contains the requisite intent element because to attempt or\\n complete a crime requires intent to commit the crime. 48\\n\\n The dissent reasoned that Section 30.02(a)(3) “requires an unlawful or\\n\\n\\n 43 Id. (emphasis added) (quoting TEX. PENAL CODE ANN. § 30.02 practice cmt. at 144\\n(West 1974)).\\n 44 See Flores v. State, 902 S.W.2d 618, 620 (Tex. App.—Austin 1995, pet. ref’d) (citing\\n\\nthe Practice Commentary for the proposition that “[p]rosecution under section 30.02(a)(3) is\\nappropriate when the accused enters without effective consent and, lacking intent to commit\\nany crime upon his entry, subsequently forms that intent and commits or attempts to commit\\na felony or theft”); see also Leaks v. State, 2005 WL 704409, at *2 (Tex. App.—Corpus Christi\\nMar. 24, 2005, pet. ref’d) (noting that under Section 30.02(a)(3), the State must prove “that,\\nafter entry into the habitation, appellant formed an intent to commit, and did commit, a\\nfelony, theft or an assault”) (emphasis added) (citations omitted).\\n 45 Herrold, 883 F.3d at 545–46.\\n 46 Id. at 546 (Haynes, J., dissenting) (citing Bonilla, 687 F.3d 188 (4th Cir. 2012)).\\n 47 Id. (citing Priddy, 808 F.3d 676 (6th Cir. 2015)).\\n 48 Id.\\n\\n 9\\n\\f Case: 14-11317 Document: 00515165055 Page: 10 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\nunprivileged entry AND the actual commission or attempted commission of a\\ncrime; mere intent is not enough.” 49 In the dissent’s view, the statute thus\\nincludes all necessary generic elements—including the intent to commit a\\ncrime, “here as evidenced by the actual commission or attempted commission\\nof the crime, not mere intent.” 50 For these reasons, mindful of the constraints\\nof Castillo-Rivera, Van Cannon has little relevance here, despite the\\nsimilarities of the Minnesota and Texas statutes.\\n B.\\n Next, Herrold argues generic burglary requires “breaking and entering\\nor similarly unlawful activity,” while Section 30.02(a)(3) requires none. In\\nDescamps v. United States, the Supreme Court held that the California\\nburglary statute was non-generic because it lacked this requirement. 51 Herrold\\nurges that the same result should follow here.\\n The California statute at issue in Descamps states that a “person who\\nenters” certain locations “with intent to commit grand or petit larceny or any\\nfelony is guilty of burglary.” 52 Nothing in the statute modifies “enters”—it is\\nnot required that the person enter unlawfully, without consent, or by breaking\\nand entering. Generic burglary, though, “requires an unlawful entry along the\\nlines of breaking and entering.” 53 Because California burglary “does not, and\\nindeed covers simple shoplifting,” it was non-generic. 54\\n Herrold cannot tie this holding to Section 30.02(a)(3), which labels as\\nburglary an entrance “without the effective consent of the owner” but does not\\nrequire a breaking. Statutes that require proof of unlawful or unconsented\\n\\n\\n\\n 49 Id.\\n 50 Id.\\n 51 570 U.S. 254, 277 (2013).\\n 52 CAL. PENAL CODE § 459.\\n 53 Descamps, 570 U.S. at 264.\\n 54 Id.\\n\\n 10\\n\\f Case: 14-11317 Document: 00515165055 Page: 11 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\nentry have not been held non-generic on that basis, unlike statutes like\\nCalifornia’s that require nothing more than entry. 55\\n Given that Taylor reads generic burglary to “include not only aggravated\\nburglaries, but also run-of-the-mill burglaries involving an unarmed offender,\\nan unoccupied building, and no use or threat of force,” 56 the Seventh Circuit\\nconcluded that unlawful or unauthorized entry is “the practical equivalent of\\nthe older term ‘breaking and entering.’” 57 Thus, entering a building “without\\nauthority” satisfied the Descamps requirement of “an unlawful entry along the\\nlines of breaking and entering.” 58\\n The Sixth Circuit similarly rejected the argument that Descamps\\nrenders the Tennessee burglary statute non-generic, and Tennessee’s and\\nTexas’s statutes both contain the “without the effective consent of the property\\nowner” language. 59 On remand after the Supreme Court’s decision in Stitt, the\\nSixth Circuit stated Descamps did not “comprehensively define generic\\nburglary.” 60 Instead, it “merely concluded that California’s burglary statute,\\nwhich did not require any unlawful or unprivileged entry (either by affirmative\\nor passive acts of deception)” was non-generic. 61 The Sixth Circuit in Stitt noted\\n\\n\\n 55 Compare Dawkins v. United States, 809 F.3d 953, 954 (7th Cir. 2016) (rejecting the\\nargument that Descamps made an entry “without authority” non-generic), and United States\\nv. Mungro, 754 F.3d 267, 270 (4th Cir. 2014) (concluding that because North Carolina’s\\nstatute prohibited breaking or entering without the consent of the owner, it constituted\\ngeneric burglary, even after Descamps), with United States v. Hiser, 532 Fed. App’x 648,\\n(Mem)–649 (9th Cir. 2013) (concluding a Nevada statute, which allowed for convictions that\\ndid not include unlawful entry, was “quite similar to that of California’s” and non-generic in\\nlight of Descamps).\\n 56 Taylor, 495 U.S. at 597.\\n 57 Dawkins, 809 F.3d at 956.\\n 58 Id.\\n 59 United States v. Stitt, No. 14-6158, 2019 WL 3074788, at *2 (6th Cir. July 15, 2019)\\n\\n(unpublished).\\n 60 Id. at *3.\\n 61 Id. (“[T]he Supreme Court was not presented with—and therefore did not provide\\n\\nany holding regarding—the fine distinctions between ‘unlawful entry’ and ‘breaking and\\nentering or similar conduct’ or between passive and affirmative acts of deception.”).\\n 11\\n\\f Case: 14-11317 Document: 00515165055 Page: 12 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\nother circuits “have generally concluded that when someone enters a building\\n‘without consent’ and with the intent to commit a burglary, they have\\nnecessarily entered the building ‘unlawfully’ pursuant to generic burglary.” 62\\n It follows that Descamps cannot do the work in this case that Herrold\\nasks. No Texas burglary conviction can stand without proof that the entry or\\nremaining-in was without the owner’s effective consent. This satisfies the\\ngeneric burglary definition of Taylor, including the requirement of unlawful\\nbreaking or similar activity noted in Descamps.\\n Herrold raises two additional arguments related to the “entry” element.\\nOne is that the statute contemplates burglary of a facility open to the public,\\nwhich Descamps bars. 63 But the requirement that entry be “without the\\neffective consent of the owner” adequately incorporates this principle. One who\\nenters a public facility has consent to do so. We are pointed to no case holding\\notherwise. Herrold’s last argument as to entry is that the statute allows\\nconviction where the burglar has legal authority to enter the facility, relying\\non Mack v. State, where the defendant’s name was on the apartment lease but\\nhe had moved out and stopped paying rent. 64 But this contention is also\\nexplained by the effective-consent requirement. None of the cases Herrold\\nrelies on go beyond generic burglary’s unlawful-entry requirement. He cannot\\nsatisfy Castillo-Rivera.\\n C.\\n Finally, Herrold argues “burglary,” as used in the ACCA, is\\nunconstitutionally vague. A violent felony is one that is: “burglary, arson, or\\nextortion, involves use of explosives, or otherwise involves conduct that\\n\\n\\n\\n 62 Id. at *4.\\n 63 Descamps, 570 U.S. at 275 (“[G]eneric burglary’s unlawful-entry element excludes\\nany cases in which a person enters premises open to the public, no matter his intent.”).\\n 64 Mack v. State, 928 S.W.2d 219 (Tex. App.—Austin 1996, pet ref’d)).\\n\\n 12\\n\\f Case: 14-11317 Document: 00515165055 Page: 13 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\npresents a serious potential risk of physical injury to another.” 65 The latter\\nclause was known as the residual clause, and in Johnson the Supreme Court\\nheld it was unconstitutionally vague. 66 The Johnson Court was “convinced that\\nthe indeterminacy of the wide-ranging inquiry required by the residual clause\\nboth denies fair notice to defendants and invites arbitrary enforcement by\\njudges.” 67 Herrold essentially asks us to extend the Johnson reasoning to\\n“burglary.” But Johnson stated that it “does not call into question application\\nof the Act to the four enumerated offenses,” 68 and we take it at its word. The\\nterm “burglary”—despite the difficulties of defining its contours, holding them\\nin focus, and applying them to varied state statutes—does not bring the\\ndifficulties attending a felony that “involves conduct that presents a serious\\npotential risk of physical injury to another.”\\n Herrold points to the precedential changes over this litigation, but as the\\nGovernment notes, the sequence of events undercuts Herrold’s fair-notice\\nargument. His prior burglary convictions were under Section 30.02(a)(1),\\nwhich was and is generic burglary. So when he unlawfully possessed a gun in\\n2012, he had fair notice that, if caught, his prior burglary convictions would be\\nACCA predicates.\\n III.\\n Before Quarles and Stitt, we held that the Texas burglary statute is non-\\ngeneric “because it criminalizes entry and subsequent intent formation rather\\nthan entry with intent to commit a crime.” 69 Herrold’s old arguments no longer\\navail and his new ones lack merit. We hold that Section 30.02(a)(3) is generic—\\nand Herrold’s three prior felonies are therefore qualifying predicates for a\\n\\n\\n 65 18 U.S.C. § 924(e)(2)(B)(ii).\\n 66 135 S. Ct. 2551, 2557 (2015).\\n 67 Id.\\n 68 Id. at 2563.\\n 69 Herrold, 883 F.3d at 541.\\n\\n 13\\n\\f Case: 14-11317 Document: 00515165055 Page: 14 Date Filed: 10/18/2019\\n\\n\\n\\n No. 14-11317\\nsentence enhancement under the ACCA. The judgment of conviction and\\nsentence is AFFIRMED. The mandate shall issue forthwith.\\n\\n\\n\\n\\n 14\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4590,"cells":{"id":{"kind":"number","value":4671000,"string":"4,671,000"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Christopher Cenac, Jr. v. Orkin, L.L.C."},"decision_date":{"kind":"string","value":"2019-10-18"},"docket_number":{"kind":"string","value":"18-31121"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before DAVIS, HO, and ENGELHARDT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"W. EUGENE DAVIS, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-31121 Document: 00515165237 Page: 1 Date Filed: 10/18/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-31121 October 18, 2019\\n Lyle W. Cayce\\nCHRISTOPHER E. CENAC, JR., Doctor; AUDRA CENAC, Doctor, Clerk\\n\\n\\n Plaintiffs - Appellants\\n\\nv.\\n\\nORKIN, L.L.C.,\\n\\n Defendant - Appellee\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Louisiana\\n\\n\\nBefore DAVIS, HO, and ENGELHARDT, Circuit Judges.\\nW. EUGENE DAVIS, Circuit Judge:\\n Plaintiffs, Drs. Christopher and Audra Cenac, appeal the district court’s\\nsummary-judgment dismissal of their claims against Defendant, Orkin, L.L.C.\\nThe Cenacs contracted with Orkin to protect their property against termites.\\nIn 2015, they discovered their home had become infested with Formosan\\ntermites. Orkin contends that, based on various contractual provisions, it is\\nnot liable for the cost of repairing the damage. The Cenacs filed this 28 U.S.C.\\n§ 1332 diversity action against Orkin asserting numerous claims under\\nLouisiana law. We AFFIRM the district court’s dismissal of all claims except\\nthe Cenacs’ claim that Orkin was negligent or grossly negligent in directing\\nand approving installation of a vapor barrier under their home. As to that\\nclaim, we VACATE the district court’s judgment and REMAND.\\n\\f Case: 18-31121 Document: 00515165237 Page: 2 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\n I. Factual Background\\n In 2004, the Cenacs bought a house in Houma, Louisiana, from Allen\\nEschete. Eschete had a contract with Orkin, executed in 1991, entitled\\n“Subterranean Termite Agreement” (1991 Agreement), in which Orkin agreed\\nto treat the house for the prevention of subterranean termites. The contract\\nalso provided for an “Orkin Continuous Protection Guarantee” in the form of a\\n“Full Renewable Subterranean Termite Home Ownership Repair Guarantee”\\n(OR Guarantee). The OR Guarantee obligated Orkin to retreat when required\\nand to repair any new damage to the house or its contents caused by\\nsubterranean termites. 1 The 1991 Agreement provided in the title of the\\nagreement and at the conclusion of the paragraph containing the OR\\nGuarantee: “DOES NOT PROTECT AGAINST FORMOSAN TERMITES.”\\nIn their complaint, the Cenacs alleged that the OR Guarantee was transferred\\nto them, with Orkin’s approval and agreement, when they purchased their\\nhome from Eschete.\\n In 2007, Orkin sent the Cenacs a letter informing them that when their\\nhome was originally treated, “the treatment and termiticides used were\\ndesigned to stop the Native Subterranean Termite.” The letter explained that\\nsuch treatment was ineffective against the Formosan termite and that a “new\\ntermiticide was developed to stop and kill the Formosan and the Native\\nSubterranean Termite.” The letter stated that Orkin was making a “special\\noffer” to its current customers who did “not have Formosan Termite coverage.”\\nIt further provided: “This Supplemental Treatment will not affect your current\\ncoverage in any way at all. This treatment allows Orkin to retreat your home\\n\\n\\n\\n 1 The OR Guarantee required the homeowner to establish that the new damage was\\ncaused by subterranean termites within the effective period of the guarantee and that, at the\\ntime of discovery of the new damage, the damaged areas were infested with live subterranean\\ntermites.\\n 2\\n\\f Case: 18-31121 Document: 00515165237 Page: 3 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nwith the new termiticides designed to stop and kill Formosan and Native\\nSubterranean termites.”\\n The Cenacs met with an Orkin representative in June 2007, at which\\ntime they paid Orkin an additional sum of money to have their home, as well\\nas a large shed on the property, treated with the new termiticides for protection\\nagainst both Formosan and subterranean termites. The Cenacs also executed\\ntwo written contracts at that time: (1) a “Special Service Agreement” (SSA) and\\n(2) a “Residential Single Family Dwelling, Louisiana Formosan and\\nSubterranean Termite Retreatment Agreement, Orkin Continuous Protection\\nPlan” (CPP). The Cenacs contend that the Orkin representative assured them\\nduring the meeting and afterwards that they were obtaining an OR Guarantee,\\nincluding the damage repair part of that guarantee, for all types of termites.\\nThe Cenacs thus believed that their 2007 transaction with Orkin expanded the\\nOR Guarantee such that Orkin was contractually obligated to repair damage\\ncaused not only by native subterranean termites, but also by Formosan\\ntermites.\\n From 2004 through 2015, an Orkin representative inspected the Cenacs’\\nhome for evidence of termite infestation and any conditions that might be\\nconducive to termite infestation. In 2013, Orkin noted on an inspection report\\nthat a condition conducive to termite infestation was present at the home.\\nSpecifically, the report noted that there was excessive moisture in the crawl\\nspace of the home. The Cenacs alleged that they “took corrective measures at\\n[Orkin’s] direction, which [Orkin] approved as adequate.” They asserted that,\\nas directed by Orkin, they installed a vapor barrier under their home, and that\\nan Orkin representative approved the installation. The Cenacs further alleged\\nthat Orkin continued to accept their payments and “assure[d] them that they\\nstill qualified for [Orkin’s] warranty coverage.”\\n\\n\\n 3\\n\\f Case: 18-31121 Document: 00515165237 Page: 4 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\n In May 2015, the Cenacs noticed termites swarming around and coming\\nout of one of the windows of the second floor of their house. They immediately\\nnotified Orkin, and Orkin sent out a technician to retreat the area near the\\nwindow. The Cenacs vacated their home for two days during this time, but\\nwhen they returned, they found more, larger swarms of termites coming from\\ntwo windows near the window that had been retreated.\\n The Cenacs notified Orkin again, and after assessing the situation,\\nOrkin advised them that “certain destructive work to the interior” of the home\\nwould be necessary to investigate further areas of potential termite activity.\\nThe Cenacs alleged that Orkin agreed to reimburse them for the costs\\nassociated with such destructive investigation. They further alleged that upon\\nOrkin’s advice and authorization, they hired a contractor to perform some\\ninterior demolition in their home. The contractor discovered live, active\\nFormosan termites and extensive termite damage in the kitchen area of the\\nhome. The Cenacs contended that although Orkin authorized the demolition\\nand expressly agreed to reimburse them, Orkin refused to reimburse them for\\nthe initial destructive work.\\n After their discovery of termites in the kitchen, the Cenacs discovered\\nother areas of live termites and termite damage in their home. They contended\\nthat Orkin “failed and refused to participate with [them] in the necessary\\ninvestigation of termite activity and damage, or to commit to repairing [their]\\nhome.” By September 2015, the Cenacs’ home was uninhabitable and in a state\\nof partial destruction. They were forced to vacate their home indefinitely until\\nthe full extent of the termite infestation was uncovered, their home retreated,\\nand repairs of the termite damage and investigatory demolitions completed.\\n Because Orkin refused to accept responsibility for the Formosan termite\\ndamage, the Cenacs filed the instant lawsuit. They also hired contractors to\\ndo more demolition in order to locate all termite activity and damage, removed\\n 4\\n\\f Case: 18-31121 Document: 00515165237 Page: 5 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nand placed in storage all contents of their home, and moved into a trailer home\\non their property.\\n On April 18, 2016, Orkin paid the Cenacs $222,168, of which $81,800\\nwas to reimburse them for relocation expenses and the lease of a trailer home,\\nand of which $140,368 was for demolition expenses and the “estimated cost to\\nrepair the termite damage.” The Cenacs contend, however, that various\\ncontractors have estimated that it will cost between $860,000 and $1.6 million\\nto repair and rebuild their home.\\n II. Procedural History\\n In their complaint, the Cenacs assert claims against Orkin for\\n(1) violation of the Louisiana Unfair Trade Practices Act; (2) breach of contract;\\n(3) breach of an insurer’s duties of good faith and prompt payment under the\\nLouisiana Insurance Code; (4) detrimental reliance; (5) unjust enrichment; 2\\n(6) negligence and/or gross negligence; and (7) negligent misrepresentation.\\n In its answer, Orkin admitted that it entered into the 1991 Agreement\\nwith Eschete, that the 1991 Agreement was subsequently transferred to the\\nCenacs after they purchased the property, and that the Cenacs paid the annual\\nrenewal fee for that contract following the date of transfer. Orkin further\\nadmitted that it entered into the Special Service Agreement (SSA) with the\\nCenacs in 2007.\\n Orkin subsequently filed a motion for summary judgment seeking\\ndismissal of all the Cenacs’ claims based on the provisions of the 1991\\nAgreement 3 and based on the provisions of the Orkin Continuous Protection\\nPlan (CPP). Orkin pointed out that the CPP provided for a 10-year renewable\\n\\n\\n\\n 2The Cenacs later conceded that they do not have a claim for unjust enrichment.\\n 3 Orkin contended that although the 1991 Agreement was transferred to the Cenacs\\nin 2004, the OR Guarantee was not transferred. Orkin further argued that even if the OR\\nGuarantee was transferred to the Cenacs, it specifically did not apply to Formosan termites.\\n 5\\n\\f Case: 18-31121 Document: 00515165237 Page: 6 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nFormosan and subterranean termite retreatment service but expressly\\nprovided that Orkin’s service did “not cover any damage to the structure or its\\ncontents.” Furthermore, the CPP provided that the customer “expressly\\nrelease[ed] Orkin from any claims for termite damage or repair.” Orkin\\ncontended that its liability consequently was limited to retreatment only and\\nthat it had no liability for any repairs to the home or its contents. Orkin also\\nfiled five partial motions for summary judgment addressing individually the\\nvarious claims asserted by the Cenacs and seeking dismissal.\\n The Cenacs also filed a motion for summary judgment requesting the\\ndistrict court to determine, as a matter of law, that all provisions of the 1991\\nAgreement, including the entire OR Guarantee, were transferred to them\\nwhen they purchased the home.\\n The district court granted the Cenacs’ motion for summary judgment. 4\\nIt also granted all of Orkin’s summary judgment motions, ultimately\\ndismissing the entirety of the Cenacs’ claims. 5 The Cenacs timely appealed.\\n III. Discussion\\n This court reviews a district court’s grant of summary judgment de\\nnovo. 6 Under Rule 56 of the Federal Rules of Civil Procedure, “the court shall\\ngrant summary judgment if the movant shows that there is no genuine dispute\\nas to any material fact and the movant is entitled to judgment as a matter of\\n\\n\\n\\n\\n 4 Orkin has not appealed the district court’s ruling that the entirety of the 1991\\nAgreement, including the OR Guarantee, was transferred to the Cenacs.\\n 5 The district court initially denied in part Orkin’s summary judgment motion seeking\\n\\ndismissal of the Cenacs’ contractual claims, but then later granted a subsequent summary\\njudgment filed by Orkin, dismissing the Cenacs’ entire complaint.\\n 6 Apache Corp. v. W & T Offshore, Inc., 626 F.3d 789, 793 (5th Cir. 2010).\\n\\n 6\\n\\f Case: 18-31121 Document: 00515165237 Page: 7 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nlaw.” 7 When jurisdiction is based on diversity, this court must apply the\\nsubstantive law of the forum state, here Louisiana. 8\\n A. Contractual Claim for Formosan Termite Damage Repair\\n The Cenacs contend that the district court erred in granting summary\\njudgment in favor of Orkin because there are genuine issues of material fact\\nas to whether Orkin is contractually obligated to pay for the cost of repairing\\nthe Formosan-related termite damage to their home. They assert that the\\ndistrict court “overlooked” factual evidence that, if true, would defeat summary\\njudgment. The Cenacs further argue that the district court failed to consider\\n“clear ambiguities” in the contract forms, as modified by handwriting and\\noriginally written.\\n Under Louisiana law, “interpretation of a contract is the determination\\nof the common intent of the parties.” 9 In ascertaining the common intent,\\n“[t]he words of a contract must be given their generally prevailing meaning.” 10\\nIn addition, “[w]hen the words of a contract are clear and explicit and lead to\\nno absurd consequences, no further interpretation may be made in search of\\nthe parties’ intent.” 11 If the plain text of a contract is subject to two or more\\nreasonable interpretations, a court may look to parol evidence to determine the\\nparties’ intent. 12 Parol evidence, however, may not be used to create ambiguity\\nin an otherwise unambiguous contract. 13 “Under Louisiana law, the\\ninterpretation of an unambiguous contract is an issue of law for the court.” 14\\n\\n\\n\\n 7FED. R. CIV. P. 56(a).\\n 8Holt v. State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir. 2010) (citing Erie R.\\nv. Tompkins, 34 U.S. 64 (1938)).\\n 9 LA. CIV.CODE ANN. art. 2045.\\n 10 Id. art. 2047.\\n 11 Id. art. 2046.\\n 12 Am. Elec. Power Co. v. Affiliated FM Ins. Co., 556 F.3d 282, 286 (5th Cir. 2009).\\n 13 Id. at 286 n.3.\\n 14 Amoco Prod. Co. v. Tex. Meridian Res. Expl. Inc., 180 F.3d 664, 668 (5th Cir. 1999).\\n\\n 7\\n\\f Case: 18-31121 Document: 00515165237 Page: 8 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\n As this court has described, interpretation of a written contract under\\nLouisiana law “involves a two-step process.” 15 First, the court must look to the\\nplain text of the contract to determine whether its meaning is clear and\\nunambiguous. If the text is clear and unambiguous, the court may not go\\nbeyond the text for further interpretation. If, however, the plain text is subject\\nto more than one reasonable interpretation, the court may then resort to parol\\nevidence to determine the parties’ intent. 16 “In the context of contract\\ninterpretation, only when there is a choice of reasonable interpretations of the\\ncontract is there a material fact issue concerning the parties’ intent that would\\npreclude summary judgment.” 17 Accordingly, careful review of the text of the\\nagreements at issue is in order.\\n 1. 1991 Agreement\\n The Cenacs’ claim that Orkin is contractually obligated to pay for\\nFormosan-related repair costs originates with the 1991 Agreement between\\nOrkin and Eschete. As stated above, the 1991 Agreement contained an OR\\nGuarantee, obligating Orkin to retreat the house when required and, more\\nimportantly, to “repair any new damage” to the house or its contents caused by\\nnative subterranean termites. The district court determined that the entirety\\nof the 1991 Agreement, including the OR Guarantee, was transferred to the\\nCenacs when they purchased the home. Orkin does not challenge that ruling\\non appeal.\\n Although Orkin agreed to a repair obligation as part of the OR\\nGuarantee in the 1991 Agreement, the contract is clear and unambiguous that\\nOrkin’s repair obligation “is strictly limited to any new Subterranean Termite\\ndamage.” Moreover, the contract specifically states in the title and at the end\\n\\n\\n 15 Am. Elec. Power Co., 556 F.3d at 286.\\n 16 Id.\\n 17 Amoco Prod. Co., 180 F.3d at 669.\\n\\n 8\\n\\f Case: 18-31121 Document: 00515165237 Page: 9 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nof the paragraph containing the OR Guarantee that it does not protect against\\nFormosan termites.\\n The Cenacs contend, however, that in 2007 Orkin agreed to extend its\\nOR Guarantee (and, thus, its repair obligation) to include damage caused by\\nFormosan termites. They acknowledge that they signed two documents at that\\ntime—the Special Service Agreement (SSA) and the Continuous Protection\\nPlan (CPP)—relating to their home and shed and that they made two\\nsubstantial payments to Orkin. The Cenacs assert (and Orkin agrees) that it\\nis unclear which document applies to their home and which document applies\\nto their shed. Nonetheless, they maintain that Orkin’s branch manager\\nassured them that Orkin was expanding its OR Guarantee to include\\nFormosan termites. As stated above, however, we must first look to the plain\\ntext of the 2007 agreements to determine the parties’ intent.\\n 2. CPP\\n The CPP states that “Orkin shall treat Customer’s structure” for\\nFormosan and subterranean termites. It provides for a “10-year renewable\\nFormosan and subterranean termite retreatment service.” The agreement\\nspecifically states: “This Service does not cover any damage to the structure or\\ncontents.” The CPP further provides: “Orkin is performing a service and\\nexpressly disclaims any guarantee of any kind, whether express or implied for\\nany injury or damage related to the service performed. Customer expressly\\nreleases Orkin from any claims for termite damage or repair.” These\\nprovisions of the CPP clearly and unambiguously show Orkin’s intent not to\\nundertake any type of termite repair obligation. Moreover, the provisions also\\nclearly and unambiguously establish that the Cenacs agreed to relinquish any\\nclaims for termite damage or repair.\\n The Cenacs, however, assert that the CPP contained “several\\nambiguities” that should be resolved in their favor for summary judgment\\n 9\\n\\f Case: 18-31121 Document: 00515165237 Page: 10 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\npurposes. They point to a note which was handwritten diagonally across the\\nbottom half of the document providing: “Add on to original acct #588129.” The\\nCenacs submit that this handwritten note meant, as the Orkin representative\\ntold them, that a repair obligation for Formosan termite damage was being\\n“added to” the original OR Guarantee. We find this argument unpersuasive.\\nThe handwritten note did not indicate that it was canceling out the clear and\\nunambiguous provisions limiting Orkin’s liability to retreatment only. If\\nanything, the note indicated that a new agreement (the CPP), which provided\\nfor no termite repair obligation (even as to subterranean termites), was being\\nadded to the Cenacs’ account. Furthermore, as the district court rightly noted,\\nthe CPP contains an integration clause which provides, in pertinent part, that\\nthe terms of the CPP “may not be amended or altered unless a written change\\nis approved and signed by a corporate officer of Orkin, and it has been approved\\nby the Louisiana Structural Pest Control Commission.” The integration clause\\nfurther provides: “No other employees or agents of Orkin have authority to\\namend or alter any part of this Agreement.” Consequently, any statements\\nmade by an Orkin representative to the Cenacs that Orkin was agreeing to a\\nFormosan termite repair obligation could not alter the clear terms of the CPP.\\n The Cenacs also point out that on the second page of the CPP, there are\\ntwo provisions referencing “claims for termite damage repairs” such that there\\nis an ambiguity as to whether the CPP, in fact, excludes such claims. The first\\nsentence states that the customer “waives any claims for damages except for\\ntermite damage repairs as set out above.” As the district court concluded,\\nhowever, the CPP does not “set out above” any claims for termite damage\\nrepairs, but instead excludes all such claims. The second sentence which\\nbegins, “[w]ith the sole exception of any claim for termite damage repairs,” also\\ndoes not render ambiguous the CPP’s clear and unambiguous waiver of claims\\nfor termite damage on the first page and cannot be read in isolation from the\\n 10\\n\\f Case: 18-31121 Document: 00515165237 Page: 11 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nother terms of the agreement. In sum, like the district court, we determine\\nthat under the CPP, Orkin owed no obligation to the Cenacs to repair any type\\nof termite damage.\\n 3. SSA\\n The other agreement signed by the Cenacs in 2007, the SSA, contains\\nvery few provisions. Under “type and no. of structures to service,” a\\nhandwritten note provides, “Residential – 1.” Under “pests to be treated,”\\nanother handwritten note provides: “Retreat to cover subterranean and\\nFormosan termites.” Under “Special Instructions,” the box next to “1\\nTreatment” is checked. Next to “Products Purchased,” an amount of $1708 is\\nhandwritten. Above the amount, the SSA states: “I agree to pay Orkin Pest\\nControl the below amount at this time for treatment of the pest(s) indicated.”\\nOther than a lengthy provision calling for arbitration, the only other\\nsubstantive provision states: “This Special Service Agreement is guaranteed\\nfor 30 days only and WILL NOT provide permanent control. For\\nCONTINUOUS protection and control, we strongly recommend a REGULAR\\nPEST CONTROL SERVICE.”\\n Like the district court, we conclude that the clear and unambiguous\\nprovisions of the SSA obligated Orkin to perform a single treatment with an\\nexpress warranty disclaimer beyond thirty days. Nothing in the plain text of\\nthe SSA indicates that Orkin was undertaking any type of termite repair\\nobligation or extending its OR Guarantee to include Formosan termites.\\n The Cenacs nonetheless argue that if the SSA applied to their home,\\nsummary judgment should not have been granted in light of the deposition\\ntestimony of various Orkin employees. Specifically, the Cenacs point out that\\nan Orkin employee testified that the SSA form contract was “usually used to\\n. . . add Formosan termite coverage to a contract if it wasn’t on there before.”\\nThe employee also testified that the notation “Formosan coverage” on Orkin’s\\n 11\\n\\f Case: 18-31121 Document: 00515165237 Page: 12 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\ninspection reports meant that Orkin had completed a supplemental treatment\\nfor Formosan termites and that, as a result of that supplemental treatment,\\nthe customer’s original contract covered Formosan termites as well. The\\nCenacs submit that the district court erred in limiting its review to the text of\\nthe SSA and in not considering the combined effect of the 1991 Agreement, the\\nSSA, and the representations made by Orkin at the time the SSA was signed.\\nThe Cenacs urge that the SSA was only part of their overall agreement with\\nOrkin and that the district court should have considered the parol evidence\\nthey submitted.\\n We disagree. Like the CPP, the 1991 Agreement contains an integration\\nclause which governs how changes to the contract could be made. The clause\\nprovides, in all caps and bold, that the “Agreement may not be changed in any\\nway by any representative of Orkin or [customer] unless it is changed in\\nwriting and signed by a corporate officer of Orkin Exterminating Company,\\nInc.” As described above, the 1991 Agreement contained an affirmative\\ncontractual obligation by Orkin to repair termite damage caused by\\nsubterranean termites. The contract “strictly limited” Orkin’s liability for\\nrepairs “to any new Subterranean termite damage” and specifically stated that\\nit did “not protect against Formosan termites.” Therefore, an extension of\\nOrkin’s subterranean repair obligation to include Formosan termites would\\nconstitute a “change” in the agreement, requiring a writing signed by a\\ncorporate officer of Orkin. The SSA does not meet these requirements because,\\nas discussed above, the plain text of the SSA does not establish any termite\\nrepair obligation on the part of Orkin and does not extend/expand Orkin’s\\ntermite repair obligation to include Formosan termites. Furthermore, the SSA\\nis not signed by a corporate officer of Orkin. Therefore, the Cenacs’ arguments\\nthat the district court erred in not considering the combined effect of the 1991\\n\\n\\n 12\\n\\f Case: 18-31121 Document: 00515165237 Page: 13 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nAgreement, the SSA, and Orkin employees’ representations are foreclosed by\\nthe integration clause in the 1991 Agreement.\\n The Cenacs also argue that the termite inspection reports Orkin issued\\nannually confirmed that they had an OR Guarantee type of contract, and Orkin\\naccepted their annual payments each year, never indicating that the OR\\nGuarantee did not apply to Formosan termites. Although the Cenacs are\\ncorrect that the reports indicate “Guarantee Type OR,” immediately preceding\\nthat entry on the reports is “Subterranean Termite Svc.” Therefore, we find\\nthat the inspection reports indicated what the Cenacs had all along—an OR\\nGuarantee with respect to subterranean termites.\\n Based on the foregoing, the district court did not err in granting\\nsummary judgment and dismissing the Cenacs’ claim that Orkin was\\ncontractually liable for the cost of repairing the damage to their home caused\\nby Formosan termites.\\n B. Claims under Louisiana Unfair Trade Practices Act\\n The Cenacs assert that they alleged sufficient facts to support a finding\\nthat Orkin engaged in deceptive, unethical, oppressive, and/or unscrupulous\\nconduct in violation of the Louisiana Unfair Trade Practices Act (LUTPA).\\nThey contend that the confusing and muddled forms Orkin requires its\\ncustomers to sign are deceptive. The Cenacs submit that the actions of Orkin’s\\nrepresentatives, together with its form agreements, provided sufficient\\nsummary judgment evidence in support of their LUTPA claim.\\n LUTPA declares unlawful “[u]nfair methods of competition and unfair or\\ndeceptive acts or practices in the conduct of any trade or commerce.” 18 It\\nprovides a private action for damages to “[a]ny person who suffers any\\nascertainable loss of money or movable property, corporeal or incorporeal, as a\\n\\n\\n 18 See LA. STAT. ANN. § 51:1405.\\n 13\\n\\f Case: 18-31121 Document: 00515165237 Page: 14 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nresult of the use or employment by another person of an unfair or deceptive\\nmethod, act, or practice.” 19\\n “It has been left to the courts to decide, on a case-by-case basis, what\\nconduct falls within the [LUTPA]’s prohibition.” 20 The range of prohibited\\npractices under the statute is “extremely narrow.” 21 “[T]he plaintiff must show\\nthe alleged conduct ‘offends established public policy and . . . is immoral,\\nunethical, oppressive, unscrupulous, or substantially injurious.’” 22 “[O]nly\\negregious actions involving elements of fraud, misrepresentation, deception, or\\nother unethical conduct will be sanctioned based on LUTPA.” 23 LUTPA “does\\nnot provide an alternative remedy for simple breaches of contract. There is a\\ngreat deal of daylight between a breach of contract claim and the egregious\\nbehavior the statute proscribes.” 24\\n The Cenacs argue that Orkin’s transactions are inherently imbalanced\\nand not arms-length because Orkin drafts its own “confusing and muddled, if\\nnot deceptive, forms.” They contend that they have alleged and provided\\nsufficient summary judgment evidence of Orkin’s deceptive and unfair trade\\npractices.\\n As the district court determined, however, the Cenacs have failed to\\nshow that Orkin engaged in the “extremely narrow” range of prohibited\\npractices under the statute, which encompasses only egregious conduct that is\\n“immoral, unethical, oppressive, unscrupulous, or substantially injurious.” 25\\n\\n\\n\\n 19 See id. § 51:1409.\\n 20 Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 35 So. 3d 1053, 1059 (La. 2010)\\n(citation omitted).\\n 21 Id. at 1060.\\n 22 Id. at 1059 (second alteration in original) (quoting Moore v. Goodyear Tire & Rubber\\n\\nCo., 364 So. 2d 630, 633 (La. Ct. App. 1978)).\\n 23 Id. at 1060.\\n 24 Id. (quoting Turner v. Purina Mills, Inc., 989 F.2d 1419, 1422 (5th Cir. 1993)).\\n 25 Id. at 1059-60 (quoting Moore, 364 So. 2d at 633).\\n\\n 14\\n\\f Case: 18-31121 Document: 00515165237 Page: 15 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nTaking as true the Cenacs’ allegations that Orkin employees told them on\\nnumerous occasions that Orkin was obligated to repair Formosan termite\\ndamage, the clear wording of the contracts between the Cenacs and Orkin\\nprovided for no such obligation. The 1991 Agreement specifically states that\\nOrkin’s repair obligation was strictly limited to damage by subterranean\\ntermites and that any change to the agreement must be in writing; the SSA\\ndoes not provide for any type of repair obligation; and the CPP specifically\\nexcludes Orkin’s liability for any type of termite damage. In light of these\\nagreements, which the Cenacs signed and/or were available to them for review,\\nwe agree with the district court that Orkin’s conduct did not rise to the level of\\nthe egregious conduct LUTPA proscribes. Based on the foregoing, the district\\ncourt did not err in granting summary judgment in favor of Orkin dismissing\\nthe Cenacs’ LUTPA claims.\\n C. Claims in Tort\\n We part company with the district court in its decision to grant summary\\njudgment dismissing the Cenacs’ claims in tort. In appealing the dismissal of\\ntheir tort claims, the Cenacs focus on their assertion that in 2013, after Orkin\\ncompleted an annual inspection of their home, Orkin recommended that they\\ninstall a vapor barrier under their home. The Cenacs assert that both parties\\nbelieve this barrier was “a major factor in causing the termite infestation and\\ndamage to their home.” The Cenacs contend that Orkin had no contractual\\nduty to make such recommendation and that “in a separate undertaking, Orkin\\nchose to approach [them] and recommend the installation of a barrier, as well\\nas how to go about installing it.” They maintain that Orkin was negligent or\\n\\n\\n\\n\\n 15\\n\\f Case: 18-31121 Document: 00515165237 Page: 16 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\ngrossly negligent in such recommendation and instruction and that Orkin’s\\nnegligence or gross negligence caused and/or contributed to their damages. 26\\n Under Louisiana law, “the nature of the duty breached [] should\\ndetermine whether the action is in tort or in contract.” 27 When a party\\nexpressly warrants a specific result and fails to obtain that result, or when the\\nparty agrees to perform certain work and does nothing whatsoever, a claim\\nbased on such omissions is contractual. 28 When a contract exists between two\\nparties for one party to provide a service to the other, but “it is not alleged that\\nany specific contract provision [duty] was breached,” and instead a general\\nduty to perform work in a prudent and skillful manner, the claim arises in\\ntort. 29 Furthermore, “[i]f a person undertakes a task which he has no duty to\\nperform, he must perform that task in a reasonable and prudent manner.\\nNegligent breach of a duty which has been voluntarily or gratuitously assumed\\nmay create civil liability.” 30\\n In Crane v. Exxon Corp., U.S.A., 31 the plaintiff, an employee of Merit\\nIndustrial Constructors, Inc. (Merit), was injured while working on a\\nconstruction job at an Exxon plant. Exxon contracted with Merit to construct\\nfacilities for the installation of a compressor at Exxon’s Baton Rouge refinery.\\nReviewing the provisions of the contract between Exxon and Merit, the court\\n\\n\\n 26 The Cenacs also assert that Orkin negligently treated and retreated the home, failed\\nto warn of conditions conducive to termites, and misrepresented that they were covered by\\nan “OR Guarantee” for Formosan termite damage. The claims regarding\\ntreatment/retreatment and failure to warn of conditions conducive to termites fall within\\nOrkin’s contractual obligations under the 1991 Agreement, which all parties agree was\\ntransferred to the Cenacs and pertains to their house. And, as discussed in Section B, the\\nCenacs’ claim that Orkin misrepresented that they were covered by an OR Guarantee fails\\nas a matter of law.\\n 27 Roger v. Dufrene, 613 So. 2d 947, 948 (La. 1993) (citation omitted).\\n 28 Id. at 949.\\n 29 Trinity Univ. Ins. Co v. Horton, 756 So.2d 637, 638–39 (La. App. 2d Cir. 2000).\\n 30 Crane v. Exxon Corp., U.S.A., 613 So.2d 214, 221 (La. App. 1st Cir. 1992) (citations\\n\\nomitted).\\n 31 Id. at 217.\\n\\n 16\\n\\f Case: 18-31121 Document: 00515165237 Page: 17 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nnoted that “[c]ontractually, Exxon had no duty to provide a safe place for\\nMerit’s employees to work.” 32 Even so, the court found that an Exxon employee\\n“voluntarily assumed the task of monitoring the jobsite for violations of Exxon\\nsafety standards by Merit” which “task had as its purpose the protection of\\nMerit employees.” 33 The court concluded that “[h]aving assumed this\\nresponsibility, [Exxon] had a duty to perform it in a reasonable and prudent\\nmanner.” 34 The court held Exxon “liable for its employee’s negligent breach of\\nan assumed duty which resulted in [the plaintiff’s] injury.” 35\\n In this case, the district court dismissed the Cenacs’ tort claims, agreeing\\nwith Orkin that the Cenacs had no claims in tort against Orkin because all of\\nits obligations to the Cenacs arose out of contract. The district court, however,\\ndid not compare the individual allegations of negligence or gross negligence\\nasserted by the Cenacs to Orkin’s obligations as set forth in the various\\ncontracts. With respect to the Cenacs’ claim regarding the vapor barrier, Dr.\\nChristopher Cenac testified in his deposition that after Orkin performed an\\ninspection of the house in April 2013, the inspector noted that there was\\n“Excessive Moisture in Crawl” and left his number for Dr. Cenac to contact\\nhim. Dr. Cenac testified that he called Orkin and that the representative\\ninformed him about what he could do to fix the problem. The Orkin\\nrepresentative suggested three things: (1) open up some more areas along the\\nfront of the house to have more cross ventilation in the crawl space, (2) install\\na fan to make the air pass through the space and not sit stagnant, and (3) place\\na moisture barrier under the home.\\n\\n\\n\\n\\n 32 Id. at 221. In fact, the contract placed that responsibility on Merit. Id. at 221 n.7.\\n 33 Id.\\n 34 Id.\\n 35 Id.\\n\\n 17\\n\\f Case: 18-31121 Document: 00515165237 Page: 18 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\n Dr. Cenac further testified that the Orkin representative told him that\\nhe “[n]eeded to attach [the moisture barrier] to the undersurface of the home.”\\nDr. Cenac stated that Orkin did not offer to perform the service and did not\\nrecommend anyone to do the installation. He had a worker on his property\\n“put the moisture barrier up under the home.” After Dr. Cenac did the three\\nthings the Orkin inspector recommended, he called Orkin, and an Orkin\\nrepresentative went out to the home and “said everything is fine.” Orkin also\\nsent the Cenacs a letter on June 18, 2013, stating that all was well and\\nthanking the Cenacs for making the improvements. 36\\n None of the contracts between the Cenacs and Orkin—the 1991\\nAgreement, the CPP, or the SSA—required Orkin to recommend, instruct, or\\ndirect its customers on how to remedy conditions conducive to termite\\ninfestation. Contrary to Orkin’s contentions, the 1991 Agreement does not\\nimpose such an obligation on Orkin. The General Terms and Conditions\\nsection of the agreement provides: “If such a condition is discovered, I [the\\ncustomer] will be responsible at my own expense for making any repairs\\nnecessary to correct the structural or mechanical problem . . . .” Thus, this\\nprovision affirmatively places responsibility on the customer to correct any\\nconditions conducive to termite infestation. Under these circumstances, the\\nCenacs’ claim that Orkin recommended installation of a vapor barrier and\\napproved its allegedly negligent installation does not involve the breach of a\\nspecific contractual duty. Rather, Orkin undertook the task of recommending\\nand directing installation of a vapor barrier, which (much like Exxon in Crane)\\nit had no obligation to do under its contracts with the Cenacs. Yet, in doing so,\\nOrkin was required under Louisiana law to “perform that task in a reasonable\\n\\n\\n\\n 36 Although a copy of this letter is not in the record, the record indicates that the letter\\nand its conents were specifically discussed during Orkin’s Rule 30(b)(6) deposition.\\n 18\\n\\f Case: 18-31121 Document: 00515165237 Page: 19 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nand prudent manner. Negligent breach of a duty which has been voluntarily\\nor gratuitously assumed may create civil liability.” 37\\n Based on the foregoing, the district court erred in dismissing the Cenacs’\\nclaim that Orkin was negligent or grossly negligent in directing and approving\\ninstallation of a moisture barrier under their home. We therefore vacate and\\nremand the district court’s judgment with respect to this claim. We\\nadditionally note that the 1991 Agreement and the SSA contain no limitation\\nof liability provisions and no provisions in which the customer was obligated\\nto waive any claims. We further note that if the CCP is applicable to the\\nCenacs’ house, Article 2004 of the Louisiana Civil Code prohibits any waiver\\nof claims for gross negligence.\\n D. Claims under Louisiana Insurance Code\\n The Cenacs also allege that Orkin is liable to them for its breach of the\\nduty of good faith and fair dealing under Louisiana Revised Statutes § 22:1973\\nand for its violation of the duty of prompt payment under § 22:1892. A\\nprerequisite for the application of these statutes, which are part of Louisiana’s\\nInsurance Code, is that the defendant be an “insurer.” 38 The Cenacs allege\\nthat Orkin is an insurer within the ambit of these statutes because “it entered\\ninto an insurance contract by which it agreed to indemnify the Cenacs for\\nproperty damage arising out of a specified contingency, namely termite\\ninfestation.”\\n As detailed above, however, Orkin did not agree to indemnify the Cenacs\\nfor damages caused by Formosan termites. The 1991 Agreement’s repair\\nobligation is strictly limited to subterranean termites. The 2007 agreements\\n\\n\\n 37Crane, 613 So.2d at 221 (citations omitted).\\n 38See LA. STAT. ANN. § 22:1973 (“An insurer . . . owes to his insured a duty of good\\nfaith and fair dealing.”); LA. STAT. ANN. § 22:1892 (“All insurers . . . shall pay the amount of\\nany claim due any insured within thirty days after receipt of satisfactory proofs of loss from\\nthe insured or any party in interest.”).\\n 19\\n\\f Case: 18-31121 Document: 00515165237 Page: 20 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\neither do not provide for any termite repair obligation (SSA) or expressly\\ndisclaim any such obligation (CPP). Based on the foregoing, the district court\\ndid not err in granting summary judgment in favor of Orkin and dismissing\\nthe Cenacs’ claims under the Louisiana Insurance Code.\\n E. Detrimental Reliance Claim.\\n The Cenacs argue that they are entitled to damages under the doctrine\\nof detrimental reliance. They assert that Orkin employees assured them that\\nthey were obtaining a repair guarantee with respect to Formosan termites\\nwhen they paid additional money in 2007 and signed the SSA and the CPP.\\nThey assert, as they did in support of their contractual claims, that they relied\\non handwritten notes on the contract forms and the notations on the annual\\ninspection reports denoting an OR Guarantee type, which they contend\\naffirmed the Orkin employees’ assurances that Orkin extended its OR\\nGuarantee to include Formosan termites.\\n Article 1967 of the Louisiana Civil Code defines detrimental reliance. It\\nprovides:\\n A party may be obligated by a promise when he knew or\\n should have known that the promise would induce the other party\\n to rely on it to his detriment and the other party was reasonable\\n in so relying. Recovery may be limited to the expenses incurred or\\n the damages suffered as a result of the promisee’s reliance on the\\n promise. Reliance on a gratuitous promise made without required\\n formalities is not reasonable. 39\\n\\n“The doctrine of [detrimental reliance] is designed to prevent injustice by\\nbarring a party from taking a position contrary to his prior acts, admissions,\\nrepresentations, or silence.” 40 To establish a claim for detrimental reliance, a\\n\\n\\n\\n 39 LA. CIV. CODE ANN. art. 1967.\\n 40 Drs. Bethea, Moustoukas & Weaver LLC v. St. Paul Guardian Ins. Co. (Bethea),\\n376 F.3d 399, 403 (5th Cir. 2004) (internal quotation marks and citation omitted).\\n 20\\n\\f Case: 18-31121 Document: 00515165237 Page: 21 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nparty must prove three elements: (1) a representation by conduct or word;\\n(2) justifiable reliance on the representation; and (3) a change in position to\\none’s detriment resulting from the reliance. 41\\n The Cenacs argue that the question of reasonable reliance is a question\\nof fact inappropriate for summary judgment. Orkin asserts, and the district\\ncourt agreed, that the theory of detrimental reliance is unavailable to the\\nCenacs as a matter of law because it would not be justified or reasonable given\\nthe express terms of the contracts at issue.\\n Though “[w]hether a plaintiff reasonably relied on a promise is generally\\na fact-bound determination . . . , Louisiana law recognizes certain situations\\nwhere a plaintiff’s reliance on a promise is unreasonable as a matter of law.” 42\\nThis court has held that a party’s reliance on promises made outside of an\\nunambiguous, fully-integrated agreement is unreasonable as a matter of law. 43\\n“A detrimental reliance claim does not require a determination of whether we\\nshould or should not consider parol evidence.” 44 Instead, the court “focuses on\\nthe reasonableness of a party’s professed reliance upon promises made outside\\nthe scope of a ‘fully-integrated written agreement’ between the parties.” 45\\n This court’s decision in Bethea is instructive. There, we held that\\nreliance on brochures and a letter—allegedly contradicting an insurance\\ncontract—was unreasonable as a matter of law for two reasons. 46 First, the\\ninsurance policy unambiguously laid out the terms and “the clarity of the policy\\n\\n\\n 41 Id.\\n 42 Id.\\n 43 Id. at 403–05 (applying Louisiana law); Omnitech Intern, Inc. v. Clorox Co., 11 F.3d\\n\\n1316, 1330 (5th Cir. 1994) (same).\\n 44 Water Craft Mgmt., L.L.C. v. Mercury Marine, 426 F. App’x 232, 237 (5th Cir. 2011)\\n\\nAlthough an unpublished opinion issued on or after January 1, 1996, is generally not\\ncontrolling precedent, it may be considered as persuasive authority. See Ballard v. Burton,\\n444 F.3d 391, 401 & n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).\\n 45 Id. (citing Omnitech, 11 F.3d at 1329–30).\\n 46 Bethea, 376 F.3d at 404-05.\\n\\n 21\\n\\f Case: 18-31121 Document: 00515165237 Page: 22 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nand the informality of the letter” made reliance on the letter unreasonable as\\na matter of law. 47 Second, the policy contained an integration clause that “also\\n[made] any reliance unreasonable.” 48 Thus, “[g]iven that the insurance policy\\nunambiguously define[d] the parties’ rights and limit[ed] the way to alter the\\npolicy, it was unreasonable to rely on informal documents as modifying\\nmaterial aspects of the policy.” 49\\n This court looks to both the presence of an integration clause and the\\nplain language of the contract to determine whether, as a matter of law,\\nreliance on inconsistent representations is unreasonable. In this case, the\\nCenacs cannot seek recovery for damages under the doctrine of detrimental\\nreliance because, as explained above, the 1991 Agreement and the CPP are\\nunambiguous. The 1991 Agreement clearly states that it was inapplicable to\\nFormosan termites, and the CPP clearly “disclaims any guarantee of any kind,\\nwhether express or implied, for any injury or damage related to the service\\nperformed. Customer expressly releases Orkin from any claims for termite\\ndamage and repair.” Furthermore, both agreements contain integration\\nclauses, which provide that the written contracts “make up [the] complete\\nagreement with Orkin and that this agreement may not be changed in any way\\nby any representative of Orkin . . . unless it is changed in writing . . . .” Under\\nthis precedent, as a matter of law, the Cenacs cannot reasonably rely on the\\nrepresentations of Orkin’s employee, even if true, because those\\nrepresentations conflict with the clear meaning of the contract terms. 50\\n\\n\\n\\n\\n 47 Id. at 405.\\n 48 Id.\\n 49 Id.\\n 50 The Cenacs’ reliance on a district court case, Water Craft Mgmt., L.L.C. v. Mercury\\n\\nMarine, 638 F.Supp.2d 619 (M.D. La 2009), to support their position is misplaced. This court\\nreversed that holding on appeal, concluding that “Water Craft’s reliance on the oral\\nagreements was unreasonable as a matter of law because the [contracts] are unambiguous\\n 22\\n\\f Case: 18-31121 Document: 00515165237 Page: 23 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\n The Cenacs contend that the SSA does not contain an integration clause\\nand that Orkin employees testified in their depositions that the SSA form was\\nregularly used to “add Formosan termite coverage to an existing contract.”\\nYet, as discussed above, the 1991 Agreement strictly limited Orkin’s liability\\nfor repairs to subterranean termite damage, and its integration clause\\nrequired that any changes to the agreement be made in writing and signed by\\na corporate representative. An extension of Orkin’s repair obligation beyond\\nsubterranean termites to include Formosan termites would constitute a\\n“change” in the 1991 Agreement, requiring a writing signed by a corporate\\nofficer of Orkin. The SSA does not meet these requirements because, as\\ndiscussed above, the plain text of the SSA does not establish any termite repair\\nobligation on the part of Orkin and does not extend/expand Orkin’s termite\\nrepair obligation to include Formosan termites. Furthermore, a corporate\\nofficer of Orkin did not sign the SSA. Moreover, the clear and unambiguous\\nprovisions of the SSA obligated Orkin to perform a single treatment with an\\nexpress warranty disclaimer beyond thirty days. The Cenacs’ argument that\\ntheir detrimental reliance claim can be founded on the SSA is without merit. 51\\nWe determine that the district court did not err in dismissing the Cenacs’\\ndetrimental reliance claim.\\n IV. CONCLUSION\\n Based on the foregoing reasons, we affirm the district court’s dismissal\\nof all the Cenacs’ claims, except their claim that Orkin was negligent and/or\\ngrossly negligent in directing and approving installation of a vapor barrier\\n\\n\\n\\n\\nwritten contracts with well-defined terms and valid integration clauses.” Water Craft Mgmt.,\\nL.L.C. v. Mercury Marine, 426 Fed. Appx. 232, 237 (5th Cir. 2011).\\n 51 Moreover, as also addressed above, the termite inspection reports Orkin issued\\n\\nannually did not confirm that the Cenacs had an OR Guarantee type of contract for Formosan\\ntermites.\\n 23\\n\\f Case: 18-31121 Document: 00515165237 Page: 24 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nunder their home. As to that claim, we vacate the district court’s judgment\\nand remand for further proceedings consistent with this opinion.\\n AFFIRMED IN PART; VACATED IN PART and REMANDED.\\n\\n\\n\\n\\n 24\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4448253/\", \"author_raw\": \"W. EUGENE DAVIS, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"DAVIS"},"judge2":{"kind":"string","value":"HO"},"judge3":{"kind":"string","value":"ENGELHARDT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"DAVIS\": \", Circuit\", \"HO\": \", Circuit\", \"ENGELHARDT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4671000/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Christopher Cenac, Jr. v. Orkin, L.L.C.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-31121 Document: 00515165237 Page: 1 Date Filed: 10/18/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-31121 October 18, 2019\n Lyle W. Cayce\nCHRISTOPHER E. CENAC, JR., Doctor; AUDRA CENAC, Doctor, Clerk\n\n\n Plaintiffs - Appellants\n\nv.\n\nORKIN, L.L.C.,\n\n Defendant - Appellee\n\n\n Appeal from the United States District Court\n for the Eastern District of Louisiana\n\n\nBefore DAVIS, HO, and ENGELHARDT, Circuit Judges.\nW. EUGENE DAVIS, Circuit Judge:\n Plaintiffs, Drs. Christopher and Audra Cenac, appeal the district court’s\nsummary-judgment dismissal of their claims against Defendant, Orkin, L.L.C.\nThe Cenacs contracted with Orkin to protect their property against termites.\nIn 2015, they discovered their home had become infested with Formosan\ntermites. Orkin contends that, based on various contractual provisions, it is\nnot liable for the cost of repairing the damage. The Cenacs filed this 28 U.S.C.\n§ 1332 diversity action against Orkin asserting numerous claims under\nLouisiana law. We AFFIRM the district court’s dismissal of all claims except\nthe Cenacs’ claim that Orkin was negligent or grossly negligent in directing\nand approving installation of a vapor barrier under their home. As to that\nclaim, we VACATE the district court’s judgment and REMAND.\n\f Case: 18-31121 Document: 00515165237 Page: 2 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\n I. Factual Background\n In 2004, the Cenacs bought a house in Houma, Louisiana, from Allen\nEschete. Eschete had a contract with Orkin, executed in 1991, entitled\n“Subterranean Termite Agreement” (1991 Agreement), in which Orkin agreed\nto treat the house for the prevention of subterranean termites. The contract\nalso provided for an “Orkin Continuous Protection Guarantee” in the form of a\n“Full Renewable Subterranean Termite Home Ownership Repair Guarantee”\n(OR Guarantee). The OR Guarantee obligated Orkin to retreat when required\nand to repair any new damage to the house or its contents caused by\nsubterranean termites. 1 The 1991 Agreement provided in the title of the\nagreement and at the conclusion of the paragraph containing the OR\nGuarantee: “DOES NOT PROTECT AGAINST FORMOSAN TERMITES.”\nIn their complaint, the Cenacs alleged that the OR Guarantee was transferred\nto them, with Orkin’s approval and agreement, when they purchased their\nhome from Eschete.\n In 2007, Orkin sent the Cenacs a letter informing them that when their\nhome was originally treated, “the treatment and termiticides used were\ndesigned to stop the Native Subterranean Termite.” The letter explained that\nsuch treatment was ineffective against the Formosan termite and that a “new\ntermiticide was developed to stop and kill the Formosan and the Native\nSubterranean Termite.” The letter stated that Orkin was making a “special\noffer” to its current customers who did “not have Formosan Termite coverage.”\nIt further provided: “This Supplemental Treatment will not affect your current\ncoverage in any way at all. This treatment allows Orkin to retreat your home\n\n\n\n 1 The OR Guarantee required the homeowner to establish that the new damage was\ncaused by subterranean termites within the effective period of the guarantee and that, at the\ntime of discovery of the new damage, the damaged areas were infested with live subterranean\ntermites.\n 2\n\f Case: 18-31121 Document: 00515165237 Page: 3 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\nwith the new termiticides designed to stop and kill Formosan and Native\nSubterranean termites.”\n The Cenacs met with an Orkin representative in June 2007, at which\ntime they paid Orkin an additional sum of money to have their home, as well\nas a large shed on the property, treated with the new termiticides for protection\nagainst both Formosan and subterranean termites. The Cenacs also executed\ntwo written contracts at that time: (1) a “Special Service Agreement” (SSA) and\n(2) a “Residential Single Family Dwelling, Louisiana Formosan and\nSubterranean Termite Retreatment Agreement, Orkin Continuous Protection\nPlan” (CPP). The Cenacs contend that the Orkin representative assured them\nduring the meeting and afterwards that they were obtaining an OR Guarantee,\nincluding the damage repair part of that guarantee, for all types of termites.\nThe Cenacs thus believed that their 2007 transaction with Orkin expanded the\nOR Guarantee such that Orkin was contractually obligated to repair damage\ncaused not only by native subterranean termites, but also by Formosan\ntermites.\n From 2004 through 2015, an Orkin representative inspected the Cenacs’\nhome for evidence of termite infestation and any conditions that might be\nconducive to termite infestation. In 2013, Orkin noted on an inspection report\nthat a condition conducive to termite infestation was present at the home.\nSpecifically, the report noted that there was excessive moisture in the crawl\nspace of the home. The Cenacs alleged that they “took corrective measures at\n[Orkin’s] direction, which [Orkin] approved as adequate.” They asserted that,\nas directed by Orkin, they installed a vapor barrier under their home, and that\nan Orkin representative approved the installation. The Cenacs further alleged\nthat Orkin continued to accept their payments and “assure[d] them that they\nstill qualified for [Orkin’s] warranty coverage.”\n\n\n 3\n\f Case: 18-31121 Document: 00515165237 Page: 4 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\n In May 2015, the Cenacs noticed termites swarming around and coming\nout of one of the windows of the second floor of their house. They immediately\nnotified Orkin, and Orkin sent out a technician to retreat the area near the\nwindow. The Cenacs vacated their home for two days during this time, but\nwhen they returned, they found more, larger swarms of termites coming from\ntwo windows near the window that had been retreated.\n The Cenacs notified Orkin again, and after assessing the situation,\nOrkin advised them that “certain destructive work to the interior” of the home\nwould be necessary to investigate further areas of potential termite activity.\nThe Cenacs alleged that Orkin agreed to reimburse them for the costs\nassociated with such destructive investigation. They further alleged that upon\nOrkin’s advice and authorization, they hired a contractor to perform some\ninterior demolition in their home. The contractor discovered live, active\nFormosan termites and extensive termite damage in the kitchen area of the\nhome. The Cenacs contended that although Orkin authorized the demolition\nand expressly agreed to reimburse them, Orkin refused to reimburse them for\nthe initial destructive work.\n After their discovery of termites in the kitchen, the Cenacs discovered\nother areas of live termites and termite damage in their home. They contended\nthat Orkin “failed and refused to participate with [them] in the necessary\ninvestigation of termite activity and damage, or to commit to repairing [their]\nhome.” By September 2015, the Cenacs’ home was uninhabitable and in a state\nof partial destruction. They were forced to vacate their home indefinitely until\nthe full extent of the termite infestation was uncovered, their home retreated,\nand repairs of the termite damage and investigatory demolitions completed.\n Because Orkin refused to accept responsibility for the Formosan termite\ndamage, the Cenacs filed the instant lawsuit. They also hired contractors to\ndo more demolition in order to locate all termite activity and damage, removed\n 4\n\f Case: 18-31121 Document: 00515165237 Page: 5 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\nand placed in storage all contents of their home, and moved into a trailer home\non their property.\n On April 18, 2016, Orkin paid the Cenacs $222,168, of which $81,800\nwas to reimburse them for relocation expenses and the lease of a trailer home,\nand of which $140,368 was for demolition expenses and the “estimated cost to\nrepair the termite damage.” The Cenacs contend, however, that various\ncontractors have estimated that it will cost between $860,000 and $1.6 million\nto repair and rebuild their home.\n II. Procedural History\n In their complaint, the Cenacs assert claims against Orkin for\n(1) violation of the Louisiana Unfair Trade Practices Act; (2) breach of contract;\n(3) breach of an insurer’s duties of good faith and prompt payment under the\nLouisiana Insurance Code; (4) detrimental reliance; (5) unjust enrichment; 2\n(6) negligence and/or gross negligence; and (7) negligent misrepresentation.\n In its answer, Orkin admitted that it entered into the 1991 Agreement\nwith Eschete, that the 1991 Agreement was subsequently transferred to the\nCenacs after they purchased the property, and that the Cenacs paid the annual\nrenewal fee for that contract following the date of transfer. Orkin further\nadmitted that it entered into the Special Service Agreement (SSA) with the\nCenacs in 2007.\n Orkin subsequently filed a motion for summary judgment seeking\ndismissal of all the Cenacs’ claims based on the provisions of the 1991\nAgreement 3 and based on the provisions of the Orkin Continuous Protection\nPlan (CPP). Orkin pointed out that the CPP provided for a 10-year renewable\n\n\n\n 2The Cenacs later conceded that they do not have a claim for unjust enrichment.\n 3 Orkin contended that although the 1991 Agreement was transferred to the Cenacs\nin 2004, the OR Guarantee was not transferred. Orkin further argued that even if the OR\nGuarantee was transferred to the Cenacs, it specifically did not apply to Formosan termites.\n 5\n\f Case: 18-31121 Document: 00515165237 Page: 6 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\nFormosan and subterranean termite retreatment service but expressly\nprovided that Orkin’s service did “not cover any damage to the structure or its\ncontents.” Furthermore, the CPP provided that the customer “expressly\nrelease[ed] Orkin from any claims for termite damage or repair.” Orkin\ncontended that its liability consequently was limited to retreatment only and\nthat it had no liability for any repairs to the home or its contents. Orkin also\nfiled five partial motions for summary judgment addressing individually the\nvarious claims asserted by the Cenacs and seeking dismissal.\n The Cenacs also filed a motion for summary judgment requesting the\ndistrict court to determine, as a matter of law, that all provisions of the 1991\nAgreement, including the entire OR Guarantee, were transferred to them\nwhen they purchased the home.\n The district court granted the Cenacs’ motion for summary judgment. 4\nIt also granted all of Orkin’s summary judgment motions, ultimately\ndismissing the entirety of the Cenacs’ claims. 5 The Cenacs timely appealed.\n III. Discussion\n This court reviews a district court’s grant of summary judgment de\nnovo. 6 Under Rule 56 of the Federal Rules of Civil Procedure, “the court shall\ngrant summary judgment if the movant shows that there is no genuine dispute\nas to any material fact and the movant is entitled to judgment as a matter of\n\n\n\n\n 4 Orkin has not appealed the district court’s ruling that the entirety of the 1991\nAgreement, including the OR Guarantee, was transferred to the Cenacs.\n 5 The district court initially denied in part Orkin’s summary judgment motion seeking\n\ndismissal of the Cenacs’ contractual claims, but then later granted a subsequent summary\njudgment filed by Orkin, dismissing the Cenacs’ entire complaint.\n 6 Apache Corp. v. W & T Offshore, Inc., 626 F.3d 789, 793 (5th Cir. 2010).\n\n 6\n\f Case: 18-31121 Document: 00515165237 Page: 7 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\nlaw.” 7 When jurisdiction is based on diversity, this court must apply the\nsubstantive law of the forum state, here Louisiana. 8\n A. Contractual Claim for Formosan Termite Damage Repair\n The Cenacs contend that the district court erred in granting summary\njudgment in favor of Orkin because there are genuine issues of material fact\nas to whether Orkin is contractually obligated to pay for the cost of repairing\nthe Formosan-related termite damage to their home. They assert that the\ndistrict court “overlooked” factual evidence that, if true, would defeat summary\njudgment. The Cenacs further argue that the district court failed to consider\n“clear ambiguities” in the contract forms, as modified by handwriting and\noriginally written.\n Under Louisiana law, “interpretation of a contract is the determination\nof the common intent of the parties.” 9 In ascertaining the common intent,\n“[t]he words of a contract must be given their generally prevailing meaning.” 10\nIn addition, “[w]hen the words of a contract are clear and explicit and lead to\nno absurd consequences, no further interpretation may be made in search of\nthe parties’ intent.” 11 If the plain text of a contract is subject to two or more\nreasonable interpretations, a court may look to parol evidence to determine the\nparties’ intent. 12 Parol evidence, however, may not be used to create ambiguity\nin an otherwise unambiguous contract. 13 “Under Louisiana law, the\ninterpretation of an unambiguous contract is an issue of law for the court.” 14\n\n\n\n 7FED. R. CIV. P. 56(a).\n 8Holt v. State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir. 2010) (citing Erie R.\nv. Tompkins, 34 U.S. 64 (1938)).\n 9 LA. CIV.CODE ANN. art. 2045.\n 10 Id. art. 2047.\n 11 Id. art. 2046.\n 12 Am. Elec. Power Co. v. Affiliated FM Ins. Co., 556 F.3d 282, 286 (5th Cir. 2009).\n 13 Id. at 286 n.3.\n 14 Amoco Prod. Co. v. Tex. Meridian Res. Expl. Inc., 180 F.3d 664, 668 (5th Cir. 1999).\n\n 7\n\f Case: 18-31121 Document: 00515165237 Page: 8 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\n As this court has described, interpretation of a written contract under\nLouisiana law “involves a two-step process.” 15 First, the court must look to the\nplain text of the contract to determine whether its meaning is clear and\nunambiguous. If the text is clear and unambiguous, the court may not go\nbeyond the text for further interpretation. If, however, the plain text is subject\nto more than one reasonable interpretation, the court may then resort to parol\nevidence to determine the parties’ intent. 16 “In the context of contract\ninterpretation, only when there is a choice of reasonable interpretations of the\ncontract is there a material fact issue concerning the parties’ intent that would\npreclude summary judgment.” 17 Accordingly, careful review of the text of the\nagreements at issue is in order.\n 1. 1991 Agreement\n The Cenacs’ claim that Orkin is contractually obligated to pay for\nFormosan-related repair costs originates with the 1991 Agreement between\nOrkin and Eschete. As stated above, the 1991 Agreement contained an OR\nGuarantee, obligating Orkin to retreat the house when required and, more\nimportantly, to “repair any new damage” to the house or its contents caused by\nnative subterranean termites. The district court determined that the entirety\nof the 1991 Agreement, including the OR Guarantee, was transferred to the\nCenacs when they purchased the home. Orkin does not challenge that ruling\non appeal.\n Although Orkin agreed to a repair obligation as part of the OR\nGuarantee in the 1991 Agreement, the contract is clear and unambiguous that\nOrkin’s repair obligation “is strictly limited to any new Subterranean Termite\ndamage.” Moreover, the contract specifically states in the title and at the end\n\n\n 15 Am. Elec. Power Co., 556 F.3d at 286.\n 16 Id.\n 17 Amoco Prod. Co., 180 F.3d at 669.\n\n 8\n\f Case: 18-31121 Document: 00515165237 Page: 9 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\nof the paragraph containing the OR Guarantee that it does not protect against\nFormosan termites.\n The Cenacs contend, however, that in 2007 Orkin agreed to extend its\nOR Guarantee (and, thus, its repair obligation) to include damage caused by\nFormosan termites. They acknowledge that they signed two documents at that\ntime—the Special Service Agreement (SSA) and the Continuous Protection\nPlan (CPP)—relating to their home and shed and that they made two\nsubstantial payments to Orkin. The Cenacs assert (and Orkin agrees) that it\nis unclear which document applies to their home and which document applies\nto their shed. Nonetheless, they maintain that Orkin’s branch manager\nassured them that Orkin was expanding its OR Guarantee to include\nFormosan termites. As stated above, however, we must first look to the plain\ntext of the 2007 agreements to determine the parties’ intent.\n 2. CPP\n The CPP states that “Orkin shall treat Customer’s structure” for\nFormosan and subterranean termites. It provides for a “10-year renewable\nFormosan and subterranean termite retreatment service.” The agreement\nspecifically states: “This Service does not cover any damage to the structure or\ncontents.” The CPP further provides: “Orkin is performing a service and\nexpressly disclaims any guarantee of any kind, whether express or implied for\nany injury or damage related to the service performed. Customer expressly\nreleases Orkin from any claims for termite damage or repair.” These\nprovisions of the CPP clearly and unambiguously show Orkin’s intent not to\nundertake any type of termite repair obligation. Moreover, the provisions also\nclearly and unambiguously establish that the Cenacs agreed to relinquish any\nclaims for termite damage or repair.\n The Cenacs, however, assert that the CPP contained “several\nambiguities” that should be resolved in their favor for summary judgment\n 9\n\f Case: 18-31121 Document: 00515165237 Page: 10 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\npurposes. They point to a note which was handwritten diagonally across the\nbottom half of the document providing: “Add on to original acct #588129.” The\nCenacs submit that this handwritten note meant, as the Orkin representative\ntold them, that a repair obligation for Formosan termite damage was being\n“added to” the original OR Guarantee. We find this argument unpersuasive.\nThe handwritten note did not indicate that it was canceling out the clear and\nunambiguous provisions limiting Orkin’s liability to retreatment only. If\nanything, the note indicated that a new agreement (the CPP), which provided\nfor no termite repair obligation (even as to subterranean termites), was being\nadded to the Cenacs’ account. Furthermore, as the district court rightly noted,\nthe CPP contains an integration clause which provides, in pertinent part, that\nthe terms of the CPP “may not be amended or altered unless a written change\nis approved and signed by a corporate officer of Orkin, and it has been approved\nby the Louisiana Structural Pest Control Commission.” The integration clause\nfurther provides: “No other employees or agents of Orkin have authority to\namend or alter any part of this Agreement.” Consequently, any statements\nmade by an Orkin representative to the Cenacs that Orkin was agreeing to a\nFormosan termite repair obligation could not alter the clear terms of the CPP.\n The Cenacs also point out that on the second page of the CPP, there are\ntwo provisions referencing “claims for termite damage repairs” such that there\nis an ambiguity as to whether the CPP, in fact, excludes such claims. The first\nsentence states that the customer “waives any claims for damages except for\ntermite damage repairs as set out above.” As the district court concluded,\nhowever, the CPP does not “set out above” any claims for termite damage\nrepairs, but instead excludes all such claims. The second sentence which\nbegins, “[w]ith the sole exception of any claim for termite damage repairs,” also\ndoes not render ambiguous the CPP’s clear and unambiguous waiver of claims\nfor termite damage on the first page and cannot be read in isolation from the\n 10\n\f Case: 18-31121 Document: 00515165237 Page: 11 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\nother terms of the agreement. In sum, like the district court, we determine\nthat under the CPP, Orkin owed no obligation to the Cenacs to repair any type\nof termite damage.\n 3. SSA\n The other agreement signed by the Cenacs in 2007, the SSA, contains\nvery few provisions. Under “type and no. of structures to service,” a\nhandwritten note provides, “Residential – 1.” Under “pests to be treated,”\nanother handwritten note provides: “Retreat to cover subterranean and\nFormosan termites.” Under “Special Instructions,” the box next to “1\nTreatment” is checked. Next to “Products Purchased,” an amount of $1708 is\nhandwritten. Above the amount, the SSA states: “I agree to pay Orkin Pest\nControl the below amount at this time for treatment of the pest(s) indicated.”\nOther than a lengthy provision calling for arbitration, the only other\nsubstantive provision states: “This Special Service Agreement is guaranteed\nfor 30 days only and WILL NOT provide permanent control. For\nCONTINUOUS protection and control, we strongly recommend a REGULAR\nPEST CONTROL SERVICE.”\n Like the district court, we conclude that the clear and unambiguous\nprovisions of the SSA obligated Orkin to perform a single treatment with an\nexpress warranty disclaimer beyond thirty days. Nothing in the plain text of\nthe SSA indicates that Orkin was undertaking any type of termite repair\nobligation or extending its OR Guarantee to include Formosan termites.\n The Cenacs nonetheless argue that if the SSA applied to their home,\nsummary judgment should not have been granted in light of the deposition\ntestimony of various Orkin employees. Specifically, the Cenacs point out that\nan Orkin employee testified that the SSA form contract was “usually used to\n. . . add Formosan termite coverage to a contract if it wasn’t on there before.”\nThe employee also testified that the notation “Formosan coverage” on Orkin’s\n 11\n\f Case: 18-31121 Document: 00515165237 Page: 12 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\ninspection reports meant that Orkin had completed a supplemental treatment\nfor Formosan termites and that, as a result of that supplemental treatment,\nthe customer’s original contract covered Formosan termites as well. The\nCenacs submit that the district court erred in limiting its review to the text of\nthe SSA and in not considering the combined effect of the 1991 Agreement, the\nSSA, and the representations made by Orkin at the time the SSA was signed.\nThe Cenacs urge that the SSA was only part of their overall agreement with\nOrkin and that the district court should have considered the parol evidence\nthey submitted.\n We disagree. Like the CPP, the 1991 Agreement contains an integration\nclause which governs how changes to the contract could be made. The clause\nprovides, in all caps and bold, that the “Agreement may not be changed in any\nway by any representative of Orkin or [customer] unless it is changed in\nwriting and signed by a corporate officer of Orkin Exterminating Company,\nInc.” As described above, the 1991 Agreement contained an affirmative\ncontractual obligation by Orkin to repair termite damage caused by\nsubterranean termites. The contract “strictly limited” Orkin’s liability for\nrepairs “to any new Subterranean termite damage” and specifically stated that\nit did “not protect against Formosan termites.” Therefore, an extension of\nOrkin’s subterranean repair obligation to include Formosan termites would\nconstitute a “change” in the agreement, requiring a writing signed by a\ncorporate officer of Orkin. The SSA does not meet these requirements because,\nas discussed above, the plain text of the SSA does not establish any termite\nrepair obligation on the part of Orkin and does not extend/expand Orkin’s\ntermite repair obligation to include Formosan termites. Furthermore, the SSA\nis not signed by a corporate officer of Orkin. Therefore, the Cenacs’ arguments\nthat the district court erred in not considering the combined effect of the 1991\n\n\n 12\n\f Case: 18-31121 Document: 00515165237 Page: 13 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\nAgreement, the SSA, and Orkin employees’ representations are foreclosed by\nthe integration clause in the 1991 Agreement.\n The Cenacs also argue that the termite inspection reports Orkin issued\nannually confirmed that they had an OR Guarantee type of contract, and Orkin\naccepted their annual payments each year, never indicating that the OR\nGuarantee did not apply to Formosan termites. Although the Cenacs are\ncorrect that the reports indicate “Guarantee Type OR,” immediately preceding\nthat entry on the reports is “Subterranean Termite Svc.” Therefore, we find\nthat the inspection reports indicated what the Cenacs had all along—an OR\nGuarantee with respect to subterranean termites.\n Based on the foregoing, the district court did not err in granting\nsummary judgment and dismissing the Cenacs’ claim that Orkin was\ncontractually liable for the cost of repairing the damage to their home caused\nby Formosan termites.\n B. Claims under Louisiana Unfair Trade Practices Act\n The Cenacs assert that they alleged sufficient facts to support a finding\nthat Orkin engaged in deceptive, unethical, oppressive, and/or unscrupulous\nconduct in violation of the Louisiana Unfair Trade Practices Act (LUTPA).\nThey contend that the confusing and muddled forms Orkin requires its\ncustomers to sign are deceptive. The Cenacs submit that the actions of Orkin’s\nrepresentatives, together with its form agreements, provided sufficient\nsummary judgment evidence in support of their LUTPA claim.\n LUTPA declares unlawful “[u]nfair methods of competition and unfair or\ndeceptive acts or practices in the conduct of any trade or commerce.” 18 It\nprovides a private action for damages to “[a]ny person who suffers any\nascertainable loss of money or movable property, corporeal or incorporeal, as a\n\n\n 18 See LA. STAT. ANN. § 51:1405.\n 13\n\f Case: 18-31121 Document: 00515165237 Page: 14 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\nresult of the use or employment by another person of an unfair or deceptive\nmethod, act, or practice.” 19\n “It has been left to the courts to decide, on a case-by-case basis, what\nconduct falls within the [LUTPA]’s prohibition.” 20 The range of prohibited\npractices under the statute is “extremely narrow.” 21 “[T]he plaintiff must show\nthe alleged conduct ‘offends established public policy and . . . is immoral,\nunethical, oppressive, unscrupulous, or substantially injurious.’” 22 “[O]nly\negregious actions involving elements of fraud, misrepresentation, deception, or\nother unethical conduct will be sanctioned based on LUTPA.” 23 LUTPA “does\nnot provide an alternative remedy for simple breaches of contract. There is a\ngreat deal of daylight between a breach of contract claim and the egregious\nbehavior the statute proscribes.” 24\n The Cenacs argue that Orkin’s transactions are inherently imbalanced\nand not arms-length because Orkin drafts its own “confusing and muddled, if\nnot deceptive, forms.” They contend that they have alleged and provided\nsufficient summary judgment evidence of Orkin’s deceptive and unfair trade\npractices.\n As the district court determined, however, the Cenacs have failed to\nshow that Orkin engaged in the “extremely narrow” range of prohibited\npractices under the statute, which encompasses only egregious conduct that is\n“immoral, unethical, oppressive, unscrupulous, or substantially injurious.” 25\n\n\n\n 19 See id. § 51:1409.\n 20 Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 35 So. 3d 1053, 1059 (La. 2010)\n(citation omitted).\n 21 Id. at 1060.\n 22 Id. at 1059 (second alteration in original) (quoting Moore v. Goodyear Tire & Rubber\n\nCo., 364 So. 2d 630, 633 (La. Ct. App. 1978)).\n 23 Id. at 1060.\n 24 Id. (quoting Turner v. Purina Mills, Inc., 989 F.2d 1419, 1422 (5th Cir. 1993)).\n 25 Id. at 1059-60 (quoting Moore, 364 So. 2d at 633).\n\n 14\n\f Case: 18-31121 Document: 00515165237 Page: 15 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\nTaking as true the Cenacs’ allegations that Orkin employees told them on\nnumerous occasions that Orkin was obligated to repair Formosan termite\ndamage, the clear wording of the contracts between the Cenacs and Orkin\nprovided for no such obligation. The 1991 Agreement specifically states that\nOrkin’s repair obligation was strictly limited to damage by subterranean\ntermites and that any change to the agreement must be in writing; the SSA\ndoes not provide for any type of repair obligation; and the CPP specifically\nexcludes Orkin’s liability for any type of termite damage. In light of these\nagreements, which the Cenacs signed and/or were available to them for review,\nwe agree with the district court that Orkin’s conduct did not rise to the level of\nthe egregious conduct LUTPA proscribes. Based on the foregoing, the district\ncourt did not err in granting summary judgment in favor of Orkin dismissing\nthe Cenacs’ LUTPA claims.\n C. Claims in Tort\n We part company with the district court in its decision to grant summary\njudgment dismissing the Cenacs’ claims in tort. In appealing the dismissal of\ntheir tort claims, the Cenacs focus on their assertion that in 2013, after Orkin\ncompleted an annual inspection of their home, Orkin recommended that they\ninstall a vapor barrier under their home. The Cenacs assert that both parties\nbelieve this barrier was “a major factor in causing the termite infestation and\ndamage to their home.” The Cenacs contend that Orkin had no contractual\nduty to make such recommendation and that “in a separate undertaking, Orkin\nchose to approach [them] and recommend the installation of a barrier, as well\nas how to go about installing it.” They maintain that Orkin was negligent or\n\n\n\n\n 15\n\f Case: 18-31121 Document: 00515165237 Page: 16 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\ngrossly negligent in such recommendation and instruction and that Orkin’s\nnegligence or gross negligence caused and/or contributed to their damages. 26\n Under Louisiana law, “the nature of the duty breached [] should\ndetermine whether the action is in tort or in contract.” 27 When a party\nexpressly warrants a specific result and fails to obtain that result, or when the\nparty agrees to perform certain work and does nothing whatsoever, a claim\nbased on such omissions is contractual. 28 When a contract exists between two\nparties for one party to provide a service to the other, but “it is not alleged that\nany specific contract provision [duty] was breached,” and instead a general\nduty to perform work in a prudent and skillful manner, the claim arises in\ntort. 29 Furthermore, “[i]f a person undertakes a task which he has no duty to\nperform, he must perform that task in a reasonable and prudent manner.\nNegligent breach of a duty which has been voluntarily or gratuitously assumed\nmay create civil liability.” 30\n In Crane v. Exxon Corp., U.S.A., 31 the plaintiff, an employee of Merit\nIndustrial Constructors, Inc. (Merit), was injured while working on a\nconstruction job at an Exxon plant. Exxon contracted with Merit to construct\nfacilities for the installation of a compressor at Exxon’s Baton Rouge refinery.\nReviewing the provisions of the contract between Exxon and Merit, the court\n\n\n 26 The Cenacs also assert that Orkin negligently treated and retreated the home, failed\nto warn of conditions conducive to termites, and misrepresented that they were covered by\nan “OR Guarantee” for Formosan termite damage. The claims regarding\ntreatment/retreatment and failure to warn of conditions conducive to termites fall within\nOrkin’s contractual obligations under the 1991 Agreement, which all parties agree was\ntransferred to the Cenacs and pertains to their house. And, as discussed in Section B, the\nCenacs’ claim that Orkin misrepresented that they were covered by an OR Guarantee fails\nas a matter of law.\n 27 Roger v. Dufrene, 613 So. 2d 947, 948 (La. 1993) (citation omitted).\n 28 Id. at 949.\n 29 Trinity Univ. Ins. Co v. Horton, 756 So.2d 637, 638–39 (La. App. 2d Cir. 2000).\n 30 Crane v. Exxon Corp., U.S.A., 613 So.2d 214, 221 (La. App. 1st Cir. 1992) (citations\n\nomitted).\n 31 Id. at 217.\n\n 16\n\f Case: 18-31121 Document: 00515165237 Page: 17 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\nnoted that “[c]ontractually, Exxon had no duty to provide a safe place for\nMerit’s employees to work.” 32 Even so, the court found that an Exxon employee\n“voluntarily assumed the task of monitoring the jobsite for violations of Exxon\nsafety standards by Merit” which “task had as its purpose the protection of\nMerit employees.” 33 The court concluded that “[h]aving assumed this\nresponsibility, [Exxon] had a duty to perform it in a reasonable and prudent\nmanner.” 34 The court held Exxon “liable for its employee’s negligent breach of\nan assumed duty which resulted in [the plaintiff’s] injury.” 35\n In this case, the district court dismissed the Cenacs’ tort claims, agreeing\nwith Orkin that the Cenacs had no claims in tort against Orkin because all of\nits obligations to the Cenacs arose out of contract. The district court, however,\ndid not compare the individual allegations of negligence or gross negligence\nasserted by the Cenacs to Orkin’s obligations as set forth in the various\ncontracts. With respect to the Cenacs’ claim regarding the vapor barrier, Dr.\nChristopher Cenac testified in his deposition that after Orkin performed an\ninspection of the house in April 2013, the inspector noted that there was\n“Excessive Moisture in Crawl” and left his number for Dr. Cenac to contact\nhim. Dr. Cenac testified that he called Orkin and that the representative\ninformed him about what he could do to fix the problem. The Orkin\nrepresentative suggested three things: (1) open up some more areas along the\nfront of the house to have more cross ventilation in the crawl space, (2) install\na fan to make the air pass through the space and not sit stagnant, and (3) place\na moisture barrier under the home.\n\n\n\n\n 32 Id. at 221. In fact, the contract placed that responsibility on Merit. Id. at 221 n.7.\n 33 Id.\n 34 Id.\n 35 Id.\n\n 17\n\f Case: 18-31121 Document: 00515165237 Page: 18 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\n Dr. Cenac further testified that the Orkin representative told him that\nhe “[n]eeded to attach [the moisture barrier] to the undersurface of the home.”\nDr. Cenac stated that Orkin did not offer to perform the service and did not\nrecommend anyone to do the installation. He had a worker on his property\n“put the moisture barrier up under the home.” After Dr. Cenac did the three\nthings the Orkin inspector recommended, he called Orkin, and an Orkin\nrepresentative went out to the home and “said everything is fine.” Orkin also\nsent the Cenacs a letter on June 18, 2013, stating that all was well and\nthanking the Cenacs for making the improvements. 36\n None of the contracts between the Cenacs and Orkin—the 1991\nAgreement, the CPP, or the SSA—required Orkin to recommend, instruct, or\ndirect its customers on how to remedy conditions conducive to termite\ninfestation. Contrary to Orkin’s contentions, the 1991 Agreement does not\nimpose such an obligation on Orkin. The General Terms and Conditions\nsection of the agreement provides: “If such a condition is discovered, I [the\ncustomer] will be responsible at my own expense for making any repairs\nnecessary to correct the structural or mechanical problem . . . .” Thus, this\nprovision affirmatively places responsibility on the customer to correct any\nconditions conducive to termite infestation. Under these circumstances, the\nCenacs’ claim that Orkin recommended installation of a vapor barrier and\napproved its allegedly negligent installation does not involve the breach of a\nspecific contractual duty. Rather, Orkin undertook the task of recommending\nand directing installation of a vapor barrier, which (much like Exxon in Crane)\nit had no obligation to do under its contracts with the Cenacs. Yet, in doing so,\nOrkin was required under Louisiana law to “perform that task in a reasonable\n\n\n\n 36 Although a copy of this letter is not in the record, the record indicates that the letter\nand its conents were specifically discussed during Orkin’s Rule 30(b)(6) deposition.\n 18\n\f Case: 18-31121 Document: 00515165237 Page: 19 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\nand prudent manner. Negligent breach of a duty which has been voluntarily\nor gratuitously assumed may create civil liability.” 37\n Based on the foregoing, the district court erred in dismissing the Cenacs’\nclaim that Orkin was negligent or grossly negligent in directing and approving\ninstallation of a moisture barrier under their home. We therefore vacate and\nremand the district court’s judgment with respect to this claim. We\nadditionally note that the 1991 Agreement and the SSA contain no limitation\nof liability provisions and no provisions in which the customer was obligated\nto waive any claims. We further note that if the CCP is applicable to the\nCenacs’ house, Article 2004 of the Louisiana Civil Code prohibits any waiver\nof claims for gross negligence.\n D. Claims under Louisiana Insurance Code\n The Cenacs also allege that Orkin is liable to them for its breach of the\nduty of good faith and fair dealing under Louisiana Revised Statutes § 22:1973\nand for its violation of the duty of prompt payment under § 22:1892. A\nprerequisite for the application of these statutes, which are part of Louisiana’s\nInsurance Code, is that the defendant be an “insurer.” 38 The Cenacs allege\nthat Orkin is an insurer within the ambit of these statutes because “it entered\ninto an insurance contract by which it agreed to indemnify the Cenacs for\nproperty damage arising out of a specified contingency, namely termite\ninfestation.”\n As detailed above, however, Orkin did not agree to indemnify the Cenacs\nfor damages caused by Formosan termites. The 1991 Agreement’s repair\nobligation is strictly limited to subterranean termites. The 2007 agreements\n\n\n 37Crane, 613 So.2d at 221 (citations omitted).\n 38See LA. STAT. ANN. § 22:1973 (“An insurer . . . owes to his insured a duty of good\nfaith and fair dealing.”); LA. STAT. ANN. § 22:1892 (“All insurers . . . shall pay the amount of\nany claim due any insured within thirty days after receipt of satisfactory proofs of loss from\nthe insured or any party in interest.”).\n 19\n\f Case: 18-31121 Document: 00515165237 Page: 20 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\neither do not provide for any termite repair obligation (SSA) or expressly\ndisclaim any such obligation (CPP). Based on the foregoing, the district court\ndid not err in granting summary judgment in favor of Orkin and dismissing\nthe Cenacs’ claims under the Louisiana Insurance Code.\n E. Detrimental Reliance Claim.\n The Cenacs argue that they are entitled to damages under the doctrine\nof detrimental reliance. They assert that Orkin employees assured them that\nthey were obtaining a repair guarantee with respect to Formosan termites\nwhen they paid additional money in 2007 and signed the SSA and the CPP.\nThey assert, as they did in support of their contractual claims, that they relied\non handwritten notes on the contract forms and the notations on the annual\ninspection reports denoting an OR Guarantee type, which they contend\naffirmed the Orkin employees’ assurances that Orkin extended its OR\nGuarantee to include Formosan termites.\n Article 1967 of the Louisiana Civil Code defines detrimental reliance. It\nprovides:\n A party may be obligated by a promise when he knew or\n should have known that the promise would induce the other party\n to rely on it to his detriment and the other party was reasonable\n in so relying. Recovery may be limited to the expenses incurred or\n the damages suffered as a result of the promisee’s reliance on the\n promise. Reliance on a gratuitous promise made without required\n formalities is not reasonable. 39\n\n“The doctrine of [detrimental reliance] is designed to prevent injustice by\nbarring a party from taking a position contrary to his prior acts, admissions,\nrepresentations, or silence.” 40 To establish a claim for detrimental reliance, a\n\n\n\n 39 LA. CIV. CODE ANN. art. 1967.\n 40 Drs. Bethea, Moustoukas & Weaver LLC v. St. Paul Guardian Ins. Co. (Bethea),\n376 F.3d 399, 403 (5th Cir. 2004) (internal quotation marks and citation omitted).\n 20\n\f Case: 18-31121 Document: 00515165237 Page: 21 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\nparty must prove three elements: (1) a representation by conduct or word;\n(2) justifiable reliance on the representation; and (3) a change in position to\none’s detriment resulting from the reliance. 41\n The Cenacs argue that the question of reasonable reliance is a question\nof fact inappropriate for summary judgment. Orkin asserts, and the district\ncourt agreed, that the theory of detrimental reliance is unavailable to the\nCenacs as a matter of law because it would not be justified or reasonable given\nthe express terms of the contracts at issue.\n Though “[w]hether a plaintiff reasonably relied on a promise is generally\na fact-bound determination . . . , Louisiana law recognizes certain situations\nwhere a plaintiff’s reliance on a promise is unreasonable as a matter of law.” 42\nThis court has held that a party’s reliance on promises made outside of an\nunambiguous, fully-integrated agreement is unreasonable as a matter of law. 43\n“A detrimental reliance claim does not require a determination of whether we\nshould or should not consider parol evidence.” 44 Instead, the court “focuses on\nthe reasonableness of a party’s professed reliance upon promises made outside\nthe scope of a ‘fully-integrated written agreement’ between the parties.” 45\n This court’s decision in Bethea is instructive. There, we held that\nreliance on brochures and a letter—allegedly contradicting an insurance\ncontract—was unreasonable as a matter of law for two reasons. 46 First, the\ninsurance policy unambiguously laid out the terms and “the clarity of the policy\n\n\n 41 Id.\n 42 Id.\n 43 Id. at 403–05 (applying Louisiana law); Omnitech Intern, Inc. v. Clorox Co., 11 F.3d\n\n1316, 1330 (5th Cir. 1994) (same).\n 44 Water Craft Mgmt., L.L.C. v. Mercury Marine, 426 F. App’x 232, 237 (5th Cir. 2011)\n\nAlthough an unpublished opinion issued on or after January 1, 1996, is generally not\ncontrolling precedent, it may be considered as persuasive authority. See Ballard v. Burton,\n444 F.3d 391, 401 & n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).\n 45 Id. (citing Omnitech, 11 F.3d at 1329–30).\n 46 Bethea, 376 F.3d at 404-05.\n\n 21\n\f Case: 18-31121 Document: 00515165237 Page: 22 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\nand the informality of the letter” made reliance on the letter unreasonable as\na matter of law. 47 Second, the policy contained an integration clause that “also\n[made] any reliance unreasonable.” 48 Thus, “[g]iven that the insurance policy\nunambiguously define[d] the parties’ rights and limit[ed] the way to alter the\npolicy, it was unreasonable to rely on informal documents as modifying\nmaterial aspects of the policy.” 49\n This court looks to both the presence of an integration clause and the\nplain language of the contract to determine whether, as a matter of law,\nreliance on inconsistent representations is unreasonable. In this case, the\nCenacs cannot seek recovery for damages under the doctrine of detrimental\nreliance because, as explained above, the 1991 Agreement and the CPP are\nunambiguous. The 1991 Agreement clearly states that it was inapplicable to\nFormosan termites, and the CPP clearly “disclaims any guarantee of any kind,\nwhether express or implied, for any injury or damage related to the service\nperformed. Customer expressly releases Orkin from any claims for termite\ndamage and repair.” Furthermore, both agreements contain integration\nclauses, which provide that the written contracts “make up [the] complete\nagreement with Orkin and that this agreement may not be changed in any way\nby any representative of Orkin . . . unless it is changed in writing . . . .” Under\nthis precedent, as a matter of law, the Cenacs cannot reasonably rely on the\nrepresentations of Orkin’s employee, even if true, because those\nrepresentations conflict with the clear meaning of the contract terms. 50\n\n\n\n\n 47 Id. at 405.\n 48 Id.\n 49 Id.\n 50 The Cenacs’ reliance on a district court case, Water Craft Mgmt., L.L.C. v. Mercury\n\nMarine, 638 F.Supp.2d 619 (M.D. La 2009), to support their position is misplaced. This court\nreversed that holding on appeal, concluding that “Water Craft’s reliance on the oral\nagreements was unreasonable as a matter of law because the [contracts] are unambiguous\n 22\n\f Case: 18-31121 Document: 00515165237 Page: 23 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\n The Cenacs contend that the SSA does not contain an integration clause\nand that Orkin employees testified in their depositions that the SSA form was\nregularly used to “add Formosan termite coverage to an existing contract.”\nYet, as discussed above, the 1991 Agreement strictly limited Orkin’s liability\nfor repairs to subterranean termite damage, and its integration clause\nrequired that any changes to the agreement be made in writing and signed by\na corporate representative. An extension of Orkin’s repair obligation beyond\nsubterranean termites to include Formosan termites would constitute a\n“change” in the 1991 Agreement, requiring a writing signed by a corporate\nofficer of Orkin. The SSA does not meet these requirements because, as\ndiscussed above, the plain text of the SSA does not establish any termite repair\nobligation on the part of Orkin and does not extend/expand Orkin’s termite\nrepair obligation to include Formosan termites. Furthermore, a corporate\nofficer of Orkin did not sign the SSA. Moreover, the clear and unambiguous\nprovisions of the SSA obligated Orkin to perform a single treatment with an\nexpress warranty disclaimer beyond thirty days. The Cenacs’ argument that\ntheir detrimental reliance claim can be founded on the SSA is without merit. 51\nWe determine that the district court did not err in dismissing the Cenacs’\ndetrimental reliance claim.\n IV. CONCLUSION\n Based on the foregoing reasons, we affirm the district court’s dismissal\nof all the Cenacs’ claims, except their claim that Orkin was negligent and/or\ngrossly negligent in directing and approving installation of a vapor barrier\n\n\n\n\nwritten contracts with well-defined terms and valid integration clauses.” Water Craft Mgmt.,\nL.L.C. v. Mercury Marine, 426 Fed. Appx. 232, 237 (5th Cir. 2011).\n 51 Moreover, as also addressed above, the termite inspection reports Orkin issued\n\nannually did not confirm that the Cenacs had an OR Guarantee type of contract for Formosan\ntermites.\n 23\n\f Case: 18-31121 Document: 00515165237 Page: 24 Date Filed: 10/18/2019\n\n\n\n No. 18-31121\nunder their home. As to that claim, we vacate the district court’s judgment\nand remand for further proceedings consistent with this opinion.\n AFFIRMED IN PART; VACATED IN PART and REMANDED.\n\n\n\n\n 24\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Christopher Cenac, Jr. v. Orkin, L.L.C.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-18\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-31121 Document: 00515165237 Page: 1 Date Filed: 10/18/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-31121 October 18, 2019\\n Lyle W. Cayce\\nCHRISTOPHER E. CENAC, JR., Doctor; AUDRA CENAC, Doctor, Clerk\\n\\n\\n Plaintiffs - Appellants\\n\\nv.\\n\\nORKIN, L.L.C.,\\n\\n Defendant - Appellee\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Louisiana\\n\\n\\nBefore DAVIS, HO, and ENGELHARDT, Circuit Judges.\\nW. EUGENE DAVIS, Circuit Judge:\\n Plaintiffs, Drs. Christopher and Audra Cenac, appeal the district court’s\\nsummary-judgment dismissal of their claims against Defendant, Orkin, L.L.C.\\nThe Cenacs contracted with Orkin to protect their property against termites.\\nIn 2015, they discovered their home had become infested with Formosan\\ntermites. Orkin contends that, based on various contractual provisions, it is\\nnot liable for the cost of repairing the damage. The Cenacs filed this 28 U.S.C.\\n§ 1332 diversity action against Orkin asserting numerous claims under\\nLouisiana law. We AFFIRM the district court’s dismissal of all claims except\\nthe Cenacs’ claim that Orkin was negligent or grossly negligent in directing\\nand approving installation of a vapor barrier under their home. As to that\\nclaim, we VACATE the district court’s judgment and REMAND.\\n\\f Case: 18-31121 Document: 00515165237 Page: 2 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\n I. Factual Background\\n In 2004, the Cenacs bought a house in Houma, Louisiana, from Allen\\nEschete. Eschete had a contract with Orkin, executed in 1991, entitled\\n“Subterranean Termite Agreement” (1991 Agreement), in which Orkin agreed\\nto treat the house for the prevention of subterranean termites. The contract\\nalso provided for an “Orkin Continuous Protection Guarantee” in the form of a\\n“Full Renewable Subterranean Termite Home Ownership Repair Guarantee”\\n(OR Guarantee). The OR Guarantee obligated Orkin to retreat when required\\nand to repair any new damage to the house or its contents caused by\\nsubterranean termites. 1 The 1991 Agreement provided in the title of the\\nagreement and at the conclusion of the paragraph containing the OR\\nGuarantee: “DOES NOT PROTECT AGAINST FORMOSAN TERMITES.”\\nIn their complaint, the Cenacs alleged that the OR Guarantee was transferred\\nto them, with Orkin’s approval and agreement, when they purchased their\\nhome from Eschete.\\n In 2007, Orkin sent the Cenacs a letter informing them that when their\\nhome was originally treated, “the treatment and termiticides used were\\ndesigned to stop the Native Subterranean Termite.” The letter explained that\\nsuch treatment was ineffective against the Formosan termite and that a “new\\ntermiticide was developed to stop and kill the Formosan and the Native\\nSubterranean Termite.” The letter stated that Orkin was making a “special\\noffer” to its current customers who did “not have Formosan Termite coverage.”\\nIt further provided: “This Supplemental Treatment will not affect your current\\ncoverage in any way at all. This treatment allows Orkin to retreat your home\\n\\n\\n\\n 1 The OR Guarantee required the homeowner to establish that the new damage was\\ncaused by subterranean termites within the effective period of the guarantee and that, at the\\ntime of discovery of the new damage, the damaged areas were infested with live subterranean\\ntermites.\\n 2\\n\\f Case: 18-31121 Document: 00515165237 Page: 3 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nwith the new termiticides designed to stop and kill Formosan and Native\\nSubterranean termites.”\\n The Cenacs met with an Orkin representative in June 2007, at which\\ntime they paid Orkin an additional sum of money to have their home, as well\\nas a large shed on the property, treated with the new termiticides for protection\\nagainst both Formosan and subterranean termites. The Cenacs also executed\\ntwo written contracts at that time: (1) a “Special Service Agreement” (SSA) and\\n(2) a “Residential Single Family Dwelling, Louisiana Formosan and\\nSubterranean Termite Retreatment Agreement, Orkin Continuous Protection\\nPlan” (CPP). The Cenacs contend that the Orkin representative assured them\\nduring the meeting and afterwards that they were obtaining an OR Guarantee,\\nincluding the damage repair part of that guarantee, for all types of termites.\\nThe Cenacs thus believed that their 2007 transaction with Orkin expanded the\\nOR Guarantee such that Orkin was contractually obligated to repair damage\\ncaused not only by native subterranean termites, but also by Formosan\\ntermites.\\n From 2004 through 2015, an Orkin representative inspected the Cenacs’\\nhome for evidence of termite infestation and any conditions that might be\\nconducive to termite infestation. In 2013, Orkin noted on an inspection report\\nthat a condition conducive to termite infestation was present at the home.\\nSpecifically, the report noted that there was excessive moisture in the crawl\\nspace of the home. The Cenacs alleged that they “took corrective measures at\\n[Orkin’s] direction, which [Orkin] approved as adequate.” They asserted that,\\nas directed by Orkin, they installed a vapor barrier under their home, and that\\nan Orkin representative approved the installation. The Cenacs further alleged\\nthat Orkin continued to accept their payments and “assure[d] them that they\\nstill qualified for [Orkin’s] warranty coverage.”\\n\\n\\n 3\\n\\f Case: 18-31121 Document: 00515165237 Page: 4 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\n In May 2015, the Cenacs noticed termites swarming around and coming\\nout of one of the windows of the second floor of their house. They immediately\\nnotified Orkin, and Orkin sent out a technician to retreat the area near the\\nwindow. The Cenacs vacated their home for two days during this time, but\\nwhen they returned, they found more, larger swarms of termites coming from\\ntwo windows near the window that had been retreated.\\n The Cenacs notified Orkin again, and after assessing the situation,\\nOrkin advised them that “certain destructive work to the interior” of the home\\nwould be necessary to investigate further areas of potential termite activity.\\nThe Cenacs alleged that Orkin agreed to reimburse them for the costs\\nassociated with such destructive investigation. They further alleged that upon\\nOrkin’s advice and authorization, they hired a contractor to perform some\\ninterior demolition in their home. The contractor discovered live, active\\nFormosan termites and extensive termite damage in the kitchen area of the\\nhome. The Cenacs contended that although Orkin authorized the demolition\\nand expressly agreed to reimburse them, Orkin refused to reimburse them for\\nthe initial destructive work.\\n After their discovery of termites in the kitchen, the Cenacs discovered\\nother areas of live termites and termite damage in their home. They contended\\nthat Orkin “failed and refused to participate with [them] in the necessary\\ninvestigation of termite activity and damage, or to commit to repairing [their]\\nhome.” By September 2015, the Cenacs’ home was uninhabitable and in a state\\nof partial destruction. They were forced to vacate their home indefinitely until\\nthe full extent of the termite infestation was uncovered, their home retreated,\\nand repairs of the termite damage and investigatory demolitions completed.\\n Because Orkin refused to accept responsibility for the Formosan termite\\ndamage, the Cenacs filed the instant lawsuit. They also hired contractors to\\ndo more demolition in order to locate all termite activity and damage, removed\\n 4\\n\\f Case: 18-31121 Document: 00515165237 Page: 5 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nand placed in storage all contents of their home, and moved into a trailer home\\non their property.\\n On April 18, 2016, Orkin paid the Cenacs $222,168, of which $81,800\\nwas to reimburse them for relocation expenses and the lease of a trailer home,\\nand of which $140,368 was for demolition expenses and the “estimated cost to\\nrepair the termite damage.” The Cenacs contend, however, that various\\ncontractors have estimated that it will cost between $860,000 and $1.6 million\\nto repair and rebuild their home.\\n II. Procedural History\\n In their complaint, the Cenacs assert claims against Orkin for\\n(1) violation of the Louisiana Unfair Trade Practices Act; (2) breach of contract;\\n(3) breach of an insurer’s duties of good faith and prompt payment under the\\nLouisiana Insurance Code; (4) detrimental reliance; (5) unjust enrichment; 2\\n(6) negligence and/or gross negligence; and (7) negligent misrepresentation.\\n In its answer, Orkin admitted that it entered into the 1991 Agreement\\nwith Eschete, that the 1991 Agreement was subsequently transferred to the\\nCenacs after they purchased the property, and that the Cenacs paid the annual\\nrenewal fee for that contract following the date of transfer. Orkin further\\nadmitted that it entered into the Special Service Agreement (SSA) with the\\nCenacs in 2007.\\n Orkin subsequently filed a motion for summary judgment seeking\\ndismissal of all the Cenacs’ claims based on the provisions of the 1991\\nAgreement 3 and based on the provisions of the Orkin Continuous Protection\\nPlan (CPP). Orkin pointed out that the CPP provided for a 10-year renewable\\n\\n\\n\\n 2The Cenacs later conceded that they do not have a claim for unjust enrichment.\\n 3 Orkin contended that although the 1991 Agreement was transferred to the Cenacs\\nin 2004, the OR Guarantee was not transferred. Orkin further argued that even if the OR\\nGuarantee was transferred to the Cenacs, it specifically did not apply to Formosan termites.\\n 5\\n\\f Case: 18-31121 Document: 00515165237 Page: 6 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nFormosan and subterranean termite retreatment service but expressly\\nprovided that Orkin’s service did “not cover any damage to the structure or its\\ncontents.” Furthermore, the CPP provided that the customer “expressly\\nrelease[ed] Orkin from any claims for termite damage or repair.” Orkin\\ncontended that its liability consequently was limited to retreatment only and\\nthat it had no liability for any repairs to the home or its contents. Orkin also\\nfiled five partial motions for summary judgment addressing individually the\\nvarious claims asserted by the Cenacs and seeking dismissal.\\n The Cenacs also filed a motion for summary judgment requesting the\\ndistrict court to determine, as a matter of law, that all provisions of the 1991\\nAgreement, including the entire OR Guarantee, were transferred to them\\nwhen they purchased the home.\\n The district court granted the Cenacs’ motion for summary judgment. 4\\nIt also granted all of Orkin’s summary judgment motions, ultimately\\ndismissing the entirety of the Cenacs’ claims. 5 The Cenacs timely appealed.\\n III. Discussion\\n This court reviews a district court’s grant of summary judgment de\\nnovo. 6 Under Rule 56 of the Federal Rules of Civil Procedure, “the court shall\\ngrant summary judgment if the movant shows that there is no genuine dispute\\nas to any material fact and the movant is entitled to judgment as a matter of\\n\\n\\n\\n\\n 4 Orkin has not appealed the district court’s ruling that the entirety of the 1991\\nAgreement, including the OR Guarantee, was transferred to the Cenacs.\\n 5 The district court initially denied in part Orkin’s summary judgment motion seeking\\n\\ndismissal of the Cenacs’ contractual claims, but then later granted a subsequent summary\\njudgment filed by Orkin, dismissing the Cenacs’ entire complaint.\\n 6 Apache Corp. v. W & T Offshore, Inc., 626 F.3d 789, 793 (5th Cir. 2010).\\n\\n 6\\n\\f Case: 18-31121 Document: 00515165237 Page: 7 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nlaw.” 7 When jurisdiction is based on diversity, this court must apply the\\nsubstantive law of the forum state, here Louisiana. 8\\n A. Contractual Claim for Formosan Termite Damage Repair\\n The Cenacs contend that the district court erred in granting summary\\njudgment in favor of Orkin because there are genuine issues of material fact\\nas to whether Orkin is contractually obligated to pay for the cost of repairing\\nthe Formosan-related termite damage to their home. They assert that the\\ndistrict court “overlooked” factual evidence that, if true, would defeat summary\\njudgment. The Cenacs further argue that the district court failed to consider\\n“clear ambiguities” in the contract forms, as modified by handwriting and\\noriginally written.\\n Under Louisiana law, “interpretation of a contract is the determination\\nof the common intent of the parties.” 9 In ascertaining the common intent,\\n“[t]he words of a contract must be given their generally prevailing meaning.” 10\\nIn addition, “[w]hen the words of a contract are clear and explicit and lead to\\nno absurd consequences, no further interpretation may be made in search of\\nthe parties’ intent.” 11 If the plain text of a contract is subject to two or more\\nreasonable interpretations, a court may look to parol evidence to determine the\\nparties’ intent. 12 Parol evidence, however, may not be used to create ambiguity\\nin an otherwise unambiguous contract. 13 “Under Louisiana law, the\\ninterpretation of an unambiguous contract is an issue of law for the court.” 14\\n\\n\\n\\n 7FED. R. CIV. P. 56(a).\\n 8Holt v. State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir. 2010) (citing Erie R.\\nv. Tompkins, 34 U.S. 64 (1938)).\\n 9 LA. CIV.CODE ANN. art. 2045.\\n 10 Id. art. 2047.\\n 11 Id. art. 2046.\\n 12 Am. Elec. Power Co. v. Affiliated FM Ins. Co., 556 F.3d 282, 286 (5th Cir. 2009).\\n 13 Id. at 286 n.3.\\n 14 Amoco Prod. Co. v. Tex. Meridian Res. Expl. Inc., 180 F.3d 664, 668 (5th Cir. 1999).\\n\\n 7\\n\\f Case: 18-31121 Document: 00515165237 Page: 8 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\n As this court has described, interpretation of a written contract under\\nLouisiana law “involves a two-step process.” 15 First, the court must look to the\\nplain text of the contract to determine whether its meaning is clear and\\nunambiguous. If the text is clear and unambiguous, the court may not go\\nbeyond the text for further interpretation. If, however, the plain text is subject\\nto more than one reasonable interpretation, the court may then resort to parol\\nevidence to determine the parties’ intent. 16 “In the context of contract\\ninterpretation, only when there is a choice of reasonable interpretations of the\\ncontract is there a material fact issue concerning the parties’ intent that would\\npreclude summary judgment.” 17 Accordingly, careful review of the text of the\\nagreements at issue is in order.\\n 1. 1991 Agreement\\n The Cenacs’ claim that Orkin is contractually obligated to pay for\\nFormosan-related repair costs originates with the 1991 Agreement between\\nOrkin and Eschete. As stated above, the 1991 Agreement contained an OR\\nGuarantee, obligating Orkin to retreat the house when required and, more\\nimportantly, to “repair any new damage” to the house or its contents caused by\\nnative subterranean termites. The district court determined that the entirety\\nof the 1991 Agreement, including the OR Guarantee, was transferred to the\\nCenacs when they purchased the home. Orkin does not challenge that ruling\\non appeal.\\n Although Orkin agreed to a repair obligation as part of the OR\\nGuarantee in the 1991 Agreement, the contract is clear and unambiguous that\\nOrkin’s repair obligation “is strictly limited to any new Subterranean Termite\\ndamage.” Moreover, the contract specifically states in the title and at the end\\n\\n\\n 15 Am. Elec. Power Co., 556 F.3d at 286.\\n 16 Id.\\n 17 Amoco Prod. Co., 180 F.3d at 669.\\n\\n 8\\n\\f Case: 18-31121 Document: 00515165237 Page: 9 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nof the paragraph containing the OR Guarantee that it does not protect against\\nFormosan termites.\\n The Cenacs contend, however, that in 2007 Orkin agreed to extend its\\nOR Guarantee (and, thus, its repair obligation) to include damage caused by\\nFormosan termites. They acknowledge that they signed two documents at that\\ntime—the Special Service Agreement (SSA) and the Continuous Protection\\nPlan (CPP)—relating to their home and shed and that they made two\\nsubstantial payments to Orkin. The Cenacs assert (and Orkin agrees) that it\\nis unclear which document applies to their home and which document applies\\nto their shed. Nonetheless, they maintain that Orkin’s branch manager\\nassured them that Orkin was expanding its OR Guarantee to include\\nFormosan termites. As stated above, however, we must first look to the plain\\ntext of the 2007 agreements to determine the parties’ intent.\\n 2. CPP\\n The CPP states that “Orkin shall treat Customer’s structure” for\\nFormosan and subterranean termites. It provides for a “10-year renewable\\nFormosan and subterranean termite retreatment service.” The agreement\\nspecifically states: “This Service does not cover any damage to the structure or\\ncontents.” The CPP further provides: “Orkin is performing a service and\\nexpressly disclaims any guarantee of any kind, whether express or implied for\\nany injury or damage related to the service performed. Customer expressly\\nreleases Orkin from any claims for termite damage or repair.” These\\nprovisions of the CPP clearly and unambiguously show Orkin’s intent not to\\nundertake any type of termite repair obligation. Moreover, the provisions also\\nclearly and unambiguously establish that the Cenacs agreed to relinquish any\\nclaims for termite damage or repair.\\n The Cenacs, however, assert that the CPP contained “several\\nambiguities” that should be resolved in their favor for summary judgment\\n 9\\n\\f Case: 18-31121 Document: 00515165237 Page: 10 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\npurposes. They point to a note which was handwritten diagonally across the\\nbottom half of the document providing: “Add on to original acct #588129.” The\\nCenacs submit that this handwritten note meant, as the Orkin representative\\ntold them, that a repair obligation for Formosan termite damage was being\\n“added to” the original OR Guarantee. We find this argument unpersuasive.\\nThe handwritten note did not indicate that it was canceling out the clear and\\nunambiguous provisions limiting Orkin’s liability to retreatment only. If\\nanything, the note indicated that a new agreement (the CPP), which provided\\nfor no termite repair obligation (even as to subterranean termites), was being\\nadded to the Cenacs’ account. Furthermore, as the district court rightly noted,\\nthe CPP contains an integration clause which provides, in pertinent part, that\\nthe terms of the CPP “may not be amended or altered unless a written change\\nis approved and signed by a corporate officer of Orkin, and it has been approved\\nby the Louisiana Structural Pest Control Commission.” The integration clause\\nfurther provides: “No other employees or agents of Orkin have authority to\\namend or alter any part of this Agreement.” Consequently, any statements\\nmade by an Orkin representative to the Cenacs that Orkin was agreeing to a\\nFormosan termite repair obligation could not alter the clear terms of the CPP.\\n The Cenacs also point out that on the second page of the CPP, there are\\ntwo provisions referencing “claims for termite damage repairs” such that there\\nis an ambiguity as to whether the CPP, in fact, excludes such claims. The first\\nsentence states that the customer “waives any claims for damages except for\\ntermite damage repairs as set out above.” As the district court concluded,\\nhowever, the CPP does not “set out above” any claims for termite damage\\nrepairs, but instead excludes all such claims. The second sentence which\\nbegins, “[w]ith the sole exception of any claim for termite damage repairs,” also\\ndoes not render ambiguous the CPP’s clear and unambiguous waiver of claims\\nfor termite damage on the first page and cannot be read in isolation from the\\n 10\\n\\f Case: 18-31121 Document: 00515165237 Page: 11 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nother terms of the agreement. In sum, like the district court, we determine\\nthat under the CPP, Orkin owed no obligation to the Cenacs to repair any type\\nof termite damage.\\n 3. SSA\\n The other agreement signed by the Cenacs in 2007, the SSA, contains\\nvery few provisions. Under “type and no. of structures to service,” a\\nhandwritten note provides, “Residential – 1.” Under “pests to be treated,”\\nanother handwritten note provides: “Retreat to cover subterranean and\\nFormosan termites.” Under “Special Instructions,” the box next to “1\\nTreatment” is checked. Next to “Products Purchased,” an amount of $1708 is\\nhandwritten. Above the amount, the SSA states: “I agree to pay Orkin Pest\\nControl the below amount at this time for treatment of the pest(s) indicated.”\\nOther than a lengthy provision calling for arbitration, the only other\\nsubstantive provision states: “This Special Service Agreement is guaranteed\\nfor 30 days only and WILL NOT provide permanent control. For\\nCONTINUOUS protection and control, we strongly recommend a REGULAR\\nPEST CONTROL SERVICE.”\\n Like the district court, we conclude that the clear and unambiguous\\nprovisions of the SSA obligated Orkin to perform a single treatment with an\\nexpress warranty disclaimer beyond thirty days. Nothing in the plain text of\\nthe SSA indicates that Orkin was undertaking any type of termite repair\\nobligation or extending its OR Guarantee to include Formosan termites.\\n The Cenacs nonetheless argue that if the SSA applied to their home,\\nsummary judgment should not have been granted in light of the deposition\\ntestimony of various Orkin employees. Specifically, the Cenacs point out that\\nan Orkin employee testified that the SSA form contract was “usually used to\\n. . . add Formosan termite coverage to a contract if it wasn’t on there before.”\\nThe employee also testified that the notation “Formosan coverage” on Orkin’s\\n 11\\n\\f Case: 18-31121 Document: 00515165237 Page: 12 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\ninspection reports meant that Orkin had completed a supplemental treatment\\nfor Formosan termites and that, as a result of that supplemental treatment,\\nthe customer’s original contract covered Formosan termites as well. The\\nCenacs submit that the district court erred in limiting its review to the text of\\nthe SSA and in not considering the combined effect of the 1991 Agreement, the\\nSSA, and the representations made by Orkin at the time the SSA was signed.\\nThe Cenacs urge that the SSA was only part of their overall agreement with\\nOrkin and that the district court should have considered the parol evidence\\nthey submitted.\\n We disagree. Like the CPP, the 1991 Agreement contains an integration\\nclause which governs how changes to the contract could be made. The clause\\nprovides, in all caps and bold, that the “Agreement may not be changed in any\\nway by any representative of Orkin or [customer] unless it is changed in\\nwriting and signed by a corporate officer of Orkin Exterminating Company,\\nInc.” As described above, the 1991 Agreement contained an affirmative\\ncontractual obligation by Orkin to repair termite damage caused by\\nsubterranean termites. The contract “strictly limited” Orkin’s liability for\\nrepairs “to any new Subterranean termite damage” and specifically stated that\\nit did “not protect against Formosan termites.” Therefore, an extension of\\nOrkin’s subterranean repair obligation to include Formosan termites would\\nconstitute a “change” in the agreement, requiring a writing signed by a\\ncorporate officer of Orkin. The SSA does not meet these requirements because,\\nas discussed above, the plain text of the SSA does not establish any termite\\nrepair obligation on the part of Orkin and does not extend/expand Orkin’s\\ntermite repair obligation to include Formosan termites. Furthermore, the SSA\\nis not signed by a corporate officer of Orkin. Therefore, the Cenacs’ arguments\\nthat the district court erred in not considering the combined effect of the 1991\\n\\n\\n 12\\n\\f Case: 18-31121 Document: 00515165237 Page: 13 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nAgreement, the SSA, and Orkin employees’ representations are foreclosed by\\nthe integration clause in the 1991 Agreement.\\n The Cenacs also argue that the termite inspection reports Orkin issued\\nannually confirmed that they had an OR Guarantee type of contract, and Orkin\\naccepted their annual payments each year, never indicating that the OR\\nGuarantee did not apply to Formosan termites. Although the Cenacs are\\ncorrect that the reports indicate “Guarantee Type OR,” immediately preceding\\nthat entry on the reports is “Subterranean Termite Svc.” Therefore, we find\\nthat the inspection reports indicated what the Cenacs had all along—an OR\\nGuarantee with respect to subterranean termites.\\n Based on the foregoing, the district court did not err in granting\\nsummary judgment and dismissing the Cenacs’ claim that Orkin was\\ncontractually liable for the cost of repairing the damage to their home caused\\nby Formosan termites.\\n B. Claims under Louisiana Unfair Trade Practices Act\\n The Cenacs assert that they alleged sufficient facts to support a finding\\nthat Orkin engaged in deceptive, unethical, oppressive, and/or unscrupulous\\nconduct in violation of the Louisiana Unfair Trade Practices Act (LUTPA).\\nThey contend that the confusing and muddled forms Orkin requires its\\ncustomers to sign are deceptive. The Cenacs submit that the actions of Orkin’s\\nrepresentatives, together with its form agreements, provided sufficient\\nsummary judgment evidence in support of their LUTPA claim.\\n LUTPA declares unlawful “[u]nfair methods of competition and unfair or\\ndeceptive acts or practices in the conduct of any trade or commerce.” 18 It\\nprovides a private action for damages to “[a]ny person who suffers any\\nascertainable loss of money or movable property, corporeal or incorporeal, as a\\n\\n\\n 18 See LA. STAT. ANN. § 51:1405.\\n 13\\n\\f Case: 18-31121 Document: 00515165237 Page: 14 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nresult of the use or employment by another person of an unfair or deceptive\\nmethod, act, or practice.” 19\\n “It has been left to the courts to decide, on a case-by-case basis, what\\nconduct falls within the [LUTPA]’s prohibition.” 20 The range of prohibited\\npractices under the statute is “extremely narrow.” 21 “[T]he plaintiff must show\\nthe alleged conduct ‘offends established public policy and . . . is immoral,\\nunethical, oppressive, unscrupulous, or substantially injurious.’” 22 “[O]nly\\negregious actions involving elements of fraud, misrepresentation, deception, or\\nother unethical conduct will be sanctioned based on LUTPA.” 23 LUTPA “does\\nnot provide an alternative remedy for simple breaches of contract. There is a\\ngreat deal of daylight between a breach of contract claim and the egregious\\nbehavior the statute proscribes.” 24\\n The Cenacs argue that Orkin’s transactions are inherently imbalanced\\nand not arms-length because Orkin drafts its own “confusing and muddled, if\\nnot deceptive, forms.” They contend that they have alleged and provided\\nsufficient summary judgment evidence of Orkin’s deceptive and unfair trade\\npractices.\\n As the district court determined, however, the Cenacs have failed to\\nshow that Orkin engaged in the “extremely narrow” range of prohibited\\npractices under the statute, which encompasses only egregious conduct that is\\n“immoral, unethical, oppressive, unscrupulous, or substantially injurious.” 25\\n\\n\\n\\n 19 See id. § 51:1409.\\n 20 Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 35 So. 3d 1053, 1059 (La. 2010)\\n(citation omitted).\\n 21 Id. at 1060.\\n 22 Id. at 1059 (second alteration in original) (quoting Moore v. Goodyear Tire & Rubber\\n\\nCo., 364 So. 2d 630, 633 (La. Ct. App. 1978)).\\n 23 Id. at 1060.\\n 24 Id. (quoting Turner v. Purina Mills, Inc., 989 F.2d 1419, 1422 (5th Cir. 1993)).\\n 25 Id. at 1059-60 (quoting Moore, 364 So. 2d at 633).\\n\\n 14\\n\\f Case: 18-31121 Document: 00515165237 Page: 15 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nTaking as true the Cenacs’ allegations that Orkin employees told them on\\nnumerous occasions that Orkin was obligated to repair Formosan termite\\ndamage, the clear wording of the contracts between the Cenacs and Orkin\\nprovided for no such obligation. The 1991 Agreement specifically states that\\nOrkin’s repair obligation was strictly limited to damage by subterranean\\ntermites and that any change to the agreement must be in writing; the SSA\\ndoes not provide for any type of repair obligation; and the CPP specifically\\nexcludes Orkin’s liability for any type of termite damage. In light of these\\nagreements, which the Cenacs signed and/or were available to them for review,\\nwe agree with the district court that Orkin’s conduct did not rise to the level of\\nthe egregious conduct LUTPA proscribes. Based on the foregoing, the district\\ncourt did not err in granting summary judgment in favor of Orkin dismissing\\nthe Cenacs’ LUTPA claims.\\n C. Claims in Tort\\n We part company with the district court in its decision to grant summary\\njudgment dismissing the Cenacs’ claims in tort. In appealing the dismissal of\\ntheir tort claims, the Cenacs focus on their assertion that in 2013, after Orkin\\ncompleted an annual inspection of their home, Orkin recommended that they\\ninstall a vapor barrier under their home. The Cenacs assert that both parties\\nbelieve this barrier was “a major factor in causing the termite infestation and\\ndamage to their home.” The Cenacs contend that Orkin had no contractual\\nduty to make such recommendation and that “in a separate undertaking, Orkin\\nchose to approach [them] and recommend the installation of a barrier, as well\\nas how to go about installing it.” They maintain that Orkin was negligent or\\n\\n\\n\\n\\n 15\\n\\f Case: 18-31121 Document: 00515165237 Page: 16 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\ngrossly negligent in such recommendation and instruction and that Orkin’s\\nnegligence or gross negligence caused and/or contributed to their damages. 26\\n Under Louisiana law, “the nature of the duty breached [] should\\ndetermine whether the action is in tort or in contract.” 27 When a party\\nexpressly warrants a specific result and fails to obtain that result, or when the\\nparty agrees to perform certain work and does nothing whatsoever, a claim\\nbased on such omissions is contractual. 28 When a contract exists between two\\nparties for one party to provide a service to the other, but “it is not alleged that\\nany specific contract provision [duty] was breached,” and instead a general\\nduty to perform work in a prudent and skillful manner, the claim arises in\\ntort. 29 Furthermore, “[i]f a person undertakes a task which he has no duty to\\nperform, he must perform that task in a reasonable and prudent manner.\\nNegligent breach of a duty which has been voluntarily or gratuitously assumed\\nmay create civil liability.” 30\\n In Crane v. Exxon Corp., U.S.A., 31 the plaintiff, an employee of Merit\\nIndustrial Constructors, Inc. (Merit), was injured while working on a\\nconstruction job at an Exxon plant. Exxon contracted with Merit to construct\\nfacilities for the installation of a compressor at Exxon’s Baton Rouge refinery.\\nReviewing the provisions of the contract between Exxon and Merit, the court\\n\\n\\n 26 The Cenacs also assert that Orkin negligently treated and retreated the home, failed\\nto warn of conditions conducive to termites, and misrepresented that they were covered by\\nan “OR Guarantee” for Formosan termite damage. The claims regarding\\ntreatment/retreatment and failure to warn of conditions conducive to termites fall within\\nOrkin’s contractual obligations under the 1991 Agreement, which all parties agree was\\ntransferred to the Cenacs and pertains to their house. And, as discussed in Section B, the\\nCenacs’ claim that Orkin misrepresented that they were covered by an OR Guarantee fails\\nas a matter of law.\\n 27 Roger v. Dufrene, 613 So. 2d 947, 948 (La. 1993) (citation omitted).\\n 28 Id. at 949.\\n 29 Trinity Univ. Ins. Co v. Horton, 756 So.2d 637, 638–39 (La. App. 2d Cir. 2000).\\n 30 Crane v. Exxon Corp., U.S.A., 613 So.2d 214, 221 (La. App. 1st Cir. 1992) (citations\\n\\nomitted).\\n 31 Id. at 217.\\n\\n 16\\n\\f Case: 18-31121 Document: 00515165237 Page: 17 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nnoted that “[c]ontractually, Exxon had no duty to provide a safe place for\\nMerit’s employees to work.” 32 Even so, the court found that an Exxon employee\\n“voluntarily assumed the task of monitoring the jobsite for violations of Exxon\\nsafety standards by Merit” which “task had as its purpose the protection of\\nMerit employees.” 33 The court concluded that “[h]aving assumed this\\nresponsibility, [Exxon] had a duty to perform it in a reasonable and prudent\\nmanner.” 34 The court held Exxon “liable for its employee’s negligent breach of\\nan assumed duty which resulted in [the plaintiff’s] injury.” 35\\n In this case, the district court dismissed the Cenacs’ tort claims, agreeing\\nwith Orkin that the Cenacs had no claims in tort against Orkin because all of\\nits obligations to the Cenacs arose out of contract. The district court, however,\\ndid not compare the individual allegations of negligence or gross negligence\\nasserted by the Cenacs to Orkin’s obligations as set forth in the various\\ncontracts. With respect to the Cenacs’ claim regarding the vapor barrier, Dr.\\nChristopher Cenac testified in his deposition that after Orkin performed an\\ninspection of the house in April 2013, the inspector noted that there was\\n“Excessive Moisture in Crawl” and left his number for Dr. Cenac to contact\\nhim. Dr. Cenac testified that he called Orkin and that the representative\\ninformed him about what he could do to fix the problem. The Orkin\\nrepresentative suggested three things: (1) open up some more areas along the\\nfront of the house to have more cross ventilation in the crawl space, (2) install\\na fan to make the air pass through the space and not sit stagnant, and (3) place\\na moisture barrier under the home.\\n\\n\\n\\n\\n 32 Id. at 221. In fact, the contract placed that responsibility on Merit. Id. at 221 n.7.\\n 33 Id.\\n 34 Id.\\n 35 Id.\\n\\n 17\\n\\f Case: 18-31121 Document: 00515165237 Page: 18 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\n Dr. Cenac further testified that the Orkin representative told him that\\nhe “[n]eeded to attach [the moisture barrier] to the undersurface of the home.”\\nDr. Cenac stated that Orkin did not offer to perform the service and did not\\nrecommend anyone to do the installation. He had a worker on his property\\n“put the moisture barrier up under the home.” After Dr. Cenac did the three\\nthings the Orkin inspector recommended, he called Orkin, and an Orkin\\nrepresentative went out to the home and “said everything is fine.” Orkin also\\nsent the Cenacs a letter on June 18, 2013, stating that all was well and\\nthanking the Cenacs for making the improvements. 36\\n None of the contracts between the Cenacs and Orkin—the 1991\\nAgreement, the CPP, or the SSA—required Orkin to recommend, instruct, or\\ndirect its customers on how to remedy conditions conducive to termite\\ninfestation. Contrary to Orkin’s contentions, the 1991 Agreement does not\\nimpose such an obligation on Orkin. The General Terms and Conditions\\nsection of the agreement provides: “If such a condition is discovered, I [the\\ncustomer] will be responsible at my own expense for making any repairs\\nnecessary to correct the structural or mechanical problem . . . .” Thus, this\\nprovision affirmatively places responsibility on the customer to correct any\\nconditions conducive to termite infestation. Under these circumstances, the\\nCenacs’ claim that Orkin recommended installation of a vapor barrier and\\napproved its allegedly negligent installation does not involve the breach of a\\nspecific contractual duty. Rather, Orkin undertook the task of recommending\\nand directing installation of a vapor barrier, which (much like Exxon in Crane)\\nit had no obligation to do under its contracts with the Cenacs. Yet, in doing so,\\nOrkin was required under Louisiana law to “perform that task in a reasonable\\n\\n\\n\\n 36 Although a copy of this letter is not in the record, the record indicates that the letter\\nand its conents were specifically discussed during Orkin’s Rule 30(b)(6) deposition.\\n 18\\n\\f Case: 18-31121 Document: 00515165237 Page: 19 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nand prudent manner. Negligent breach of a duty which has been voluntarily\\nor gratuitously assumed may create civil liability.” 37\\n Based on the foregoing, the district court erred in dismissing the Cenacs’\\nclaim that Orkin was negligent or grossly negligent in directing and approving\\ninstallation of a moisture barrier under their home. We therefore vacate and\\nremand the district court’s judgment with respect to this claim. We\\nadditionally note that the 1991 Agreement and the SSA contain no limitation\\nof liability provisions and no provisions in which the customer was obligated\\nto waive any claims. We further note that if the CCP is applicable to the\\nCenacs’ house, Article 2004 of the Louisiana Civil Code prohibits any waiver\\nof claims for gross negligence.\\n D. Claims under Louisiana Insurance Code\\n The Cenacs also allege that Orkin is liable to them for its breach of the\\nduty of good faith and fair dealing under Louisiana Revised Statutes § 22:1973\\nand for its violation of the duty of prompt payment under § 22:1892. A\\nprerequisite for the application of these statutes, which are part of Louisiana’s\\nInsurance Code, is that the defendant be an “insurer.” 38 The Cenacs allege\\nthat Orkin is an insurer within the ambit of these statutes because “it entered\\ninto an insurance contract by which it agreed to indemnify the Cenacs for\\nproperty damage arising out of a specified contingency, namely termite\\ninfestation.”\\n As detailed above, however, Orkin did not agree to indemnify the Cenacs\\nfor damages caused by Formosan termites. The 1991 Agreement’s repair\\nobligation is strictly limited to subterranean termites. The 2007 agreements\\n\\n\\n 37Crane, 613 So.2d at 221 (citations omitted).\\n 38See LA. STAT. ANN. § 22:1973 (“An insurer . . . owes to his insured a duty of good\\nfaith and fair dealing.”); LA. STAT. ANN. § 22:1892 (“All insurers . . . shall pay the amount of\\nany claim due any insured within thirty days after receipt of satisfactory proofs of loss from\\nthe insured or any party in interest.”).\\n 19\\n\\f Case: 18-31121 Document: 00515165237 Page: 20 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\neither do not provide for any termite repair obligation (SSA) or expressly\\ndisclaim any such obligation (CPP). Based on the foregoing, the district court\\ndid not err in granting summary judgment in favor of Orkin and dismissing\\nthe Cenacs’ claims under the Louisiana Insurance Code.\\n E. Detrimental Reliance Claim.\\n The Cenacs argue that they are entitled to damages under the doctrine\\nof detrimental reliance. They assert that Orkin employees assured them that\\nthey were obtaining a repair guarantee with respect to Formosan termites\\nwhen they paid additional money in 2007 and signed the SSA and the CPP.\\nThey assert, as they did in support of their contractual claims, that they relied\\non handwritten notes on the contract forms and the notations on the annual\\ninspection reports denoting an OR Guarantee type, which they contend\\naffirmed the Orkin employees’ assurances that Orkin extended its OR\\nGuarantee to include Formosan termites.\\n Article 1967 of the Louisiana Civil Code defines detrimental reliance. It\\nprovides:\\n A party may be obligated by a promise when he knew or\\n should have known that the promise would induce the other party\\n to rely on it to his detriment and the other party was reasonable\\n in so relying. Recovery may be limited to the expenses incurred or\\n the damages suffered as a result of the promisee’s reliance on the\\n promise. Reliance on a gratuitous promise made without required\\n formalities is not reasonable. 39\\n\\n“The doctrine of [detrimental reliance] is designed to prevent injustice by\\nbarring a party from taking a position contrary to his prior acts, admissions,\\nrepresentations, or silence.” 40 To establish a claim for detrimental reliance, a\\n\\n\\n\\n 39 LA. CIV. CODE ANN. art. 1967.\\n 40 Drs. Bethea, Moustoukas & Weaver LLC v. St. Paul Guardian Ins. Co. (Bethea),\\n376 F.3d 399, 403 (5th Cir. 2004) (internal quotation marks and citation omitted).\\n 20\\n\\f Case: 18-31121 Document: 00515165237 Page: 21 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nparty must prove three elements: (1) a representation by conduct or word;\\n(2) justifiable reliance on the representation; and (3) a change in position to\\none’s detriment resulting from the reliance. 41\\n The Cenacs argue that the question of reasonable reliance is a question\\nof fact inappropriate for summary judgment. Orkin asserts, and the district\\ncourt agreed, that the theory of detrimental reliance is unavailable to the\\nCenacs as a matter of law because it would not be justified or reasonable given\\nthe express terms of the contracts at issue.\\n Though “[w]hether a plaintiff reasonably relied on a promise is generally\\na fact-bound determination . . . , Louisiana law recognizes certain situations\\nwhere a plaintiff’s reliance on a promise is unreasonable as a matter of law.” 42\\nThis court has held that a party’s reliance on promises made outside of an\\nunambiguous, fully-integrated agreement is unreasonable as a matter of law. 43\\n“A detrimental reliance claim does not require a determination of whether we\\nshould or should not consider parol evidence.” 44 Instead, the court “focuses on\\nthe reasonableness of a party’s professed reliance upon promises made outside\\nthe scope of a ‘fully-integrated written agreement’ between the parties.” 45\\n This court’s decision in Bethea is instructive. There, we held that\\nreliance on brochures and a letter—allegedly contradicting an insurance\\ncontract—was unreasonable as a matter of law for two reasons. 46 First, the\\ninsurance policy unambiguously laid out the terms and “the clarity of the policy\\n\\n\\n 41 Id.\\n 42 Id.\\n 43 Id. at 403–05 (applying Louisiana law); Omnitech Intern, Inc. v. Clorox Co., 11 F.3d\\n\\n1316, 1330 (5th Cir. 1994) (same).\\n 44 Water Craft Mgmt., L.L.C. v. Mercury Marine, 426 F. App’x 232, 237 (5th Cir. 2011)\\n\\nAlthough an unpublished opinion issued on or after January 1, 1996, is generally not\\ncontrolling precedent, it may be considered as persuasive authority. See Ballard v. Burton,\\n444 F.3d 391, 401 & n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).\\n 45 Id. (citing Omnitech, 11 F.3d at 1329–30).\\n 46 Bethea, 376 F.3d at 404-05.\\n\\n 21\\n\\f Case: 18-31121 Document: 00515165237 Page: 22 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nand the informality of the letter” made reliance on the letter unreasonable as\\na matter of law. 47 Second, the policy contained an integration clause that “also\\n[made] any reliance unreasonable.” 48 Thus, “[g]iven that the insurance policy\\nunambiguously define[d] the parties’ rights and limit[ed] the way to alter the\\npolicy, it was unreasonable to rely on informal documents as modifying\\nmaterial aspects of the policy.” 49\\n This court looks to both the presence of an integration clause and the\\nplain language of the contract to determine whether, as a matter of law,\\nreliance on inconsistent representations is unreasonable. In this case, the\\nCenacs cannot seek recovery for damages under the doctrine of detrimental\\nreliance because, as explained above, the 1991 Agreement and the CPP are\\nunambiguous. The 1991 Agreement clearly states that it was inapplicable to\\nFormosan termites, and the CPP clearly “disclaims any guarantee of any kind,\\nwhether express or implied, for any injury or damage related to the service\\nperformed. Customer expressly releases Orkin from any claims for termite\\ndamage and repair.” Furthermore, both agreements contain integration\\nclauses, which provide that the written contracts “make up [the] complete\\nagreement with Orkin and that this agreement may not be changed in any way\\nby any representative of Orkin . . . unless it is changed in writing . . . .” Under\\nthis precedent, as a matter of law, the Cenacs cannot reasonably rely on the\\nrepresentations of Orkin’s employee, even if true, because those\\nrepresentations conflict with the clear meaning of the contract terms. 50\\n\\n\\n\\n\\n 47 Id. at 405.\\n 48 Id.\\n 49 Id.\\n 50 The Cenacs’ reliance on a district court case, Water Craft Mgmt., L.L.C. v. Mercury\\n\\nMarine, 638 F.Supp.2d 619 (M.D. La 2009), to support their position is misplaced. This court\\nreversed that holding on appeal, concluding that “Water Craft’s reliance on the oral\\nagreements was unreasonable as a matter of law because the [contracts] are unambiguous\\n 22\\n\\f Case: 18-31121 Document: 00515165237 Page: 23 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\n The Cenacs contend that the SSA does not contain an integration clause\\nand that Orkin employees testified in their depositions that the SSA form was\\nregularly used to “add Formosan termite coverage to an existing contract.”\\nYet, as discussed above, the 1991 Agreement strictly limited Orkin’s liability\\nfor repairs to subterranean termite damage, and its integration clause\\nrequired that any changes to the agreement be made in writing and signed by\\na corporate representative. An extension of Orkin’s repair obligation beyond\\nsubterranean termites to include Formosan termites would constitute a\\n“change” in the 1991 Agreement, requiring a writing signed by a corporate\\nofficer of Orkin. The SSA does not meet these requirements because, as\\ndiscussed above, the plain text of the SSA does not establish any termite repair\\nobligation on the part of Orkin and does not extend/expand Orkin’s termite\\nrepair obligation to include Formosan termites. Furthermore, a corporate\\nofficer of Orkin did not sign the SSA. Moreover, the clear and unambiguous\\nprovisions of the SSA obligated Orkin to perform a single treatment with an\\nexpress warranty disclaimer beyond thirty days. The Cenacs’ argument that\\ntheir detrimental reliance claim can be founded on the SSA is without merit. 51\\nWe determine that the district court did not err in dismissing the Cenacs’\\ndetrimental reliance claim.\\n IV. CONCLUSION\\n Based on the foregoing reasons, we affirm the district court’s dismissal\\nof all the Cenacs’ claims, except their claim that Orkin was negligent and/or\\ngrossly negligent in directing and approving installation of a vapor barrier\\n\\n\\n\\n\\nwritten contracts with well-defined terms and valid integration clauses.” Water Craft Mgmt.,\\nL.L.C. v. Mercury Marine, 426 Fed. Appx. 232, 237 (5th Cir. 2011).\\n 51 Moreover, as also addressed above, the termite inspection reports Orkin issued\\n\\nannually did not confirm that the Cenacs had an OR Guarantee type of contract for Formosan\\ntermites.\\n 23\\n\\f Case: 18-31121 Document: 00515165237 Page: 24 Date Filed: 10/18/2019\\n\\n\\n\\n No. 18-31121\\nunder their home. As to that claim, we vacate the district court’s judgment\\nand remand for further proceedings consistent with this opinion.\\n AFFIRMED IN PART; VACATED IN PART and REMANDED.\\n\\n\\n\\n\\n 24\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4591,"cells":{"id":{"kind":"number","value":4671197,"string":"4,671,197"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Janna Russell v. David Russell"},"decision_date":{"kind":"string","value":"2019-10-21"},"docket_number":{"kind":"string","value":"18-20643"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before OWEN, Chief Judge, and JONES and SMITH, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JERRY E. SMITH, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-20643 Document: 00515165585 Page: 1 Date Filed: 10/21/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n\\n No. 18-20643\\n Fifth Circuit\\n\\n FILED\\n October 21, 2019\\n Lyle W. Cayce\\nIn the matter of: DAVID C. RUSSELL, Clerk\\n\\n Debtor.\\nJANNA F. RUSSELL,\\n Appellee,\\nversus\\nDAVID C. RUSSELL; RONALD J. SOMMERS,\\n Appellants.\\n\\n\\n\\n Appeals from the United States District Court\\n for the Southern District of Texas\\n\\n\\n\\n\\nBefore OWEN, Chief Judge, and JONES and SMITH, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n Janna Russell sued David Russell, her ex-husband and a Chapter 7\\ndebtor, in bankruptcy court over a debt of $32,500 plus interest. After an evi-\\ndentiary hearing, the bankruptcy court ruled for David on the record, finding\\nthat David had paid the debt. The district court reversed, holding that David\\nhad not satisfied his obligation to Janna as a matter of law. We affirm the\\ndistrict court.\\n\\f Case: 18-20643 Document: 00515165585 Page: 2 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20643\\n I.\\n This case presents one snippet of a ten-plus-year legal battle between ex-\\nspouses. The dispute began when Janna filed a petition to modify David’s and\\nher parent-child relationship order. A Texas state court ordered David and\\nJanna to mediation, where they executed a mediation settlement. The order\\napproving the settlement mandated that David pay Janna $32,500. On receipt\\nof payment, Janna was to execute certain deeds to David.\\n\\n After David either failed or refused to pay Janna, the state court ordered\\nthe parties to arbitration. The resulting arbitration order awarded Janna\\n$32,500 plus interest. In relevant part, the arbitration order states,\\n\\n 9.6 IT IS ORDERED that said money order, certified check or\\n cashier’s check shall be made payable to “Janna Russell”\\n only and shall not have any other endorsement.\\n 9.7 IT IS ORDERED that if payment of the judgment together\\n with post judgment interest at 5% is made by DAVID\\n CHRISTOPHER RUSSELL to JANNA RUSSELL in cash,\\n then JANNA RUSSELL shall execute the Special Warranty\\n Deeds listed above in 9.3.1, 9.3.2, 9.3.3 and DAVID CHRIS-\\n TOPHER RUSSELL shall execute the Special Warranty\\n Deed listed in 9.4.1 on the same day the judgments are paid\\n in cash.\\nJanna expressly sought provisions requiring payments to go directly to her.\\n\\n During the state proceedings, Janna and her attorney Ellen Yarrell\\nfound themselves at odds and decided to part ways. On December 23, 2010,\\ntwo days after the state court had entered its arbitration order, Yarrell moved\\nto withdraw from representing Janna. Janna agreed and signed the Order on\\nMotion of Withdrawal of Counsel on December 30, 2010. At that time, Yarrell\\nclaimed that Janna owed her over $60,000 in unpaid attorney fees.\\n\\n In a December 30, 2010, email, Yarrell asked Janna to sign the deeds\\ndue to David on receiving his $32,500 payment. Yarrell also asked Janna to\\n 2\\n\\f Case: 18-20643 Document: 00515165585 Page: 3 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20643\\nsign a statement authorizing Yarrell to collect David’s payment on her behalf.\\nYarrell stated that she would then deposit the money to Janna’s account\\nbalance with her law firm. In return, Yarrell offered to sign a complete release\\nfor the rest of the disputed attorney fees. Janna rejected that offer and stated\\nthat she had been “very clear about [her] position” with Yarrell, David, and\\nDavid’s attorneys, and she would “not be pressured or coerced . . . into signing\\nthe deed without [David] first paying [her] directly the $32,500.” Janna also\\nexpressed concern that Yarrell was not acting in her best interest and repeat-\\nedly informed Yarrell that she was not authorized to accept the $32,500.\\n\\n According to Janna, David tried to manipulate Janna’s conflict with Yar-\\nrell to “negotiate a better deal.” In particular, Janna claims that David threat-\\nened to deliver the settlement funds to Yarrell unless Janna dismissed an un-\\nrelated appeal. To support that claim, Janna presents emails from David. 1\\n\\n\\n 1 Janna first presents a December 28, 2010 email in which David allegedly wrote,\\n I suggest that you let me pay you directly the money. . . . [Yarrell] has tried to get me\\n . . . to deposit the 32,500.00 into her trust account and I think that is so she could keep\\n the money herself without paying you.\\n By doing as I suggest, we each get our deeds and YOU get the money—not Ellen. In\\n return for my goodwill, I would also like you to dismiss your appeal if we do things\\n this way so that we can finally be done with all of this and we can stop paying lawyers.\\nAt the hearing before the bankruptcy court, David claimed that Janna had fabricated that\\nemail. The district court, misapplying the standard of review, erroneously relied on that\\nemail to conclude that David threatened to deliver the funds to Yarrell unless Janna dis-\\nmissed her appeal on an unrelated claim. But the district court could have based its con-\\nclusion on a January 27, 2011, email in which David wrote,\\n I would much rather give this money to you than to your attorney, but I guess that is\\n up to you. If you truly do have ALL the deeds signed, I do not see a problem meeting\\n with you at Chase Bank. This really should not be that hard.\\n [My attorney] just called while I was typing this.\\n I can meet you at the Chase Bank on Louetta at 9:30 AM tomorrow. I will have the\\n deeds I signed and had notarized. I will need to to [sic] have the deeds signed that\\n you are to sign. You will also need to sign an appeal dismissal letter. I have attached\\n this for your review. This can be notarized at the Bank as well.\\nAt the hearing, David admitted to sending this and attaching an appeal dismissal letter.\\n 3\\n\\f Case: 18-20643 Document: 00515165585 Page: 4 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20643\\n On April 15, 2011, David went to Yarrell’s office, unannounced, and paid\\nher $32,500 in cash. Because David did not receive Janna’s deeds—which, per\\nthe arbitration order, he was entitled to on paying Janna $32,500—on June 6,\\n2011, David filed a motion “to compel signature on documents.” A Texas court\\ndenied David’s motion.\\n\\n When David filed for Chapter 7 bankruptcy in 2016, Janna filed two\\nseparate proofs of claim, the first of which is the subject of this appeal. David,\\njoined by Ronald Summers, the Chapter 7 trustee, objected to the first claim,\\nasserting that David had paid the claim by delivering cash to Yarrell. The\\nbankruptcy court held an evidentiary hearing on that claim, at the end of\\nwhich the court announced findings and conclusions on the record. Based on\\ninconsistencies in David’s and Janna’s testimony, the court “discount[ed] their\\ntestimony to the extent that it [was] uncorroborated by documents that [the\\ncourt] believe[d] in.” After discounting both of their testimony, the court noted\\nthat both parties agreed that David paid Yarrell the cash. Finding that Janna\\ngot “the benefit of the money,” the court entered judgment for David, allowing\\nJanna’s claim for only the interest that had accrued as of the time that David\\npaid Yarrell. The district court reversed, holding that as a matter of law,\\nDavid’s payments did not satisfy his obligation to Janna.\\n\\n II.\\n David and his trustee maintain that the district court erred in reversing\\nthe bankruptcy court. “This [c]ourt reviews the district court’s decision by\\napplying the same standard of review to the bankruptcy court’s conclusions of\\nlaw and findings of fact that the district court applied.” Barron & Newburger,\\nP.C. v. Tex. Skyline, Ltd. (In re Woerner), 783 F.3d 266, 270 (5th Cir. 2015) (en\\nbanc) (internal quotation marks omitted). Consequently, “[w]e review the\\nbankruptcy court’s findings of fact for clear error and its conclusions of law de\\n\\n 4\\n\\f Case: 18-20643 Document: 00515165585 Page: 5 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20643\\nnovo.” Robertson v. Dennis (In re Dennis), 330 F.3d 696, 701 (5th Cir. 2003).\\n“Moreover, when the bankruptcy court’s weighing of the evidence is plausible\\nin light of the record taken as a whole, a finding of clear error is precluded,\\neven if we would have weighed the evidence differently.” Bradley v. Ingalls (In\\nre Bradley), 501 F.3d 421, 434 (5th Cir. 2007). We “must give due regard to\\nthe [bankruptcy] court’s opportunity to judge the witnesses’ credibility.” FED.\\nR. CIV. P. 52(a)(6).\\n\\n The bankruptcy court did not address whether Yarrell was authorized to\\nact on Janna’s behalf 2 but instead held that because Janna “got the benefit of\\nthe money”—which Janna disputes—the debt had been paid. That reasoning\\nis incomplete. Debt payments made to a creditor’s agent do not bind the\\ncreditor unless the agent is authorized to collect the payment on behalf of the\\ncreditor. 3 Whether that authority exists “depends on some communication by\\nthe principal either to the agent (actual or express authority) or to the third\\nparty (apparent or implied authority).” Gaines v. Kelly, 235 S.W.3d 179, 182\\n(Tex. 2007). It does not depend on whether the principal benefits from the\\ntransaction. 4 Because payment is an affirmative defense, the burden is on the\\ndebtor to prove that the third party was authorized to receive payment on\\nbehalf of the debtor. See TEX. R. CIV. P. 94–95; see also Brown v. Am. Transfer\\n& Storage Co., 601 S.W.2d 931, 936 (Tex. 1980). David’s payment to Yarrell\\ndid not terminate his obligation to Janna because Yarrell was not authorized\\nto transact on Janna’s behalf.\\n\\n\\n 2 Appellees did, however, raise that issue at the bankruptcy court hearing.\\n 3 See Utils. Optimization Grp., L.L.C. v. TIN, Inc., 440 F. App’x 249, 252 (5th Cir.\\n2011) (per curiam) (“Absent actual or apparent authority, an agent cannot bind a principal.”)\\n(quoting Tex. Cityview Care Ctr., L.P. v. Fryer, 227 S.W.3d 345, 352 (Tex. App.—Fort Worth\\n2007, pet. dism’d)).\\n 4 The parties have not raised the issue of ratification at any point in this litigation, so\\nit is waived. See United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000).\\n 5\\n\\f Case: 18-20643 Document: 00515165585 Page: 6 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20643\\n A.\\n “Actual authority is authority that the principal intentionally conferred\\non the agent or allowed the agent to believe was conferred.” Ebner v. First\\nState Bank of Smithville, 27 S.W.3d 287, 300 (Tex. App.—Austin 2000, pet.\\ndenied). The terms of the arbitration order and Janna’s instructions to Yarrell\\nshow that Janna did not actually authorize Yarrell to collect David’s payment.\\n\\n Paragraph 9.6 of the order requires that any negotiable instrument\\n“shall be made payable to ‘Janna Russell’ only and shall not have any other\\nendorsement.” Paragraph 9.7 specifies the timeline for Janna to deliver deeds\\nto David if the debt “is made by DAVID CHRISTOPHER RUSSELL to JANNA\\nRUSSELL in cash.” The text is clear—David must pay Janna directly. 5\\n\\n Janna also did not allow Yarrell to believe that she was authorized to\\ntransact on Janna’s behalf. By the time Yarrell accepted David’s payment on\\nJanna’s behalf, their relationship had soured. They were fighting over $60,000\\nof disputed attorney fees, and Yarrell had already filed a motion to withdraw\\nfrom representation. Yarrell knew that Janna did not trust her to collect the\\npayment. When asked why the arbitration order included terms mandating\\nthat any negotiable instrument be made to Janna Russell only, Yarrell re-\\nsponded, “Janna requested it.” On top of that, Janna also expressly rejected\\nYarrell’s request for Janna to sign a statement authorizing Yarrell to collect\\nthe money.\\n\\n When Yarrell accepted David’s payment on Janna’s behalf, she did so\\nagainst both the terms of the arbitration order and Janna’s instructions. Ac-\\ncordingly, Yarrell was not actually authorized to collect on Janna’s behalf.\\n\\n\\n 5 Supporting this conclusion, Yarrell testified that Janna specifically sought terms\\nmandating that David pay her directly. As the district court noted, that was necessary\\nbecause of the ongoing disputes.\\n 6\\n\\f Case: 18-20643 Document: 00515165585 Page: 7 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20643\\n B.\\n Apparent authority arises “either from a principal knowingly permitting\\nan agent to hold [himself] out as having authority or by a principal’s actions\\nwhich lack such ordinary care as to clothe an agent with the indicia of author-\\nity, thus leading a reasonably prudent person to believe that the agent has the\\nauthority [he] purports to exercise.” Gaines, 235 S.W.3d at 182 (quoting Bap-\\ntist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 948 (Tex. 1998)). “A court\\nmay consider only the conduct of the principal leading a third party to believe\\nthat the agent has authority in determining whether an agent has apparent\\nauthority.” NationsBank, N.A. v. Dilling, 922 S.W.2d 950, 953 (Tex. 1996) (per\\ncuriam). A principal is not bound where the other transacting party “has notice\\nof the limitations of the agent’s power.” G.D. Douglass v. Pan., Inc., 504 S.W.2d\\n776, 779 (Tex. 1974).\\n\\n David and his trustee contend that the record, in light of the credibility\\nof the witnesses as determined by the bankruptcy court, supports David’s claim\\nthat Yarrell was apparently authorized to collect on Janna’s behalf. In support\\nof that contention, David and his trustee aver that Yarrell was apparently\\nauthorized because she was still Janna’s attorney of record. Even though Yar-\\nrell had filed a motion to withdraw, they aver that “withdrawal is not complete\\nuntil the presiding judge signs an order of withdrawal.” 6\\n\\n After accounting for the bankruptcy court’s “discount[ing]” David’s and\\nJanna’s testimony to the extent it was “uncorroborated by documents that [the\\ncourt] believe[d] in,” the record still establishes that David knew Yarrell was\\nnot authorized to collect the payment on Janna’s behalf. In David’s January 27\\n\\n\\n 6 David and his trustee cite TEXAS RULE OF DISCIPLINARY PROCEDURE § 1.15, cmt. 3\\nfor this proposition, which provides that “[w]hen a lawyer has been appointed to represent a\\nclient and in certain other instances in litigation, withdrawal ordinarily requires approval of\\nthe appointing authority or presiding judge.”\\n 7\\n\\f Case: 18-20643 Document: 00515165585 Page: 8 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20643\\nemail—which he admitted to sending—he conditioned paying Janna, as distin-\\nguished from Yarrell, on Janna’s signing an attached notice of non-suit per-\\ntaining to an unrelated appeal. Whether Yarrell was Janna’s attorney of rec-\\nord makes no difference. That does not negate David’s actual knowledge that\\nJanna did not authorize Yarrell to collect the payment. The terms of the arbi-\\ntration order and Yarrell’s motion to withdraw from representation also re-\\ninforce that David was on notice that Yarrell was not authorized to accept his\\npayment.\\n\\n Apparent authority is based on estoppel, an equitable doctrine. Gaines,\\n235 S.W.3d at 182. It would be inequitable to allow a debtor who transacts\\nwith an unauthorized agent, against the wishes of the principal, to bind the\\nprincipal. “No principle is better settled in law, nor is there any founded upon\\nmore obvious justice, than that if a person dealing with an agent knows that\\nhe is acting under a circumscribed and limited authority and that his act is\\noutside of and transcends the authority conferred, the principal is not so\\nbound.” Gen. Contract Purchase Corp. v. Sumner, 49 S.W.2d 960, 961 (Tex.\\nCiv. App.—Amarillo 1932, writ dism’d). Because David “ha[d] notice of the\\nlimitations of [Yarrell’s] power” to accept his payment, Janna is not bound by\\nit. See G.D. Douglass, 504 S.W.2d at 779.\\n\\n * * * * *\\n\\n As a matter of law, David’s payment to Yarrell did not extinguish his\\nobligation to Janna. The judgment of the district court, reversing the bank-\\nruptcy court, is AFFIRMED.\\n\\n\\n\\n\\n 8\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4448450/\", \"author_raw\": \"JERRY E. SMITH, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"OWEN"},"judge2":{"kind":"string","value":"JONES"},"judge3":{"kind":"string","value":"SMITH"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"OWEN\": \", Chief\", \"JONES\": \", Circuit\", \"SMITH\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4671197/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Janna Russell v. David Russell\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-21\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-20643 Document: 00515165585 Page: 1 Date Filed: 10/21/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n\n No. 18-20643\n Fifth Circuit\n\n FILED\n October 21, 2019\n Lyle W. Cayce\nIn the matter of: DAVID C. RUSSELL, Clerk\n\n Debtor.\nJANNA F. RUSSELL,\n Appellee,\nversus\nDAVID C. RUSSELL; RONALD J. SOMMERS,\n Appellants.\n\n\n\n Appeals from the United States District Court\n for the Southern District of Texas\n\n\n\n\nBefore OWEN, Chief Judge, and JONES and SMITH, Circuit Judges.\nJERRY E. SMITH, Circuit Judge:\n\n Janna Russell sued David Russell, her ex-husband and a Chapter 7\ndebtor, in bankruptcy court over a debt of $32,500 plus interest. After an evi-\ndentiary hearing, the bankruptcy court ruled for David on the record, finding\nthat David had paid the debt. The district court reversed, holding that David\nhad not satisfied his obligation to Janna as a matter of law. We affirm the\ndistrict court.\n\f Case: 18-20643 Document: 00515165585 Page: 2 Date Filed: 10/21/2019\n\n\n\n No. 18-20643\n I.\n This case presents one snippet of a ten-plus-year legal battle between ex-\nspouses. The dispute began when Janna filed a petition to modify David’s and\nher parent-child relationship order. A Texas state court ordered David and\nJanna to mediation, where they executed a mediation settlement. The order\napproving the settlement mandated that David pay Janna $32,500. On receipt\nof payment, Janna was to execute certain deeds to David.\n\n After David either failed or refused to pay Janna, the state court ordered\nthe parties to arbitration. The resulting arbitration order awarded Janna\n$32,500 plus interest. In relevant part, the arbitration order states,\n\n 9.6 IT IS ORDERED that said money order, certified check or\n cashier’s check shall be made payable to “Janna Russell”\n only and shall not have any other endorsement.\n 9.7 IT IS ORDERED that if payment of the judgment together\n with post judgment interest at 5% is made by DAVID\n CHRISTOPHER RUSSELL to JANNA RUSSELL in cash,\n then JANNA RUSSELL shall execute the Special Warranty\n Deeds listed above in 9.3.1, 9.3.2, 9.3.3 and DAVID CHRIS-\n TOPHER RUSSELL shall execute the Special Warranty\n Deed listed in 9.4.1 on the same day the judgments are paid\n in cash.\nJanna expressly sought provisions requiring payments to go directly to her.\n\n During the state proceedings, Janna and her attorney Ellen Yarrell\nfound themselves at odds and decided to part ways. On December 23, 2010,\ntwo days after the state court had entered its arbitration order, Yarrell moved\nto withdraw from representing Janna. Janna agreed and signed the Order on\nMotion of Withdrawal of Counsel on December 30, 2010. At that time, Yarrell\nclaimed that Janna owed her over $60,000 in unpaid attorney fees.\n\n In a December 30, 2010, email, Yarrell asked Janna to sign the deeds\ndue to David on receiving his $32,500 payment. Yarrell also asked Janna to\n 2\n\f Case: 18-20643 Document: 00515165585 Page: 3 Date Filed: 10/21/2019\n\n\n\n No. 18-20643\nsign a statement authorizing Yarrell to collect David’s payment on her behalf.\nYarrell stated that she would then deposit the money to Janna’s account\nbalance with her law firm. In return, Yarrell offered to sign a complete release\nfor the rest of the disputed attorney fees. Janna rejected that offer and stated\nthat she had been “very clear about [her] position” with Yarrell, David, and\nDavid’s attorneys, and she would “not be pressured or coerced . . . into signing\nthe deed without [David] first paying [her] directly the $32,500.” Janna also\nexpressed concern that Yarrell was not acting in her best interest and repeat-\nedly informed Yarrell that she was not authorized to accept the $32,500.\n\n According to Janna, David tried to manipulate Janna’s conflict with Yar-\nrell to “negotiate a better deal.” In particular, Janna claims that David threat-\nened to deliver the settlement funds to Yarrell unless Janna dismissed an un-\nrelated appeal. To support that claim, Janna presents emails from David. 1\n\n\n 1 Janna first presents a December 28, 2010 email in which David allegedly wrote,\n I suggest that you let me pay you directly the money. . . . [Yarrell] has tried to get me\n . . . to deposit the 32,500.00 into her trust account and I think that is so she could keep\n the money herself without paying you.\n By doing as I suggest, we each get our deeds and YOU get the money—not Ellen. In\n return for my goodwill, I would also like you to dismiss your appeal if we do things\n this way so that we can finally be done with all of this and we can stop paying lawyers.\nAt the hearing before the bankruptcy court, David claimed that Janna had fabricated that\nemail. The district court, misapplying the standard of review, erroneously relied on that\nemail to conclude that David threatened to deliver the funds to Yarrell unless Janna dis-\nmissed her appeal on an unrelated claim. But the district court could have based its con-\nclusion on a January 27, 2011, email in which David wrote,\n I would much rather give this money to you than to your attorney, but I guess that is\n up to you. If you truly do have ALL the deeds signed, I do not see a problem meeting\n with you at Chase Bank. This really should not be that hard.\n [My attorney] just called while I was typing this.\n I can meet you at the Chase Bank on Louetta at 9:30 AM tomorrow. I will have the\n deeds I signed and had notarized. I will need to to [sic] have the deeds signed that\n you are to sign. You will also need to sign an appeal dismissal letter. I have attached\n this for your review. This can be notarized at the Bank as well.\nAt the hearing, David admitted to sending this and attaching an appeal dismissal letter.\n 3\n\f Case: 18-20643 Document: 00515165585 Page: 4 Date Filed: 10/21/2019\n\n\n\n No. 18-20643\n On April 15, 2011, David went to Yarrell’s office, unannounced, and paid\nher $32,500 in cash. Because David did not receive Janna’s deeds—which, per\nthe arbitration order, he was entitled to on paying Janna $32,500—on June 6,\n2011, David filed a motion “to compel signature on documents.” A Texas court\ndenied David’s motion.\n\n When David filed for Chapter 7 bankruptcy in 2016, Janna filed two\nseparate proofs of claim, the first of which is the subject of this appeal. David,\njoined by Ronald Summers, the Chapter 7 trustee, objected to the first claim,\nasserting that David had paid the claim by delivering cash to Yarrell. The\nbankruptcy court held an evidentiary hearing on that claim, at the end of\nwhich the court announced findings and conclusions on the record. Based on\ninconsistencies in David’s and Janna’s testimony, the court “discount[ed] their\ntestimony to the extent that it [was] uncorroborated by documents that [the\ncourt] believe[d] in.” After discounting both of their testimony, the court noted\nthat both parties agreed that David paid Yarrell the cash. Finding that Janna\ngot “the benefit of the money,” the court entered judgment for David, allowing\nJanna’s claim for only the interest that had accrued as of the time that David\npaid Yarrell. The district court reversed, holding that as a matter of law,\nDavid’s payments did not satisfy his obligation to Janna.\n\n II.\n David and his trustee maintain that the district court erred in reversing\nthe bankruptcy court. “This [c]ourt reviews the district court’s decision by\napplying the same standard of review to the bankruptcy court’s conclusions of\nlaw and findings of fact that the district court applied.” Barron & Newburger,\nP.C. v. Tex. Skyline, Ltd. (In re Woerner), 783 F.3d 266, 270 (5th Cir. 2015) (en\nbanc) (internal quotation marks omitted). Consequently, “[w]e review the\nbankruptcy court’s findings of fact for clear error and its conclusions of law de\n\n 4\n\f Case: 18-20643 Document: 00515165585 Page: 5 Date Filed: 10/21/2019\n\n\n\n No. 18-20643\nnovo.” Robertson v. Dennis (In re Dennis), 330 F.3d 696, 701 (5th Cir. 2003).\n“Moreover, when the bankruptcy court’s weighing of the evidence is plausible\nin light of the record taken as a whole, a finding of clear error is precluded,\neven if we would have weighed the evidence differently.” Bradley v. Ingalls (In\nre Bradley), 501 F.3d 421, 434 (5th Cir. 2007). We “must give due regard to\nthe [bankruptcy] court’s opportunity to judge the witnesses’ credibility.” FED.\nR. CIV. P. 52(a)(6).\n\n The bankruptcy court did not address whether Yarrell was authorized to\nact on Janna’s behalf 2 but instead held that because Janna “got the benefit of\nthe money”—which Janna disputes—the debt had been paid. That reasoning\nis incomplete. Debt payments made to a creditor’s agent do not bind the\ncreditor unless the agent is authorized to collect the payment on behalf of the\ncreditor. 3 Whether that authority exists “depends on some communication by\nthe principal either to the agent (actual or express authority) or to the third\nparty (apparent or implied authority).” Gaines v. Kelly, 235 S.W.3d 179, 182\n(Tex. 2007). It does not depend on whether the principal benefits from the\ntransaction. 4 Because payment is an affirmative defense, the burden is on the\ndebtor to prove that the third party was authorized to receive payment on\nbehalf of the debtor. See TEX. R. CIV. P. 94–95; see also Brown v. Am. Transfer\n& Storage Co., 601 S.W.2d 931, 936 (Tex. 1980). David’s payment to Yarrell\ndid not terminate his obligation to Janna because Yarrell was not authorized\nto transact on Janna’s behalf.\n\n\n 2 Appellees did, however, raise that issue at the bankruptcy court hearing.\n 3 See Utils. Optimization Grp., L.L.C. v. TIN, Inc., 440 F. App’x 249, 252 (5th Cir.\n2011) (per curiam) (“Absent actual or apparent authority, an agent cannot bind a principal.”)\n(quoting Tex. Cityview Care Ctr., L.P. v. Fryer, 227 S.W.3d 345, 352 (Tex. App.—Fort Worth\n2007, pet. dism’d)).\n 4 The parties have not raised the issue of ratification at any point in this litigation, so\nit is waived. See United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000).\n 5\n\f Case: 18-20643 Document: 00515165585 Page: 6 Date Filed: 10/21/2019\n\n\n\n No. 18-20643\n A.\n “Actual authority is authority that the principal intentionally conferred\non the agent or allowed the agent to believe was conferred.” Ebner v. First\nState Bank of Smithville, 27 S.W.3d 287, 300 (Tex. App.—Austin 2000, pet.\ndenied). The terms of the arbitration order and Janna’s instructions to Yarrell\nshow that Janna did not actually authorize Yarrell to collect David’s payment.\n\n Paragraph 9.6 of the order requires that any negotiable instrument\n“shall be made payable to ‘Janna Russell’ only and shall not have any other\nendorsement.” Paragraph 9.7 specifies the timeline for Janna to deliver deeds\nto David if the debt “is made by DAVID CHRISTOPHER RUSSELL to JANNA\nRUSSELL in cash.” The text is clear—David must pay Janna directly. 5\n\n Janna also did not allow Yarrell to believe that she was authorized to\ntransact on Janna’s behalf. By the time Yarrell accepted David’s payment on\nJanna’s behalf, their relationship had soured. They were fighting over $60,000\nof disputed attorney fees, and Yarrell had already filed a motion to withdraw\nfrom representation. Yarrell knew that Janna did not trust her to collect the\npayment. When asked why the arbitration order included terms mandating\nthat any negotiable instrument be made to Janna Russell only, Yarrell re-\nsponded, “Janna requested it.” On top of that, Janna also expressly rejected\nYarrell’s request for Janna to sign a statement authorizing Yarrell to collect\nthe money.\n\n When Yarrell accepted David’s payment on Janna’s behalf, she did so\nagainst both the terms of the arbitration order and Janna’s instructions. Ac-\ncordingly, Yarrell was not actually authorized to collect on Janna’s behalf.\n\n\n 5 Supporting this conclusion, Yarrell testified that Janna specifically sought terms\nmandating that David pay her directly. As the district court noted, that was necessary\nbecause of the ongoing disputes.\n 6\n\f Case: 18-20643 Document: 00515165585 Page: 7 Date Filed: 10/21/2019\n\n\n\n No. 18-20643\n B.\n Apparent authority arises “either from a principal knowingly permitting\nan agent to hold [himself] out as having authority or by a principal’s actions\nwhich lack such ordinary care as to clothe an agent with the indicia of author-\nity, thus leading a reasonably prudent person to believe that the agent has the\nauthority [he] purports to exercise.” Gaines, 235 S.W.3d at 182 (quoting Bap-\ntist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 948 (Tex. 1998)). “A court\nmay consider only the conduct of the principal leading a third party to believe\nthat the agent has authority in determining whether an agent has apparent\nauthority.” NationsBank, N.A. v. Dilling, 922 S.W.2d 950, 953 (Tex. 1996) (per\ncuriam). A principal is not bound where the other transacting party “has notice\nof the limitations of the agent’s power.” G.D. Douglass v. Pan., Inc., 504 S.W.2d\n776, 779 (Tex. 1974).\n\n David and his trustee contend that the record, in light of the credibility\nof the witnesses as determined by the bankruptcy court, supports David’s claim\nthat Yarrell was apparently authorized to collect on Janna’s behalf. In support\nof that contention, David and his trustee aver that Yarrell was apparently\nauthorized because she was still Janna’s attorney of record. Even though Yar-\nrell had filed a motion to withdraw, they aver that “withdrawal is not complete\nuntil the presiding judge signs an order of withdrawal.” 6\n\n After accounting for the bankruptcy court’s “discount[ing]” David’s and\nJanna’s testimony to the extent it was “uncorroborated by documents that [the\ncourt] believe[d] in,” the record still establishes that David knew Yarrell was\nnot authorized to collect the payment on Janna’s behalf. In David’s January 27\n\n\n 6 David and his trustee cite TEXAS RULE OF DISCIPLINARY PROCEDURE § 1.15, cmt. 3\nfor this proposition, which provides that “[w]hen a lawyer has been appointed to represent a\nclient and in certain other instances in litigation, withdrawal ordinarily requires approval of\nthe appointing authority or presiding judge.”\n 7\n\f Case: 18-20643 Document: 00515165585 Page: 8 Date Filed: 10/21/2019\n\n\n\n No. 18-20643\nemail—which he admitted to sending—he conditioned paying Janna, as distin-\nguished from Yarrell, on Janna’s signing an attached notice of non-suit per-\ntaining to an unrelated appeal. Whether Yarrell was Janna’s attorney of rec-\nord makes no difference. That does not negate David’s actual knowledge that\nJanna did not authorize Yarrell to collect the payment. The terms of the arbi-\ntration order and Yarrell’s motion to withdraw from representation also re-\ninforce that David was on notice that Yarrell was not authorized to accept his\npayment.\n\n Apparent authority is based on estoppel, an equitable doctrine. Gaines,\n235 S.W.3d at 182. It would be inequitable to allow a debtor who transacts\nwith an unauthorized agent, against the wishes of the principal, to bind the\nprincipal. “No principle is better settled in law, nor is there any founded upon\nmore obvious justice, than that if a person dealing with an agent knows that\nhe is acting under a circumscribed and limited authority and that his act is\noutside of and transcends the authority conferred, the principal is not so\nbound.” Gen. Contract Purchase Corp. v. Sumner, 49 S.W.2d 960, 961 (Tex.\nCiv. App.—Amarillo 1932, writ dism’d). Because David “ha[d] notice of the\nlimitations of [Yarrell’s] power” to accept his payment, Janna is not bound by\nit. See G.D. Douglass, 504 S.W.2d at 779.\n\n * * * * *\n\n As a matter of law, David’s payment to Yarrell did not extinguish his\nobligation to Janna. The judgment of the district court, reversing the bank-\nruptcy court, is AFFIRMED.\n\n\n\n\n 8\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Janna Russell v. David Russell\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-21\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-20643 Document: 00515165585 Page: 1 Date Filed: 10/21/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n\\n No. 18-20643\\n Fifth Circuit\\n\\n FILED\\n October 21, 2019\\n Lyle W. Cayce\\nIn the matter of: DAVID C. RUSSELL, Clerk\\n\\n Debtor.\\nJANNA F. RUSSELL,\\n Appellee,\\nversus\\nDAVID C. RUSSELL; RONALD J. SOMMERS,\\n Appellants.\\n\\n\\n\\n Appeals from the United States District Court\\n for the Southern District of Texas\\n\\n\\n\\n\\nBefore OWEN, Chief Judge, and JONES and SMITH, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n Janna Russell sued David Russell, her ex-husband and a Chapter 7\\ndebtor, in bankruptcy court over a debt of $32,500 plus interest. After an evi-\\ndentiary hearing, the bankruptcy court ruled for David on the record, finding\\nthat David had paid the debt. The district court reversed, holding that David\\nhad not satisfied his obligation to Janna as a matter of law. We affirm the\\ndistrict court.\\n\\f Case: 18-20643 Document: 00515165585 Page: 2 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20643\\n I.\\n This case presents one snippet of a ten-plus-year legal battle between ex-\\nspouses. The dispute began when Janna filed a petition to modify David’s and\\nher parent-child relationship order. A Texas state court ordered David and\\nJanna to mediation, where they executed a mediation settlement. The order\\napproving the settlement mandated that David pay Janna $32,500. On receipt\\nof payment, Janna was to execute certain deeds to David.\\n\\n After David either failed or refused to pay Janna, the state court ordered\\nthe parties to arbitration. The resulting arbitration order awarded Janna\\n$32,500 plus interest. In relevant part, the arbitration order states,\\n\\n 9.6 IT IS ORDERED that said money order, certified check or\\n cashier’s check shall be made payable to “Janna Russell”\\n only and shall not have any other endorsement.\\n 9.7 IT IS ORDERED that if payment of the judgment together\\n with post judgment interest at 5% is made by DAVID\\n CHRISTOPHER RUSSELL to JANNA RUSSELL in cash,\\n then JANNA RUSSELL shall execute the Special Warranty\\n Deeds listed above in 9.3.1, 9.3.2, 9.3.3 and DAVID CHRIS-\\n TOPHER RUSSELL shall execute the Special Warranty\\n Deed listed in 9.4.1 on the same day the judgments are paid\\n in cash.\\nJanna expressly sought provisions requiring payments to go directly to her.\\n\\n During the state proceedings, Janna and her attorney Ellen Yarrell\\nfound themselves at odds and decided to part ways. On December 23, 2010,\\ntwo days after the state court had entered its arbitration order, Yarrell moved\\nto withdraw from representing Janna. Janna agreed and signed the Order on\\nMotion of Withdrawal of Counsel on December 30, 2010. At that time, Yarrell\\nclaimed that Janna owed her over $60,000 in unpaid attorney fees.\\n\\n In a December 30, 2010, email, Yarrell asked Janna to sign the deeds\\ndue to David on receiving his $32,500 payment. Yarrell also asked Janna to\\n 2\\n\\f Case: 18-20643 Document: 00515165585 Page: 3 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20643\\nsign a statement authorizing Yarrell to collect David’s payment on her behalf.\\nYarrell stated that she would then deposit the money to Janna’s account\\nbalance with her law firm. In return, Yarrell offered to sign a complete release\\nfor the rest of the disputed attorney fees. Janna rejected that offer and stated\\nthat she had been “very clear about [her] position” with Yarrell, David, and\\nDavid’s attorneys, and she would “not be pressured or coerced . . . into signing\\nthe deed without [David] first paying [her] directly the $32,500.” Janna also\\nexpressed concern that Yarrell was not acting in her best interest and repeat-\\nedly informed Yarrell that she was not authorized to accept the $32,500.\\n\\n According to Janna, David tried to manipulate Janna’s conflict with Yar-\\nrell to “negotiate a better deal.” In particular, Janna claims that David threat-\\nened to deliver the settlement funds to Yarrell unless Janna dismissed an un-\\nrelated appeal. To support that claim, Janna presents emails from David. 1\\n\\n\\n 1 Janna first presents a December 28, 2010 email in which David allegedly wrote,\\n I suggest that you let me pay you directly the money. . . . [Yarrell] has tried to get me\\n . . . to deposit the 32,500.00 into her trust account and I think that is so she could keep\\n the money herself without paying you.\\n By doing as I suggest, we each get our deeds and YOU get the money—not Ellen. In\\n return for my goodwill, I would also like you to dismiss your appeal if we do things\\n this way so that we can finally be done with all of this and we can stop paying lawyers.\\nAt the hearing before the bankruptcy court, David claimed that Janna had fabricated that\\nemail. The district court, misapplying the standard of review, erroneously relied on that\\nemail to conclude that David threatened to deliver the funds to Yarrell unless Janna dis-\\nmissed her appeal on an unrelated claim. But the district court could have based its con-\\nclusion on a January 27, 2011, email in which David wrote,\\n I would much rather give this money to you than to your attorney, but I guess that is\\n up to you. If you truly do have ALL the deeds signed, I do not see a problem meeting\\n with you at Chase Bank. This really should not be that hard.\\n [My attorney] just called while I was typing this.\\n I can meet you at the Chase Bank on Louetta at 9:30 AM tomorrow. I will have the\\n deeds I signed and had notarized. I will need to to [sic] have the deeds signed that\\n you are to sign. You will also need to sign an appeal dismissal letter. I have attached\\n this for your review. This can be notarized at the Bank as well.\\nAt the hearing, David admitted to sending this and attaching an appeal dismissal letter.\\n 3\\n\\f Case: 18-20643 Document: 00515165585 Page: 4 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20643\\n On April 15, 2011, David went to Yarrell’s office, unannounced, and paid\\nher $32,500 in cash. Because David did not receive Janna’s deeds—which, per\\nthe arbitration order, he was entitled to on paying Janna $32,500—on June 6,\\n2011, David filed a motion “to compel signature on documents.” A Texas court\\ndenied David’s motion.\\n\\n When David filed for Chapter 7 bankruptcy in 2016, Janna filed two\\nseparate proofs of claim, the first of which is the subject of this appeal. David,\\njoined by Ronald Summers, the Chapter 7 trustee, objected to the first claim,\\nasserting that David had paid the claim by delivering cash to Yarrell. The\\nbankruptcy court held an evidentiary hearing on that claim, at the end of\\nwhich the court announced findings and conclusions on the record. Based on\\ninconsistencies in David’s and Janna’s testimony, the court “discount[ed] their\\ntestimony to the extent that it [was] uncorroborated by documents that [the\\ncourt] believe[d] in.” After discounting both of their testimony, the court noted\\nthat both parties agreed that David paid Yarrell the cash. Finding that Janna\\ngot “the benefit of the money,” the court entered judgment for David, allowing\\nJanna’s claim for only the interest that had accrued as of the time that David\\npaid Yarrell. The district court reversed, holding that as a matter of law,\\nDavid’s payments did not satisfy his obligation to Janna.\\n\\n II.\\n David and his trustee maintain that the district court erred in reversing\\nthe bankruptcy court. “This [c]ourt reviews the district court’s decision by\\napplying the same standard of review to the bankruptcy court’s conclusions of\\nlaw and findings of fact that the district court applied.” Barron & Newburger,\\nP.C. v. Tex. Skyline, Ltd. (In re Woerner), 783 F.3d 266, 270 (5th Cir. 2015) (en\\nbanc) (internal quotation marks omitted). Consequently, “[w]e review the\\nbankruptcy court’s findings of fact for clear error and its conclusions of law de\\n\\n 4\\n\\f Case: 18-20643 Document: 00515165585 Page: 5 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20643\\nnovo.” Robertson v. Dennis (In re Dennis), 330 F.3d 696, 701 (5th Cir. 2003).\\n“Moreover, when the bankruptcy court’s weighing of the evidence is plausible\\nin light of the record taken as a whole, a finding of clear error is precluded,\\neven if we would have weighed the evidence differently.” Bradley v. Ingalls (In\\nre Bradley), 501 F.3d 421, 434 (5th Cir. 2007). We “must give due regard to\\nthe [bankruptcy] court’s opportunity to judge the witnesses’ credibility.” FED.\\nR. CIV. P. 52(a)(6).\\n\\n The bankruptcy court did not address whether Yarrell was authorized to\\nact on Janna’s behalf 2 but instead held that because Janna “got the benefit of\\nthe money”—which Janna disputes—the debt had been paid. That reasoning\\nis incomplete. Debt payments made to a creditor’s agent do not bind the\\ncreditor unless the agent is authorized to collect the payment on behalf of the\\ncreditor. 3 Whether that authority exists “depends on some communication by\\nthe principal either to the agent (actual or express authority) or to the third\\nparty (apparent or implied authority).” Gaines v. Kelly, 235 S.W.3d 179, 182\\n(Tex. 2007). It does not depend on whether the principal benefits from the\\ntransaction. 4 Because payment is an affirmative defense, the burden is on the\\ndebtor to prove that the third party was authorized to receive payment on\\nbehalf of the debtor. See TEX. R. CIV. P. 94–95; see also Brown v. Am. Transfer\\n& Storage Co., 601 S.W.2d 931, 936 (Tex. 1980). David’s payment to Yarrell\\ndid not terminate his obligation to Janna because Yarrell was not authorized\\nto transact on Janna’s behalf.\\n\\n\\n 2 Appellees did, however, raise that issue at the bankruptcy court hearing.\\n 3 See Utils. Optimization Grp., L.L.C. v. TIN, Inc., 440 F. App’x 249, 252 (5th Cir.\\n2011) (per curiam) (“Absent actual or apparent authority, an agent cannot bind a principal.”)\\n(quoting Tex. Cityview Care Ctr., L.P. v. Fryer, 227 S.W.3d 345, 352 (Tex. App.—Fort Worth\\n2007, pet. dism’d)).\\n 4 The parties have not raised the issue of ratification at any point in this litigation, so\\nit is waived. See United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000).\\n 5\\n\\f Case: 18-20643 Document: 00515165585 Page: 6 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20643\\n A.\\n “Actual authority is authority that the principal intentionally conferred\\non the agent or allowed the agent to believe was conferred.” Ebner v. First\\nState Bank of Smithville, 27 S.W.3d 287, 300 (Tex. App.—Austin 2000, pet.\\ndenied). The terms of the arbitration order and Janna’s instructions to Yarrell\\nshow that Janna did not actually authorize Yarrell to collect David’s payment.\\n\\n Paragraph 9.6 of the order requires that any negotiable instrument\\n“shall be made payable to ‘Janna Russell’ only and shall not have any other\\nendorsement.” Paragraph 9.7 specifies the timeline for Janna to deliver deeds\\nto David if the debt “is made by DAVID CHRISTOPHER RUSSELL to JANNA\\nRUSSELL in cash.” The text is clear—David must pay Janna directly. 5\\n\\n Janna also did not allow Yarrell to believe that she was authorized to\\ntransact on Janna’s behalf. By the time Yarrell accepted David’s payment on\\nJanna’s behalf, their relationship had soured. They were fighting over $60,000\\nof disputed attorney fees, and Yarrell had already filed a motion to withdraw\\nfrom representation. Yarrell knew that Janna did not trust her to collect the\\npayment. When asked why the arbitration order included terms mandating\\nthat any negotiable instrument be made to Janna Russell only, Yarrell re-\\nsponded, “Janna requested it.” On top of that, Janna also expressly rejected\\nYarrell’s request for Janna to sign a statement authorizing Yarrell to collect\\nthe money.\\n\\n When Yarrell accepted David’s payment on Janna’s behalf, she did so\\nagainst both the terms of the arbitration order and Janna’s instructions. Ac-\\ncordingly, Yarrell was not actually authorized to collect on Janna’s behalf.\\n\\n\\n 5 Supporting this conclusion, Yarrell testified that Janna specifically sought terms\\nmandating that David pay her directly. As the district court noted, that was necessary\\nbecause of the ongoing disputes.\\n 6\\n\\f Case: 18-20643 Document: 00515165585 Page: 7 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20643\\n B.\\n Apparent authority arises “either from a principal knowingly permitting\\nan agent to hold [himself] out as having authority or by a principal’s actions\\nwhich lack such ordinary care as to clothe an agent with the indicia of author-\\nity, thus leading a reasonably prudent person to believe that the agent has the\\nauthority [he] purports to exercise.” Gaines, 235 S.W.3d at 182 (quoting Bap-\\ntist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 948 (Tex. 1998)). “A court\\nmay consider only the conduct of the principal leading a third party to believe\\nthat the agent has authority in determining whether an agent has apparent\\nauthority.” NationsBank, N.A. v. Dilling, 922 S.W.2d 950, 953 (Tex. 1996) (per\\ncuriam). A principal is not bound where the other transacting party “has notice\\nof the limitations of the agent’s power.” G.D. Douglass v. Pan., Inc., 504 S.W.2d\\n776, 779 (Tex. 1974).\\n\\n David and his trustee contend that the record, in light of the credibility\\nof the witnesses as determined by the bankruptcy court, supports David’s claim\\nthat Yarrell was apparently authorized to collect on Janna’s behalf. In support\\nof that contention, David and his trustee aver that Yarrell was apparently\\nauthorized because she was still Janna’s attorney of record. Even though Yar-\\nrell had filed a motion to withdraw, they aver that “withdrawal is not complete\\nuntil the presiding judge signs an order of withdrawal.” 6\\n\\n After accounting for the bankruptcy court’s “discount[ing]” David’s and\\nJanna’s testimony to the extent it was “uncorroborated by documents that [the\\ncourt] believe[d] in,” the record still establishes that David knew Yarrell was\\nnot authorized to collect the payment on Janna’s behalf. In David’s January 27\\n\\n\\n 6 David and his trustee cite TEXAS RULE OF DISCIPLINARY PROCEDURE § 1.15, cmt. 3\\nfor this proposition, which provides that “[w]hen a lawyer has been appointed to represent a\\nclient and in certain other instances in litigation, withdrawal ordinarily requires approval of\\nthe appointing authority or presiding judge.”\\n 7\\n\\f Case: 18-20643 Document: 00515165585 Page: 8 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20643\\nemail—which he admitted to sending—he conditioned paying Janna, as distin-\\nguished from Yarrell, on Janna’s signing an attached notice of non-suit per-\\ntaining to an unrelated appeal. Whether Yarrell was Janna’s attorney of rec-\\nord makes no difference. That does not negate David’s actual knowledge that\\nJanna did not authorize Yarrell to collect the payment. The terms of the arbi-\\ntration order and Yarrell’s motion to withdraw from representation also re-\\ninforce that David was on notice that Yarrell was not authorized to accept his\\npayment.\\n\\n Apparent authority is based on estoppel, an equitable doctrine. Gaines,\\n235 S.W.3d at 182. It would be inequitable to allow a debtor who transacts\\nwith an unauthorized agent, against the wishes of the principal, to bind the\\nprincipal. “No principle is better settled in law, nor is there any founded upon\\nmore obvious justice, than that if a person dealing with an agent knows that\\nhe is acting under a circumscribed and limited authority and that his act is\\noutside of and transcends the authority conferred, the principal is not so\\nbound.” Gen. Contract Purchase Corp. v. Sumner, 49 S.W.2d 960, 961 (Tex.\\nCiv. App.—Amarillo 1932, writ dism’d). Because David “ha[d] notice of the\\nlimitations of [Yarrell’s] power” to accept his payment, Janna is not bound by\\nit. See G.D. Douglass, 504 S.W.2d at 779.\\n\\n * * * * *\\n\\n As a matter of law, David’s payment to Yarrell did not extinguish his\\nobligation to Janna. The judgment of the district court, reversing the bank-\\nruptcy court, is AFFIRMED.\\n\\n\\n\\n\\n 8\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4592,"cells":{"id":{"kind":"number","value":4671389,"string":"4,671,389"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Evan Crocker v. Navient Solutions, L.L.C."},"decision_date":{"kind":"string","value":"2019-10-21"},"docket_number":{"kind":"string","value":"18-20254"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before STEWART, SOUTHWICK and ENGELHARDT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"LESLIE H. SOUTHWICK, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-20254 Document: 00515167087 Page: 1 Date Filed: 10/21/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n October 21, 2019\\n No. 18-20254\\n Lyle W. Cayce\\n Clerk\\nIn re: Evan Brian Crocker, also known as Haas Legal, P.L.L.C.\\n\\n Debtor\\n\\nEVAN BRIAN CROCKER, on behalf of themselves and all those similarly\\nsituated, also known as Haas Legal, P.L.L.C, formerly known as Evan Brian\\nHaas: MICHAEL SHAHBAZI, on behalf of themselves and all those similarly\\nsituated, formerly known as Montana Shahbazi; WENDY L. LANDES, on\\nbehalf of themselves and all those similarly situated; RAEGENA SEITZ-\\nMOULDS, on behalf of themselves and all those similarly situated,\\n\\n Appellees\\n\\nv.\\n\\nNAVIENT SOLUTIONS, L.L.C.; NAVIENT CREDIT FINANCE\\nCORPORATION,\\n\\n Appellants\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore STEWART, SOUTHWICK and ENGELHARDT, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n\\n An individual in Texas and another in Virginia separately obtained loans\\nfrom the same lender to pay education expenses. Both later filed for\\nbankruptcy in their respective states. In time, orders of discharge were\\n\\f Case: 18-20254 Document: 00515167087 Page: 2 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nentered. One of the discharged debtors then filed suit against the lender in the\\nsame Bankruptcy Court of the Southern District of Texas that had ordered the\\ndischarge of his debts. Later, the Virginia debtor joined the Texas suit. The\\nsuit seeks to certify a nationwide class of those who claim their education-loan\\ndebts were validly discharged but from whom this lender continues to demand\\npayment. A declaratory judgment, injunction, and damages are sought.\\n The lender filed a motion for summary judgment, arguing bankruptcy\\ncourts cannot enforce the injunctions arising from discharge orders entered by\\ncourts in other judicial districts, and these private-education-loan debts are\\nstatutorily excepted from discharge. The bankruptcy court held the opposite\\nas to both, then certified the two holdings for interlocutory appeal.\\n We conclude that a bankruptcy court does not have authority to enforce\\nthe discharge injunctions entered in other districts. On the other hand, we\\nagree with the bankruptcy court that the particular education loans involved\\nhere are not statutorily excepted from discharge. The cause is REMANDED.\\n\\n\\n FACTUAL AND PROCEDURAL HISTORY\\n In 2009, Evan Crocker 1 obtained a $15,000 loan to fund his bar\\nexamination preparation. The lender was a subsidiary of SLM Corporation,\\nd/b/a Sallie Mae, which is a for-profit, public corporation whose loans are not\\npart of any governmental loan program. The loan documents informed Crocker\\nthat his repayment obligation “may not be dischargeable in bankruptcy.”\\nCrocker’s loan was transferred to SLM Education Credit Finance Corporation,\\nwhich subsequently became Navient Credit Finance Corporation. In the\\ncomplaint, Navient Solutions is said to be the entity pursuing collection. We\\nwill not differentiate among Navient entities in our discussion.\\n\\n\\n 1 Evan Brian Haas changed his name to Evan Brian Crocker in 2017. We use his\\ncurrent name throughout this opinion.\\n 2\\n\\f Case: 18-20254 Document: 00515167087 Page: 3 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n In 2015, Crocker filed for voluntary Chapter 7 bankruptcy in the United\\nStates Bankruptcy Court for the Southern District of Texas. He scheduled his\\nbar-study loan claim as an “Educational . . . Private loan” and did not dispute\\nthe debt. In February 2016, the court granted him a discharge under 11 U.S.C.\\n§ 727, informed him that “[m]ost debts are covered by the discharge, but not\\nall,” and closed his case.\\n Michael Shahbazi has a similar story. In 2002, Shahbazi obtained an\\n$11,658.99 loan from Sallie Mae for tuition and expenses while he attended a\\ntechnical school. He was given notice that his loan was “an education loan that\\nmust be repaid.” Exactly how Navient obtained its interest is unclear to us,\\nbut it is servicing this loan.\\n In 2011, Shahbazi filed for voluntary Chapter 7 bankruptcy in the\\nUnited States Bankruptcy Court for the Eastern District of Virginia. He\\nscheduled his Sallie Mae loan as a “Student Loan” and did not dispute the debt.\\nIn December 2011, the court granted him a discharge and closed his\\nbankruptcy proceeding. This discharge order specifically listed “Debts for most\\nstudent loans” as not being discharged.\\n It is alleged that after both discharges, Navient had both of these\\nplaintiffs contacted frequently by telephone and email to demand repayment.\\nIn August 2016, Crocker filed an adversary proceeding against Navient in the\\nBankruptcy Court for the Southern District of Texas, the same court that had\\ngranted him a discharge. He sought (1) a declaratory judgment that his private\\neducation debt had been discharged; (2) entry of judgment holding Navient in\\ncontempt for violating the injunction arising from his discharge; and (3) a\\ntemporary injunction. The court entered an agreed preliminary injunction on\\nAugust 18, 2016, barring Navient from pursuing collection until further order.\\n Crocker, with Shahbazi as an additional plaintiff, filed an amended\\ncomplaint, seeking to certify a nationwide class of those who (1) obtained\\n 3\\n\\f Case: 18-20254 Document: 00515167087 Page: 4 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nprepetition private education loans from Navient or related companies to cover\\nexpenses at an institution not accredited under Title IV; (2) later filed for\\nbankruptcy and were issued discharge orders; (3) have never reaffirmed their\\nprepetition private education loan debt; and (4) are being induced to pay their\\nallegedly discharged private education loans. Damages were now also sought.\\n Navient moved for summary judgment on these claims, arguing that a\\nbankruptcy court has no jurisdiction to interpret and enforce discharge orders\\nentered by courts in other judicial districts and that the plaintiffs’ education\\nloans were nondischargeable. The bankruptcy court denied the motion in\\nMarch 2018. 2 It rejected that the general rule giving an issuing court sole\\nauthority to enforce its own injunctions applied to the automatic injunction\\ncreated by statute when a bankruptcy court grants a discharge under 11 U.S.C.\\n§ 727. The court also determined that the kind of loans for educational\\npurposes relevant here, which the parties refer to as “private loans,” were not\\nwithin the ambit of the Bankruptcy Code’s bar on the discharge of some\\nstudent loans. See 11 U.S.C. § 523(a)(8).\\n In the same order, the bankruptcy court first authorized an interlocutory\\nappeal, then certified the order for direct appeal to this court, eschewing the\\nusual initial appellate review by a district court. A bankruptcy court may\\ncertify a ruling for direct review by a circuit court of appeals when, among other\\nreasons, it “involves a question of law as to which there is no controlling\\ndecision” by that circuit court or the Supreme Court, or because an appeal at\\nthat stage in the proceedings “may materially advance the progress of the\\ncase.” 28 U.S.C. § 158(d)(2)(A)(i), (iii). If a bankruptcy court so certifies, the\\n\\n\\n 2 Wendy L. Landes and Raegena Seitz-Moulds were included without objection as\\nadditional putative class members in a Third Amended Complaint, filed after Navient’s\\nmotion for summary judgment but before the bankruptcy court ruled. No party argues that\\nthe issues before us are altered by their joinder. Accordingly, we do not separately discuss\\nthe facts of the bankruptcies of the two last-added parties.\\n 4\\n\\f Case: 18-20254 Document: 00515167087 Page: 5 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\ncircuit court of appeals then exercises its discretion. § 158(d)(2)(A). A motions\\npanel of this court granted the unopposed motion to authorize the appeal.\\n\\n DISCUSSION\\n We review “grants and denials of summary judgment de novo. Summary\\njudgment is appropriate when ‘there is no genuine dispute as to any material\\nfact and the movant is entitled to judgment as a matter of law.’” Lyda\\nSwinterton Builders, Inc. v. Okla. Sur. Co., 903 F.3d 435, 444 (5th Cir. 2018)\\n(quoting FED. R. CIV. P. 56). Federal Rule of Civil Procedure 56 is incorporated\\ninto the Federal Rules of Bankruptcy Procedure. FED. R. BANKR. P. 7056.\\n Navient has two principal contentions on appeal. The first is that the\\nbankruptcy court either has no jurisdiction to enforce the statutory injunctions\\narising from a bankruptcy discharge that another bankruptcy court ordered,\\nor at least for prudential reasons may not do so. Second, Navient contends\\nthat the plaintiffs’ education loans are within the category of loans that under\\nthe Bankruptcy Code are nondischargeable.\\n There are no meaningful factual issues presented to us. Instead, we have\\nlegal issues of statutory interpretation. We now turn to those.\\n\\n\\nI. Authority to enforce a Section 524 discharge order entered by a bankruptcy\\ncourt in another judicial district\\n In broad brush, these proceedings concern two closed Chapter 7\\nbankruptcies in which generic discharges, i.e., discharges not specifying the\\ndischarged debts, were issued at completion. A discharge “operates as an\\ninjunction” against an extensive list of actions that a creditor might take to\\ncollect on the discharged debt. 11 U.S.C. § 524(a)(2), (3). The discharge is a\\n“substantive right,” and that right is “often enforced by a motion for contempt,\\nbut [it is] also enforceable through a declaratory judgment action.” Nat’l\\nGypsum Co. v. NGC Settlement Tr. & Asbestos Claims Mgmt. Corp. (In re Nat’l\\n 5\\n\\f Case: 18-20254 Document: 00515167087 Page: 6 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nGypsum Co.), 118 F.3d 1056, 1063 (5th Cir. 1997) (citations omitted). The\\ndeclaratory judgment was sought in National Gypsum by the opening of an\\nadversary proceeding in the bankruptcy court that had granted the debtor’s\\ndischarge. Id. at 1060. Indeed, Federal Rule of Bankruptcy Procedure 7001(6)\\nstates that an adversary proceeding is, among other things, “a proceeding to\\ndetermine the dischargeability of a debt.”\\n Thus, an available procedure under National Gypsum is a declaratory\\njudgment action. A violation of the declaratory judgment will lead to its own\\nremedies such as “damages or an injunction.” United Teacher Assocs. Ins. Co.\\nv. Union Labor Life Ins. Co., 414 F.3d 558, 570 (5th Cir. 2005); see also 28\\nU.S.C. § 2202. The issue for us is identifying the proper court or courts in\\nwhich such an action can be brought. May a bankruptcy court other than the\\none that granted the discharge enforce the injunction?\\n The closest this circuit has come to answering the question is to hold, in\\nthe class action context, that a bankruptcy judge in the Southern District of\\nTexas may exercise ‘jurisdiction over claims that arise in other cases\\nadministered by other judges” in the same judicial district. Wilborn v. Wells\\nFargo Bank, N.A. (In re Wilborn), 609 F.3d 748, 753 (5th Cir. 2010). The\\nWilborn court only briefly discussed the issue of enforcing an injunction arising\\nfrom the discharge order of a different bankruptcy court in the same district.\\nIn the present proceedings, the bankruptcy court’s understanding of its\\nauthority extended well beyond its home district. The question of a bankruptcy\\njudge’s injunctive reach within its own district has not been answered.\\n The two plaintiff-debtors received general discharges in bankruptcy.\\nCentral to the dispute is that Congress has excepted from discharge, among\\nother categories of debt, certain types of student-loan debt. 11 U.S.C. §\\n523(a)(8). We will deal with the issue of dischargeability in the second part of\\nour opinion and will wait to quote the relevant statute until then.\\n 6\\n\\f Case: 18-20254 Document: 00515167087 Page: 7 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n We have already summarized that the bankruptcy court at this stage\\nanswered only two questions. The first answer we review is the “yes” the court\\ngave to the question of whether a bankruptcy court in a judicial district other\\nthan the one in which the discharge was entered has authority to interpret the\\ndischarge and enforce the injunction. The court rejected Navient’s argument\\nthat the general rule should apply that the court issuing an injunction is the\\nonly one that can enforce it through contempt proceedings. The bankruptcy\\ncourt first held that general rule was inapplicable because no discretion or\\nindividual judgment is exercised in creating the injunction. 3 The form order\\nused for the discharges for the initial two plaintiffs here does not even mention\\nan injunction. The injunction instead arises from this statutory command: “A\\ndischarge in a case under this title . . . operates as an injunction against the\\ncommencement or continuation of an action.” § 524(a). Because there is “no\\nsubjective thought process that requires deference nor is there any risk of\\nmisinterpretation of a particular judge’s reasoning,” the bankruptcy court\\nconcluded that the general limitation on enforcement of injunctions only by the\\nissuing court was inapplicable. The court did not cite any case authority to\\nsupport its analysis. The basic point was that the bankruptcy statutes\\nthemselves make clear that no purpose is served by requiring a return to the\\nissuing court to interpret a discharge injunction.\\n Navient, of course, disagrees that discharge injunctions should be\\ntreated differently than others. A principal authority it cites is one of this\\ncourt’s precedents dealing with non-bankruptcy injunctions. There, Chief\\nJudge Charles Clark explained in the context of a claim of securities fraud that\\n\\n\\n 3 There is at least one aspect of the bankruptcy discharge that requires individual\\njudicial consideration. The applicable education loans are not discharged “unless excepting\\nsuch debt from discharge under this paragraph would impose an undue hardship on the\\ndebtor and the debtor’s dependents.” § 523(a)(8). Different bankruptcy judges can look at\\nthe same facts and reach contrary decisions.\\n 7\\n\\f Case: 18-20254 Document: 00515167087 Page: 8 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n“[e]nforcement of an injunction through a contempt proceeding must occur in\\nthe issuing jurisdiction because contempt is an affront to the court issuing the\\norder.” Waffenschmidt v. MacKay, 763 F.2d 711, 716 (5th Cir. 1985). A\\nbankruptcy court does continue to have jurisdiction to enforce its orders, and\\nthat jurisdiction remains even after the bankruptcy case is closed. See, e.g.,\\nGalaz v. Katona, 841 F.3d 316, 322 (5th Cir. 2016). The issue for us arises\\nbecause Galaz and other Fifth Circuit precedents do not hold that authority is\\nexclusive in the original court. Navient also argues that regardless of\\njurisdiction, there are prudential reasons supporting its argument.\\n Navient’s appellate brief recounts the background for an injunction that\\narises from a discharge, drawing from a scholarly article. Charles Jordan\\nTabb, The Historical Evolution of the Bankruptcy Discharge, 65 AM. BANKR. L.\\nJ. 325 (1991). We look at parts of the background in order to understand how\\na bankruptcy discharge was enforced before a statute was enacted that\\nimposed an injunction. Importantly, we also consider whether another part of\\nthe same statutory enactment arguably created a right of enforcement of the\\ninjunction by “foreign” courts. If so, then its repeal in 1978 has some meaning.\\n There was no statutory injunction arising from a discharge until 1970.\\nId. at 326 n.3. A House Report on 1970 bankruptcy legislation explained\\nproblems with prior law, including the harassment of debtors:\\n The present discharge provisions of the Bankruptcy Act authorize\\n the bankruptcy court to determine the right to a discharge, but do\\n not give the bankruptcy court express jurisdiction to determine the\\n effect of the discharge. . . . Under present practice, if a bankrupt is\\n sued in State court on a discharged debt, the State court may\\n determine whether the debt in question was or was not discharged.\\n In other words, the jurisdiction over the granting and the enforcing\\n of a discharge is divided, with the result that debtors are\\n frequently harassed and coerced by creditors into paying debts\\n that may have been discharged.\\nH.R. REP. NO. 91-1502, at 3 (1970).\\n 8\\n\\f Case: 18-20254 Document: 00515167087 Page: 9 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n The 1970 legislation was adopted and provided for an injunction:\\n f. An order of discharge shall—\\n (1) declare that any judgment theretofore or thereafter obtained in\\n any other court is null and void . . . ; and\\n (2) enjoin all creditors whose debts are discharged from thereafter\\n instituting or continuing any action or employing any process to\\n collect such debts as personal liabilities of the bankrupt.\\nAct of Oct. 29, 1970, Pub. L. No. 91-467, § 3, 84 Stat. 990, 991 (amending\\nSection 14 of the 1898 Bankruptcy Code, codified as 11 U.S.C. § 32(f)).\\n The statutory detailing of the injunction that results from a discharge\\nhas been revised, but the meaning for our purposes is the same: the discharge\\n“operates as an injunction against the commencement or continuation of an\\naction” to collect a relevant debt. 11 U.S.C. § 524(a)(2).\\n Nothing in the statute creating an injunction explains whether this form\\nof injunction could be enforced only by the bankruptcy court in the issuing\\ndistrict. Another 1970 provision, though, which appeared immediately after\\nthe injunction section, did specifically refer to enforcement in other courts. It\\nallowed the order of discharge to be registered in another district and to be\\n“enforced in like manner” in the new district as in the issuing district:\\n g. An order of discharge which has become final may be registered\\n in any other district by filing therein a certified copy of such order\\n and when so registered shall have the same effect as an order of\\n the bankruptcy court of the district where registered and may be\\n enforced in like manner.\\n§ 3, 84 Stat. 990, 991 (codified as 11 U.S.C. § 32(g)). 4 Bankruptcy Rule 404(g)\\nused almost this exact language. 11 U.S.C. app. at 283 (Supp. III 1974).\\n\\n\\n\\n 4An explanation for what those promoting the 1970 legislation were at least trying to\\ndo was given by the National Conference of Referees in Bankruptcy:\\n When a bankrupt has moved out of the district where he obtained his\\n discharge in bankruptcy and is sued by a creditor on a discharged debt in the\\n state to which he moved, the bankrupt should be able to enforce the discharge\\n 9\\n\\f Case: 18-20254 Document: 00515167087 Page: 10 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n The 1970 subsection on registration was repealed with adoption of the\\nBankruptcy Code of 1978. 11 U.S.C. Tbl. I (showing that former Section 32(g)\\nwas repealed). Further, the Bankruptcy Rule that implemented Section 32(g)\\nwas revised after the 1978 Code was adopted by deleting “may be enforced in\\nlike manner.” FED. R. BANKR. P. 4004(f). Enacted revisions in the wording of\\nstatutes are part of “statutory history,” not “the sort of unenacted legislative\\nhistory that often is neither truly legislative (having failed to survive\\nbicameralism and presentment) nor truly historical (consisting of advocacy\\naimed at winning in future litigation what couldn’t be won in past statutes).”\\nBNSF Ry. Co. v. Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J., dissenting).\\nWhen Congress makes a significant change in language when it amends an\\nexisting statute, it “presumptively connotes a change in meaning.” ANTONIN\\nSCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL\\nTEXTS 256 (2012). Congress’s decision to eliminate language that seemed to\\nallow enforcement of the discharge injunction in a new district 5 gives weight\\nto the argument that after the 1978 Bankruptcy Code was adopted,\\nenforcement in “like manner” in a different district was prohibited.\\n We now turn to the law that exists today. Registering a judgment in a\\nnew court is not a creature primarily of bankruptcy law. Some quite learned\\nprofessors described the adoption of a general statutory provision for\\nregistration in 1948, after an earlier Civil Rules version was rejected as\\n\\n\\n and its injunctive provisions through the district court where he is currently\\n residing. Section 14g [11 U.S.C. section 32(g)] is meant to permit the bankrupt\\n access to his local United States court by registering therein a certified copy of\\n the order granting the discharge.\\nH.R. REP. NO. 91-1502, at 11.\\n 5 Learned commentators concluded that Section 32(g) authorized enforcement of a\\n\\ndischarge injunction in a new district. One wrote that with “the 1970 Amendments to the\\n1898 Act, Congress developed the portable and registerable discharge injunction.” Robert P.\\nWasson, Jr., Remedying Violations of the Discharge Injunction Under Bankruptcy Code\\n524…, 20 BANKR. DEV. J. 77, 88 (2003).\\n 10\\n\\f Case: 18-20254 Document: 00515167087 Page: 11 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\narguably being beyond the rulemaking power of the Supreme Court. 11\\nCHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARK KAY KANE, FEDERAL\\nPRACTICE AND PROCEDURE § 2787 (2012). The current statute states:\\n A judgment in an action for the recovery of money or\\n property entered in any court of appeals, district court, bankruptcy\\n court, or in the Court of International Trade may be registered by\\n filing a certified copy of the judgment in any other district or, with\\n respect to the Court of International Trade, in any judicial district,\\n when the judgment has become final by appeal or expiration of the\\n time for appeal or when ordered by the court that entered the\\n judgment for good cause shown. Such a judgment entered in favor\\n of the United States may be so registered any time after judgment\\n is entered. A judgment so registered shall have the same effect as\\n a judgment of the district court of the district where registered and\\n may be enforced in like manner.\\n28 U.S.C. § 1963. Bankruptcy courts were added to the statute in 1996.\\nFederal Courts Improvement Act of 1996, Pub. L. No. 104-317, § 203, 110 Stat.\\n3847, 3849.\\n Section 1963 permits the clearing of jurisdictional hurdles when the\\nprior judgment was entered in a suit in which federal question was the basis\\nfor jurisdiction. The hurdle arises because “an action solely to enforce the\\njudgment would lack that federal question jurisdiction and therefore could not\\nbe maintained in federal court” absent some other jurisdictional basis. JAMES\\nWILLIAM MOORE, ET AL., MOORE’S FEDERAL PRACTICE ¶ 130.33 (explaining that\\n“a suit on a judgment does not involve a federal question, however important\\nfederal questions may have been to the resolution of the original controversy,”\\nand citing Stiller v. Hardman, 324 F.2d 626, 628 (2d Cir. 1963)). 6\\n\\n\\n 6 An earlier version of MOORE’S has, since the adoption of Bankruptcy Rule 404(g) and\\nthen continuing with current Rule 4004(f), been cited by the Federal Rules Advisory\\nCommittee to explain each Rule. See Rule 404(g), Adv. Comm. Notes (1976); Rule 4004(f),\\nAdv. Comm. Notes (1983), both citing JAMES WILLIAM MOORE ET AL., MOORE’S FEDERAL\\nPRACTICE ¶ 1.04[2] (2d ed. 1967). We could not locate any archival record of the 1967 treatise\\nsection, but some if not all of that section was quoted in a district court opinion. See Dichter\\n 11\\n\\f Case: 18-20254 Document: 00515167087 Page: 12 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n The 1970 Bankruptcy Code amendment to permit registration was\\nlabeled “an adaptation of 28 U.S.C. section 1963,” as it clearly was. H.R. REP.\\nNO. 91-1502, at 11. One significant difference, though, is that Section 1963 is\\nlimited to judgments that order the recovery of property or money, which\\norders discharging debts would not be. As importantly, Section 1963 “does not\\npermit enforcement elsewhere of a decree for injunctive relief.” 11 WRIGHT,\\nMILLER, & KANE, FEDERAL PRACTICE § 2787.\\n In conclusion, the 1970 registration statute was by far the most direct\\nsupport for allowing one bankruptcy court to enforce another’s discharge\\ninjunction. That statute, though, is no more, which supports that Congress\\nabolished such enforcement. Current Bankruptcy Rule 4004(f) guides\\nregistration but does not authorize “like manner” enforcement as did its\\npredecessor. The foregoing convinces us that registration does not alter the\\nusual procedures for enforcing an injunction.\\n We return, then, to the bankruptcy court’s first basis for its ruling, which\\nrelied on, of all things, logic alone to support that because a discharge\\ninjunction needs no discretionary interpretation, there should not be any\\nobligation to return to the issuing court for its enforcement. With respect for\\nso venerable a basis for argument, i.e., straightforward logical reasoning, we\\nconclude more is needed here to overcome the contrary authority.\\n\\n\\n\\nv. Disco Corp., 606 F. Supp. 721, 725 (S.D. Ohio 1984). The following excerpt likely is at least\\nsome of the reason for the reference to MOORE’S in the Advisory Committee Notes:\\n It may be suggested that by authorizing the judgment-creditor to\\n enforce his judgment through registration in other districts, as an alternative\\n to an action on the judgment, substantive rights are conferred upon him, venue\\n requirements are altered, and the jurisdiction of the district court is enlarged.\\n But in purpose and effect the registration of judgments in other districts is only\\n a more convenient and effective method of enforcing them according to their\\n original terms.\\nId. (quoting MOORE’S FEDERAL PRACTICE ¶ 1.04[2] at 223 (1967)).\\n 12\\n\\f Case: 18-20254 Document: 00515167087 Page: 13 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n The bankruptcy court gave as a second basis for its decision, not\\ncompletely distinguishable from its first, that when enforcing a discharge, a\\ncourt is simply enforcing a statute. Holding a creditor in contempt “goes to the\\nvery core of the bankruptcy process itself.” The court relied on a scholarly\\nopinion by Bankruptcy Judge Isgur analyzing the fundamentals in Cano v.\\nGMAC Mortg. Corp. (In re Cano), 410 B.R. 506 (Bankr. S.D. Tex. 2009). The\\nbankruptcy court here also cited both 28 U.S.C. § 157, which sets out many of\\nthe procedures for bankruptcy courts and the authority of the district courts\\nover them, and 28 U.S.C. § 1334, which grants to district courts “original and\\nexclusive jurisdiction of all cases under” the Bankruptcy Code, with some\\nexceptions.\\n We need not analyze today the complexities of Section 157 addressed by\\nCano, including the differences among cases and proceedings “arising under\\ntitle 11 or arising in or related to a case under title 11.’’ § 157(a) (emphasis\\nadded). We limit our analysis because our question is limited: may a different\\nbankruptcy court than the one that issued the discharge that caused the\\ninjunction to arise, enforce that injunction regardless of whether the\\nimpediment is jurisdiction, venue, prudential considerations, or something\\nelse? The Cano court identified but did not resolve that issue: “[r]equiring\\nPlaintiffs to seek civil contempt damages from their ‘home court’ may be the\\nmore appropriate remedy and the only remedy authorized.” Cano, 410 B.R. at\\n543. The Cano opinion did not need to resolve the issue before us.\\n We next examine precedents concerning contempt authority. “Civil\\ncontempt is the normal sanction for violations of the discharge injunction.”\\nRICHARD LEVIN & HENRY J. SOMMER, COLLIER ON BANKRUPTCY ¶ 524.02(c)\\n(2018). We have used absolute language, though not in a bankruptcy context,\\nthat “[i]t is elementary that the court against which a contempt is committed\\nhas exclusive jurisdiction to punish for such contempt.” United States v.\\n 13\\n\\f Case: 18-20254 Document: 00515167087 Page: 14 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nBarnett, 330 F.2d 369, 385 (5th Cir. 1963) (citing In re Debs, 158 U.S. 564, 594–\\n95 (1895)).\\n Other circuits have insisted on a return to the bankruptcy court whose\\ndischarge order created the injunction. The Eleventh Circuit has held that\\nonly the bankruptcy court issuing the discharge has jurisdiction to enforce the\\ninjunction through contempt. Alderwoods Grp., Inc. v. Garcia, 682 F.3d 958,\\n961 (11th Cir. 2012). 7 The Seventh Circuit has said the “responsibility for\\nenforcing the discharge order [is] in the court that issued it.” Cox v. Zale\\nDelaware, Inc., 239 F.3d 910, 916–17 (7th Cir. 2001) (citing FED. R. BANKR. P.\\n9020). The cited Bankruptcy Rule 9020 simply says Rule 9014 on “Contested\\nMatters” is what “governs a motion for an order of contempt.” The Ninth\\nCircuit has held that both Section 524 and the Bankruptcy Rules require a\\ncontempt action in the bankruptcy court that issued the discharge order. See\\nBarrientos v. Wells Fargo Bank, N.A., 633 F.3d 1186, 1189 (9th Cir. 2011).\\n The Second Circuit has limited enforcement of discharge injunctions\\nthrough contempt proceedings to the originating court: “the bankruptcy court\\nretains a unique expertise in interpreting its own injunctions and determining\\nwhen they have been violated.” Anderson v. Credit One Bank, N.A., (In re\\nAnderson), 884 F.3d 382, 390–91 (2d Cir. 2018). Without labeling the reason\\nas one of jurisdiction, the court explained:\\n The power to enforce an injunction is complementary to the\\n duty to obey the injunction, which the Supreme Court has\\n described as a duty borne out of “respect for judicial process.” GTE\\n Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 387,\\n 100 S.Ct. 1194, 63 L.Ed.2d 467 (1980) (internal quotation marks\\n omitted). That same respect for judicial process requires us to hold\\n\\n\\n\\n 7 Without intimating that it has derivative precedential effect in this circuit, we note\\nas a matter of collegial respect that the opinion is from the circuit with which we until 1981\\nwere joined, and authoring Judge Tjoflat’s notable judicial service began on the Fifth Circuit.\\n 14\\n\\f Case: 18-20254 Document: 00515167087 Page: 15 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n that the bankruptcy court alone has the power to enforce the\\n discharge injunction in Section 524.\\nId. at 391.\\n Though the Eleventh Circuit in Alderwoods concluded that the bar to\\nseeking enforcement in a foreign court was jurisdictional, we pretermit so\\nfoundational a holding. We start with the reality that a violation of the\\ninjunction is an affront to the issuing court. Yes, the injunction arises from\\nstatute and not from judicial discretion. Indeed, as here, the injunction may\\nnot even be mentioned in the court’s order. Nonetheless, a central\\nconsideration for us is that there is not a sufficiently clear path for deviating\\nfrom the usual rule. Instead, what is clear are various obstacles we have\\nidentified to taking that path. We now discuss a final one.\\n A recent Supreme Court decision placed the civil contempt that results\\nfrom violating a bankruptcy discharge injunction under the general principles\\nfor contempt. It richly phrased its analysis: “When a statutory term is\\n‘obviously transplanted from another legal source,’ it ‘brings the old soil with\\nit.’” Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (quoting Hall v. Hall,\\n138 S. Ct. 1118, 1128 (2018)). Rooted in the soil are “the traditional standards\\nin equity practice for determining when a party may be held in civil contempt\\nfor violating an injunction.” Id.\\n We do not see a holding in Taggart that all the rules for civil contempt\\nwere transplanted into bankruptcy, but we do see an imperative that any\\ndeviation from those rules have a substantial justification. Beginning in 1970,\\nthere was a statutory argument from Section 32(g) of the 1898 Bankruptcy\\nCode that there was no need to return to the original bankruptcy court, but\\nthat argument was repealed in 1978 along with the section. The remainder of\\nwhat has been argued to us does not suffice to show that we should allow an\\nexception from the usual enforcement rules for injunctions. Though Taggart\\n\\n 15\\n\\f Case: 18-20254 Document: 00515167087 Page: 16 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\ndid not lock the gate to any deviations from traditional contempt rules in\\nbankruptcy, very little opportunity to open it was provided.\\n We adopt the language of the Second Circuit that returning to the\\nissuing bankruptcy court to enforce an injunction is required at least in order\\nto uphold “respect for judicial process.” Anderson, 884 F.3d at 391. The\\nbankruptcy court erred in holding that it could address contempt for violations\\nof injunctions arising from discharges by bankruptcy courts in other districts.\\nTherefore, as to Shahbazi and at least those debtors whose discharges were\\nentered by courts in other districts, the bankruptcy court in these proceedings\\nhas no authority to enforce the resulting injunction.\\n Though the bankruptcy court did not reach the issue of certification of a\\nclass, we point out that because of the limitation on enforcement we have just\\nidentified, and indeed because we are aware of no prior certification of a class\\nthat includes debtors whose discharges were entered by bankruptcy courts in\\nother districts, certifying such a class would be highly dubious. We also leave\\nfor the court on remand the separate issue, if it becomes relevant, of whether\\nthat court has authority to enforce the injunctions arising from discharges\\nentered by any bankruptcy court in the same judicial district.\\n\\n\\nII. Dischargeability of private student loans\\n The bankruptcy court also answered the question of whether the loans\\nthat the plaintiffs received were subject to the statutory prohibition of\\ndischarge of certain education loans. The court’s answer to that question was\\n“no.” Though the ruling will impact only the discharges of loans by that court\\nor perhaps in that judicial district, it remains an answer we must review.\\n Congress has excepted certain categories of debt from discharge,\\nincluding much student-loan debt. All exceptions to discharge are to be\\ninterpreted narrowly in favor of the debtor to preserve the “fresh start” the\\n 16\\n\\f Case: 18-20254 Document: 00515167087 Page: 17 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nBankruptcy Code provides for debtors. Hickman v. Texas (In re Hickman), 260\\nF.3d 400, 404–05 (5th Cir. 2001). 8 The current articulation of the exception is\\nthat “the discharge under section 727 [and other sections] does not discharge\\nan individual debtor from any debt –”\\n ...\\n (8) unless excepting such debt from discharge under this\\n paragraph would impose an undue hardship on the debtor and the\\n debtor’s dependents, for--\\n (A)(i) an educational benefit overpayment or loan made,\\n insured or guaranteed by a governmental unit, or made under\\n any program funded in whole or in part by a governmental unit\\n or nonprofit institution; or\\n (ii) an obligation to repay funds received as an educational\\n benefit, scholarship, or stipend; or\\n (B) any other educational loan that is a qualified education\\n loan, as defined in section 221(d)(1) of the Internal Revenue\\n Code of 1986, incurred by a debtor who is an individual.\\n11 U.S.C. § 523(a). In summary, Subsection (A)(i) applies to loans, etc. in which\\na governmental unit or a nonprofit institution had a defined role. Subsection\\n(B) requires a journey through multiple statutes to understand its meaning.\\nA partial explanation is that the referenced Internal Revenue Code section\\ndefines a “qualified education loan” as, among other things, “any indebtedness\\nincurred by the taxpayer solely to pay qualified higher education expenses,”\\nalong with other conditions. 26 U.S.C. § 221(d). The qualified expenses are\\n“the cost of attendance” at the eligible education institution, reduced by\\nscholarships and other payments. Id. An eligible institution is defined, with\\nexceptions, in Internal Revenue Code Section 25A(f)(2), as one “which is\\n\\n\\n 8 We quote what might seem to be authority that the opposite presumption applies to\\neducation loans. Though referring to a party’s argument, the Supreme Court could be seen\\nas agreeing that Congress made “student loan debt presumptively nondischargeable.” Tenn.\\nStudent Assistance Corp. v. Hood, 541 U.S. 440, 450 (2004). In context, though, the Court is\\nreferring only to education loans from states. Id.\\n 17\\n\\f Case: 18-20254 Document: 00515167087 Page: 18 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\neligible to participate in a program under Title IV” of the Higher Education\\nAct. There is no claim that Subsection (B) applies.\\n Subsection (A)(ii) is Navient’s target, which deals clearly with\\nscholarships and stipends. Less clear, but definable, is what else it deals with.\\nWe restate the statutory language: there must be “an obligation to repay funds\\nreceived as an educational benefit, scholarship, or stipend.” § 523(a)(8)(A)(ii).\\nNavient argues this language plainly includes private student loans, and that\\nFifth Circuit precedent supports this argument. Navient also contends that\\nlower court cases that disagree had misapplied canons of statutory\\ninterpretation to reach their conclusions. Finally, Section 523(a)(8)’s\\nlegislative history supports including private student loans.\\n The plaintiffs, though, argue that Subsection (8)(A)(ii)’s text and the\\nBankruptcy Code’s purpose to give debtors a fresh start require reading the\\nsubsection narrowly. Further, reading the subsection through the canons of\\nstatutory interpretation affirms this narrow reading, as do the drafters’\\nlanguage and grammar choices. Finally, the legislative history does not show\\nCongress intended to exempt private education loans from discharge. 9\\n The bankruptcy court here determined Subsection (8)(A)(ii) was\\nunambiguous. The court considered the absence of the word “loan” and the\\ninclusion of the concepts of stipends and scholarships to narrow the meaning\\nof receiving an educational benefit to include only such funding as “tuition\\nadvances by an employer that must be repaid if the employee leaves her\\nemployment within a certain period of time.” The court also focused on the\\nCongressional use of the word “as” to precede “educational benefit.” To the\\n\\n\\n 9 Navient does not argue there is relevance to the fact that both Crocker and Shahbazi\\nclassified the relevant debts as “educational” on Schedule F of their bankruptcy filings.\\nImportantly, we do not see on the forms in the record or in the instructions for completing\\nsuch forms any guidance on labeling a debt as “educational” or a statement that it should not\\nbe so labeled unless it is nondischargeable under Section 523(a)(8).\\n 18\\n\\f Case: 18-20254 Document: 00515167087 Page: 19 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\ncourt, that meant that what was received was the educational benefit, akin to\\nscholarships and stipends, not that what was received could be used to pay for\\neducational benefits. These private education loans were thus dischargeable.\\n There are some general interpretive rules to apply. Discharge exceptions\\nare to be construed “narrowly” and “in favor of the debtor” in order to further\\nthe Bankruptcy Code’s purpose of giving debtor’s a “fresh start.” Miller v. J.D.\\nAbrams Inc. (In re Miller), 156 F.3d 598, 602 (5th Cir. 1998). Exceptions to\\ndischarge “should be confined to those plainly expressed.” Kawaauhau v.\\nGeiger, 523 U.S. 57, 62 (1998). Regardless, we may not ignore plain textual\\nlanguage, and as we discuss, Congressional action generally has enlarged the\\ncategory of education loans that are not dischargeable.\\n We start with text and context, then discuss some of the prior statutory\\nlanguage that the current statute has replaced or supplemented. An initial\\nread of Subsection (A)(ii) does not suggest that Congress used the phrase\\n“obligation to repay funds received as an educational benefit” in order to\\ninclude private student loans. The immediately preceding Subsection (A)(i)\\nexempts “educational . . . loan[s].” Subsection (B) exempts “education loan[s].”\\nSubsection (A)(ii) makes no reference to loans, its focus seemingly elsewhere.\\n Navient argues that an “obligation to repay funds received” is expansive\\nand includes loans, citing to other statutes and federal regulations that use\\n“obligation to repay” in reference to loans. The fact that an obligation to repay\\nis one way to refer to loans is correct, but we are trying to discern the meaning\\nin the context of a particular enactment. If “‘Congress includes particular\\nlanguage in one section of a statute but omits it in another’ — let alone in the\\nvery next provision” — courts presume “Congress intended a different\\nmeaning.” Loughrin v. United States, 573 U.S. 351, 358 (2014) (quoting\\nRussello v. United States, 464 U.S. 16, 23 (1983)). Congress sandwiched\\nSubsection (A)(ii), which does not mention loans at least by name, between two\\n 19\\n\\f Case: 18-20254 Document: 00515167087 Page: 20 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nsubsections that explicitly do. That structure is at least a start to saying\\neducational benefits are not loans.\\n We now look more closely at Subsection (A)(ii)’s text. The subsection\\napplies to the “obligation to repay” funds received as “an educational benefit,”\\n“scholarship,” or “stipend.” The prefatory language, i.e, that there is “an\\nobligation to repay,” appears only in this subsection. The phrase is superfluous\\nwhen referring to loans, but it is quite relevant to payments with contingent\\nobligations. Next, a stipend is a “fixed and regular payment, such as a salary.”\\nAMERICAN HERITAGE COLLEGE DICTIONARY, 1220 (3d ed. 1997). A scholarship\\nis a “grant of financial aid to a student.” Id. The key phrase, “educational\\nbenefit,” is the broadest. We consider unnecessary a dictionary definition of\\n“educational,” but “benefit” needs one. Because the term is so broad, the\\nlimiting principle of noscitur a sociis potentially should be used — over\\nNavient’s objection, though — to understand the phrase in context. In a recent\\napplication, the Supreme Court said there are times we should “look to noscitur\\na sociis, the well-worn Latin phrase that tells us that statutory words are often\\nknown by the company they keep.” Lagos v. United States, 138 S. Ct. 1684,\\n1688–89 (2018). The “common quality” in a list that is the focus of the noscitur\\na sociis inquiry “should be its most general quality — the least common\\ndenominator, so to speak — relevant to the context.” SCALIA & GARNER,\\nREADING LAW, 196.\\n One general quality in the relevant phrase is that stipends and\\nscholarships “signify granting, not borrowing.” McDaniel v. Navient Sols., LLC\\n(In re McDaniel), 590 B.R. 537, 549 (Bankr. D. Colo. 2018). Those grants may\\nbe conditional, but satisfaction of the conditions leaves them as grants. The\\ncommon quality is that scholarships and stipends may not need to be repaid.\\n Navient argues that noscitur a sociis should not apply because the\\nstatutory list is too brief. The Supreme Court recently used the doctrine in a\\n 20\\n\\f Case: 18-20254 Document: 00515167087 Page: 21 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nfour-item list: “lost income and necessary child care, transportation, and other\\nexpenses.” Lagos, 138 S. Ct. at 1688 (quoting 18 U.S.C. § 3663A(b)(4)); but see\\nGraham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson,\\n559 U.S. 280, 288 (2010) (“A list of three items . . . is too short to be particularly\\nilluminating.”). Lagos used three specific items to give meaning to a catchall.\\nId. at 1688–89. Authors Scalia and Garner did use a three-item list to explain\\nproper use of this doctrine. SCALIA & GARNER, READING LAW, at 196–97. The\\nexample was a state statute criminalizing the carrying of a firearm in a motor\\nvehicle unless, among other conditions, it was “contained in a closed and\\nfastened case, gunbox, or securely tied package.” Id. (discussing State v.\\nTaylor, 594 N.W. 2d 533, 535–36 (Minn. Ct. App. 1999)). The Minnesota court\\nheld that a purse was not a proper “case” — despite that it was “closed and\\nfastened” — because the commonality of the other two items was that they\\nwere containers that kept a firearm from being readily accessible. Id.\\n The brevity of the list in the text we must review does not compel\\nignoring the relevant term’s neighbors.\\n We offer one definition of “benefit,” namely, a “payment made or an\\nentitlement available in accordance with a wage agreement, an insurance\\npolicy, or a public assistance program.” AMERICAN HERITAGE COLLEGE\\nDICTIONARY, at 127. Whatever definition is used, we begin our analysis with\\na tentative acceptance that the benefit generally does not need to be repaid.\\nOur analysis continues, though.\\n Navient claims that a different definition of “benefit” is best: “an\\nadvantage or profit gained from something.” OXFORD ENGLISH DICTIONARY (3d\\ned. 1997). That definition is limitless, invoking the very reason for the noscitur\\na sociis doctrine. Navient’s offering does not capture the essentials of “stipend”\\nand “scholarship,” which identify narrow categories of benefits.\\n\\n\\n 21\\n\\f Case: 18-20254 Document: 00515167087 Page: 22 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n Indeed, we see a lack of common sense in interpreting the list as\\ncontaining two specific and quite limited kinds of payments that, among other\\nthings, do not usually require repayment, and a third item preceding the two\\nthat was meant to be a catchall for loans and most everything else financially\\nbenefitting a student. Such an understanding of what Congress did with those\\nwords creates a superfluity of words in the other parts of Section 523(a)(8). If\\nan “obligation to repay funds including educational benefits” includes repaying\\nprivate student loans, that requires defining “educational benefit” to include\\nloans, which then means it also covers the public loans that are the focus of\\nSubsection 523(a)(8)(A)(i). See In re Essangui, 573 B.R. 614, 624 (Bankr. D.\\nMd. 2017). Under Navient’s interpretation, government loans covered by\\nSubsection (A)(i) and qualified education loans covered by Subsection (B)\\nwould also be covered by Subsection (A)(ii), rendering the other subsections\\nserving little purpose. Courts have a “duty to give effect, if possible, to every\\nclause and word of a statute.” Bennett v. Spear, 520 U.S. 154, 173 (1997).\\nConcomitantly, “the canon against surplusage is strongest when an\\ninterpretation would render superfluous another part of the same statutory\\nscheme.” Marx v. Gen. Rev. Corp., 568 U.S. 371, 386 (2013).\\n Navient calls this analysis “hyperbolic,” reframing the surplusage as\\nsimply “some overlap” between the subsections. Navient, though, fails to\\nexplain how the other subsections serve much purpose if the broad reading of\\nSubsection (A)(ii) applies. Navient argues that Subsection (A)(ii)’s receipt of\\nfunds requirement leaves Subsection (B) with work to do. For example, a loan\\nobtained by a grandfather for his grandson to attend a Title IV college would\\nnot be covered by Subsection (A)(ii) because the grandfather did not receive the\\nbenefit, but it was covered by Subsection (B). See Wills v. Sallie Mae Servicing\\n(In re Wills), No. 08-80404-FJO-07, 2010 WL 1688221, at *7 (S.D. Ind. Apr. 23,\\n2010). Maybe so, but because every exemption in these provisions is a type of\\n 22\\n\\f Case: 18-20254 Document: 00515167087 Page: 23 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nfund used by recipients to advance their education, Congress could have just\\nexempted from discharge any “obligation to repay funds received as an\\neducational benefit” and left it at that. The redundancies created by Navient’s\\ninterpretation of Subsection (A)(ii) create more than a modest overlap and can\\nbe avoided by adopting the narrower interpretation of that subsection.\\n Navient seeks to block any interpretive effort by this court by arguing\\nthat one of our precedents makes the sole issue for us “whether Plaintiffs’ loans\\nexpressed an educational purpose at the time of application, origination, and\\ndisbursement.” See Murphy v. Penn. Higher Educ. Assistance Agency (In re\\nMurphy), 282 F.3d 868, 870–72 (5th Cir. 2002). 10 Pretty bold analysis of\\nMurphy, and errant in our view. Murphy applied the 1990 language applicable\\nto loans insured by the federal government. Id. at 870. The question was\\nwhether such a federally-insured loan was “educational” even as to proceeds\\nspent on living expenses. Id. at 870, 873. The court held that the educational\\npurpose of such a loan was defined by its purpose upon disbursement by the\\nlender and not by the way it was spent by the borrower. Id. at 873. Murphy\\ndid not analyze our issue, and we must conduct our own evaluation.\\n An argument by plaintiffs about grammar, to which we give less weight\\nthan the foregoing because it relies on such a minor word-choice, is that when\\nCongress exempted funds “received as an educational benefit” rather than “for\\nan educational benefit,” the natural reading is that it describes what the giver\\n\\n\\n 10 The Murphy court discussed the added difficulties the debtor’s strained reading of\\n“educational benefit” in the 1990 statute’s reference to federally-insured loans would create\\nfor the second use of the phrase in Section 523(a)(8), which the court twice quoted as\\n“education benefit scholarship or stipend,” i.e, without commas. See Murphy, 282 F.3d at\\n870, 871. That made the first two words adjectival, not a separate category, and the court’s\\nanalysis focused on whether the two words modified both “scholarship” and “stipend.” Id. at\\n871–72. It appears to us, though, that Congress in 1990 adopted this language: “obligation\\nto repay funds received as an educational benefit, scholarship or stipend.” Crime Control Act\\nof 1990, Pub. L. No. 101-647, § 3621, 104 Stat. 4789, 4964–65. Regardless, the statute as it\\nexists today does make “educational benefit” a third category in Section 523(a)(8)(A)(ii).\\n 23\\n\\f Case: 18-20254 Document: 00515167087 Page: 24 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nwas giving and not what the receiver could make of the gift. The phrase “as\\nan educational benefit” indicates that the funds themselves are the educational\\nbenefit (like tuition payments), whereas the phrase “for an educational benefit”\\nmight well encompass funds conveyed for educational purposes, including\\nprivate student loans. Essangui, 573 B.R. at 621. At least it can be said the\\ndrafters’ word choice does not support inclusion of private student loans.\\n We also examine the statutory history for Subsection (a)(8), i.e., the\\nhistory of enacted revisions. 11 Since 1970, Congress has expanded the scope of\\nnon-dischargeable student loans. See, e.g., Cazenovia Coll. v. Renshaw (In re\\nRenshaw), 222 F.3d 82, 86–88 (2d Cir. 2000) (surveying the history of\\nSubsection (a)(8)). We find that the phrase “educational benefit” first appeared\\nin Subsection (a)(8) in 1990, which excepted from discharge a debt\\n for an educational benefit overpayment or loan made, insured or\\n guaranteed by a governmental unit, or made under any program\\n funded in whole or in part by a governmental unit or nonprofit\\n institution, or for an obligation to repay funds received as an\\n educational benefit, scholarship or stipend.\\nCrime Control Act of 1990, Pub. L. No. 101-647, § 3621, 104 Stat. 4789, 4964-\\n65 (codified as 11 U.S.C. § 523(a)(8)) (emphasis added).\\n\\n\\n\\n\\n 11 Plaintiffs also urge us to examine legislative history. Various court decisions assert\\nthat in 1990, the nondischargeability of “an obligation to repay funds received as an\\neducational benefit, scholarship, or stipend,” was added to confirm an Eighth Circuit\\ninterpretation holding that certain conditional payments were loans covered by Section (a)(8).\\nSee, e.g., Essangui, 573 B.R. at 618 (citing U.S. Dep’t of Health & Human Servs. v. Smith,\\n807 F.2d 122 (8th Cir. 1986)). A House Judiciary Committee hearing on the bill revealed that\\nthe amendment was drafted by a committee of United States Attorneys. Fed. Debt Collection\\nProcedures: Hearing before the Subcomm. on Econ. & Commercial Law of the Comm. on the\\nJudiciary, H.R., 101st Cong., 2, 3 (1990) (statements by Rep. Brooks and U.S. Att’y Bob\\nWortham). In answers to written questions, the chair of the outside drafting committee wrote\\nthat VA benefits were an example of a relevant “education benefit.” Id. at 74–75 (answers of\\nBob Wortham). We acknowledge this history but do not rely on it. Meaning to a statute\\ncomes from its text, analyzed by employing appropriate tools of statutory interpretation\\nwhich we conclude do not include legislative history.\\n 24\\n\\f Case: 18-20254 Document: 00515167087 Page: 25 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n Before explaining the latest change, made in 2005, we remark on the\\nnear-unanimity of courts’ understanding of the 1990 change. One court, after\\nsurveying the caselaw, stated that the language we italicized above was\\n“generally interpreted . . . to create a new category of nondischargeable debt\\nthat excluded for-profit loans.” Essangui, 573 B.R. at 619. Navient agrees that\\nwas the trend, but it argues that by the amendments to Subsection (a)(8) in\\n2005 which we discuss next, Congress brought private student loans within\\nthe exceptions to discharge. The parties do not agree about the post-2005\\ncaselaw. Navient calculates the majority as holding that any funds received\\nfor an educational purpose, including private student loans, were covered by\\nthe new language. 12 See, e.g., Brown v. CitiBank, N.A. (In re Brown), 539 B.R.\\n853, 858–59 (Bankr. S.D. Cal. 2015). The plaintiffs count the cases differently.\\nThey both agree that since about 2015, there has been increasing caselaw that\\nholds private student loans are not exempt from discharge. See, e.g., Nypaver\\nv. Nypaver (In re Nypaver), 581 B.R. 431, 435–37 (W.D. Pa. 2018).\\n In 2005, Congress replaced the entirety of Subsection (a)(8) with a new\\nsubsection with subparts. We italicize the only significant new language:\\n (8) unless excepting such debt from discharge under this\\n paragraph would impose an undue hardship on the debtor and the\\n debtor's dependents, for —\\n (A)(i) an educational benefit overpayment or loan made,\\n insured, or guaranteed by a governmental unit, or made under any\\n\\n\\n 12 The only circuit court opinion cited to us on this issue is unpublished. Desormes v.\\nInfilaw Corp. (In re Desormes), 569 F. App’x 42 (2d Cir. 2014). Thus, no matter what we\\ndecide, there will not be a split in precedential circuit authority. The opinion was quite brief,\\nwith the only description of the debt being that it came from a “student loan” and “was\\nexcepted from discharge under 11 U.S.C. § 523(a)(8)(A)(ii).” Id. at 43. There was no analysis\\nof how to interpret the three-item statutory list. The debtor’s argument centered on the\\nsupposed necessity for “a transfer of funds directly to the debtor” before a loan would “be\\nreceived within the meaning of the statute.” Id. The bankruptcy court’s opinion indicates the\\nloan was from the school to pay the student’s tuition. Desormes v. Charlotte School of Law,\\nInc. (In re Desormes), 2012 WL 4106765 at *1 (Bankr. D. Conn. 2012).\\n 25\\n\\f Case: 18-20254 Document: 00515167087 Page: 26 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n program funded in whole or in part by a governmental unit or\\n nonprofit institution; or\\n (ii) an obligation to repay funds received as an educational\\n benefit, scholarship, or stipend; or\\n (B) any other educational loan that is a qualified education\\n loan, as defined in section 221(d)(1) of the Internal Revenue Code\\n of 1986, incurred by a debtor who is an individual.\\nBankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L.\\nNo. 109-8, Title II, § 220, 119 Stat. 23, 59 (emphasis added) (codified as 11\\nU.S.C. § 523(a)).\\n The significant change was to make nondischargeable “any other . . .\\nqualified educational loan,” which Navient concedes the loans here are not, by\\nadding Subsection (B). Most importantly for us, Congress barely tweaked the\\n1990 language of “obligation to repay funds received as an educational benefit,\\nscholarship or stipend” — it inserted a comma after “scholarship.” Navient\\nacknowledges that from 1990 to 2005, the interpretation of stipends,\\nscholarships, and educational benefits had excluded for-profit loans. We see\\nwhat did not happen to this language in 2005 as invoking this principle: “If a\\nword or phrase has been . . . given a uniform interpretation by inferior courts...,\\na later version of that act perpetuating the wording is presumed to carry\\nforward that interpretation.” Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive\\nCmtys. Project, Inc., 135 S. Ct. 2507, 2520 (2015) (quoting SCALIA & GARNER,\\nREADING LAW 322). Navient argues that severing Subsection (A)(ii) from (A)(i)\\nallowed (A)(ii) to cover a broader scope of education financing, including\\nprivate education loans. All we see is a change to the structure of the overall\\nstatute but no real change to the language that controls the case before us.\\n Navient’s assertion that the 2005 amendment made all private student\\nloans nondischargeable is not only unsupported by the text, it is unsupported\\nby some of Navient’s authorities. Among them is Corletta v. Tex. Higher Educ.\\n\\n 26\\n\\f Case: 18-20254 Document: 00515167087 Page: 27 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nCoordinating Bd. (In re Pappas), 517 B.R. 708, 716–17 (Bankr. W.D. Tex.\\n2014). That case says no more than that Congress amended Subsection (a)(8)\\nin 2005 “to apply to private loans as well” without identifying Subsection\\n(a)(8)(A)(ii) as the mechanism for this change. Id. at 717. What brought a new\\ncategory of private loans into the discharge arena was the language of\\nSubsection (a)(8)(B), the only meaningful 2005 addition.\\n This court has recently discussed the 2005 change to the statute. See\\nThomas v. Dep’t of Educ. (In re Thomas), 931 F.3d 449 (5th Cir. 2019). The\\ncase concerned the “undue hardship” test that allows the discharge of an\\neducation loan. Id. at 451–55. The loans at issue were from the United States\\nDepartment of Education. Id. at 450. That made them nondischargeable\\nunder Subsection 523(a)(8)(A)(i) as being “insured or guaranteed by a\\ngovernmental unit, or made under any program funded in whole or in part by\\na governmental unit or nonprofit institution.”\\n The 2005 revision was “in response to the growing trend of commercial\\nlending,” and the amendment’s purpose was to “make qualified private student\\nloans harder to discharge, prohibiting discharge in all cases, unless repayment\\nwould create ‘undue hardship’ for the debtor.” Id. at 453. That is a description\\nof the new Subsection (a)(8)(B). The definition of a “qualified education loan”\\nis in Section 221(d)(1) of the Internal Revenue Code of 1986, and, as stated\\nbefore, Navient accepts that Subsection (a)(8)(B) does not apply here.\\n In a supplementary letter to this court on Thomas, Navient implicitly\\nrecognized that much of the new opinion was not on point, but it quoted the\\ncourt’s language that “Section 523(a)(8) as it stands today excepts virtually all\\nstudent loans from discharge” with the caveat about undue hardship. Thomas,\\n931 F.3d at 453. That statement is a fair summary of the reach of\\nnondischargeability, but before us is a category of loan that has not (yet) been\\nreached by Subsection 523(a)(8).\\n 27\\n\\f Case: 18-20254 Document: 00515167087 Page: 28 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n We find nothing in the 2005 revisions to alter our interpretation that\\nSubsection 523(a)(8)(A)(ii) applies only to educational payments that are not\\ninitially loans but whose terms will create a reimbursement obligation upon\\nthe failure of conditions of the payments.\\n In conclusion, the only possibly applicable part of the relevant statute is\\nSubsection 523(a)(8)(A)(ii). In interpreting that provision, we rely on the\\nnoscitur a sociis doctrine, the need to avoid surplusage, Congressional\\nratification in 2005 of prior interpretations, and the command that discharge\\nexceptions are interpreted narrowly in favor of debtors. We conclude that\\n“education benefit” is limited to conditional payments with similarities to\\nscholarships and stipends. The loans at issue here, though obtained in order\\nto pay expenses of education, do not qualify as “an obligation to repay funds\\nreceived as an educational benefit, scholarship, or stipend” because their\\nrepayment was unconditional. They therefore are dischargeable.\\n * * *\\n We REVERSE the bankruptcy court’s determination that it has\\nauthority to enforce a discharge injunction entered by a different district’s\\nbankruptcy court. Any debtors seeking injunctions due to discharges entered\\nin other districts should have their proceedings dismissed or transferred. We\\nAFFIRM the determination that loans such as those in issue here are\\ndischargeable. We REMAND to the bankruptcy court.\\n\\n\\n\\n\\n 28\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4448642/\", \"author_raw\": \"LESLIE H. SOUTHWICK, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"STEWART"},"judge2":{"kind":"string","value":"SOUTHWICK"},"judge3":{"kind":"string","value":"ENGELHARDT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"STEWART\": \", Circuit\", \"SOUTHWICK\": \", Circuit\", \"ENGELHARDT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4671389/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Evan Crocker v. Navient Solutions, L.L.C.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-21\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-20254 Document: 00515167087 Page: 1 Date Filed: 10/21/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n October 21, 2019\n No. 18-20254\n Lyle W. Cayce\n Clerk\nIn re: Evan Brian Crocker, also known as Haas Legal, P.L.L.C.\n\n Debtor\n\nEVAN BRIAN CROCKER, on behalf of themselves and all those similarly\nsituated, also known as Haas Legal, P.L.L.C, formerly known as Evan Brian\nHaas: MICHAEL SHAHBAZI, on behalf of themselves and all those similarly\nsituated, formerly known as Montana Shahbazi; WENDY L. LANDES, on\nbehalf of themselves and all those similarly situated; RAEGENA SEITZ-\nMOULDS, on behalf of themselves and all those similarly situated,\n\n Appellees\n\nv.\n\nNAVIENT SOLUTIONS, L.L.C.; NAVIENT CREDIT FINANCE\nCORPORATION,\n\n Appellants\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore STEWART, SOUTHWICK and ENGELHARDT, Circuit Judges.\nLESLIE H. SOUTHWICK, Circuit Judge:\n\n An individual in Texas and another in Virginia separately obtained loans\nfrom the same lender to pay education expenses. Both later filed for\nbankruptcy in their respective states. In time, orders of discharge were\n\f Case: 18-20254 Document: 00515167087 Page: 2 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\nentered. One of the discharged debtors then filed suit against the lender in the\nsame Bankruptcy Court of the Southern District of Texas that had ordered the\ndischarge of his debts. Later, the Virginia debtor joined the Texas suit. The\nsuit seeks to certify a nationwide class of those who claim their education-loan\ndebts were validly discharged but from whom this lender continues to demand\npayment. A declaratory judgment, injunction, and damages are sought.\n The lender filed a motion for summary judgment, arguing bankruptcy\ncourts cannot enforce the injunctions arising from discharge orders entered by\ncourts in other judicial districts, and these private-education-loan debts are\nstatutorily excepted from discharge. The bankruptcy court held the opposite\nas to both, then certified the two holdings for interlocutory appeal.\n We conclude that a bankruptcy court does not have authority to enforce\nthe discharge injunctions entered in other districts. On the other hand, we\nagree with the bankruptcy court that the particular education loans involved\nhere are not statutorily excepted from discharge. The cause is REMANDED.\n\n\n FACTUAL AND PROCEDURAL HISTORY\n In 2009, Evan Crocker 1 obtained a $15,000 loan to fund his bar\nexamination preparation. The lender was a subsidiary of SLM Corporation,\nd/b/a Sallie Mae, which is a for-profit, public corporation whose loans are not\npart of any governmental loan program. The loan documents informed Crocker\nthat his repayment obligation “may not be dischargeable in bankruptcy.”\nCrocker’s loan was transferred to SLM Education Credit Finance Corporation,\nwhich subsequently became Navient Credit Finance Corporation. In the\ncomplaint, Navient Solutions is said to be the entity pursuing collection. We\nwill not differentiate among Navient entities in our discussion.\n\n\n 1 Evan Brian Haas changed his name to Evan Brian Crocker in 2017. We use his\ncurrent name throughout this opinion.\n 2\n\f Case: 18-20254 Document: 00515167087 Page: 3 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\n In 2015, Crocker filed for voluntary Chapter 7 bankruptcy in the United\nStates Bankruptcy Court for the Southern District of Texas. He scheduled his\nbar-study loan claim as an “Educational . . . Private loan” and did not dispute\nthe debt. In February 2016, the court granted him a discharge under 11 U.S.C.\n§ 727, informed him that “[m]ost debts are covered by the discharge, but not\nall,” and closed his case.\n Michael Shahbazi has a similar story. In 2002, Shahbazi obtained an\n$11,658.99 loan from Sallie Mae for tuition and expenses while he attended a\ntechnical school. He was given notice that his loan was “an education loan that\nmust be repaid.” Exactly how Navient obtained its interest is unclear to us,\nbut it is servicing this loan.\n In 2011, Shahbazi filed for voluntary Chapter 7 bankruptcy in the\nUnited States Bankruptcy Court for the Eastern District of Virginia. He\nscheduled his Sallie Mae loan as a “Student Loan” and did not dispute the debt.\nIn December 2011, the court granted him a discharge and closed his\nbankruptcy proceeding. This discharge order specifically listed “Debts for most\nstudent loans” as not being discharged.\n It is alleged that after both discharges, Navient had both of these\nplaintiffs contacted frequently by telephone and email to demand repayment.\nIn August 2016, Crocker filed an adversary proceeding against Navient in the\nBankruptcy Court for the Southern District of Texas, the same court that had\ngranted him a discharge. He sought (1) a declaratory judgment that his private\neducation debt had been discharged; (2) entry of judgment holding Navient in\ncontempt for violating the injunction arising from his discharge; and (3) a\ntemporary injunction. The court entered an agreed preliminary injunction on\nAugust 18, 2016, barring Navient from pursuing collection until further order.\n Crocker, with Shahbazi as an additional plaintiff, filed an amended\ncomplaint, seeking to certify a nationwide class of those who (1) obtained\n 3\n\f Case: 18-20254 Document: 00515167087 Page: 4 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\nprepetition private education loans from Navient or related companies to cover\nexpenses at an institution not accredited under Title IV; (2) later filed for\nbankruptcy and were issued discharge orders; (3) have never reaffirmed their\nprepetition private education loan debt; and (4) are being induced to pay their\nallegedly discharged private education loans. Damages were now also sought.\n Navient moved for summary judgment on these claims, arguing that a\nbankruptcy court has no jurisdiction to interpret and enforce discharge orders\nentered by courts in other judicial districts and that the plaintiffs’ education\nloans were nondischargeable. The bankruptcy court denied the motion in\nMarch 2018. 2 It rejected that the general rule giving an issuing court sole\nauthority to enforce its own injunctions applied to the automatic injunction\ncreated by statute when a bankruptcy court grants a discharge under 11 U.S.C.\n§ 727. The court also determined that the kind of loans for educational\npurposes relevant here, which the parties refer to as “private loans,” were not\nwithin the ambit of the Bankruptcy Code’s bar on the discharge of some\nstudent loans. See 11 U.S.C. § 523(a)(8).\n In the same order, the bankruptcy court first authorized an interlocutory\nappeal, then certified the order for direct appeal to this court, eschewing the\nusual initial appellate review by a district court. A bankruptcy court may\ncertify a ruling for direct review by a circuit court of appeals when, among other\nreasons, it “involves a question of law as to which there is no controlling\ndecision” by that circuit court or the Supreme Court, or because an appeal at\nthat stage in the proceedings “may materially advance the progress of the\ncase.” 28 U.S.C. § 158(d)(2)(A)(i), (iii). If a bankruptcy court so certifies, the\n\n\n 2 Wendy L. Landes and Raegena Seitz-Moulds were included without objection as\nadditional putative class members in a Third Amended Complaint, filed after Navient’s\nmotion for summary judgment but before the bankruptcy court ruled. No party argues that\nthe issues before us are altered by their joinder. Accordingly, we do not separately discuss\nthe facts of the bankruptcies of the two last-added parties.\n 4\n\f Case: 18-20254 Document: 00515167087 Page: 5 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\ncircuit court of appeals then exercises its discretion. § 158(d)(2)(A). A motions\npanel of this court granted the unopposed motion to authorize the appeal.\n\n DISCUSSION\n We review “grants and denials of summary judgment de novo. Summary\njudgment is appropriate when ‘there is no genuine dispute as to any material\nfact and the movant is entitled to judgment as a matter of law.’” Lyda\nSwinterton Builders, Inc. v. Okla. Sur. Co., 903 F.3d 435, 444 (5th Cir. 2018)\n(quoting FED. R. CIV. P. 56). Federal Rule of Civil Procedure 56 is incorporated\ninto the Federal Rules of Bankruptcy Procedure. FED. R. BANKR. P. 7056.\n Navient has two principal contentions on appeal. The first is that the\nbankruptcy court either has no jurisdiction to enforce the statutory injunctions\narising from a bankruptcy discharge that another bankruptcy court ordered,\nor at least for prudential reasons may not do so. Second, Navient contends\nthat the plaintiffs’ education loans are within the category of loans that under\nthe Bankruptcy Code are nondischargeable.\n There are no meaningful factual issues presented to us. Instead, we have\nlegal issues of statutory interpretation. We now turn to those.\n\n\nI. Authority to enforce a Section 524 discharge order entered by a bankruptcy\ncourt in another judicial district\n In broad brush, these proceedings concern two closed Chapter 7\nbankruptcies in which generic discharges, i.e., discharges not specifying the\ndischarged debts, were issued at completion. A discharge “operates as an\ninjunction” against an extensive list of actions that a creditor might take to\ncollect on the discharged debt. 11 U.S.C. § 524(a)(2), (3). The discharge is a\n“substantive right,” and that right is “often enforced by a motion for contempt,\nbut [it is] also enforceable through a declaratory judgment action.” Nat’l\nGypsum Co. v. NGC Settlement Tr. & Asbestos Claims Mgmt. Corp. (In re Nat’l\n 5\n\f Case: 18-20254 Document: 00515167087 Page: 6 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\nGypsum Co.), 118 F.3d 1056, 1063 (5th Cir. 1997) (citations omitted). The\ndeclaratory judgment was sought in National Gypsum by the opening of an\nadversary proceeding in the bankruptcy court that had granted the debtor’s\ndischarge. Id. at 1060. Indeed, Federal Rule of Bankruptcy Procedure 7001(6)\nstates that an adversary proceeding is, among other things, “a proceeding to\ndetermine the dischargeability of a debt.”\n Thus, an available procedure under National Gypsum is a declaratory\njudgment action. A violation of the declaratory judgment will lead to its own\nremedies such as “damages or an injunction.” United Teacher Assocs. Ins. Co.\nv. Union Labor Life Ins. Co., 414 F.3d 558, 570 (5th Cir. 2005); see also 28\nU.S.C. § 2202. The issue for us is identifying the proper court or courts in\nwhich such an action can be brought. May a bankruptcy court other than the\none that granted the discharge enforce the injunction?\n The closest this circuit has come to answering the question is to hold, in\nthe class action context, that a bankruptcy judge in the Southern District of\nTexas may exercise ‘jurisdiction over claims that arise in other cases\nadministered by other judges” in the same judicial district. Wilborn v. Wells\nFargo Bank, N.A. (In re Wilborn), 609 F.3d 748, 753 (5th Cir. 2010). The\nWilborn court only briefly discussed the issue of enforcing an injunction arising\nfrom the discharge order of a different bankruptcy court in the same district.\nIn the present proceedings, the bankruptcy court’s understanding of its\nauthority extended well beyond its home district. The question of a bankruptcy\njudge’s injunctive reach within its own district has not been answered.\n The two plaintiff-debtors received general discharges in bankruptcy.\nCentral to the dispute is that Congress has excepted from discharge, among\nother categories of debt, certain types of student-loan debt. 11 U.S.C. §\n523(a)(8). We will deal with the issue of dischargeability in the second part of\nour opinion and will wait to quote the relevant statute until then.\n 6\n\f Case: 18-20254 Document: 00515167087 Page: 7 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\n We have already summarized that the bankruptcy court at this stage\nanswered only two questions. The first answer we review is the “yes” the court\ngave to the question of whether a bankruptcy court in a judicial district other\nthan the one in which the discharge was entered has authority to interpret the\ndischarge and enforce the injunction. The court rejected Navient’s argument\nthat the general rule should apply that the court issuing an injunction is the\nonly one that can enforce it through contempt proceedings. The bankruptcy\ncourt first held that general rule was inapplicable because no discretion or\nindividual judgment is exercised in creating the injunction. 3 The form order\nused for the discharges for the initial two plaintiffs here does not even mention\nan injunction. The injunction instead arises from this statutory command: “A\ndischarge in a case under this title . . . operates as an injunction against the\ncommencement or continuation of an action.” § 524(a). Because there is “no\nsubjective thought process that requires deference nor is there any risk of\nmisinterpretation of a particular judge’s reasoning,” the bankruptcy court\nconcluded that the general limitation on enforcement of injunctions only by the\nissuing court was inapplicable. The court did not cite any case authority to\nsupport its analysis. The basic point was that the bankruptcy statutes\nthemselves make clear that no purpose is served by requiring a return to the\nissuing court to interpret a discharge injunction.\n Navient, of course, disagrees that discharge injunctions should be\ntreated differently than others. A principal authority it cites is one of this\ncourt’s precedents dealing with non-bankruptcy injunctions. There, Chief\nJudge Charles Clark explained in the context of a claim of securities fraud that\n\n\n 3 There is at least one aspect of the bankruptcy discharge that requires individual\njudicial consideration. The applicable education loans are not discharged “unless excepting\nsuch debt from discharge under this paragraph would impose an undue hardship on the\ndebtor and the debtor’s dependents.” § 523(a)(8). Different bankruptcy judges can look at\nthe same facts and reach contrary decisions.\n 7\n\f Case: 18-20254 Document: 00515167087 Page: 8 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\n“[e]nforcement of an injunction through a contempt proceeding must occur in\nthe issuing jurisdiction because contempt is an affront to the court issuing the\norder.” Waffenschmidt v. MacKay, 763 F.2d 711, 716 (5th Cir. 1985). A\nbankruptcy court does continue to have jurisdiction to enforce its orders, and\nthat jurisdiction remains even after the bankruptcy case is closed. See, e.g.,\nGalaz v. Katona, 841 F.3d 316, 322 (5th Cir. 2016). The issue for us arises\nbecause Galaz and other Fifth Circuit precedents do not hold that authority is\nexclusive in the original court. Navient also argues that regardless of\njurisdiction, there are prudential reasons supporting its argument.\n Navient’s appellate brief recounts the background for an injunction that\narises from a discharge, drawing from a scholarly article. Charles Jordan\nTabb, The Historical Evolution of the Bankruptcy Discharge, 65 AM. BANKR. L.\nJ. 325 (1991). We look at parts of the background in order to understand how\na bankruptcy discharge was enforced before a statute was enacted that\nimposed an injunction. Importantly, we also consider whether another part of\nthe same statutory enactment arguably created a right of enforcement of the\ninjunction by “foreign” courts. If so, then its repeal in 1978 has some meaning.\n There was no statutory injunction arising from a discharge until 1970.\nId. at 326 n.3. A House Report on 1970 bankruptcy legislation explained\nproblems with prior law, including the harassment of debtors:\n The present discharge provisions of the Bankruptcy Act authorize\n the bankruptcy court to determine the right to a discharge, but do\n not give the bankruptcy court express jurisdiction to determine the\n effect of the discharge. . . . Under present practice, if a bankrupt is\n sued in State court on a discharged debt, the State court may\n determine whether the debt in question was or was not discharged.\n In other words, the jurisdiction over the granting and the enforcing\n of a discharge is divided, with the result that debtors are\n frequently harassed and coerced by creditors into paying debts\n that may have been discharged.\nH.R. REP. NO. 91-1502, at 3 (1970).\n 8\n\f Case: 18-20254 Document: 00515167087 Page: 9 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\n The 1970 legislation was adopted and provided for an injunction:\n f. An order of discharge shall—\n (1) declare that any judgment theretofore or thereafter obtained in\n any other court is null and void . . . ; and\n (2) enjoin all creditors whose debts are discharged from thereafter\n instituting or continuing any action or employing any process to\n collect such debts as personal liabilities of the bankrupt.\nAct of Oct. 29, 1970, Pub. L. No. 91-467, § 3, 84 Stat. 990, 991 (amending\nSection 14 of the 1898 Bankruptcy Code, codified as 11 U.S.C. § 32(f)).\n The statutory detailing of the injunction that results from a discharge\nhas been revised, but the meaning for our purposes is the same: the discharge\n“operates as an injunction against the commencement or continuation of an\naction” to collect a relevant debt. 11 U.S.C. § 524(a)(2).\n Nothing in the statute creating an injunction explains whether this form\nof injunction could be enforced only by the bankruptcy court in the issuing\ndistrict. Another 1970 provision, though, which appeared immediately after\nthe injunction section, did specifically refer to enforcement in other courts. It\nallowed the order of discharge to be registered in another district and to be\n“enforced in like manner” in the new district as in the issuing district:\n g. An order of discharge which has become final may be registered\n in any other district by filing therein a certified copy of such order\n and when so registered shall have the same effect as an order of\n the bankruptcy court of the district where registered and may be\n enforced in like manner.\n§ 3, 84 Stat. 990, 991 (codified as 11 U.S.C. § 32(g)). 4 Bankruptcy Rule 404(g)\nused almost this exact language. 11 U.S.C. app. at 283 (Supp. III 1974).\n\n\n\n 4An explanation for what those promoting the 1970 legislation were at least trying to\ndo was given by the National Conference of Referees in Bankruptcy:\n When a bankrupt has moved out of the district where he obtained his\n discharge in bankruptcy and is sued by a creditor on a discharged debt in the\n state to which he moved, the bankrupt should be able to enforce the discharge\n 9\n\f Case: 18-20254 Document: 00515167087 Page: 10 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\n The 1970 subsection on registration was repealed with adoption of the\nBankruptcy Code of 1978. 11 U.S.C. Tbl. I (showing that former Section 32(g)\nwas repealed). Further, the Bankruptcy Rule that implemented Section 32(g)\nwas revised after the 1978 Code was adopted by deleting “may be enforced in\nlike manner.” FED. R. BANKR. P. 4004(f). Enacted revisions in the wording of\nstatutes are part of “statutory history,” not “the sort of unenacted legislative\nhistory that often is neither truly legislative (having failed to survive\nbicameralism and presentment) nor truly historical (consisting of advocacy\naimed at winning in future litigation what couldn’t be won in past statutes).”\nBNSF Ry. Co. v. Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J., dissenting).\nWhen Congress makes a significant change in language when it amends an\nexisting statute, it “presumptively connotes a change in meaning.” ANTONIN\nSCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL\nTEXTS 256 (2012). Congress’s decision to eliminate language that seemed to\nallow enforcement of the discharge injunction in a new district 5 gives weight\nto the argument that after the 1978 Bankruptcy Code was adopted,\nenforcement in “like manner” in a different district was prohibited.\n We now turn to the law that exists today. Registering a judgment in a\nnew court is not a creature primarily of bankruptcy law. Some quite learned\nprofessors described the adoption of a general statutory provision for\nregistration in 1948, after an earlier Civil Rules version was rejected as\n\n\n and its injunctive provisions through the district court where he is currently\n residing. Section 14g [11 U.S.C. section 32(g)] is meant to permit the bankrupt\n access to his local United States court by registering therein a certified copy of\n the order granting the discharge.\nH.R. REP. NO. 91-1502, at 11.\n 5 Learned commentators concluded that Section 32(g) authorized enforcement of a\n\ndischarge injunction in a new district. One wrote that with “the 1970 Amendments to the\n1898 Act, Congress developed the portable and registerable discharge injunction.” Robert P.\nWasson, Jr., Remedying Violations of the Discharge Injunction Under Bankruptcy Code\n524…, 20 BANKR. DEV. J. 77, 88 (2003).\n 10\n\f Case: 18-20254 Document: 00515167087 Page: 11 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\narguably being beyond the rulemaking power of the Supreme Court. 11\nCHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARK KAY KANE, FEDERAL\nPRACTICE AND PROCEDURE § 2787 (2012). The current statute states:\n A judgment in an action for the recovery of money or\n property entered in any court of appeals, district court, bankruptcy\n court, or in the Court of International Trade may be registered by\n filing a certified copy of the judgment in any other district or, with\n respect to the Court of International Trade, in any judicial district,\n when the judgment has become final by appeal or expiration of the\n time for appeal or when ordered by the court that entered the\n judgment for good cause shown. Such a judgment entered in favor\n of the United States may be so registered any time after judgment\n is entered. A judgment so registered shall have the same effect as\n a judgment of the district court of the district where registered and\n may be enforced in like manner.\n28 U.S.C. § 1963. Bankruptcy courts were added to the statute in 1996.\nFederal Courts Improvement Act of 1996, Pub. L. No. 104-317, § 203, 110 Stat.\n3847, 3849.\n Section 1963 permits the clearing of jurisdictional hurdles when the\nprior judgment was entered in a suit in which federal question was the basis\nfor jurisdiction. The hurdle arises because “an action solely to enforce the\njudgment would lack that federal question jurisdiction and therefore could not\nbe maintained in federal court” absent some other jurisdictional basis. JAMES\nWILLIAM MOORE, ET AL., MOORE’S FEDERAL PRACTICE ¶ 130.33 (explaining that\n“a suit on a judgment does not involve a federal question, however important\nfederal questions may have been to the resolution of the original controversy,”\nand citing Stiller v. Hardman, 324 F.2d 626, 628 (2d Cir. 1963)). 6\n\n\n 6 An earlier version of MOORE’S has, since the adoption of Bankruptcy Rule 404(g) and\nthen continuing with current Rule 4004(f), been cited by the Federal Rules Advisory\nCommittee to explain each Rule. See Rule 404(g), Adv. Comm. Notes (1976); Rule 4004(f),\nAdv. Comm. Notes (1983), both citing JAMES WILLIAM MOORE ET AL., MOORE’S FEDERAL\nPRACTICE ¶ 1.04[2] (2d ed. 1967). We could not locate any archival record of the 1967 treatise\nsection, but some if not all of that section was quoted in a district court opinion. See Dichter\n 11\n\f Case: 18-20254 Document: 00515167087 Page: 12 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\n The 1970 Bankruptcy Code amendment to permit registration was\nlabeled “an adaptation of 28 U.S.C. section 1963,” as it clearly was. H.R. REP.\nNO. 91-1502, at 11. One significant difference, though, is that Section 1963 is\nlimited to judgments that order the recovery of property or money, which\norders discharging debts would not be. As importantly, Section 1963 “does not\npermit enforcement elsewhere of a decree for injunctive relief.” 11 WRIGHT,\nMILLER, & KANE, FEDERAL PRACTICE § 2787.\n In conclusion, the 1970 registration statute was by far the most direct\nsupport for allowing one bankruptcy court to enforce another’s discharge\ninjunction. That statute, though, is no more, which supports that Congress\nabolished such enforcement. Current Bankruptcy Rule 4004(f) guides\nregistration but does not authorize “like manner” enforcement as did its\npredecessor. The foregoing convinces us that registration does not alter the\nusual procedures for enforcing an injunction.\n We return, then, to the bankruptcy court’s first basis for its ruling, which\nrelied on, of all things, logic alone to support that because a discharge\ninjunction needs no discretionary interpretation, there should not be any\nobligation to return to the issuing court for its enforcement. With respect for\nso venerable a basis for argument, i.e., straightforward logical reasoning, we\nconclude more is needed here to overcome the contrary authority.\n\n\n\nv. Disco Corp., 606 F. Supp. 721, 725 (S.D. Ohio 1984). The following excerpt likely is at least\nsome of the reason for the reference to MOORE’S in the Advisory Committee Notes:\n It may be suggested that by authorizing the judgment-creditor to\n enforce his judgment through registration in other districts, as an alternative\n to an action on the judgment, substantive rights are conferred upon him, venue\n requirements are altered, and the jurisdiction of the district court is enlarged.\n But in purpose and effect the registration of judgments in other districts is only\n a more convenient and effective method of enforcing them according to their\n original terms.\nId. (quoting MOORE’S FEDERAL PRACTICE ¶ 1.04[2] at 223 (1967)).\n 12\n\f Case: 18-20254 Document: 00515167087 Page: 13 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\n The bankruptcy court gave as a second basis for its decision, not\ncompletely distinguishable from its first, that when enforcing a discharge, a\ncourt is simply enforcing a statute. Holding a creditor in contempt “goes to the\nvery core of the bankruptcy process itself.” The court relied on a scholarly\nopinion by Bankruptcy Judge Isgur analyzing the fundamentals in Cano v.\nGMAC Mortg. Corp. (In re Cano), 410 B.R. 506 (Bankr. S.D. Tex. 2009). The\nbankruptcy court here also cited both 28 U.S.C. § 157, which sets out many of\nthe procedures for bankruptcy courts and the authority of the district courts\nover them, and 28 U.S.C. § 1334, which grants to district courts “original and\nexclusive jurisdiction of all cases under” the Bankruptcy Code, with some\nexceptions.\n We need not analyze today the complexities of Section 157 addressed by\nCano, including the differences among cases and proceedings “arising under\ntitle 11 or arising in or related to a case under title 11.’’ § 157(a) (emphasis\nadded). We limit our analysis because our question is limited: may a different\nbankruptcy court than the one that issued the discharge that caused the\ninjunction to arise, enforce that injunction regardless of whether the\nimpediment is jurisdiction, venue, prudential considerations, or something\nelse? The Cano court identified but did not resolve that issue: “[r]equiring\nPlaintiffs to seek civil contempt damages from their ‘home court’ may be the\nmore appropriate remedy and the only remedy authorized.” Cano, 410 B.R. at\n543. The Cano opinion did not need to resolve the issue before us.\n We next examine precedents concerning contempt authority. “Civil\ncontempt is the normal sanction for violations of the discharge injunction.”\nRICHARD LEVIN & HENRY J. SOMMER, COLLIER ON BANKRUPTCY ¶ 524.02(c)\n(2018). We have used absolute language, though not in a bankruptcy context,\nthat “[i]t is elementary that the court against which a contempt is committed\nhas exclusive jurisdiction to punish for such contempt.” United States v.\n 13\n\f Case: 18-20254 Document: 00515167087 Page: 14 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\nBarnett, 330 F.2d 369, 385 (5th Cir. 1963) (citing In re Debs, 158 U.S. 564, 594–\n95 (1895)).\n Other circuits have insisted on a return to the bankruptcy court whose\ndischarge order created the injunction. The Eleventh Circuit has held that\nonly the bankruptcy court issuing the discharge has jurisdiction to enforce the\ninjunction through contempt. Alderwoods Grp., Inc. v. Garcia, 682 F.3d 958,\n961 (11th Cir. 2012). 7 The Seventh Circuit has said the “responsibility for\nenforcing the discharge order [is] in the court that issued it.” Cox v. Zale\nDelaware, Inc., 239 F.3d 910, 916–17 (7th Cir. 2001) (citing FED. R. BANKR. P.\n9020). The cited Bankruptcy Rule 9020 simply says Rule 9014 on “Contested\nMatters” is what “governs a motion for an order of contempt.” The Ninth\nCircuit has held that both Section 524 and the Bankruptcy Rules require a\ncontempt action in the bankruptcy court that issued the discharge order. See\nBarrientos v. Wells Fargo Bank, N.A., 633 F.3d 1186, 1189 (9th Cir. 2011).\n The Second Circuit has limited enforcement of discharge injunctions\nthrough contempt proceedings to the originating court: “the bankruptcy court\nretains a unique expertise in interpreting its own injunctions and determining\nwhen they have been violated.” Anderson v. Credit One Bank, N.A., (In re\nAnderson), 884 F.3d 382, 390–91 (2d Cir. 2018). Without labeling the reason\nas one of jurisdiction, the court explained:\n The power to enforce an injunction is complementary to the\n duty to obey the injunction, which the Supreme Court has\n described as a duty borne out of “respect for judicial process.” GTE\n Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 387,\n 100 S.Ct. 1194, 63 L.Ed.2d 467 (1980) (internal quotation marks\n omitted). That same respect for judicial process requires us to hold\n\n\n\n 7 Without intimating that it has derivative precedential effect in this circuit, we note\nas a matter of collegial respect that the opinion is from the circuit with which we until 1981\nwere joined, and authoring Judge Tjoflat’s notable judicial service began on the Fifth Circuit.\n 14\n\f Case: 18-20254 Document: 00515167087 Page: 15 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\n that the bankruptcy court alone has the power to enforce the\n discharge injunction in Section 524.\nId. at 391.\n Though the Eleventh Circuit in Alderwoods concluded that the bar to\nseeking enforcement in a foreign court was jurisdictional, we pretermit so\nfoundational a holding. We start with the reality that a violation of the\ninjunction is an affront to the issuing court. Yes, the injunction arises from\nstatute and not from judicial discretion. Indeed, as here, the injunction may\nnot even be mentioned in the court’s order. Nonetheless, a central\nconsideration for us is that there is not a sufficiently clear path for deviating\nfrom the usual rule. Instead, what is clear are various obstacles we have\nidentified to taking that path. We now discuss a final one.\n A recent Supreme Court decision placed the civil contempt that results\nfrom violating a bankruptcy discharge injunction under the general principles\nfor contempt. It richly phrased its analysis: “When a statutory term is\n‘obviously transplanted from another legal source,’ it ‘brings the old soil with\nit.’” Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (quoting Hall v. Hall,\n138 S. Ct. 1118, 1128 (2018)). Rooted in the soil are “the traditional standards\nin equity practice for determining when a party may be held in civil contempt\nfor violating an injunction.” Id.\n We do not see a holding in Taggart that all the rules for civil contempt\nwere transplanted into bankruptcy, but we do see an imperative that any\ndeviation from those rules have a substantial justification. Beginning in 1970,\nthere was a statutory argument from Section 32(g) of the 1898 Bankruptcy\nCode that there was no need to return to the original bankruptcy court, but\nthat argument was repealed in 1978 along with the section. The remainder of\nwhat has been argued to us does not suffice to show that we should allow an\nexception from the usual enforcement rules for injunctions. Though Taggart\n\n 15\n\f Case: 18-20254 Document: 00515167087 Page: 16 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\ndid not lock the gate to any deviations from traditional contempt rules in\nbankruptcy, very little opportunity to open it was provided.\n We adopt the language of the Second Circuit that returning to the\nissuing bankruptcy court to enforce an injunction is required at least in order\nto uphold “respect for judicial process.” Anderson, 884 F.3d at 391. The\nbankruptcy court erred in holding that it could address contempt for violations\nof injunctions arising from discharges by bankruptcy courts in other districts.\nTherefore, as to Shahbazi and at least those debtors whose discharges were\nentered by courts in other districts, the bankruptcy court in these proceedings\nhas no authority to enforce the resulting injunction.\n Though the bankruptcy court did not reach the issue of certification of a\nclass, we point out that because of the limitation on enforcement we have just\nidentified, and indeed because we are aware of no prior certification of a class\nthat includes debtors whose discharges were entered by bankruptcy courts in\nother districts, certifying such a class would be highly dubious. We also leave\nfor the court on remand the separate issue, if it becomes relevant, of whether\nthat court has authority to enforce the injunctions arising from discharges\nentered by any bankruptcy court in the same judicial district.\n\n\nII. Dischargeability of private student loans\n The bankruptcy court also answered the question of whether the loans\nthat the plaintiffs received were subject to the statutory prohibition of\ndischarge of certain education loans. The court’s answer to that question was\n“no.” Though the ruling will impact only the discharges of loans by that court\nor perhaps in that judicial district, it remains an answer we must review.\n Congress has excepted certain categories of debt from discharge,\nincluding much student-loan debt. All exceptions to discharge are to be\ninterpreted narrowly in favor of the debtor to preserve the “fresh start” the\n 16\n\f Case: 18-20254 Document: 00515167087 Page: 17 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\nBankruptcy Code provides for debtors. Hickman v. Texas (In re Hickman), 260\nF.3d 400, 404–05 (5th Cir. 2001). 8 The current articulation of the exception is\nthat “the discharge under section 727 [and other sections] does not discharge\nan individual debtor from any debt –”\n ...\n (8) unless excepting such debt from discharge under this\n paragraph would impose an undue hardship on the debtor and the\n debtor’s dependents, for--\n (A)(i) an educational benefit overpayment or loan made,\n insured or guaranteed by a governmental unit, or made under\n any program funded in whole or in part by a governmental unit\n or nonprofit institution; or\n (ii) an obligation to repay funds received as an educational\n benefit, scholarship, or stipend; or\n (B) any other educational loan that is a qualified education\n loan, as defined in section 221(d)(1) of the Internal Revenue\n Code of 1986, incurred by a debtor who is an individual.\n11 U.S.C. § 523(a). In summary, Subsection (A)(i) applies to loans, etc. in which\na governmental unit or a nonprofit institution had a defined role. Subsection\n(B) requires a journey through multiple statutes to understand its meaning.\nA partial explanation is that the referenced Internal Revenue Code section\ndefines a “qualified education loan” as, among other things, “any indebtedness\nincurred by the taxpayer solely to pay qualified higher education expenses,”\nalong with other conditions. 26 U.S.C. § 221(d). The qualified expenses are\n“the cost of attendance” at the eligible education institution, reduced by\nscholarships and other payments. Id. An eligible institution is defined, with\nexceptions, in Internal Revenue Code Section 25A(f)(2), as one “which is\n\n\n 8 We quote what might seem to be authority that the opposite presumption applies to\neducation loans. Though referring to a party’s argument, the Supreme Court could be seen\nas agreeing that Congress made “student loan debt presumptively nondischargeable.” Tenn.\nStudent Assistance Corp. v. Hood, 541 U.S. 440, 450 (2004). In context, though, the Court is\nreferring only to education loans from states. Id.\n 17\n\f Case: 18-20254 Document: 00515167087 Page: 18 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\neligible to participate in a program under Title IV” of the Higher Education\nAct. There is no claim that Subsection (B) applies.\n Subsection (A)(ii) is Navient’s target, which deals clearly with\nscholarships and stipends. Less clear, but definable, is what else it deals with.\nWe restate the statutory language: there must be “an obligation to repay funds\nreceived as an educational benefit, scholarship, or stipend.” § 523(a)(8)(A)(ii).\nNavient argues this language plainly includes private student loans, and that\nFifth Circuit precedent supports this argument. Navient also contends that\nlower court cases that disagree had misapplied canons of statutory\ninterpretation to reach their conclusions. Finally, Section 523(a)(8)’s\nlegislative history supports including private student loans.\n The plaintiffs, though, argue that Subsection (8)(A)(ii)’s text and the\nBankruptcy Code’s purpose to give debtors a fresh start require reading the\nsubsection narrowly. Further, reading the subsection through the canons of\nstatutory interpretation affirms this narrow reading, as do the drafters’\nlanguage and grammar choices. Finally, the legislative history does not show\nCongress intended to exempt private education loans from discharge. 9\n The bankruptcy court here determined Subsection (8)(A)(ii) was\nunambiguous. The court considered the absence of the word “loan” and the\ninclusion of the concepts of stipends and scholarships to narrow the meaning\nof receiving an educational benefit to include only such funding as “tuition\nadvances by an employer that must be repaid if the employee leaves her\nemployment within a certain period of time.” The court also focused on the\nCongressional use of the word “as” to precede “educational benefit.” To the\n\n\n 9 Navient does not argue there is relevance to the fact that both Crocker and Shahbazi\nclassified the relevant debts as “educational” on Schedule F of their bankruptcy filings.\nImportantly, we do not see on the forms in the record or in the instructions for completing\nsuch forms any guidance on labeling a debt as “educational” or a statement that it should not\nbe so labeled unless it is nondischargeable under Section 523(a)(8).\n 18\n\f Case: 18-20254 Document: 00515167087 Page: 19 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\ncourt, that meant that what was received was the educational benefit, akin to\nscholarships and stipends, not that what was received could be used to pay for\neducational benefits. These private education loans were thus dischargeable.\n There are some general interpretive rules to apply. Discharge exceptions\nare to be construed “narrowly” and “in favor of the debtor” in order to further\nthe Bankruptcy Code’s purpose of giving debtor’s a “fresh start.” Miller v. J.D.\nAbrams Inc. (In re Miller), 156 F.3d 598, 602 (5th Cir. 1998). Exceptions to\ndischarge “should be confined to those plainly expressed.” Kawaauhau v.\nGeiger, 523 U.S. 57, 62 (1998). Regardless, we may not ignore plain textual\nlanguage, and as we discuss, Congressional action generally has enlarged the\ncategory of education loans that are not dischargeable.\n We start with text and context, then discuss some of the prior statutory\nlanguage that the current statute has replaced or supplemented. An initial\nread of Subsection (A)(ii) does not suggest that Congress used the phrase\n“obligation to repay funds received as an educational benefit” in order to\ninclude private student loans. The immediately preceding Subsection (A)(i)\nexempts “educational . . . loan[s].” Subsection (B) exempts “education loan[s].”\nSubsection (A)(ii) makes no reference to loans, its focus seemingly elsewhere.\n Navient argues that an “obligation to repay funds received” is expansive\nand includes loans, citing to other statutes and federal regulations that use\n“obligation to repay” in reference to loans. The fact that an obligation to repay\nis one way to refer to loans is correct, but we are trying to discern the meaning\nin the context of a particular enactment. If “‘Congress includes particular\nlanguage in one section of a statute but omits it in another’ — let alone in the\nvery next provision” — courts presume “Congress intended a different\nmeaning.” Loughrin v. United States, 573 U.S. 351, 358 (2014) (quoting\nRussello v. United States, 464 U.S. 16, 23 (1983)). Congress sandwiched\nSubsection (A)(ii), which does not mention loans at least by name, between two\n 19\n\f Case: 18-20254 Document: 00515167087 Page: 20 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\nsubsections that explicitly do. That structure is at least a start to saying\neducational benefits are not loans.\n We now look more closely at Subsection (A)(ii)’s text. The subsection\napplies to the “obligation to repay” funds received as “an educational benefit,”\n“scholarship,” or “stipend.” The prefatory language, i.e, that there is “an\nobligation to repay,” appears only in this subsection. The phrase is superfluous\nwhen referring to loans, but it is quite relevant to payments with contingent\nobligations. Next, a stipend is a “fixed and regular payment, such as a salary.”\nAMERICAN HERITAGE COLLEGE DICTIONARY, 1220 (3d ed. 1997). A scholarship\nis a “grant of financial aid to a student.” Id. The key phrase, “educational\nbenefit,” is the broadest. We consider unnecessary a dictionary definition of\n“educational,” but “benefit” needs one. Because the term is so broad, the\nlimiting principle of noscitur a sociis potentially should be used — over\nNavient’s objection, though — to understand the phrase in context. In a recent\napplication, the Supreme Court said there are times we should “look to noscitur\na sociis, the well-worn Latin phrase that tells us that statutory words are often\nknown by the company they keep.” Lagos v. United States, 138 S. Ct. 1684,\n1688–89 (2018). The “common quality” in a list that is the focus of the noscitur\na sociis inquiry “should be its most general quality — the least common\ndenominator, so to speak — relevant to the context.” SCALIA & GARNER,\nREADING LAW, 196.\n One general quality in the relevant phrase is that stipends and\nscholarships “signify granting, not borrowing.” McDaniel v. Navient Sols., LLC\n(In re McDaniel), 590 B.R. 537, 549 (Bankr. D. Colo. 2018). Those grants may\nbe conditional, but satisfaction of the conditions leaves them as grants. The\ncommon quality is that scholarships and stipends may not need to be repaid.\n Navient argues that noscitur a sociis should not apply because the\nstatutory list is too brief. The Supreme Court recently used the doctrine in a\n 20\n\f Case: 18-20254 Document: 00515167087 Page: 21 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\nfour-item list: “lost income and necessary child care, transportation, and other\nexpenses.” Lagos, 138 S. Ct. at 1688 (quoting 18 U.S.C. § 3663A(b)(4)); but see\nGraham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson,\n559 U.S. 280, 288 (2010) (“A list of three items . . . is too short to be particularly\nilluminating.”). Lagos used three specific items to give meaning to a catchall.\nId. at 1688–89. Authors Scalia and Garner did use a three-item list to explain\nproper use of this doctrine. SCALIA & GARNER, READING LAW, at 196–97. The\nexample was a state statute criminalizing the carrying of a firearm in a motor\nvehicle unless, among other conditions, it was “contained in a closed and\nfastened case, gunbox, or securely tied package.” Id. (discussing State v.\nTaylor, 594 N.W. 2d 533, 535–36 (Minn. Ct. App. 1999)). The Minnesota court\nheld that a purse was not a proper “case” — despite that it was “closed and\nfastened” — because the commonality of the other two items was that they\nwere containers that kept a firearm from being readily accessible. Id.\n The brevity of the list in the text we must review does not compel\nignoring the relevant term’s neighbors.\n We offer one definition of “benefit,” namely, a “payment made or an\nentitlement available in accordance with a wage agreement, an insurance\npolicy, or a public assistance program.” AMERICAN HERITAGE COLLEGE\nDICTIONARY, at 127. Whatever definition is used, we begin our analysis with\na tentative acceptance that the benefit generally does not need to be repaid.\nOur analysis continues, though.\n Navient claims that a different definition of “benefit” is best: “an\nadvantage or profit gained from something.” OXFORD ENGLISH DICTIONARY (3d\ned. 1997). That definition is limitless, invoking the very reason for the noscitur\na sociis doctrine. Navient’s offering does not capture the essentials of “stipend”\nand “scholarship,” which identify narrow categories of benefits.\n\n\n 21\n\f Case: 18-20254 Document: 00515167087 Page: 22 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\n Indeed, we see a lack of common sense in interpreting the list as\ncontaining two specific and quite limited kinds of payments that, among other\nthings, do not usually require repayment, and a third item preceding the two\nthat was meant to be a catchall for loans and most everything else financially\nbenefitting a student. Such an understanding of what Congress did with those\nwords creates a superfluity of words in the other parts of Section 523(a)(8). If\nan “obligation to repay funds including educational benefits” includes repaying\nprivate student loans, that requires defining “educational benefit” to include\nloans, which then means it also covers the public loans that are the focus of\nSubsection 523(a)(8)(A)(i). See In re Essangui, 573 B.R. 614, 624 (Bankr. D.\nMd. 2017). Under Navient’s interpretation, government loans covered by\nSubsection (A)(i) and qualified education loans covered by Subsection (B)\nwould also be covered by Subsection (A)(ii), rendering the other subsections\nserving little purpose. Courts have a “duty to give effect, if possible, to every\nclause and word of a statute.” Bennett v. Spear, 520 U.S. 154, 173 (1997).\nConcomitantly, “the canon against surplusage is strongest when an\ninterpretation would render superfluous another part of the same statutory\nscheme.” Marx v. Gen. Rev. Corp., 568 U.S. 371, 386 (2013).\n Navient calls this analysis “hyperbolic,” reframing the surplusage as\nsimply “some overlap” between the subsections. Navient, though, fails to\nexplain how the other subsections serve much purpose if the broad reading of\nSubsection (A)(ii) applies. Navient argues that Subsection (A)(ii)’s receipt of\nfunds requirement leaves Subsection (B) with work to do. For example, a loan\nobtained by a grandfather for his grandson to attend a Title IV college would\nnot be covered by Subsection (A)(ii) because the grandfather did not receive the\nbenefit, but it was covered by Subsection (B). See Wills v. Sallie Mae Servicing\n(In re Wills), No. 08-80404-FJO-07, 2010 WL 1688221, at *7 (S.D. Ind. Apr. 23,\n2010). Maybe so, but because every exemption in these provisions is a type of\n 22\n\f Case: 18-20254 Document: 00515167087 Page: 23 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\nfund used by recipients to advance their education, Congress could have just\nexempted from discharge any “obligation to repay funds received as an\neducational benefit” and left it at that. The redundancies created by Navient’s\ninterpretation of Subsection (A)(ii) create more than a modest overlap and can\nbe avoided by adopting the narrower interpretation of that subsection.\n Navient seeks to block any interpretive effort by this court by arguing\nthat one of our precedents makes the sole issue for us “whether Plaintiffs’ loans\nexpressed an educational purpose at the time of application, origination, and\ndisbursement.” See Murphy v. Penn. Higher Educ. Assistance Agency (In re\nMurphy), 282 F.3d 868, 870–72 (5th Cir. 2002). 10 Pretty bold analysis of\nMurphy, and errant in our view. Murphy applied the 1990 language applicable\nto loans insured by the federal government. Id. at 870. The question was\nwhether such a federally-insured loan was “educational” even as to proceeds\nspent on living expenses. Id. at 870, 873. The court held that the educational\npurpose of such a loan was defined by its purpose upon disbursement by the\nlender and not by the way it was spent by the borrower. Id. at 873. Murphy\ndid not analyze our issue, and we must conduct our own evaluation.\n An argument by plaintiffs about grammar, to which we give less weight\nthan the foregoing because it relies on such a minor word-choice, is that when\nCongress exempted funds “received as an educational benefit” rather than “for\nan educational benefit,” the natural reading is that it describes what the giver\n\n\n 10 The Murphy court discussed the added difficulties the debtor’s strained reading of\n“educational benefit” in the 1990 statute’s reference to federally-insured loans would create\nfor the second use of the phrase in Section 523(a)(8), which the court twice quoted as\n“education benefit scholarship or stipend,” i.e, without commas. See Murphy, 282 F.3d at\n870, 871. That made the first two words adjectival, not a separate category, and the court’s\nanalysis focused on whether the two words modified both “scholarship” and “stipend.” Id. at\n871–72. It appears to us, though, that Congress in 1990 adopted this language: “obligation\nto repay funds received as an educational benefit, scholarship or stipend.” Crime Control Act\nof 1990, Pub. L. No. 101-647, § 3621, 104 Stat. 4789, 4964–65. Regardless, the statute as it\nexists today does make “educational benefit” a third category in Section 523(a)(8)(A)(ii).\n 23\n\f Case: 18-20254 Document: 00515167087 Page: 24 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\nwas giving and not what the receiver could make of the gift. The phrase “as\nan educational benefit” indicates that the funds themselves are the educational\nbenefit (like tuition payments), whereas the phrase “for an educational benefit”\nmight well encompass funds conveyed for educational purposes, including\nprivate student loans. Essangui, 573 B.R. at 621. At least it can be said the\ndrafters’ word choice does not support inclusion of private student loans.\n We also examine the statutory history for Subsection (a)(8), i.e., the\nhistory of enacted revisions. 11 Since 1970, Congress has expanded the scope of\nnon-dischargeable student loans. See, e.g., Cazenovia Coll. v. Renshaw (In re\nRenshaw), 222 F.3d 82, 86–88 (2d Cir. 2000) (surveying the history of\nSubsection (a)(8)). We find that the phrase “educational benefit” first appeared\nin Subsection (a)(8) in 1990, which excepted from discharge a debt\n for an educational benefit overpayment or loan made, insured or\n guaranteed by a governmental unit, or made under any program\n funded in whole or in part by a governmental unit or nonprofit\n institution, or for an obligation to repay funds received as an\n educational benefit, scholarship or stipend.\nCrime Control Act of 1990, Pub. L. No. 101-647, § 3621, 104 Stat. 4789, 4964-\n65 (codified as 11 U.S.C. § 523(a)(8)) (emphasis added).\n\n\n\n\n 11 Plaintiffs also urge us to examine legislative history. Various court decisions assert\nthat in 1990, the nondischargeability of “an obligation to repay funds received as an\neducational benefit, scholarship, or stipend,” was added to confirm an Eighth Circuit\ninterpretation holding that certain conditional payments were loans covered by Section (a)(8).\nSee, e.g., Essangui, 573 B.R. at 618 (citing U.S. Dep’t of Health & Human Servs. v. Smith,\n807 F.2d 122 (8th Cir. 1986)). A House Judiciary Committee hearing on the bill revealed that\nthe amendment was drafted by a committee of United States Attorneys. Fed. Debt Collection\nProcedures: Hearing before the Subcomm. on Econ. & Commercial Law of the Comm. on the\nJudiciary, H.R., 101st Cong., 2, 3 (1990) (statements by Rep. Brooks and U.S. Att’y Bob\nWortham). In answers to written questions, the chair of the outside drafting committee wrote\nthat VA benefits were an example of a relevant “education benefit.” Id. at 74–75 (answers of\nBob Wortham). We acknowledge this history but do not rely on it. Meaning to a statute\ncomes from its text, analyzed by employing appropriate tools of statutory interpretation\nwhich we conclude do not include legislative history.\n 24\n\f Case: 18-20254 Document: 00515167087 Page: 25 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\n Before explaining the latest change, made in 2005, we remark on the\nnear-unanimity of courts’ understanding of the 1990 change. One court, after\nsurveying the caselaw, stated that the language we italicized above was\n“generally interpreted . . . to create a new category of nondischargeable debt\nthat excluded for-profit loans.” Essangui, 573 B.R. at 619. Navient agrees that\nwas the trend, but it argues that by the amendments to Subsection (a)(8) in\n2005 which we discuss next, Congress brought private student loans within\nthe exceptions to discharge. The parties do not agree about the post-2005\ncaselaw. Navient calculates the majority as holding that any funds received\nfor an educational purpose, including private student loans, were covered by\nthe new language. 12 See, e.g., Brown v. CitiBank, N.A. (In re Brown), 539 B.R.\n853, 858–59 (Bankr. S.D. Cal. 2015). The plaintiffs count the cases differently.\nThey both agree that since about 2015, there has been increasing caselaw that\nholds private student loans are not exempt from discharge. See, e.g., Nypaver\nv. Nypaver (In re Nypaver), 581 B.R. 431, 435–37 (W.D. Pa. 2018).\n In 2005, Congress replaced the entirety of Subsection (a)(8) with a new\nsubsection with subparts. We italicize the only significant new language:\n (8) unless excepting such debt from discharge under this\n paragraph would impose an undue hardship on the debtor and the\n debtor's dependents, for —\n (A)(i) an educational benefit overpayment or loan made,\n insured, or guaranteed by a governmental unit, or made under any\n\n\n 12 The only circuit court opinion cited to us on this issue is unpublished. Desormes v.\nInfilaw Corp. (In re Desormes), 569 F. App’x 42 (2d Cir. 2014). Thus, no matter what we\ndecide, there will not be a split in precedential circuit authority. The opinion was quite brief,\nwith the only description of the debt being that it came from a “student loan” and “was\nexcepted from discharge under 11 U.S.C. § 523(a)(8)(A)(ii).” Id. at 43. There was no analysis\nof how to interpret the three-item statutory list. The debtor’s argument centered on the\nsupposed necessity for “a transfer of funds directly to the debtor” before a loan would “be\nreceived within the meaning of the statute.” Id. The bankruptcy court’s opinion indicates the\nloan was from the school to pay the student’s tuition. Desormes v. Charlotte School of Law,\nInc. (In re Desormes), 2012 WL 4106765 at *1 (Bankr. D. Conn. 2012).\n 25\n\f Case: 18-20254 Document: 00515167087 Page: 26 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\n program funded in whole or in part by a governmental unit or\n nonprofit institution; or\n (ii) an obligation to repay funds received as an educational\n benefit, scholarship, or stipend; or\n (B) any other educational loan that is a qualified education\n loan, as defined in section 221(d)(1) of the Internal Revenue Code\n of 1986, incurred by a debtor who is an individual.\nBankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L.\nNo. 109-8, Title II, § 220, 119 Stat. 23, 59 (emphasis added) (codified as 11\nU.S.C. § 523(a)).\n The significant change was to make nondischargeable “any other . . .\nqualified educational loan,” which Navient concedes the loans here are not, by\nadding Subsection (B). Most importantly for us, Congress barely tweaked the\n1990 language of “obligation to repay funds received as an educational benefit,\nscholarship or stipend” — it inserted a comma after “scholarship.” Navient\nacknowledges that from 1990 to 2005, the interpretation of stipends,\nscholarships, and educational benefits had excluded for-profit loans. We see\nwhat did not happen to this language in 2005 as invoking this principle: “If a\nword or phrase has been . . . given a uniform interpretation by inferior courts...,\na later version of that act perpetuating the wording is presumed to carry\nforward that interpretation.” Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive\nCmtys. Project, Inc., 135 S. Ct. 2507, 2520 (2015) (quoting SCALIA & GARNER,\nREADING LAW 322). Navient argues that severing Subsection (A)(ii) from (A)(i)\nallowed (A)(ii) to cover a broader scope of education financing, including\nprivate education loans. All we see is a change to the structure of the overall\nstatute but no real change to the language that controls the case before us.\n Navient’s assertion that the 2005 amendment made all private student\nloans nondischargeable is not only unsupported by the text, it is unsupported\nby some of Navient’s authorities. Among them is Corletta v. Tex. Higher Educ.\n\n 26\n\f Case: 18-20254 Document: 00515167087 Page: 27 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\nCoordinating Bd. (In re Pappas), 517 B.R. 708, 716–17 (Bankr. W.D. Tex.\n2014). That case says no more than that Congress amended Subsection (a)(8)\nin 2005 “to apply to private loans as well” without identifying Subsection\n(a)(8)(A)(ii) as the mechanism for this change. Id. at 717. What brought a new\ncategory of private loans into the discharge arena was the language of\nSubsection (a)(8)(B), the only meaningful 2005 addition.\n This court has recently discussed the 2005 change to the statute. See\nThomas v. Dep’t of Educ. (In re Thomas), 931 F.3d 449 (5th Cir. 2019). The\ncase concerned the “undue hardship” test that allows the discharge of an\neducation loan. Id. at 451–55. The loans at issue were from the United States\nDepartment of Education. Id. at 450. That made them nondischargeable\nunder Subsection 523(a)(8)(A)(i) as being “insured or guaranteed by a\ngovernmental unit, or made under any program funded in whole or in part by\na governmental unit or nonprofit institution.”\n The 2005 revision was “in response to the growing trend of commercial\nlending,” and the amendment’s purpose was to “make qualified private student\nloans harder to discharge, prohibiting discharge in all cases, unless repayment\nwould create ‘undue hardship’ for the debtor.” Id. at 453. That is a description\nof the new Subsection (a)(8)(B). The definition of a “qualified education loan”\nis in Section 221(d)(1) of the Internal Revenue Code of 1986, and, as stated\nbefore, Navient accepts that Subsection (a)(8)(B) does not apply here.\n In a supplementary letter to this court on Thomas, Navient implicitly\nrecognized that much of the new opinion was not on point, but it quoted the\ncourt’s language that “Section 523(a)(8) as it stands today excepts virtually all\nstudent loans from discharge” with the caveat about undue hardship. Thomas,\n931 F.3d at 453. That statement is a fair summary of the reach of\nnondischargeability, but before us is a category of loan that has not (yet) been\nreached by Subsection 523(a)(8).\n 27\n\f Case: 18-20254 Document: 00515167087 Page: 28 Date Filed: 10/21/2019\n\n\n\n No. 18-20254\n We find nothing in the 2005 revisions to alter our interpretation that\nSubsection 523(a)(8)(A)(ii) applies only to educational payments that are not\ninitially loans but whose terms will create a reimbursement obligation upon\nthe failure of conditions of the payments.\n In conclusion, the only possibly applicable part of the relevant statute is\nSubsection 523(a)(8)(A)(ii). In interpreting that provision, we rely on the\nnoscitur a sociis doctrine, the need to avoid surplusage, Congressional\nratification in 2005 of prior interpretations, and the command that discharge\nexceptions are interpreted narrowly in favor of debtors. We conclude that\n“education benefit” is limited to conditional payments with similarities to\nscholarships and stipends. The loans at issue here, though obtained in order\nto pay expenses of education, do not qualify as “an obligation to repay funds\nreceived as an educational benefit, scholarship, or stipend” because their\nrepayment was unconditional. They therefore are dischargeable.\n * * *\n We REVERSE the bankruptcy court’s determination that it has\nauthority to enforce a discharge injunction entered by a different district’s\nbankruptcy court. Any debtors seeking injunctions due to discharges entered\nin other districts should have their proceedings dismissed or transferred. We\nAFFIRM the determination that loans such as those in issue here are\ndischargeable. We REMAND to the bankruptcy court.\n\n\n\n\n 28\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Evan Crocker v. Navient Solutions, L.L.C.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-21\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-20254 Document: 00515167087 Page: 1 Date Filed: 10/21/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n October 21, 2019\\n No. 18-20254\\n Lyle W. Cayce\\n Clerk\\nIn re: Evan Brian Crocker, also known as Haas Legal, P.L.L.C.\\n\\n Debtor\\n\\nEVAN BRIAN CROCKER, on behalf of themselves and all those similarly\\nsituated, also known as Haas Legal, P.L.L.C, formerly known as Evan Brian\\nHaas: MICHAEL SHAHBAZI, on behalf of themselves and all those similarly\\nsituated, formerly known as Montana Shahbazi; WENDY L. LANDES, on\\nbehalf of themselves and all those similarly situated; RAEGENA SEITZ-\\nMOULDS, on behalf of themselves and all those similarly situated,\\n\\n Appellees\\n\\nv.\\n\\nNAVIENT SOLUTIONS, L.L.C.; NAVIENT CREDIT FINANCE\\nCORPORATION,\\n\\n Appellants\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore STEWART, SOUTHWICK and ENGELHARDT, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n\\n An individual in Texas and another in Virginia separately obtained loans\\nfrom the same lender to pay education expenses. Both later filed for\\nbankruptcy in their respective states. In time, orders of discharge were\\n\\f Case: 18-20254 Document: 00515167087 Page: 2 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nentered. One of the discharged debtors then filed suit against the lender in the\\nsame Bankruptcy Court of the Southern District of Texas that had ordered the\\ndischarge of his debts. Later, the Virginia debtor joined the Texas suit. The\\nsuit seeks to certify a nationwide class of those who claim their education-loan\\ndebts were validly discharged but from whom this lender continues to demand\\npayment. A declaratory judgment, injunction, and damages are sought.\\n The lender filed a motion for summary judgment, arguing bankruptcy\\ncourts cannot enforce the injunctions arising from discharge orders entered by\\ncourts in other judicial districts, and these private-education-loan debts are\\nstatutorily excepted from discharge. The bankruptcy court held the opposite\\nas to both, then certified the two holdings for interlocutory appeal.\\n We conclude that a bankruptcy court does not have authority to enforce\\nthe discharge injunctions entered in other districts. On the other hand, we\\nagree with the bankruptcy court that the particular education loans involved\\nhere are not statutorily excepted from discharge. The cause is REMANDED.\\n\\n\\n FACTUAL AND PROCEDURAL HISTORY\\n In 2009, Evan Crocker 1 obtained a $15,000 loan to fund his bar\\nexamination preparation. The lender was a subsidiary of SLM Corporation,\\nd/b/a Sallie Mae, which is a for-profit, public corporation whose loans are not\\npart of any governmental loan program. The loan documents informed Crocker\\nthat his repayment obligation “may not be dischargeable in bankruptcy.”\\nCrocker’s loan was transferred to SLM Education Credit Finance Corporation,\\nwhich subsequently became Navient Credit Finance Corporation. In the\\ncomplaint, Navient Solutions is said to be the entity pursuing collection. We\\nwill not differentiate among Navient entities in our discussion.\\n\\n\\n 1 Evan Brian Haas changed his name to Evan Brian Crocker in 2017. We use his\\ncurrent name throughout this opinion.\\n 2\\n\\f Case: 18-20254 Document: 00515167087 Page: 3 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n In 2015, Crocker filed for voluntary Chapter 7 bankruptcy in the United\\nStates Bankruptcy Court for the Southern District of Texas. He scheduled his\\nbar-study loan claim as an “Educational . . . Private loan” and did not dispute\\nthe debt. In February 2016, the court granted him a discharge under 11 U.S.C.\\n§ 727, informed him that “[m]ost debts are covered by the discharge, but not\\nall,” and closed his case.\\n Michael Shahbazi has a similar story. In 2002, Shahbazi obtained an\\n$11,658.99 loan from Sallie Mae for tuition and expenses while he attended a\\ntechnical school. He was given notice that his loan was “an education loan that\\nmust be repaid.” Exactly how Navient obtained its interest is unclear to us,\\nbut it is servicing this loan.\\n In 2011, Shahbazi filed for voluntary Chapter 7 bankruptcy in the\\nUnited States Bankruptcy Court for the Eastern District of Virginia. He\\nscheduled his Sallie Mae loan as a “Student Loan” and did not dispute the debt.\\nIn December 2011, the court granted him a discharge and closed his\\nbankruptcy proceeding. This discharge order specifically listed “Debts for most\\nstudent loans” as not being discharged.\\n It is alleged that after both discharges, Navient had both of these\\nplaintiffs contacted frequently by telephone and email to demand repayment.\\nIn August 2016, Crocker filed an adversary proceeding against Navient in the\\nBankruptcy Court for the Southern District of Texas, the same court that had\\ngranted him a discharge. He sought (1) a declaratory judgment that his private\\neducation debt had been discharged; (2) entry of judgment holding Navient in\\ncontempt for violating the injunction arising from his discharge; and (3) a\\ntemporary injunction. The court entered an agreed preliminary injunction on\\nAugust 18, 2016, barring Navient from pursuing collection until further order.\\n Crocker, with Shahbazi as an additional plaintiff, filed an amended\\ncomplaint, seeking to certify a nationwide class of those who (1) obtained\\n 3\\n\\f Case: 18-20254 Document: 00515167087 Page: 4 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nprepetition private education loans from Navient or related companies to cover\\nexpenses at an institution not accredited under Title IV; (2) later filed for\\nbankruptcy and were issued discharge orders; (3) have never reaffirmed their\\nprepetition private education loan debt; and (4) are being induced to pay their\\nallegedly discharged private education loans. Damages were now also sought.\\n Navient moved for summary judgment on these claims, arguing that a\\nbankruptcy court has no jurisdiction to interpret and enforce discharge orders\\nentered by courts in other judicial districts and that the plaintiffs’ education\\nloans were nondischargeable. The bankruptcy court denied the motion in\\nMarch 2018. 2 It rejected that the general rule giving an issuing court sole\\nauthority to enforce its own injunctions applied to the automatic injunction\\ncreated by statute when a bankruptcy court grants a discharge under 11 U.S.C.\\n§ 727. The court also determined that the kind of loans for educational\\npurposes relevant here, which the parties refer to as “private loans,” were not\\nwithin the ambit of the Bankruptcy Code’s bar on the discharge of some\\nstudent loans. See 11 U.S.C. § 523(a)(8).\\n In the same order, the bankruptcy court first authorized an interlocutory\\nappeal, then certified the order for direct appeal to this court, eschewing the\\nusual initial appellate review by a district court. A bankruptcy court may\\ncertify a ruling for direct review by a circuit court of appeals when, among other\\nreasons, it “involves a question of law as to which there is no controlling\\ndecision” by that circuit court or the Supreme Court, or because an appeal at\\nthat stage in the proceedings “may materially advance the progress of the\\ncase.” 28 U.S.C. § 158(d)(2)(A)(i), (iii). If a bankruptcy court so certifies, the\\n\\n\\n 2 Wendy L. Landes and Raegena Seitz-Moulds were included without objection as\\nadditional putative class members in a Third Amended Complaint, filed after Navient’s\\nmotion for summary judgment but before the bankruptcy court ruled. No party argues that\\nthe issues before us are altered by their joinder. Accordingly, we do not separately discuss\\nthe facts of the bankruptcies of the two last-added parties.\\n 4\\n\\f Case: 18-20254 Document: 00515167087 Page: 5 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\ncircuit court of appeals then exercises its discretion. § 158(d)(2)(A). A motions\\npanel of this court granted the unopposed motion to authorize the appeal.\\n\\n DISCUSSION\\n We review “grants and denials of summary judgment de novo. Summary\\njudgment is appropriate when ‘there is no genuine dispute as to any material\\nfact and the movant is entitled to judgment as a matter of law.’” Lyda\\nSwinterton Builders, Inc. v. Okla. Sur. Co., 903 F.3d 435, 444 (5th Cir. 2018)\\n(quoting FED. R. CIV. P. 56). Federal Rule of Civil Procedure 56 is incorporated\\ninto the Federal Rules of Bankruptcy Procedure. FED. R. BANKR. P. 7056.\\n Navient has two principal contentions on appeal. The first is that the\\nbankruptcy court either has no jurisdiction to enforce the statutory injunctions\\narising from a bankruptcy discharge that another bankruptcy court ordered,\\nor at least for prudential reasons may not do so. Second, Navient contends\\nthat the plaintiffs’ education loans are within the category of loans that under\\nthe Bankruptcy Code are nondischargeable.\\n There are no meaningful factual issues presented to us. Instead, we have\\nlegal issues of statutory interpretation. We now turn to those.\\n\\n\\nI. Authority to enforce a Section 524 discharge order entered by a bankruptcy\\ncourt in another judicial district\\n In broad brush, these proceedings concern two closed Chapter 7\\nbankruptcies in which generic discharges, i.e., discharges not specifying the\\ndischarged debts, were issued at completion. A discharge “operates as an\\ninjunction” against an extensive list of actions that a creditor might take to\\ncollect on the discharged debt. 11 U.S.C. § 524(a)(2), (3). The discharge is a\\n“substantive right,” and that right is “often enforced by a motion for contempt,\\nbut [it is] also enforceable through a declaratory judgment action.” Nat’l\\nGypsum Co. v. NGC Settlement Tr. & Asbestos Claims Mgmt. Corp. (In re Nat’l\\n 5\\n\\f Case: 18-20254 Document: 00515167087 Page: 6 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nGypsum Co.), 118 F.3d 1056, 1063 (5th Cir. 1997) (citations omitted). The\\ndeclaratory judgment was sought in National Gypsum by the opening of an\\nadversary proceeding in the bankruptcy court that had granted the debtor’s\\ndischarge. Id. at 1060. Indeed, Federal Rule of Bankruptcy Procedure 7001(6)\\nstates that an adversary proceeding is, among other things, “a proceeding to\\ndetermine the dischargeability of a debt.”\\n Thus, an available procedure under National Gypsum is a declaratory\\njudgment action. A violation of the declaratory judgment will lead to its own\\nremedies such as “damages or an injunction.” United Teacher Assocs. Ins. Co.\\nv. Union Labor Life Ins. Co., 414 F.3d 558, 570 (5th Cir. 2005); see also 28\\nU.S.C. § 2202. The issue for us is identifying the proper court or courts in\\nwhich such an action can be brought. May a bankruptcy court other than the\\none that granted the discharge enforce the injunction?\\n The closest this circuit has come to answering the question is to hold, in\\nthe class action context, that a bankruptcy judge in the Southern District of\\nTexas may exercise ‘jurisdiction over claims that arise in other cases\\nadministered by other judges” in the same judicial district. Wilborn v. Wells\\nFargo Bank, N.A. (In re Wilborn), 609 F.3d 748, 753 (5th Cir. 2010). The\\nWilborn court only briefly discussed the issue of enforcing an injunction arising\\nfrom the discharge order of a different bankruptcy court in the same district.\\nIn the present proceedings, the bankruptcy court’s understanding of its\\nauthority extended well beyond its home district. The question of a bankruptcy\\njudge’s injunctive reach within its own district has not been answered.\\n The two plaintiff-debtors received general discharges in bankruptcy.\\nCentral to the dispute is that Congress has excepted from discharge, among\\nother categories of debt, certain types of student-loan debt. 11 U.S.C. §\\n523(a)(8). We will deal with the issue of dischargeability in the second part of\\nour opinion and will wait to quote the relevant statute until then.\\n 6\\n\\f Case: 18-20254 Document: 00515167087 Page: 7 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n We have already summarized that the bankruptcy court at this stage\\nanswered only two questions. The first answer we review is the “yes” the court\\ngave to the question of whether a bankruptcy court in a judicial district other\\nthan the one in which the discharge was entered has authority to interpret the\\ndischarge and enforce the injunction. The court rejected Navient’s argument\\nthat the general rule should apply that the court issuing an injunction is the\\nonly one that can enforce it through contempt proceedings. The bankruptcy\\ncourt first held that general rule was inapplicable because no discretion or\\nindividual judgment is exercised in creating the injunction. 3 The form order\\nused for the discharges for the initial two plaintiffs here does not even mention\\nan injunction. The injunction instead arises from this statutory command: “A\\ndischarge in a case under this title . . . operates as an injunction against the\\ncommencement or continuation of an action.” § 524(a). Because there is “no\\nsubjective thought process that requires deference nor is there any risk of\\nmisinterpretation of a particular judge’s reasoning,” the bankruptcy court\\nconcluded that the general limitation on enforcement of injunctions only by the\\nissuing court was inapplicable. The court did not cite any case authority to\\nsupport its analysis. The basic point was that the bankruptcy statutes\\nthemselves make clear that no purpose is served by requiring a return to the\\nissuing court to interpret a discharge injunction.\\n Navient, of course, disagrees that discharge injunctions should be\\ntreated differently than others. A principal authority it cites is one of this\\ncourt’s precedents dealing with non-bankruptcy injunctions. There, Chief\\nJudge Charles Clark explained in the context of a claim of securities fraud that\\n\\n\\n 3 There is at least one aspect of the bankruptcy discharge that requires individual\\njudicial consideration. The applicable education loans are not discharged “unless excepting\\nsuch debt from discharge under this paragraph would impose an undue hardship on the\\ndebtor and the debtor’s dependents.” § 523(a)(8). Different bankruptcy judges can look at\\nthe same facts and reach contrary decisions.\\n 7\\n\\f Case: 18-20254 Document: 00515167087 Page: 8 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n“[e]nforcement of an injunction through a contempt proceeding must occur in\\nthe issuing jurisdiction because contempt is an affront to the court issuing the\\norder.” Waffenschmidt v. MacKay, 763 F.2d 711, 716 (5th Cir. 1985). A\\nbankruptcy court does continue to have jurisdiction to enforce its orders, and\\nthat jurisdiction remains even after the bankruptcy case is closed. See, e.g.,\\nGalaz v. Katona, 841 F.3d 316, 322 (5th Cir. 2016). The issue for us arises\\nbecause Galaz and other Fifth Circuit precedents do not hold that authority is\\nexclusive in the original court. Navient also argues that regardless of\\njurisdiction, there are prudential reasons supporting its argument.\\n Navient’s appellate brief recounts the background for an injunction that\\narises from a discharge, drawing from a scholarly article. Charles Jordan\\nTabb, The Historical Evolution of the Bankruptcy Discharge, 65 AM. BANKR. L.\\nJ. 325 (1991). We look at parts of the background in order to understand how\\na bankruptcy discharge was enforced before a statute was enacted that\\nimposed an injunction. Importantly, we also consider whether another part of\\nthe same statutory enactment arguably created a right of enforcement of the\\ninjunction by “foreign” courts. If so, then its repeal in 1978 has some meaning.\\n There was no statutory injunction arising from a discharge until 1970.\\nId. at 326 n.3. A House Report on 1970 bankruptcy legislation explained\\nproblems with prior law, including the harassment of debtors:\\n The present discharge provisions of the Bankruptcy Act authorize\\n the bankruptcy court to determine the right to a discharge, but do\\n not give the bankruptcy court express jurisdiction to determine the\\n effect of the discharge. . . . Under present practice, if a bankrupt is\\n sued in State court on a discharged debt, the State court may\\n determine whether the debt in question was or was not discharged.\\n In other words, the jurisdiction over the granting and the enforcing\\n of a discharge is divided, with the result that debtors are\\n frequently harassed and coerced by creditors into paying debts\\n that may have been discharged.\\nH.R. REP. NO. 91-1502, at 3 (1970).\\n 8\\n\\f Case: 18-20254 Document: 00515167087 Page: 9 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n The 1970 legislation was adopted and provided for an injunction:\\n f. An order of discharge shall—\\n (1) declare that any judgment theretofore or thereafter obtained in\\n any other court is null and void . . . ; and\\n (2) enjoin all creditors whose debts are discharged from thereafter\\n instituting or continuing any action or employing any process to\\n collect such debts as personal liabilities of the bankrupt.\\nAct of Oct. 29, 1970, Pub. L. No. 91-467, § 3, 84 Stat. 990, 991 (amending\\nSection 14 of the 1898 Bankruptcy Code, codified as 11 U.S.C. § 32(f)).\\n The statutory detailing of the injunction that results from a discharge\\nhas been revised, but the meaning for our purposes is the same: the discharge\\n“operates as an injunction against the commencement or continuation of an\\naction” to collect a relevant debt. 11 U.S.C. § 524(a)(2).\\n Nothing in the statute creating an injunction explains whether this form\\nof injunction could be enforced only by the bankruptcy court in the issuing\\ndistrict. Another 1970 provision, though, which appeared immediately after\\nthe injunction section, did specifically refer to enforcement in other courts. It\\nallowed the order of discharge to be registered in another district and to be\\n“enforced in like manner” in the new district as in the issuing district:\\n g. An order of discharge which has become final may be registered\\n in any other district by filing therein a certified copy of such order\\n and when so registered shall have the same effect as an order of\\n the bankruptcy court of the district where registered and may be\\n enforced in like manner.\\n§ 3, 84 Stat. 990, 991 (codified as 11 U.S.C. § 32(g)). 4 Bankruptcy Rule 404(g)\\nused almost this exact language. 11 U.S.C. app. at 283 (Supp. III 1974).\\n\\n\\n\\n 4An explanation for what those promoting the 1970 legislation were at least trying to\\ndo was given by the National Conference of Referees in Bankruptcy:\\n When a bankrupt has moved out of the district where he obtained his\\n discharge in bankruptcy and is sued by a creditor on a discharged debt in the\\n state to which he moved, the bankrupt should be able to enforce the discharge\\n 9\\n\\f Case: 18-20254 Document: 00515167087 Page: 10 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n The 1970 subsection on registration was repealed with adoption of the\\nBankruptcy Code of 1978. 11 U.S.C. Tbl. I (showing that former Section 32(g)\\nwas repealed). Further, the Bankruptcy Rule that implemented Section 32(g)\\nwas revised after the 1978 Code was adopted by deleting “may be enforced in\\nlike manner.” FED. R. BANKR. P. 4004(f). Enacted revisions in the wording of\\nstatutes are part of “statutory history,” not “the sort of unenacted legislative\\nhistory that often is neither truly legislative (having failed to survive\\nbicameralism and presentment) nor truly historical (consisting of advocacy\\naimed at winning in future litigation what couldn’t be won in past statutes).”\\nBNSF Ry. Co. v. Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J., dissenting).\\nWhen Congress makes a significant change in language when it amends an\\nexisting statute, it “presumptively connotes a change in meaning.” ANTONIN\\nSCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL\\nTEXTS 256 (2012). Congress’s decision to eliminate language that seemed to\\nallow enforcement of the discharge injunction in a new district 5 gives weight\\nto the argument that after the 1978 Bankruptcy Code was adopted,\\nenforcement in “like manner” in a different district was prohibited.\\n We now turn to the law that exists today. Registering a judgment in a\\nnew court is not a creature primarily of bankruptcy law. Some quite learned\\nprofessors described the adoption of a general statutory provision for\\nregistration in 1948, after an earlier Civil Rules version was rejected as\\n\\n\\n and its injunctive provisions through the district court where he is currently\\n residing. Section 14g [11 U.S.C. section 32(g)] is meant to permit the bankrupt\\n access to his local United States court by registering therein a certified copy of\\n the order granting the discharge.\\nH.R. REP. NO. 91-1502, at 11.\\n 5 Learned commentators concluded that Section 32(g) authorized enforcement of a\\n\\ndischarge injunction in a new district. One wrote that with “the 1970 Amendments to the\\n1898 Act, Congress developed the portable and registerable discharge injunction.” Robert P.\\nWasson, Jr., Remedying Violations of the Discharge Injunction Under Bankruptcy Code\\n524…, 20 BANKR. DEV. J. 77, 88 (2003).\\n 10\\n\\f Case: 18-20254 Document: 00515167087 Page: 11 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\narguably being beyond the rulemaking power of the Supreme Court. 11\\nCHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARK KAY KANE, FEDERAL\\nPRACTICE AND PROCEDURE § 2787 (2012). The current statute states:\\n A judgment in an action for the recovery of money or\\n property entered in any court of appeals, district court, bankruptcy\\n court, or in the Court of International Trade may be registered by\\n filing a certified copy of the judgment in any other district or, with\\n respect to the Court of International Trade, in any judicial district,\\n when the judgment has become final by appeal or expiration of the\\n time for appeal or when ordered by the court that entered the\\n judgment for good cause shown. Such a judgment entered in favor\\n of the United States may be so registered any time after judgment\\n is entered. A judgment so registered shall have the same effect as\\n a judgment of the district court of the district where registered and\\n may be enforced in like manner.\\n28 U.S.C. § 1963. Bankruptcy courts were added to the statute in 1996.\\nFederal Courts Improvement Act of 1996, Pub. L. No. 104-317, § 203, 110 Stat.\\n3847, 3849.\\n Section 1963 permits the clearing of jurisdictional hurdles when the\\nprior judgment was entered in a suit in which federal question was the basis\\nfor jurisdiction. The hurdle arises because “an action solely to enforce the\\njudgment would lack that federal question jurisdiction and therefore could not\\nbe maintained in federal court” absent some other jurisdictional basis. JAMES\\nWILLIAM MOORE, ET AL., MOORE’S FEDERAL PRACTICE ¶ 130.33 (explaining that\\n“a suit on a judgment does not involve a federal question, however important\\nfederal questions may have been to the resolution of the original controversy,”\\nand citing Stiller v. Hardman, 324 F.2d 626, 628 (2d Cir. 1963)). 6\\n\\n\\n 6 An earlier version of MOORE’S has, since the adoption of Bankruptcy Rule 404(g) and\\nthen continuing with current Rule 4004(f), been cited by the Federal Rules Advisory\\nCommittee to explain each Rule. See Rule 404(g), Adv. Comm. Notes (1976); Rule 4004(f),\\nAdv. Comm. Notes (1983), both citing JAMES WILLIAM MOORE ET AL., MOORE’S FEDERAL\\nPRACTICE ¶ 1.04[2] (2d ed. 1967). We could not locate any archival record of the 1967 treatise\\nsection, but some if not all of that section was quoted in a district court opinion. See Dichter\\n 11\\n\\f Case: 18-20254 Document: 00515167087 Page: 12 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n The 1970 Bankruptcy Code amendment to permit registration was\\nlabeled “an adaptation of 28 U.S.C. section 1963,” as it clearly was. H.R. REP.\\nNO. 91-1502, at 11. One significant difference, though, is that Section 1963 is\\nlimited to judgments that order the recovery of property or money, which\\norders discharging debts would not be. As importantly, Section 1963 “does not\\npermit enforcement elsewhere of a decree for injunctive relief.” 11 WRIGHT,\\nMILLER, & KANE, FEDERAL PRACTICE § 2787.\\n In conclusion, the 1970 registration statute was by far the most direct\\nsupport for allowing one bankruptcy court to enforce another’s discharge\\ninjunction. That statute, though, is no more, which supports that Congress\\nabolished such enforcement. Current Bankruptcy Rule 4004(f) guides\\nregistration but does not authorize “like manner” enforcement as did its\\npredecessor. The foregoing convinces us that registration does not alter the\\nusual procedures for enforcing an injunction.\\n We return, then, to the bankruptcy court’s first basis for its ruling, which\\nrelied on, of all things, logic alone to support that because a discharge\\ninjunction needs no discretionary interpretation, there should not be any\\nobligation to return to the issuing court for its enforcement. With respect for\\nso venerable a basis for argument, i.e., straightforward logical reasoning, we\\nconclude more is needed here to overcome the contrary authority.\\n\\n\\n\\nv. Disco Corp., 606 F. Supp. 721, 725 (S.D. Ohio 1984). The following excerpt likely is at least\\nsome of the reason for the reference to MOORE’S in the Advisory Committee Notes:\\n It may be suggested that by authorizing the judgment-creditor to\\n enforce his judgment through registration in other districts, as an alternative\\n to an action on the judgment, substantive rights are conferred upon him, venue\\n requirements are altered, and the jurisdiction of the district court is enlarged.\\n But in purpose and effect the registration of judgments in other districts is only\\n a more convenient and effective method of enforcing them according to their\\n original terms.\\nId. (quoting MOORE’S FEDERAL PRACTICE ¶ 1.04[2] at 223 (1967)).\\n 12\\n\\f Case: 18-20254 Document: 00515167087 Page: 13 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n The bankruptcy court gave as a second basis for its decision, not\\ncompletely distinguishable from its first, that when enforcing a discharge, a\\ncourt is simply enforcing a statute. Holding a creditor in contempt “goes to the\\nvery core of the bankruptcy process itself.” The court relied on a scholarly\\nopinion by Bankruptcy Judge Isgur analyzing the fundamentals in Cano v.\\nGMAC Mortg. Corp. (In re Cano), 410 B.R. 506 (Bankr. S.D. Tex. 2009). The\\nbankruptcy court here also cited both 28 U.S.C. § 157, which sets out many of\\nthe procedures for bankruptcy courts and the authority of the district courts\\nover them, and 28 U.S.C. § 1334, which grants to district courts “original and\\nexclusive jurisdiction of all cases under” the Bankruptcy Code, with some\\nexceptions.\\n We need not analyze today the complexities of Section 157 addressed by\\nCano, including the differences among cases and proceedings “arising under\\ntitle 11 or arising in or related to a case under title 11.’’ § 157(a) (emphasis\\nadded). We limit our analysis because our question is limited: may a different\\nbankruptcy court than the one that issued the discharge that caused the\\ninjunction to arise, enforce that injunction regardless of whether the\\nimpediment is jurisdiction, venue, prudential considerations, or something\\nelse? The Cano court identified but did not resolve that issue: “[r]equiring\\nPlaintiffs to seek civil contempt damages from their ‘home court’ may be the\\nmore appropriate remedy and the only remedy authorized.” Cano, 410 B.R. at\\n543. The Cano opinion did not need to resolve the issue before us.\\n We next examine precedents concerning contempt authority. “Civil\\ncontempt is the normal sanction for violations of the discharge injunction.”\\nRICHARD LEVIN & HENRY J. SOMMER, COLLIER ON BANKRUPTCY ¶ 524.02(c)\\n(2018). We have used absolute language, though not in a bankruptcy context,\\nthat “[i]t is elementary that the court against which a contempt is committed\\nhas exclusive jurisdiction to punish for such contempt.” United States v.\\n 13\\n\\f Case: 18-20254 Document: 00515167087 Page: 14 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nBarnett, 330 F.2d 369, 385 (5th Cir. 1963) (citing In re Debs, 158 U.S. 564, 594–\\n95 (1895)).\\n Other circuits have insisted on a return to the bankruptcy court whose\\ndischarge order created the injunction. The Eleventh Circuit has held that\\nonly the bankruptcy court issuing the discharge has jurisdiction to enforce the\\ninjunction through contempt. Alderwoods Grp., Inc. v. Garcia, 682 F.3d 958,\\n961 (11th Cir. 2012). 7 The Seventh Circuit has said the “responsibility for\\nenforcing the discharge order [is] in the court that issued it.” Cox v. Zale\\nDelaware, Inc., 239 F.3d 910, 916–17 (7th Cir. 2001) (citing FED. R. BANKR. P.\\n9020). The cited Bankruptcy Rule 9020 simply says Rule 9014 on “Contested\\nMatters” is what “governs a motion for an order of contempt.” The Ninth\\nCircuit has held that both Section 524 and the Bankruptcy Rules require a\\ncontempt action in the bankruptcy court that issued the discharge order. See\\nBarrientos v. Wells Fargo Bank, N.A., 633 F.3d 1186, 1189 (9th Cir. 2011).\\n The Second Circuit has limited enforcement of discharge injunctions\\nthrough contempt proceedings to the originating court: “the bankruptcy court\\nretains a unique expertise in interpreting its own injunctions and determining\\nwhen they have been violated.” Anderson v. Credit One Bank, N.A., (In re\\nAnderson), 884 F.3d 382, 390–91 (2d Cir. 2018). Without labeling the reason\\nas one of jurisdiction, the court explained:\\n The power to enforce an injunction is complementary to the\\n duty to obey the injunction, which the Supreme Court has\\n described as a duty borne out of “respect for judicial process.” GTE\\n Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 387,\\n 100 S.Ct. 1194, 63 L.Ed.2d 467 (1980) (internal quotation marks\\n omitted). That same respect for judicial process requires us to hold\\n\\n\\n\\n 7 Without intimating that it has derivative precedential effect in this circuit, we note\\nas a matter of collegial respect that the opinion is from the circuit with which we until 1981\\nwere joined, and authoring Judge Tjoflat’s notable judicial service began on the Fifth Circuit.\\n 14\\n\\f Case: 18-20254 Document: 00515167087 Page: 15 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n that the bankruptcy court alone has the power to enforce the\\n discharge injunction in Section 524.\\nId. at 391.\\n Though the Eleventh Circuit in Alderwoods concluded that the bar to\\nseeking enforcement in a foreign court was jurisdictional, we pretermit so\\nfoundational a holding. We start with the reality that a violation of the\\ninjunction is an affront to the issuing court. Yes, the injunction arises from\\nstatute and not from judicial discretion. Indeed, as here, the injunction may\\nnot even be mentioned in the court’s order. Nonetheless, a central\\nconsideration for us is that there is not a sufficiently clear path for deviating\\nfrom the usual rule. Instead, what is clear are various obstacles we have\\nidentified to taking that path. We now discuss a final one.\\n A recent Supreme Court decision placed the civil contempt that results\\nfrom violating a bankruptcy discharge injunction under the general principles\\nfor contempt. It richly phrased its analysis: “When a statutory term is\\n‘obviously transplanted from another legal source,’ it ‘brings the old soil with\\nit.’” Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (quoting Hall v. Hall,\\n138 S. Ct. 1118, 1128 (2018)). Rooted in the soil are “the traditional standards\\nin equity practice for determining when a party may be held in civil contempt\\nfor violating an injunction.” Id.\\n We do not see a holding in Taggart that all the rules for civil contempt\\nwere transplanted into bankruptcy, but we do see an imperative that any\\ndeviation from those rules have a substantial justification. Beginning in 1970,\\nthere was a statutory argument from Section 32(g) of the 1898 Bankruptcy\\nCode that there was no need to return to the original bankruptcy court, but\\nthat argument was repealed in 1978 along with the section. The remainder of\\nwhat has been argued to us does not suffice to show that we should allow an\\nexception from the usual enforcement rules for injunctions. Though Taggart\\n\\n 15\\n\\f Case: 18-20254 Document: 00515167087 Page: 16 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\ndid not lock the gate to any deviations from traditional contempt rules in\\nbankruptcy, very little opportunity to open it was provided.\\n We adopt the language of the Second Circuit that returning to the\\nissuing bankruptcy court to enforce an injunction is required at least in order\\nto uphold “respect for judicial process.” Anderson, 884 F.3d at 391. The\\nbankruptcy court erred in holding that it could address contempt for violations\\nof injunctions arising from discharges by bankruptcy courts in other districts.\\nTherefore, as to Shahbazi and at least those debtors whose discharges were\\nentered by courts in other districts, the bankruptcy court in these proceedings\\nhas no authority to enforce the resulting injunction.\\n Though the bankruptcy court did not reach the issue of certification of a\\nclass, we point out that because of the limitation on enforcement we have just\\nidentified, and indeed because we are aware of no prior certification of a class\\nthat includes debtors whose discharges were entered by bankruptcy courts in\\nother districts, certifying such a class would be highly dubious. We also leave\\nfor the court on remand the separate issue, if it becomes relevant, of whether\\nthat court has authority to enforce the injunctions arising from discharges\\nentered by any bankruptcy court in the same judicial district.\\n\\n\\nII. Dischargeability of private student loans\\n The bankruptcy court also answered the question of whether the loans\\nthat the plaintiffs received were subject to the statutory prohibition of\\ndischarge of certain education loans. The court’s answer to that question was\\n“no.” Though the ruling will impact only the discharges of loans by that court\\nor perhaps in that judicial district, it remains an answer we must review.\\n Congress has excepted certain categories of debt from discharge,\\nincluding much student-loan debt. All exceptions to discharge are to be\\ninterpreted narrowly in favor of the debtor to preserve the “fresh start” the\\n 16\\n\\f Case: 18-20254 Document: 00515167087 Page: 17 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nBankruptcy Code provides for debtors. Hickman v. Texas (In re Hickman), 260\\nF.3d 400, 404–05 (5th Cir. 2001). 8 The current articulation of the exception is\\nthat “the discharge under section 727 [and other sections] does not discharge\\nan individual debtor from any debt –”\\n ...\\n (8) unless excepting such debt from discharge under this\\n paragraph would impose an undue hardship on the debtor and the\\n debtor’s dependents, for--\\n (A)(i) an educational benefit overpayment or loan made,\\n insured or guaranteed by a governmental unit, or made under\\n any program funded in whole or in part by a governmental unit\\n or nonprofit institution; or\\n (ii) an obligation to repay funds received as an educational\\n benefit, scholarship, or stipend; or\\n (B) any other educational loan that is a qualified education\\n loan, as defined in section 221(d)(1) of the Internal Revenue\\n Code of 1986, incurred by a debtor who is an individual.\\n11 U.S.C. § 523(a). In summary, Subsection (A)(i) applies to loans, etc. in which\\na governmental unit or a nonprofit institution had a defined role. Subsection\\n(B) requires a journey through multiple statutes to understand its meaning.\\nA partial explanation is that the referenced Internal Revenue Code section\\ndefines a “qualified education loan” as, among other things, “any indebtedness\\nincurred by the taxpayer solely to pay qualified higher education expenses,”\\nalong with other conditions. 26 U.S.C. § 221(d). The qualified expenses are\\n“the cost of attendance” at the eligible education institution, reduced by\\nscholarships and other payments. Id. An eligible institution is defined, with\\nexceptions, in Internal Revenue Code Section 25A(f)(2), as one “which is\\n\\n\\n 8 We quote what might seem to be authority that the opposite presumption applies to\\neducation loans. Though referring to a party’s argument, the Supreme Court could be seen\\nas agreeing that Congress made “student loan debt presumptively nondischargeable.” Tenn.\\nStudent Assistance Corp. v. Hood, 541 U.S. 440, 450 (2004). In context, though, the Court is\\nreferring only to education loans from states. Id.\\n 17\\n\\f Case: 18-20254 Document: 00515167087 Page: 18 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\neligible to participate in a program under Title IV” of the Higher Education\\nAct. There is no claim that Subsection (B) applies.\\n Subsection (A)(ii) is Navient’s target, which deals clearly with\\nscholarships and stipends. Less clear, but definable, is what else it deals with.\\nWe restate the statutory language: there must be “an obligation to repay funds\\nreceived as an educational benefit, scholarship, or stipend.” § 523(a)(8)(A)(ii).\\nNavient argues this language plainly includes private student loans, and that\\nFifth Circuit precedent supports this argument. Navient also contends that\\nlower court cases that disagree had misapplied canons of statutory\\ninterpretation to reach their conclusions. Finally, Section 523(a)(8)’s\\nlegislative history supports including private student loans.\\n The plaintiffs, though, argue that Subsection (8)(A)(ii)’s text and the\\nBankruptcy Code’s purpose to give debtors a fresh start require reading the\\nsubsection narrowly. Further, reading the subsection through the canons of\\nstatutory interpretation affirms this narrow reading, as do the drafters’\\nlanguage and grammar choices. Finally, the legislative history does not show\\nCongress intended to exempt private education loans from discharge. 9\\n The bankruptcy court here determined Subsection (8)(A)(ii) was\\nunambiguous. The court considered the absence of the word “loan” and the\\ninclusion of the concepts of stipends and scholarships to narrow the meaning\\nof receiving an educational benefit to include only such funding as “tuition\\nadvances by an employer that must be repaid if the employee leaves her\\nemployment within a certain period of time.” The court also focused on the\\nCongressional use of the word “as” to precede “educational benefit.” To the\\n\\n\\n 9 Navient does not argue there is relevance to the fact that both Crocker and Shahbazi\\nclassified the relevant debts as “educational” on Schedule F of their bankruptcy filings.\\nImportantly, we do not see on the forms in the record or in the instructions for completing\\nsuch forms any guidance on labeling a debt as “educational” or a statement that it should not\\nbe so labeled unless it is nondischargeable under Section 523(a)(8).\\n 18\\n\\f Case: 18-20254 Document: 00515167087 Page: 19 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\ncourt, that meant that what was received was the educational benefit, akin to\\nscholarships and stipends, not that what was received could be used to pay for\\neducational benefits. These private education loans were thus dischargeable.\\n There are some general interpretive rules to apply. Discharge exceptions\\nare to be construed “narrowly” and “in favor of the debtor” in order to further\\nthe Bankruptcy Code’s purpose of giving debtor’s a “fresh start.” Miller v. J.D.\\nAbrams Inc. (In re Miller), 156 F.3d 598, 602 (5th Cir. 1998). Exceptions to\\ndischarge “should be confined to those plainly expressed.” Kawaauhau v.\\nGeiger, 523 U.S. 57, 62 (1998). Regardless, we may not ignore plain textual\\nlanguage, and as we discuss, Congressional action generally has enlarged the\\ncategory of education loans that are not dischargeable.\\n We start with text and context, then discuss some of the prior statutory\\nlanguage that the current statute has replaced or supplemented. An initial\\nread of Subsection (A)(ii) does not suggest that Congress used the phrase\\n“obligation to repay funds received as an educational benefit” in order to\\ninclude private student loans. The immediately preceding Subsection (A)(i)\\nexempts “educational . . . loan[s].” Subsection (B) exempts “education loan[s].”\\nSubsection (A)(ii) makes no reference to loans, its focus seemingly elsewhere.\\n Navient argues that an “obligation to repay funds received” is expansive\\nand includes loans, citing to other statutes and federal regulations that use\\n“obligation to repay” in reference to loans. The fact that an obligation to repay\\nis one way to refer to loans is correct, but we are trying to discern the meaning\\nin the context of a particular enactment. If “‘Congress includes particular\\nlanguage in one section of a statute but omits it in another’ — let alone in the\\nvery next provision” — courts presume “Congress intended a different\\nmeaning.” Loughrin v. United States, 573 U.S. 351, 358 (2014) (quoting\\nRussello v. United States, 464 U.S. 16, 23 (1983)). Congress sandwiched\\nSubsection (A)(ii), which does not mention loans at least by name, between two\\n 19\\n\\f Case: 18-20254 Document: 00515167087 Page: 20 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nsubsections that explicitly do. That structure is at least a start to saying\\neducational benefits are not loans.\\n We now look more closely at Subsection (A)(ii)’s text. The subsection\\napplies to the “obligation to repay” funds received as “an educational benefit,”\\n“scholarship,” or “stipend.” The prefatory language, i.e, that there is “an\\nobligation to repay,” appears only in this subsection. The phrase is superfluous\\nwhen referring to loans, but it is quite relevant to payments with contingent\\nobligations. Next, a stipend is a “fixed and regular payment, such as a salary.”\\nAMERICAN HERITAGE COLLEGE DICTIONARY, 1220 (3d ed. 1997). A scholarship\\nis a “grant of financial aid to a student.” Id. The key phrase, “educational\\nbenefit,” is the broadest. We consider unnecessary a dictionary definition of\\n“educational,” but “benefit” needs one. Because the term is so broad, the\\nlimiting principle of noscitur a sociis potentially should be used — over\\nNavient’s objection, though — to understand the phrase in context. In a recent\\napplication, the Supreme Court said there are times we should “look to noscitur\\na sociis, the well-worn Latin phrase that tells us that statutory words are often\\nknown by the company they keep.” Lagos v. United States, 138 S. Ct. 1684,\\n1688–89 (2018). The “common quality” in a list that is the focus of the noscitur\\na sociis inquiry “should be its most general quality — the least common\\ndenominator, so to speak — relevant to the context.” SCALIA & GARNER,\\nREADING LAW, 196.\\n One general quality in the relevant phrase is that stipends and\\nscholarships “signify granting, not borrowing.” McDaniel v. Navient Sols., LLC\\n(In re McDaniel), 590 B.R. 537, 549 (Bankr. D. Colo. 2018). Those grants may\\nbe conditional, but satisfaction of the conditions leaves them as grants. The\\ncommon quality is that scholarships and stipends may not need to be repaid.\\n Navient argues that noscitur a sociis should not apply because the\\nstatutory list is too brief. The Supreme Court recently used the doctrine in a\\n 20\\n\\f Case: 18-20254 Document: 00515167087 Page: 21 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nfour-item list: “lost income and necessary child care, transportation, and other\\nexpenses.” Lagos, 138 S. Ct. at 1688 (quoting 18 U.S.C. § 3663A(b)(4)); but see\\nGraham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson,\\n559 U.S. 280, 288 (2010) (“A list of three items . . . is too short to be particularly\\nilluminating.”). Lagos used three specific items to give meaning to a catchall.\\nId. at 1688–89. Authors Scalia and Garner did use a three-item list to explain\\nproper use of this doctrine. SCALIA & GARNER, READING LAW, at 196–97. The\\nexample was a state statute criminalizing the carrying of a firearm in a motor\\nvehicle unless, among other conditions, it was “contained in a closed and\\nfastened case, gunbox, or securely tied package.” Id. (discussing State v.\\nTaylor, 594 N.W. 2d 533, 535–36 (Minn. Ct. App. 1999)). The Minnesota court\\nheld that a purse was not a proper “case” — despite that it was “closed and\\nfastened” — because the commonality of the other two items was that they\\nwere containers that kept a firearm from being readily accessible. Id.\\n The brevity of the list in the text we must review does not compel\\nignoring the relevant term’s neighbors.\\n We offer one definition of “benefit,” namely, a “payment made or an\\nentitlement available in accordance with a wage agreement, an insurance\\npolicy, or a public assistance program.” AMERICAN HERITAGE COLLEGE\\nDICTIONARY, at 127. Whatever definition is used, we begin our analysis with\\na tentative acceptance that the benefit generally does not need to be repaid.\\nOur analysis continues, though.\\n Navient claims that a different definition of “benefit” is best: “an\\nadvantage or profit gained from something.” OXFORD ENGLISH DICTIONARY (3d\\ned. 1997). That definition is limitless, invoking the very reason for the noscitur\\na sociis doctrine. Navient’s offering does not capture the essentials of “stipend”\\nand “scholarship,” which identify narrow categories of benefits.\\n\\n\\n 21\\n\\f Case: 18-20254 Document: 00515167087 Page: 22 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n Indeed, we see a lack of common sense in interpreting the list as\\ncontaining two specific and quite limited kinds of payments that, among other\\nthings, do not usually require repayment, and a third item preceding the two\\nthat was meant to be a catchall for loans and most everything else financially\\nbenefitting a student. Such an understanding of what Congress did with those\\nwords creates a superfluity of words in the other parts of Section 523(a)(8). If\\nan “obligation to repay funds including educational benefits” includes repaying\\nprivate student loans, that requires defining “educational benefit” to include\\nloans, which then means it also covers the public loans that are the focus of\\nSubsection 523(a)(8)(A)(i). See In re Essangui, 573 B.R. 614, 624 (Bankr. D.\\nMd. 2017). Under Navient’s interpretation, government loans covered by\\nSubsection (A)(i) and qualified education loans covered by Subsection (B)\\nwould also be covered by Subsection (A)(ii), rendering the other subsections\\nserving little purpose. Courts have a “duty to give effect, if possible, to every\\nclause and word of a statute.” Bennett v. Spear, 520 U.S. 154, 173 (1997).\\nConcomitantly, “the canon against surplusage is strongest when an\\ninterpretation would render superfluous another part of the same statutory\\nscheme.” Marx v. Gen. Rev. Corp., 568 U.S. 371, 386 (2013).\\n Navient calls this analysis “hyperbolic,” reframing the surplusage as\\nsimply “some overlap” between the subsections. Navient, though, fails to\\nexplain how the other subsections serve much purpose if the broad reading of\\nSubsection (A)(ii) applies. Navient argues that Subsection (A)(ii)’s receipt of\\nfunds requirement leaves Subsection (B) with work to do. For example, a loan\\nobtained by a grandfather for his grandson to attend a Title IV college would\\nnot be covered by Subsection (A)(ii) because the grandfather did not receive the\\nbenefit, but it was covered by Subsection (B). See Wills v. Sallie Mae Servicing\\n(In re Wills), No. 08-80404-FJO-07, 2010 WL 1688221, at *7 (S.D. Ind. Apr. 23,\\n2010). Maybe so, but because every exemption in these provisions is a type of\\n 22\\n\\f Case: 18-20254 Document: 00515167087 Page: 23 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nfund used by recipients to advance their education, Congress could have just\\nexempted from discharge any “obligation to repay funds received as an\\neducational benefit” and left it at that. The redundancies created by Navient’s\\ninterpretation of Subsection (A)(ii) create more than a modest overlap and can\\nbe avoided by adopting the narrower interpretation of that subsection.\\n Navient seeks to block any interpretive effort by this court by arguing\\nthat one of our precedents makes the sole issue for us “whether Plaintiffs’ loans\\nexpressed an educational purpose at the time of application, origination, and\\ndisbursement.” See Murphy v. Penn. Higher Educ. Assistance Agency (In re\\nMurphy), 282 F.3d 868, 870–72 (5th Cir. 2002). 10 Pretty bold analysis of\\nMurphy, and errant in our view. Murphy applied the 1990 language applicable\\nto loans insured by the federal government. Id. at 870. The question was\\nwhether such a federally-insured loan was “educational” even as to proceeds\\nspent on living expenses. Id. at 870, 873. The court held that the educational\\npurpose of such a loan was defined by its purpose upon disbursement by the\\nlender and not by the way it was spent by the borrower. Id. at 873. Murphy\\ndid not analyze our issue, and we must conduct our own evaluation.\\n An argument by plaintiffs about grammar, to which we give less weight\\nthan the foregoing because it relies on such a minor word-choice, is that when\\nCongress exempted funds “received as an educational benefit” rather than “for\\nan educational benefit,” the natural reading is that it describes what the giver\\n\\n\\n 10 The Murphy court discussed the added difficulties the debtor’s strained reading of\\n“educational benefit” in the 1990 statute’s reference to federally-insured loans would create\\nfor the second use of the phrase in Section 523(a)(8), which the court twice quoted as\\n“education benefit scholarship or stipend,” i.e, without commas. See Murphy, 282 F.3d at\\n870, 871. That made the first two words adjectival, not a separate category, and the court’s\\nanalysis focused on whether the two words modified both “scholarship” and “stipend.” Id. at\\n871–72. It appears to us, though, that Congress in 1990 adopted this language: “obligation\\nto repay funds received as an educational benefit, scholarship or stipend.” Crime Control Act\\nof 1990, Pub. L. No. 101-647, § 3621, 104 Stat. 4789, 4964–65. Regardless, the statute as it\\nexists today does make “educational benefit” a third category in Section 523(a)(8)(A)(ii).\\n 23\\n\\f Case: 18-20254 Document: 00515167087 Page: 24 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nwas giving and not what the receiver could make of the gift. The phrase “as\\nan educational benefit” indicates that the funds themselves are the educational\\nbenefit (like tuition payments), whereas the phrase “for an educational benefit”\\nmight well encompass funds conveyed for educational purposes, including\\nprivate student loans. Essangui, 573 B.R. at 621. At least it can be said the\\ndrafters’ word choice does not support inclusion of private student loans.\\n We also examine the statutory history for Subsection (a)(8), i.e., the\\nhistory of enacted revisions. 11 Since 1970, Congress has expanded the scope of\\nnon-dischargeable student loans. See, e.g., Cazenovia Coll. v. Renshaw (In re\\nRenshaw), 222 F.3d 82, 86–88 (2d Cir. 2000) (surveying the history of\\nSubsection (a)(8)). We find that the phrase “educational benefit” first appeared\\nin Subsection (a)(8) in 1990, which excepted from discharge a debt\\n for an educational benefit overpayment or loan made, insured or\\n guaranteed by a governmental unit, or made under any program\\n funded in whole or in part by a governmental unit or nonprofit\\n institution, or for an obligation to repay funds received as an\\n educational benefit, scholarship or stipend.\\nCrime Control Act of 1990, Pub. L. No. 101-647, § 3621, 104 Stat. 4789, 4964-\\n65 (codified as 11 U.S.C. § 523(a)(8)) (emphasis added).\\n\\n\\n\\n\\n 11 Plaintiffs also urge us to examine legislative history. Various court decisions assert\\nthat in 1990, the nondischargeability of “an obligation to repay funds received as an\\neducational benefit, scholarship, or stipend,” was added to confirm an Eighth Circuit\\ninterpretation holding that certain conditional payments were loans covered by Section (a)(8).\\nSee, e.g., Essangui, 573 B.R. at 618 (citing U.S. Dep’t of Health & Human Servs. v. Smith,\\n807 F.2d 122 (8th Cir. 1986)). A House Judiciary Committee hearing on the bill revealed that\\nthe amendment was drafted by a committee of United States Attorneys. Fed. Debt Collection\\nProcedures: Hearing before the Subcomm. on Econ. & Commercial Law of the Comm. on the\\nJudiciary, H.R., 101st Cong., 2, 3 (1990) (statements by Rep. Brooks and U.S. Att’y Bob\\nWortham). In answers to written questions, the chair of the outside drafting committee wrote\\nthat VA benefits were an example of a relevant “education benefit.” Id. at 74–75 (answers of\\nBob Wortham). We acknowledge this history but do not rely on it. Meaning to a statute\\ncomes from its text, analyzed by employing appropriate tools of statutory interpretation\\nwhich we conclude do not include legislative history.\\n 24\\n\\f Case: 18-20254 Document: 00515167087 Page: 25 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n Before explaining the latest change, made in 2005, we remark on the\\nnear-unanimity of courts’ understanding of the 1990 change. One court, after\\nsurveying the caselaw, stated that the language we italicized above was\\n“generally interpreted . . . to create a new category of nondischargeable debt\\nthat excluded for-profit loans.” Essangui, 573 B.R. at 619. Navient agrees that\\nwas the trend, but it argues that by the amendments to Subsection (a)(8) in\\n2005 which we discuss next, Congress brought private student loans within\\nthe exceptions to discharge. The parties do not agree about the post-2005\\ncaselaw. Navient calculates the majority as holding that any funds received\\nfor an educational purpose, including private student loans, were covered by\\nthe new language. 12 See, e.g., Brown v. CitiBank, N.A. (In re Brown), 539 B.R.\\n853, 858–59 (Bankr. S.D. Cal. 2015). The plaintiffs count the cases differently.\\nThey both agree that since about 2015, there has been increasing caselaw that\\nholds private student loans are not exempt from discharge. See, e.g., Nypaver\\nv. Nypaver (In re Nypaver), 581 B.R. 431, 435–37 (W.D. Pa. 2018).\\n In 2005, Congress replaced the entirety of Subsection (a)(8) with a new\\nsubsection with subparts. We italicize the only significant new language:\\n (8) unless excepting such debt from discharge under this\\n paragraph would impose an undue hardship on the debtor and the\\n debtor's dependents, for —\\n (A)(i) an educational benefit overpayment or loan made,\\n insured, or guaranteed by a governmental unit, or made under any\\n\\n\\n 12 The only circuit court opinion cited to us on this issue is unpublished. Desormes v.\\nInfilaw Corp. (In re Desormes), 569 F. App’x 42 (2d Cir. 2014). Thus, no matter what we\\ndecide, there will not be a split in precedential circuit authority. The opinion was quite brief,\\nwith the only description of the debt being that it came from a “student loan” and “was\\nexcepted from discharge under 11 U.S.C. § 523(a)(8)(A)(ii).” Id. at 43. There was no analysis\\nof how to interpret the three-item statutory list. The debtor’s argument centered on the\\nsupposed necessity for “a transfer of funds directly to the debtor” before a loan would “be\\nreceived within the meaning of the statute.” Id. The bankruptcy court’s opinion indicates the\\nloan was from the school to pay the student’s tuition. Desormes v. Charlotte School of Law,\\nInc. (In re Desormes), 2012 WL 4106765 at *1 (Bankr. D. Conn. 2012).\\n 25\\n\\f Case: 18-20254 Document: 00515167087 Page: 26 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n program funded in whole or in part by a governmental unit or\\n nonprofit institution; or\\n (ii) an obligation to repay funds received as an educational\\n benefit, scholarship, or stipend; or\\n (B) any other educational loan that is a qualified education\\n loan, as defined in section 221(d)(1) of the Internal Revenue Code\\n of 1986, incurred by a debtor who is an individual.\\nBankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L.\\nNo. 109-8, Title II, § 220, 119 Stat. 23, 59 (emphasis added) (codified as 11\\nU.S.C. § 523(a)).\\n The significant change was to make nondischargeable “any other . . .\\nqualified educational loan,” which Navient concedes the loans here are not, by\\nadding Subsection (B). Most importantly for us, Congress barely tweaked the\\n1990 language of “obligation to repay funds received as an educational benefit,\\nscholarship or stipend” — it inserted a comma after “scholarship.” Navient\\nacknowledges that from 1990 to 2005, the interpretation of stipends,\\nscholarships, and educational benefits had excluded for-profit loans. We see\\nwhat did not happen to this language in 2005 as invoking this principle: “If a\\nword or phrase has been . . . given a uniform interpretation by inferior courts...,\\na later version of that act perpetuating the wording is presumed to carry\\nforward that interpretation.” Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive\\nCmtys. Project, Inc., 135 S. Ct. 2507, 2520 (2015) (quoting SCALIA & GARNER,\\nREADING LAW 322). Navient argues that severing Subsection (A)(ii) from (A)(i)\\nallowed (A)(ii) to cover a broader scope of education financing, including\\nprivate education loans. All we see is a change to the structure of the overall\\nstatute but no real change to the language that controls the case before us.\\n Navient’s assertion that the 2005 amendment made all private student\\nloans nondischargeable is not only unsupported by the text, it is unsupported\\nby some of Navient’s authorities. Among them is Corletta v. Tex. Higher Educ.\\n\\n 26\\n\\f Case: 18-20254 Document: 00515167087 Page: 27 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\nCoordinating Bd. (In re Pappas), 517 B.R. 708, 716–17 (Bankr. W.D. Tex.\\n2014). That case says no more than that Congress amended Subsection (a)(8)\\nin 2005 “to apply to private loans as well” without identifying Subsection\\n(a)(8)(A)(ii) as the mechanism for this change. Id. at 717. What brought a new\\ncategory of private loans into the discharge arena was the language of\\nSubsection (a)(8)(B), the only meaningful 2005 addition.\\n This court has recently discussed the 2005 change to the statute. See\\nThomas v. Dep’t of Educ. (In re Thomas), 931 F.3d 449 (5th Cir. 2019). The\\ncase concerned the “undue hardship” test that allows the discharge of an\\neducation loan. Id. at 451–55. The loans at issue were from the United States\\nDepartment of Education. Id. at 450. That made them nondischargeable\\nunder Subsection 523(a)(8)(A)(i) as being “insured or guaranteed by a\\ngovernmental unit, or made under any program funded in whole or in part by\\na governmental unit or nonprofit institution.”\\n The 2005 revision was “in response to the growing trend of commercial\\nlending,” and the amendment’s purpose was to “make qualified private student\\nloans harder to discharge, prohibiting discharge in all cases, unless repayment\\nwould create ‘undue hardship’ for the debtor.” Id. at 453. That is a description\\nof the new Subsection (a)(8)(B). The definition of a “qualified education loan”\\nis in Section 221(d)(1) of the Internal Revenue Code of 1986, and, as stated\\nbefore, Navient accepts that Subsection (a)(8)(B) does not apply here.\\n In a supplementary letter to this court on Thomas, Navient implicitly\\nrecognized that much of the new opinion was not on point, but it quoted the\\ncourt’s language that “Section 523(a)(8) as it stands today excepts virtually all\\nstudent loans from discharge” with the caveat about undue hardship. Thomas,\\n931 F.3d at 453. That statement is a fair summary of the reach of\\nnondischargeability, but before us is a category of loan that has not (yet) been\\nreached by Subsection 523(a)(8).\\n 27\\n\\f Case: 18-20254 Document: 00515167087 Page: 28 Date Filed: 10/21/2019\\n\\n\\n\\n No. 18-20254\\n We find nothing in the 2005 revisions to alter our interpretation that\\nSubsection 523(a)(8)(A)(ii) applies only to educational payments that are not\\ninitially loans but whose terms will create a reimbursement obligation upon\\nthe failure of conditions of the payments.\\n In conclusion, the only possibly applicable part of the relevant statute is\\nSubsection 523(a)(8)(A)(ii). In interpreting that provision, we rely on the\\nnoscitur a sociis doctrine, the need to avoid surplusage, Congressional\\nratification in 2005 of prior interpretations, and the command that discharge\\nexceptions are interpreted narrowly in favor of debtors. We conclude that\\n“education benefit” is limited to conditional payments with similarities to\\nscholarships and stipends. The loans at issue here, though obtained in order\\nto pay expenses of education, do not qualify as “an obligation to repay funds\\nreceived as an educational benefit, scholarship, or stipend” because their\\nrepayment was unconditional. They therefore are dischargeable.\\n * * *\\n We REVERSE the bankruptcy court’s determination that it has\\nauthority to enforce a discharge injunction entered by a different district’s\\nbankruptcy court. Any debtors seeking injunctions due to discharges entered\\nin other districts should have their proceedings dismissed or transferred. We\\nAFFIRM the determination that loans such as those in issue here are\\ndischargeable. We REMAND to the bankruptcy court.\\n\\n\\n\\n\\n 28\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4593,"cells":{"id":{"kind":"number","value":4671390,"string":"4,671,390"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Eunice Winzer v. Kaufman County"},"decision_date":{"kind":"string","value":"2019-10-21"},"docket_number":{"kind":"string","value":"16-11482"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 16-11482 October 21, 2019\\n Lyle W. Cayce\\n Clerk\\nEUNICE J. WINZER, Individually and on behalf of the statutory\\nbeneficiaries of Gabriel A. Winzer; SOHELIA WINZER; HENRY WINZER,\\n\\n Plaintiffs - Appellants\\n\\nv.\\n\\nKAUFMAN COUNTY; BILL CUELLAR; GARRY HUDDLESTON;\\nMATTHEW HINDS,\\n Defendants - Appellees\\n\\n-------------------------------\\n\\nHENRY ANDREE WINZER, also known as Henry A. Winzer,\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nMATTHEW HINDS, Individually and in his capacity as member of Kaufman\\nCounty Sheriff Department; UNKNOWN STATE TROOPERS, Individually\\nand in their capacity as member of Texas Department of Public Safety;\\nUNKNOWN PARAMEDICS, Individually and in their capacity as emergency\\nresponders of the East Texas EMS; SERGEANT FORREST FRIESEN,\\n\\n Defendants - Appellees\\n\\n\\n\\n Appeals from the United States District Court for the\\n Northern District of Texas\\n\\n\\n ON PETITION FOR REHEARING EN BANC\\n\\n No. 16-11482\\nBefore DENNIS, CLEMENT, and GRAVES, Circuit Judges.\\nPER CURIAM:\\n Treating the Petition for Rehearing En Banc as a Petition for Panel\\nRehearing, the Petition for Panel Rehearing is DENIED. The court having\\nbeen polled at the request of one of the members of the court and a majority of\\nthe judges who are in regular active service and not disqualified not having\\nvoted in favor (FED. R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing\\nEn Banc is DENIED.\\n In the poll, 6 judges vote in favor of rehearing en banc, and 10 vote\\nagainst. Voting in favor are Judges Smith, Elrod, Southwick, Ho, Engelhardt,\\nand Oldham. Voting against are Chief Judge Owen, Jones, Stewart, Dennis,\\nHaynes, Graves, Higginson, Costa, Willett, and Duncan.\\n\\n\\nENTERED FOR THE COURT:\\n\\n\\n/s/ James E. Graves, Jr.\\n_________________________________\\nJames E. Graves, Jr.\\nUnited States Circuit Judge\\n\\n\\n\\n\\n 2\\n\\n No. 16-11482\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4448643/\", \"author_raw\": \"PER CURIAM\"}, {\"author\": \"JERRY E. SMITH, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"JERRY E. SMITH, Circuit Judge, dissenting from the denial of rehearing\\nen banc:\\n\\n “E pur si muove.” Galileo, 1633.\\n\\n “Abandon hope, all ye who enter Texas, Louisiana, or Mississippi as\\npeace officers with only a few seconds to react to dangerous confrontations with\\nthreatening and well-armed potential killers . . . . [T]here is little chance that,\\nany time soon, the Fifth Circuit will confer the qualified-immunity protection\\nthat heretofore-settled Supreme Court and Fifth Circuit caselaw requires.”\\nCole v. Carson, 935 F.3d 444, 469 (5th Cir. 2019) (en banc) (Smith, J.,\\ndissenting).\\n\\n I respectfully dissent (again).\\n\\n\\n\\n\\n 3\\n\\n No. 16-11482\\nJAMES C. HO, Circuit Judge, joined by JERRY E. SMITH, EDITH BROWN\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4448643/\", \"author_raw\": \"JERRY E. SMITH, Circuit Judge, dissenting\"}, {\"author\": \"CLEMENT, and KURT D. ENGELHARDT, Circuit Judges, dissenting\", \"type\": \"dissent\", \"text\": \"CLEMENT, and KURT D. ENGELHARDT, Circuit Judges, dissenting from\\ndenial of rehearing en banc:\\n\\n If we want to stop mass shootings, we should stop punishing police\\nofficers who put their lives on the line to prevent them.\\n The Fourth Amendment prohibits “unreasonable searches and\\nseizures”—not reasonable efforts to protect citizens from active shooters. The\\npanel opinion turns this principle on its head. As Judge Clement explained in\\nher eloquent dissent, the majority opinion “undermines officers’ ability to trust\\ntheir judgment during those split seconds when they must decide whether to\\nuse lethal force.” Winzer v. Kaufman County, 916 F.3d 464, 482 (5th Cir. 2019)\\n(Clement, J., dissenting in part). “It instructs them, in that pivotal split\\nsecond, to wait. But when a split second is all you have, waiting itself is a\\ndecision—one that may bring disastrous consequences.” Id. See also Cole v.\\nCarson, 935 F.3d 444, 470 n.3 (5th Cir. 2019) (en banc) (Smith, J., dissenting)\\n(same).\\n Acknowledging that a vote against rehearing en banc need not signal\\nagreement with the panel majority, I respectfully dissent from the denial of\\nrehearing en banc.\\n ***\\n The district court set forth the disturbing events presented in this case.\\n“The undisputed facts show that, on April 27, 2013, two Kaufman County\\nSheriff’s Office deputies, Gerardo Hinojosa and Defendant Matthew Hinds,\\nresponded to several 9-1-1 reports of an armed man who was firing a gun and\\ndestroying mailboxes in the vicinity of County Road 316 in Terrell, Texas. One\\ncaller reported that the suspect had yelled, ‘Everyone’s going to get theirs,’ and\\nhe wanted to ‘get back what’s mine.’ The police dispatcher relayed these\\nreports to responding officers.” Winzer v. Kaufman County, 2016 WL\\n\\n 4\\n\\n No. 16-11482\\n11472367, at *1 (N.D. Tex. Aug. 10, 2016), rev’d in part, 916 F.3d 464 (5th Cir.\\n2019).\\n The record contains transcripts from several understandably panicked\\n9-1-1 callers.\\n According to one 9-1-1 caller: “He’s over there kicking people’s\\nmailboxes, he has a gun. It’s me and my mom and my baby. I don’t know who\\nhe is, please hurry. . . . He’s out in the street. He’s kicking the next door\\nneighbor’s uh, mailbox but he was pointing the gun to our house. I don’t know\\nwho he is . . . Please hurry. . . . Oh he’s outside shooting, oh my God.”\\n Another 9-1-1 caller stated: “Please get the cops here. Oh my God. Oh\\nmy God. . . . [W]e see him kicking the mailbox and we open the door and he\\npointed the gun toward our house. . . . I don’t know if he’s out there, I have no\\nidea, I’m not getting up.” Later in that same call, a background voice can be\\nheard, warning that “he’s coming back down the street.” The caller responds:\\n“Don’t open that door, Robin. He’s coming back down the street.”\\n Yet another 9-1-1 caller reported: “I had my kids outside earlier just a\\nlittle bit ago and he pointed that pistol in the yard and he said ‘I’m just trying\\nto get back what’s mine.’” The 9-1-1 operator confirmed that the shooter was\\nin fact pointing at the caller’s house. The caller further stated: “And he was\\njust out there hollering at my husband, he was standing on the front porch and\\nhe saying he’s going to take back what’s his.”\\n Another 9-1-1 caller stated: “I’m calling to report some gunshots.\\nThere’s a man walking up and down the street screaming and firing a gun.”\\n The district court explained what the officers found when they arrived\\nat the scene. “Hinojosa and Hinds arrived in marked patrol vehicles and\\nlocated a suspect near the intersection of County Road 316 and County Road\\n316A. The suspect was a black male wearing a brown shirt. The deputies\\npositioned their vehicles approximately 100 to 150 yards away. In their\\n 5\\n\\n No. 16-11482\\nvoluntary statements, the deputies wrote that the man fired one round in their\\ndirection. Hinojosa and Hinds saw white smoke rise from the gun, and\\nHinojosa heard a whizz go by. Hinds reported over the radio, ‘Shots fired.’ The\\ndeputies did not return fire. The suspect then walked toward County Road\\n316A, out of the officers’ view.” Id. The panel opinion acknowledged that\\nneither officer returned fire at this time, for fear of hurting nearby civilians.\\n916 F.3d at 468.\\n The officers continued down County Road 316A and instructed people to\\nclear the area and return to their homes. 2016 WL 11472367, at *1. When\\nthey found the armed gunman again, they identified themselves using their\\ncar’s PA system and ordered him to drop his weapon. Instead, he “ducked into\\nthe tree line and out of sight.” Id. The officers established a “defensive\\nposition,” guns drawn and using police vehicles for cover. 916 F.3d at 468.\\n A few minutes later, Gabriel Winzer suddenly emerged from behind a\\nhouse and biked towards the officers from approximately 100 yards away. One\\nofficer yelled out that Winzer had a gun. Another ordered Winzer to put the\\ngun down. Six seconds later, one of the officers fired at Winzer. Shortly after,\\nthe other officers also fired. Winzer turned his bicycle away from the officers\\nand disappeared from view.\\n Minutes later, the officers located Winzer in the backyard of a house\\n(later determined to be the home of Winzer’s father, Henry). The officers\\ndiscovered that Winzer had suffered four gunshot wounds to his chest,\\nshoulder, and upper back, and his father was nearby trying to comfort and\\nrevive him. The officers attempted to place handcuffs on Winzer’s wrists, but\\nhe resisted. So the officers tased him. Once they succeeded in handcuffing\\nhim, the officers permitted the paramedics to enter the backyard. The\\nparamedics pronounced Winzer dead at the scene. Id. at 468–69; 2016 WL\\n11472367, at *1–2.\\n 6\\n\\n No. 16-11482\\n The panel majority suggests that Winzer might not have been the\\nsuspect. 916 F.3d at 468 & n.1. But as the district court noted, a forensic\\nreport later detected the presence of gunshot residue on Winzer’s body. 2016\\nWL 11472367, at *2. And the officers found multiple weapons in the home—\\nfour lightly modified Bushmaster rifles, a Ruger Super Blackhawk revolver, a\\nTaurus Model 669 revolver, a Remington Model 870 Magnum shotgun, and a\\nBryco Model 38 pistol—as well as multiple boxes of ammunition and several\\nexpended cartridges. 1\\n ***\\n It is unknown how many lives were saved by these deputies on April 27,\\n2013. What is known, however, is that Kaufman County will now stand trial\\nfor their potentially life-saving actions—and that its taxpayers, including those\\nwho will forever be traumatized by Winzer’s acts of terror, will pick up the tab\\nfor any judgment.\\n I have deep concerns about the message this decision, and others like it,\\nsends to the men and women who swear an oath to protect our lives and\\ncommunities. For make no mistake, that message is this: See something, do\\nnothing.\\n What’s more, we have no business—no factual basis in the record, and\\nno legal basis under the Fourth Amendment—second-guessing split-second\\ndecisions by police officers from the safety of our chambers. To quote Judge\\nClement again, “we judges—mercifully—never face that split second. Indeed,\\n\\n\\n\\n 1 Courts analyze the actions of law enforcement officers for qualified immunity\\npurposes based on the facts and reasonable beliefs they possess at the time they act. Other\\nfactors not known to them at that moment—whether facts existing at the time of their action\\nor subsequently discovered, for better or worse—cannot later justify their actions, nor strip\\nthem of qualified immunity they otherwise enjoy. See, e.g., Cole, 935 F.3d at 456 (“we\\nconsider only what the officers knew at the time of their challenged conduct”) (collecting\\ncases). Here, nothing in the record suggests who else (if not Winzer) might have been the\\nshooter who terrorized the innocent citizens of Kaufman County that day.\\n 7\\n\\n No. 16-11482\\nwe never have to decide anything without deliberation—let alone whether we\\nmust end one person’s life to preserve our own or the lives of those around us.”\\nWinzer, 916 F.3d at 482 (5th Cir. 2019) (Clement, J., dissenting in part). “The\\nmajority opinion, written from the comfort of courthouse chambers, ignores”\\nthis reality. Id. See also Cole, 935 F.3d at 476 (Ho & Oldham, JJ., dissenting)\\n(“No member of this court has stared down a fleeing felon on the interstate or\\nconfronted a mentally disturbed teenager who is brandishing a loaded gun\\nnear his school. . . . [We have] no basis for sneering at cops on the beat from\\nthe safety of our chambers.”).\\n I respectfully dissent from the denial of rehearing en banc.\\n\\n\\n\\n\\n 8\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4448643/\", \"author_raw\": \"CLEMENT, and KURT D. ENGELHARDT, Circuit Judges, dissenting\"}]}"},"judge1":{"kind":"string","value":"DENNIS"},"judge2":{"kind":"string","value":"CLEMENT"},"judge3":{"kind":"string","value":"GRAVES"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"DENNIS\": \", Circuit\", \"CLEMENT\": \", Circuit\", \"GRAVES\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":3,"string":"3"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":2,"string":"2"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4671390/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Eunice Winzer v. Kaufman County\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-21\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 16-11482 October 21, 2019\n Lyle W. Cayce\n Clerk\nEUNICE J. WINZER, Individually and on behalf of the statutory\nbeneficiaries of Gabriel A. Winzer; SOHELIA WINZER; HENRY WINZER,\n\n Plaintiffs - Appellants\n\nv.\n\nKAUFMAN COUNTY; BILL CUELLAR; GARRY HUDDLESTON;\nMATTHEW HINDS,\n Defendants - Appellees\n\n-------------------------------\n\nHENRY ANDREE WINZER, also known as Henry A. Winzer,\n\n Plaintiff - Appellant\n\nv.\n\nMATTHEW HINDS, Individually and in his capacity as member of Kaufman\nCounty Sheriff Department; UNKNOWN STATE TROOPERS, Individually\nand in their capacity as member of Texas Department of Public Safety;\nUNKNOWN PARAMEDICS, Individually and in their capacity as emergency\nresponders of the East Texas EMS; SERGEANT FORREST FRIESEN,\n\n Defendants - Appellees\n\n\n\n Appeals from the United States District Court for the\n Northern District of Texas\n\n\n ON PETITION FOR REHEARING EN BANC\n\n No. 16-11482\nBefore DENNIS, CLEMENT, and GRAVES, Circuit Judges.\nPER CURIAM:\n Treating the Petition for Rehearing En Banc as a Petition for Panel\nRehearing, the Petition for Panel Rehearing is DENIED. The court having\nbeen polled at the request of one of the members of the court and a majority of\nthe judges who are in regular active service and not disqualified not having\nvoted in favor (FED. R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing\nEn Banc is DENIED.\n In the poll, 6 judges vote in favor of rehearing en banc, and 10 vote\nagainst. Voting in favor are Judges Smith, Elrod, Southwick, Ho, Engelhardt,\nand Oldham. Voting against are Chief Judge Owen, Jones, Stewart, Dennis,\nHaynes, Graves, Higginson, Costa, Willett, and Duncan.\n\n\nENTERED FOR THE COURT:\n\n\n/s/ James E. Graves, Jr.\n_________________________________\nJames E. Graves, Jr.\nUnited States Circuit Judge\n\n\n\n\n 2\n\n No. 16-11482\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Eunice Winzer v. Kaufman County\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-21\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nIN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 16-11482 October 21, 2019\\n Lyle W. Cayce\\n Clerk\\nEUNICE J. WINZER, Individually and on behalf of the statutory\\nbeneficiaries of Gabriel A. Winzer; SOHELIA WINZER; HENRY WINZER,\\n\\n Plaintiffs - Appellants\\n\\nv.\\n\\nKAUFMAN COUNTY; BILL CUELLAR; GARRY HUDDLESTON;\\nMATTHEW HINDS,\\n Defendants - Appellees\\n\\n-------------------------------\\n\\nHENRY ANDREE WINZER, also known as Henry A. Winzer,\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nMATTHEW HINDS, Individually and in his capacity as member of Kaufman\\nCounty Sheriff Department; UNKNOWN STATE TROOPERS, Individually\\nand in their capacity as member of Texas Department of Public Safety;\\nUNKNOWN PARAMEDICS, Individually and in their capacity as emergency\\nresponders of the East Texas EMS; SERGEANT FORREST FRIESEN,\\n\\n Defendants - Appellees\\n\\n\\n\\n Appeals from the United States District Court for the\\n Northern District of Texas\\n\\n\\n ON PETITION FOR REHEARING EN BANC\\n\\n No. 16-11482\\nBefore DENNIS, CLEMENT, and GRAVES, Circuit Judges.\\nPER CURIAM:\\n Treating the Petition for Rehearing En Banc as a Petition for Panel\\nRehearing, the Petition for Panel Rehearing is DENIED. The court having\\nbeen polled at the request of one of the members of the court and a majority of\\nthe judges who are in regular active service and not disqualified not having\\nvoted in favor (FED. R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing\\nEn Banc is DENIED.\\n In the poll, 6 judges vote in favor of rehearing en banc, and 10 vote\\nagainst. Voting in favor are Judges Smith, Elrod, Southwick, Ho, Engelhardt,\\nand Oldham. Voting against are Chief Judge Owen, Jones, Stewart, Dennis,\\nHaynes, Graves, Higginson, Costa, Willett, and Duncan.\\n\\n\\nENTERED FOR THE COURT:\\n\\n\\n/s/ James E. Graves, Jr.\\n_________________________________\\nJames E. Graves, Jr.\\nUnited States Circuit Judge\\n\\n\\n\\n\\n 2\\n\\n No. 16-11482\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4594,"cells":{"id":{"kind":"number","value":4671391,"string":"4,671,391"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Educational Financial Service v. Stephanie Henry"},"decision_date":{"kind":"string","value":"2019-10-21"},"docket_number":{"kind":"string","value":"18-20809"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before KING, HIGGINSON, and DUNCAN, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 18-20809\\n FILED\\n October 17, 2019\\n Lyle W. Cayce\\nIn the Matter of: STEPHANIE MARIE HENRY Clerk\\n\\n Debtor\\n\\nSTEPHANIE MARIE HENRY, formerly known as Stephanie Marie\\nHenschel,\\n\\n Appellee\\n\\nv.\\n\\nEDUCATIONAL FINANCIAL SERVICE, A Division of Wells Fargo Bank,\\nN.A.,\\n\\n Appellant\\n\\n\\n\\n\\n Appeal from the United States Bankruptcy Court\\n for the Southern District of Texas\\n\\n\\nBefore KING, HIGGINSON, and DUNCAN, Circuit Judges.\\nPER CURIAM:\\n Years after Stephanie Marie Henry took out a student loan, she filed for\\nbankruptcy and received a discharge. Henry and the company that currently\\nholds her loan, Educational Financial Service, a Division of Wells Fargo Bank,\\n\\f No. 18-20809\\nN.A., disagree about whether Henry’s discharge applies to that loan. 1 Henry\\nfiled an adversary proceeding in bankruptcy court raising that issue, but Wells\\nFargo moved the bankruptcy court to compel arbitration. The bankruptcy court\\ndenied that motion, and for the following reasons, we AFFIRM.\\n I.\\n Stephanie Marie Henry borrowed money from Wachovia Bank of\\nDelaware, N.A.—the predecessor in interest of Educational Financial Service,\\na Division of Wells Fargo Bank, N.A. (“Wells Fargo”)—to attend the\\nUltrasound Diagnostic School in Houston. The documentation for the loan\\ncontained the following arbitration provision:\\n 14. Arbitration. Any controversy or claim arising out of or related\\n to this Note, or an alleged breach of this Note, shall be settled by\\n arbitration in accordance with the Commercial Arbitration Rules\\n of the American Arbitration Association. Judgment upon the\\n arbitration award may be entered in any court having jurisdiction.\\nHenry signed that documentation on November 11, 2002.\\n More than a decade later, Henry filed for bankruptcy under Chapter 13\\nof the Bankruptcy Code in the United States Bankruptcy Court for the\\nSouthern District of Texas. Wells Fargo filed a proof of claim in Henry’s\\nbankruptcy proceeding. The bankruptcy court confirmed Henry’s Chapter 13\\nplan on April 25, 2013. Over the next five years, Henry made payments to her\\ncreditors, including Wells Fargo, as required by her plan. Because Henry\\ncompleted her Chapter 13 plan, the bankruptcy court entered a discharge order\\non May 17, 2018.\\n When Henry received her discharge, her attorney sent a letter to Wells\\nFargo. That letter stated that Henry’s debt to Wells Fargo had been discharged\\n\\n\\n\\n 1 The Bankruptcy Code says that some—but not all—student loans are not\\ndischargeable unless failing to discharge the loan “would impose an undue hardship on the\\ndebtor and the debtor’s dependents.” 11 U.S.C. § 523(a)(8).\\n 2\\n\\f No. 18-20809\\nand asked Wells Fargo: “Please acknowledge that you recognize the discharge\\nof this loan, and report it accurately on [Henry’s] credit reports.” Wells Fargo\\nsent a reply letter to Henry’s lawyer, stating that Wells Fargo had processed\\nhis “request to cease all communication with Stephanie Henry” about her loan.\\nWells Fargo indicated that future correspondence would be sent to the\\nlawyer—not Henry—and asked the lawyer: “Once Stephanie Henry is no\\nlonger your client, please contact our office . . . to let us know communication\\nshould resume with Stephanie Henry.” Wells Fargo sent a different letter to\\nHenry, telling her that it had “received a request from Austin C. Smith ESQ to\\ncease all communication on” Henry’s loan. Both of Wells Fargo’s letters\\ncontained the following postscript: “The laws of some states require us to\\ninform you that this communication is an attempt to collect a debt and . . .\\ninformation obtained will be used for that purpose.”\\n Wells Fargo’s correspondence prompted Henry to initiate an adversary\\nproceeding in the bankruptcy court on her own behalf and on behalf of a\\nputative class of similarly situated individuals. According to Henry, Wells\\nFargo violated the bankruptcy court’s discharge order by attempting to collect\\na discharged debt. See 11 U.S.C. § 524(a)(2) (stating that a discharge “operates\\nas an injunction against . . . an act, to collect, recover or offset” a discharged\\ndebt). Henry sought injunctive relief, a declaratory judgment, damages, and\\nattorney’s fees.\\n Wells Fargo moved the bankruptcy court to compel arbitration. Wells\\nFargo asserted that Henry’s claim fell within the scope of the arbitration\\nprovision in her loan documentation, and Wells Fargo argued that the Federal\\nArbitration Act (“FAA”) required the bankruptcy court to enforce that\\nprovision. Wells Fargo acknowledged that, under our precedents, the\\nbankruptcy court had discretion to refuse to compel arbitration in an action to\\nenforce a discharge order. Wells Fargo maintained, however, that the Supreme\\n 3\\n\\f No. 18-20809\\nCourt’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018) cast\\ndoubt on those precedents.\\n The bankruptcy court denied Wells Fargo’s motion. The bankruptcy\\ncourt reasoned that Henry’s claims did not “arise under the loan agreement\\nbetween the parties,” because Wells Fargo’s “obligation to comply with the\\nCourt’s discharge order and the statutory injunction provided under 11 U.S.C.\\n§ 524 is not, and cannot be, part of a contractual negotiation between private\\nparties.” 2 The bankruptcy court found Epic Systems to be “inapplicable to the\\ninstant case,” because “Henry’s claims do not arise out of an arbitrable contract\\nbetween the parties,” and because “the Supreme Court gave no indication in\\nEpic that it intended its decision to reach” the Bankruptcy Code. The\\nbankruptcy court certified its order for an interlocutory appeal directly to this\\ncourt under 28 U.S.C. § 158(a)(3) and (d)(2)(A). Subsequently, we authorized\\nsuch an appeal pursuant to § 158(d)(2)(A).\\n II.\\n “The Federal Arbitration Act requires courts to enforce covered\\narbitration agreements according to their terms.” Lamps Plus, Inc. v. Varela,\\n139 S. Ct. 1407, 1412 (2019). But the FAA is not the only statute on the books,\\nand its “mandate may be overridden by a contrary congressional command.”\\nShearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987). “A party\\nseeking to suggest that two statutes cannot be harmonized, and that one\\n\\n\\n\\n 2 To resolve this appeal, we do not need to address whether the bankruptcy court’s\\ninterpretation of the arbitration provision was correct, but it is worth noting that other courts\\nhave held that disputes about allegedly improper debt collection are at least “related” to the\\nunderlying debt. See Koch v. Compucredit Corp., 543 F.3d 460, 466 (8th Cir. 2008) (concluding\\nthat “[a] dispute over the collection of a debt incurred under the credit agreement is a\\n‘controversy arising from or related to’” that agreement); Carbajal v. H&R Block Tax Servs.,\\nInc., 372 F.3d 903, 905 (7th Cir. 2004) (Easterbrook, J.) (compelling arbitration of Fair Debt\\nCollection Practices Act claims based on an arbitration agreement found in loan\\ndocumentation).\\n 4\\n\\f No. 18-20809\\ndisplaces the other, bears the heavy burden of showing a clearly expressed\\ncongressional intention that such a result should follow.” Epic Sys., 138 S. Ct.\\nat 1624 (internal quotation marks omitted). Such an intent can be deduced\\nfrom statutory text, legislative history, or “from an inherent conflict between\\narbitration and the statute’s underlying purposes.” McMahon, 482 U.S. at 227.\\n Applying McMahon, we have held that bankruptcy courts may decline to\\nenforce arbitration clauses when two requirements are met. First, the\\nproceeding must adjudicate statutory rights conferred by the Bankruptcy Code\\nand not the debtor’s prepetition legal or equitable rights. In re Nat’l Gypsum\\nCo., 118 F.3d 1059, 1069 (5th Cir. 1997). See also 10 Collier on Bankruptcy\\n¶ 9019.05 (16th ed. 2019) (“A trustee in bankruptcy has two kinds of causes of\\naction: those inherited from the debtor and those granted by statute (the so-\\ncalled avoiding powers).”). Second, bankruptcy courts may decline enforcement\\nof arbitration agreements only if requiring arbitration would conflict with the\\npurposes of the Bankruptcy Code. In re Gandy, 299 F.3d 489, 495 (5th Cir.\\n2002) (citing Nat’l Gypsum, 118 F.3d at 1067). Those purposes include “the goal\\nof centralized resolution of purely bankruptcy issues, the need to protect\\ncreditors and reorganizing debtors from piecemeal litigation, and the\\nundisputed power of a bankruptcy court to enforce its own orders.” Nat’l\\nGypsum, 118 F.3d at 1069.\\n Accordingly, in National Gypsum, we held that bankruptcy courts need\\nnot enforce agreements to arbitrate whether a creditor’s efforts to collect a debt\\nviolated a discharge order. Id. at 1071. A debtor’s right to be free from collection\\nefforts for discharged debts is a creature of the Bankruptcy Code. 11 U.S.C.\\n§ 524(a). An action to enforce such a right implicates an important bankruptcy\\npolicy, the ability of a bankruptcy court to enforce its own orders, such that\\nrequiring arbitration “would be inconsistent with the Bankruptcy Code.” Nat’l\\nGypsum, 118 F.3d at 1071.\\n 5\\n\\f No. 18-20809\\n On appeal, we review whether a bankruptcy court was obliged to enforce\\nan arbitration clause de novo. In re Gandy, 299 F.3d at 494. If the FAA does\\nnot require a bankruptcy court to enforce an arbitration clause, then the\\nbankruptcy court has discretion regarding whether to order arbitration, and\\n“the exercise of that discretion is reviewable only for abuse.” Id.\\n III.\\n Wells Fargo’s appeal presents a single issue: Does our holding in\\nNational Gypsum—that bankruptcy courts have discretion to refuse to compel\\narbitration in proceedings seeking enforcement of a discharge injunction—\\nremain good law following the Supreme Court’s decision in Epic Systems? We\\nconclude that it does.\\n Under the rule of orderliness, “one panel of this circuit may not overturn\\nanother panel absent an intervening decision to the contrary by the Supreme\\nCourt or this court en banc.” United States v. Simkanin, 420 F.3d 397, 420 n.25\\n(5th Cir. 2005). To overrule one of our precedents, a “Supreme Court decision\\nmust be more than merely illuminating with respect to the case before us.”\\nMartin v. Medtronic, Inc., 254 F.3d 573, 577 (5th Cir. 2001). Instead, “a panel\\nof this court can only overrule a prior panel decision if ‘such overruling is\\nunequivocally directed by controlling Supreme Court precedent.’” Id. (quoting\\nUnited States v. Zuniga-Salinas, 945 F.2d 1302, 1306 (5th Cir. 1991)).\\n Far from unequivocally directing us to overrule National Gypsum, Epic\\nSystems shows that National Gypsum’s doctrinal foundation, i.e., McMahon,\\nremains sound. For one thing, Epic Systems cites McMahon for support. 138 S.\\nCt. at 1627. For another, McMahon and Epic Systems apply essentially the\\nsame tests for determining whether a statute overrides the FAA’s command to\\nenforce arbitration agreements according to their terms. In McMahon, the\\nCourt said that:\\n\\n\\n 6\\n\\f No. 18-20809\\n Like any statutory directive, the Arbitration Act’s mandate may be\\n overridden by a contrary congressional command. The burden is\\n on the party opposing arbitration, however, to show that Congress\\n intended to preclude a waiver of judicial remedies for the statutory\\n rights at issue. If Congress did intend to limit or prohibit waiver of\\n a judicial forum for a particular claim, such an intent “will be\\n deducible from [the statute’s] text or legislative history,” or from\\n an inherent conflict between arbitration and the statute’s\\n underlying purposes.\\nMcMahon, 482 U.S. at 226-27 (alteration in original) (citations omitted)\\n(quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S.\\n614, 628 (1985)). While the Supreme Court’s decision in Epic Systems has a\\ndifferent tone, the test it employs is substantially the same as McMahon’s:\\n Even if the Arbitration Act normally requires us to enforce\\n arbitration agreements like theirs, the employees reply that the\\n [National Labor Relations Act] overrides that guidance in these\\n cases and commands us to hold their agreements unlawful yet.\\n\\n This argument faces a stout uphill climb. When confronted\\n with two Acts of Congress allegedly touching on the same topic,\\n this Court is not at liberty to pick and choose among congressional\\n enactments and must instead strive to give effect to both. A party\\n seeking to suggest that two statutes cannot be harmonized, and\\n that one displaces the other, bears the heavy burden of showing a\\n clearly expressed congressional intention that such a result should\\n follow. The intention must be clear and manifest.\\nEpic Sys., 138 S. Ct. at 1623-24 (citations and internal quotation marks\\nomitted). The difference between a “deducible” congressional intent, McMahon,\\n482 U.S. at 227, and a “clear and manifest” intent, Epic Sys., 138 S. Ct. at 1624,\\nis not an unequivocal direction to overrule our precedent.\\n Wells Fargo argues that Epic Systems altered McMahon, because the\\nformer “expressly rejected the use of legislative history.” While Epic Systems\\nsays that “legislative history is not the law,” Epic Sys., 138 S. Ct. at 1631, that\\nstatement clarifies that the legislative history upon which the dissent relies\\ndoes not trump the “[l]inguistic and statutory context” identified by the\\n 7\\n\\f No. 18-20809\\nmajority. Id. That is not the same as saying that legislative history can never\\nbe relevant when interpreting a statute.\\n Even if Epic Systems’s comments regarding legislative history partially\\noverrule McMahon, that change would not affect the validity of National\\nGypsum, because National Gypsum did not rely on legislative history. Instead,\\nin determining whether the FAA’s requirements were overridden, National\\nGypsum looked to the purposes of the Bankruptcy Code. 118 F.3d at 1069. And\\nstatutory purpose remains a valid tool for determining whether a given statute\\ndisplaces the FAA. See Epic Sys., 138 S. Ct. at 1627 (“Union organization and\\ncollective bargaining in the workplace are the bread and butter of the NLRA,\\nwhile the particulars of dispute resolution procedures in Article III courts or\\narbitration proceedings are usually left to other statutes and rules . . . .”).\\nConsequently, we conclude that National Gypsum’s application of McMahon\\nremains good law following Epic Systems.\\n IV.\\n For the foregoing reasons, we AFFIRM.\\n\\n\\n\\n\\n 8\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4448644/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"KING"},"judge2":{"kind":"string","value":"HIGGINSON"},"judge3":{"kind":"string","value":"DUNCAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"KING\": \", Circuit\", \"HIGGINSON\": \", Circuit\", \"DUNCAN\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4671391/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Educational Financial Service v. Stephanie Henry\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-21\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 18-20809\n FILED\n October 17, 2019\n Lyle W. Cayce\nIn the Matter of: STEPHANIE MARIE HENRY Clerk\n\n Debtor\n\nSTEPHANIE MARIE HENRY, formerly known as Stephanie Marie\nHenschel,\n\n Appellee\n\nv.\n\nEDUCATIONAL FINANCIAL SERVICE, A Division of Wells Fargo Bank,\nN.A.,\n\n Appellant\n\n\n\n\n Appeal from the United States Bankruptcy Court\n for the Southern District of Texas\n\n\nBefore KING, HIGGINSON, and DUNCAN, Circuit Judges.\nPER CURIAM:\n Years after Stephanie Marie Henry took out a student loan, she filed for\nbankruptcy and received a discharge. Henry and the company that currently\nholds her loan, Educational Financial Service, a Division of Wells Fargo Bank,\n\f No. 18-20809\nN.A., disagree about whether Henry’s discharge applies to that loan. 1 Henry\nfiled an adversary proceeding in bankruptcy court raising that issue, but Wells\nFargo moved the bankruptcy court to compel arbitration. The bankruptcy court\ndenied that motion, and for the following reasons, we AFFIRM.\n I.\n Stephanie Marie Henry borrowed money from Wachovia Bank of\nDelaware, N.A.—the predecessor in interest of Educational Financial Service,\na Division of Wells Fargo Bank, N.A. (“Wells Fargo”)—to attend the\nUltrasound Diagnostic School in Houston. The documentation for the loan\ncontained the following arbitration provision:\n 14. Arbitration. Any controversy or claim arising out of or related\n to this Note, or an alleged breach of this Note, shall be settled by\n arbitration in accordance with the Commercial Arbitration Rules\n of the American Arbitration Association. Judgment upon the\n arbitration award may be entered in any court having jurisdiction.\nHenry signed that documentation on November 11, 2002.\n More than a decade later, Henry filed for bankruptcy under Chapter 13\nof the Bankruptcy Code in the United States Bankruptcy Court for the\nSouthern District of Texas. Wells Fargo filed a proof of claim in Henry’s\nbankruptcy proceeding. The bankruptcy court confirmed Henry’s Chapter 13\nplan on April 25, 2013. Over the next five years, Henry made payments to her\ncreditors, including Wells Fargo, as required by her plan. Because Henry\ncompleted her Chapter 13 plan, the bankruptcy court entered a discharge order\non May 17, 2018.\n When Henry received her discharge, her attorney sent a letter to Wells\nFargo. That letter stated that Henry’s debt to Wells Fargo had been discharged\n\n\n\n 1 The Bankruptcy Code says that some—but not all—student loans are not\ndischargeable unless failing to discharge the loan “would impose an undue hardship on the\ndebtor and the debtor’s dependents.” 11 U.S.C. § 523(a)(8).\n 2\n\f No. 18-20809\nand asked Wells Fargo: “Please acknowledge that you recognize the discharge\nof this loan, and report it accurately on [Henry’s] credit reports.” Wells Fargo\nsent a reply letter to Henry’s lawyer, stating that Wells Fargo had processed\nhis “request to cease all communication with Stephanie Henry” about her loan.\nWells Fargo indicated that future correspondence would be sent to the\nlawyer—not Henry—and asked the lawyer: “Once Stephanie Henry is no\nlonger your client, please contact our office . . . to let us know communication\nshould resume with Stephanie Henry.” Wells Fargo sent a different letter to\nHenry, telling her that it had “received a request from Austin C. Smith ESQ to\ncease all communication on” Henry’s loan. Both of Wells Fargo’s letters\ncontained the following postscript: “The laws of some states require us to\ninform you that this communication is an attempt to collect a debt and . . .\ninformation obtained will be used for that purpose.”\n Wells Fargo’s correspondence prompted Henry to initiate an adversary\nproceeding in the bankruptcy court on her own behalf and on behalf of a\nputative class of similarly situated individuals. According to Henry, Wells\nFargo violated the bankruptcy court’s discharge order by attempting to collect\na discharged debt. See 11 U.S.C. § 524(a)(2) (stating that a discharge “operates\nas an injunction against . . . an act, to collect, recover or offset” a discharged\ndebt). Henry sought injunctive relief, a declaratory judgment, damages, and\nattorney’s fees.\n Wells Fargo moved the bankruptcy court to compel arbitration. Wells\nFargo asserted that Henry’s claim fell within the scope of the arbitration\nprovision in her loan documentation, and Wells Fargo argued that the Federal\nArbitration Act (“FAA”) required the bankruptcy court to enforce that\nprovision. Wells Fargo acknowledged that, under our precedents, the\nbankruptcy court had discretion to refuse to compel arbitration in an action to\nenforce a discharge order. Wells Fargo maintained, however, that the Supreme\n 3\n\f No. 18-20809\nCourt’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018) cast\ndoubt on those precedents.\n The bankruptcy court denied Wells Fargo’s motion. The bankruptcy\ncourt reasoned that Henry’s claims did not “arise under the loan agreement\nbetween the parties,” because Wells Fargo’s “obligation to comply with the\nCourt’s discharge order and the statutory injunction provided under 11 U.S.C.\n§ 524 is not, and cannot be, part of a contractual negotiation between private\nparties.” 2 The bankruptcy court found Epic Systems to be “inapplicable to the\ninstant case,” because “Henry’s claims do not arise out of an arbitrable contract\nbetween the parties,” and because “the Supreme Court gave no indication in\nEpic that it intended its decision to reach” the Bankruptcy Code. The\nbankruptcy court certified its order for an interlocutory appeal directly to this\ncourt under 28 U.S.C. § 158(a)(3) and (d)(2)(A). Subsequently, we authorized\nsuch an appeal pursuant to § 158(d)(2)(A).\n II.\n “The Federal Arbitration Act requires courts to enforce covered\narbitration agreements according to their terms.” Lamps Plus, Inc. v. Varela,\n139 S. Ct. 1407, 1412 (2019). But the FAA is not the only statute on the books,\nand its “mandate may be overridden by a contrary congressional command.”\nShearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987). “A party\nseeking to suggest that two statutes cannot be harmonized, and that one\n\n\n\n 2 To resolve this appeal, we do not need to address whether the bankruptcy court’s\ninterpretation of the arbitration provision was correct, but it is worth noting that other courts\nhave held that disputes about allegedly improper debt collection are at least “related” to the\nunderlying debt. See Koch v. Compucredit Corp., 543 F.3d 460, 466 (8th Cir. 2008) (concluding\nthat “[a] dispute over the collection of a debt incurred under the credit agreement is a\n‘controversy arising from or related to’” that agreement); Carbajal v. H&R Block Tax Servs.,\nInc., 372 F.3d 903, 905 (7th Cir. 2004) (Easterbrook, J.) (compelling arbitration of Fair Debt\nCollection Practices Act claims based on an arbitration agreement found in loan\ndocumentation).\n 4\n\f No. 18-20809\ndisplaces the other, bears the heavy burden of showing a clearly expressed\ncongressional intention that such a result should follow.” Epic Sys., 138 S. Ct.\nat 1624 (internal quotation marks omitted). Such an intent can be deduced\nfrom statutory text, legislative history, or “from an inherent conflict between\narbitration and the statute’s underlying purposes.” McMahon, 482 U.S. at 227.\n Applying McMahon, we have held that bankruptcy courts may decline to\nenforce arbitration clauses when two requirements are met. First, the\nproceeding must adjudicate statutory rights conferred by the Bankruptcy Code\nand not the debtor’s prepetition legal or equitable rights. In re Nat’l Gypsum\nCo., 118 F.3d 1059, 1069 (5th Cir. 1997). See also 10 Collier on Bankruptcy\n¶ 9019.05 (16th ed. 2019) (“A trustee in bankruptcy has two kinds of causes of\naction: those inherited from the debtor and those granted by statute (the so-\ncalled avoiding powers).”). Second, bankruptcy courts may decline enforcement\nof arbitration agreements only if requiring arbitration would conflict with the\npurposes of the Bankruptcy Code. In re Gandy, 299 F.3d 489, 495 (5th Cir.\n2002) (citing Nat’l Gypsum, 118 F.3d at 1067). Those purposes include “the goal\nof centralized resolution of purely bankruptcy issues, the need to protect\ncreditors and reorganizing debtors from piecemeal litigation, and the\nundisputed power of a bankruptcy court to enforce its own orders.” Nat’l\nGypsum, 118 F.3d at 1069.\n Accordingly, in National Gypsum, we held that bankruptcy courts need\nnot enforce agreements to arbitrate whether a creditor’s efforts to collect a debt\nviolated a discharge order. Id. at 1071. A debtor’s right to be free from collection\nefforts for discharged debts is a creature of the Bankruptcy Code. 11 U.S.C.\n§ 524(a). An action to enforce such a right implicates an important bankruptcy\npolicy, the ability of a bankruptcy court to enforce its own orders, such that\nrequiring arbitration “would be inconsistent with the Bankruptcy Code.” Nat’l\nGypsum, 118 F.3d at 1071.\n 5\n\f No. 18-20809\n On appeal, we review whether a bankruptcy court was obliged to enforce\nan arbitration clause de novo. In re Gandy, 299 F.3d at 494. If the FAA does\nnot require a bankruptcy court to enforce an arbitration clause, then the\nbankruptcy court has discretion regarding whether to order arbitration, and\n“the exercise of that discretion is reviewable only for abuse.” Id.\n III.\n Wells Fargo’s appeal presents a single issue: Does our holding in\nNational Gypsum—that bankruptcy courts have discretion to refuse to compel\narbitration in proceedings seeking enforcement of a discharge injunction—\nremain good law following the Supreme Court’s decision in Epic Systems? We\nconclude that it does.\n Under the rule of orderliness, “one panel of this circuit may not overturn\nanother panel absent an intervening decision to the contrary by the Supreme\nCourt or this court en banc.” United States v. Simkanin, 420 F.3d 397, 420 n.25\n(5th Cir. 2005). To overrule one of our precedents, a “Supreme Court decision\nmust be more than merely illuminating with respect to the case before us.”\nMartin v. Medtronic, Inc., 254 F.3d 573, 577 (5th Cir. 2001). Instead, “a panel\nof this court can only overrule a prior panel decision if ‘such overruling is\nunequivocally directed by controlling Supreme Court precedent.’” Id. (quoting\nUnited States v. Zuniga-Salinas, 945 F.2d 1302, 1306 (5th Cir. 1991)).\n Far from unequivocally directing us to overrule National Gypsum, Epic\nSystems shows that National Gypsum’s doctrinal foundation, i.e., McMahon,\nremains sound. For one thing, Epic Systems cites McMahon for support. 138 S.\nCt. at 1627. For another, McMahon and Epic Systems apply essentially the\nsame tests for determining whether a statute overrides the FAA’s command to\nenforce arbitration agreements according to their terms. In McMahon, the\nCourt said that:\n\n\n 6\n\f No. 18-20809\n Like any statutory directive, the Arbitration Act’s mandate may be\n overridden by a contrary congressional command. The burden is\n on the party opposing arbitration, however, to show that Congress\n intended to preclude a waiver of judicial remedies for the statutory\n rights at issue. If Congress did intend to limit or prohibit waiver of\n a judicial forum for a particular claim, such an intent “will be\n deducible from [the statute’s] text or legislative history,” or from\n an inherent conflict between arbitration and the statute’s\n underlying purposes.\nMcMahon, 482 U.S. at 226-27 (alteration in original) (citations omitted)\n(quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S.\n614, 628 (1985)). While the Supreme Court’s decision in Epic Systems has a\ndifferent tone, the test it employs is substantially the same as McMahon’s:\n Even if the Arbitration Act normally requires us to enforce\n arbitration agreements like theirs, the employees reply that the\n [National Labor Relations Act] overrides that guidance in these\n cases and commands us to hold their agreements unlawful yet.\n\n This argument faces a stout uphill climb. When confronted\n with two Acts of Congress allegedly touching on the same topic,\n this Court is not at liberty to pick and choose among congressional\n enactments and must instead strive to give effect to both. A party\n seeking to suggest that two statutes cannot be harmonized, and\n that one displaces the other, bears the heavy burden of showing a\n clearly expressed congressional intention that such a result should\n follow. The intention must be clear and manifest.\nEpic Sys., 138 S. Ct. at 1623-24 (citations and internal quotation marks\nomitted). The difference between a “deducible” congressional intent, McMahon,\n482 U.S. at 227, and a “clear and manifest” intent, Epic Sys., 138 S. Ct. at 1624,\nis not an unequivocal direction to overrule our precedent.\n Wells Fargo argues that Epic Systems altered McMahon, because the\nformer “expressly rejected the use of legislative history.” While Epic Systems\nsays that “legislative history is not the law,” Epic Sys., 138 S. Ct. at 1631, that\nstatement clarifies that the legislative history upon which the dissent relies\ndoes not trump the “[l]inguistic and statutory context” identified by the\n 7\n\f No. 18-20809\nmajority. Id. That is not the same as saying that legislative history can never\nbe relevant when interpreting a statute.\n Even if Epic Systems’s comments regarding legislative history partially\noverrule McMahon, that change would not affect the validity of National\nGypsum, because National Gypsum did not rely on legislative history. Instead,\nin determining whether the FAA’s requirements were overridden, National\nGypsum looked to the purposes of the Bankruptcy Code. 118 F.3d at 1069. And\nstatutory purpose remains a valid tool for determining whether a given statute\ndisplaces the FAA. See Epic Sys., 138 S. Ct. at 1627 (“Union organization and\ncollective bargaining in the workplace are the bread and butter of the NLRA,\nwhile the particulars of dispute resolution procedures in Article III courts or\narbitration proceedings are usually left to other statutes and rules . . . .”).\nConsequently, we conclude that National Gypsum’s application of McMahon\nremains good law following Epic Systems.\n IV.\n For the foregoing reasons, we AFFIRM.\n\n\n\n\n 8\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Educational Financial Service v. Stephanie Henry\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-21\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nIN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 18-20809\\n FILED\\n October 17, 2019\\n Lyle W. Cayce\\nIn the Matter of: STEPHANIE MARIE HENRY Clerk\\n\\n Debtor\\n\\nSTEPHANIE MARIE HENRY, formerly known as Stephanie Marie\\nHenschel,\\n\\n Appellee\\n\\nv.\\n\\nEDUCATIONAL FINANCIAL SERVICE, A Division of Wells Fargo Bank,\\nN.A.,\\n\\n Appellant\\n\\n\\n\\n\\n Appeal from the United States Bankruptcy Court\\n for the Southern District of Texas\\n\\n\\nBefore KING, HIGGINSON, and DUNCAN, Circuit Judges.\\nPER CURIAM:\\n Years after Stephanie Marie Henry took out a student loan, she filed for\\nbankruptcy and received a discharge. Henry and the company that currently\\nholds her loan, Educational Financial Service, a Division of Wells Fargo Bank,\\n\\f No. 18-20809\\nN.A., disagree about whether Henry’s discharge applies to that loan. 1 Henry\\nfiled an adversary proceeding in bankruptcy court raising that issue, but Wells\\nFargo moved the bankruptcy court to compel arbitration. The bankruptcy court\\ndenied that motion, and for the following reasons, we AFFIRM.\\n I.\\n Stephanie Marie Henry borrowed money from Wachovia Bank of\\nDelaware, N.A.—the predecessor in interest of Educational Financial Service,\\na Division of Wells Fargo Bank, N.A. (“Wells Fargo”)—to attend the\\nUltrasound Diagnostic School in Houston. The documentation for the loan\\ncontained the following arbitration provision:\\n 14. Arbitration. Any controversy or claim arising out of or related\\n to this Note, or an alleged breach of this Note, shall be settled by\\n arbitration in accordance with the Commercial Arbitration Rules\\n of the American Arbitration Association. Judgment upon the\\n arbitration award may be entered in any court having jurisdiction.\\nHenry signed that documentation on November 11, 2002.\\n More than a decade later, Henry filed for bankruptcy under Chapter 13\\nof the Bankruptcy Code in the United States Bankruptcy Court for the\\nSouthern District of Texas. Wells Fargo filed a proof of claim in Henry’s\\nbankruptcy proceeding. The bankruptcy court confirmed Henry’s Chapter 13\\nplan on April 25, 2013. Over the next five years, Henry made payments to her\\ncreditors, including Wells Fargo, as required by her plan. Because Henry\\ncompleted her Chapter 13 plan, the bankruptcy court entered a discharge order\\non May 17, 2018.\\n When Henry received her discharge, her attorney sent a letter to Wells\\nFargo. That letter stated that Henry’s debt to Wells Fargo had been discharged\\n\\n\\n\\n 1 The Bankruptcy Code says that some—but not all—student loans are not\\ndischargeable unless failing to discharge the loan “would impose an undue hardship on the\\ndebtor and the debtor’s dependents.” 11 U.S.C. § 523(a)(8).\\n 2\\n\\f No. 18-20809\\nand asked Wells Fargo: “Please acknowledge that you recognize the discharge\\nof this loan, and report it accurately on [Henry’s] credit reports.” Wells Fargo\\nsent a reply letter to Henry’s lawyer, stating that Wells Fargo had processed\\nhis “request to cease all communication with Stephanie Henry” about her loan.\\nWells Fargo indicated that future correspondence would be sent to the\\nlawyer—not Henry—and asked the lawyer: “Once Stephanie Henry is no\\nlonger your client, please contact our office . . . to let us know communication\\nshould resume with Stephanie Henry.” Wells Fargo sent a different letter to\\nHenry, telling her that it had “received a request from Austin C. Smith ESQ to\\ncease all communication on” Henry’s loan. Both of Wells Fargo’s letters\\ncontained the following postscript: “The laws of some states require us to\\ninform you that this communication is an attempt to collect a debt and . . .\\ninformation obtained will be used for that purpose.”\\n Wells Fargo’s correspondence prompted Henry to initiate an adversary\\nproceeding in the bankruptcy court on her own behalf and on behalf of a\\nputative class of similarly situated individuals. According to Henry, Wells\\nFargo violated the bankruptcy court’s discharge order by attempting to collect\\na discharged debt. See 11 U.S.C. § 524(a)(2) (stating that a discharge “operates\\nas an injunction against . . . an act, to collect, recover or offset” a discharged\\ndebt). Henry sought injunctive relief, a declaratory judgment, damages, and\\nattorney’s fees.\\n Wells Fargo moved the bankruptcy court to compel arbitration. Wells\\nFargo asserted that Henry’s claim fell within the scope of the arbitration\\nprovision in her loan documentation, and Wells Fargo argued that the Federal\\nArbitration Act (“FAA”) required the bankruptcy court to enforce that\\nprovision. Wells Fargo acknowledged that, under our precedents, the\\nbankruptcy court had discretion to refuse to compel arbitration in an action to\\nenforce a discharge order. Wells Fargo maintained, however, that the Supreme\\n 3\\n\\f No. 18-20809\\nCourt’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018) cast\\ndoubt on those precedents.\\n The bankruptcy court denied Wells Fargo’s motion. The bankruptcy\\ncourt reasoned that Henry’s claims did not “arise under the loan agreement\\nbetween the parties,” because Wells Fargo’s “obligation to comply with the\\nCourt’s discharge order and the statutory injunction provided under 11 U.S.C.\\n§ 524 is not, and cannot be, part of a contractual negotiation between private\\nparties.” 2 The bankruptcy court found Epic Systems to be “inapplicable to the\\ninstant case,” because “Henry’s claims do not arise out of an arbitrable contract\\nbetween the parties,” and because “the Supreme Court gave no indication in\\nEpic that it intended its decision to reach” the Bankruptcy Code. The\\nbankruptcy court certified its order for an interlocutory appeal directly to this\\ncourt under 28 U.S.C. § 158(a)(3) and (d)(2)(A). Subsequently, we authorized\\nsuch an appeal pursuant to § 158(d)(2)(A).\\n II.\\n “The Federal Arbitration Act requires courts to enforce covered\\narbitration agreements according to their terms.” Lamps Plus, Inc. v. Varela,\\n139 S. Ct. 1407, 1412 (2019). But the FAA is not the only statute on the books,\\nand its “mandate may be overridden by a contrary congressional command.”\\nShearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987). “A party\\nseeking to suggest that two statutes cannot be harmonized, and that one\\n\\n\\n\\n 2 To resolve this appeal, we do not need to address whether the bankruptcy court’s\\ninterpretation of the arbitration provision was correct, but it is worth noting that other courts\\nhave held that disputes about allegedly improper debt collection are at least “related” to the\\nunderlying debt. See Koch v. Compucredit Corp., 543 F.3d 460, 466 (8th Cir. 2008) (concluding\\nthat “[a] dispute over the collection of a debt incurred under the credit agreement is a\\n‘controversy arising from or related to’” that agreement); Carbajal v. H&R Block Tax Servs.,\\nInc., 372 F.3d 903, 905 (7th Cir. 2004) (Easterbrook, J.) (compelling arbitration of Fair Debt\\nCollection Practices Act claims based on an arbitration agreement found in loan\\ndocumentation).\\n 4\\n\\f No. 18-20809\\ndisplaces the other, bears the heavy burden of showing a clearly expressed\\ncongressional intention that such a result should follow.” Epic Sys., 138 S. Ct.\\nat 1624 (internal quotation marks omitted). Such an intent can be deduced\\nfrom statutory text, legislative history, or “from an inherent conflict between\\narbitration and the statute’s underlying purposes.” McMahon, 482 U.S. at 227.\\n Applying McMahon, we have held that bankruptcy courts may decline to\\nenforce arbitration clauses when two requirements are met. First, the\\nproceeding must adjudicate statutory rights conferred by the Bankruptcy Code\\nand not the debtor’s prepetition legal or equitable rights. In re Nat’l Gypsum\\nCo., 118 F.3d 1059, 1069 (5th Cir. 1997). See also 10 Collier on Bankruptcy\\n¶ 9019.05 (16th ed. 2019) (“A trustee in bankruptcy has two kinds of causes of\\naction: those inherited from the debtor and those granted by statute (the so-\\ncalled avoiding powers).”). Second, bankruptcy courts may decline enforcement\\nof arbitration agreements only if requiring arbitration would conflict with the\\npurposes of the Bankruptcy Code. In re Gandy, 299 F.3d 489, 495 (5th Cir.\\n2002) (citing Nat’l Gypsum, 118 F.3d at 1067). Those purposes include “the goal\\nof centralized resolution of purely bankruptcy issues, the need to protect\\ncreditors and reorganizing debtors from piecemeal litigation, and the\\nundisputed power of a bankruptcy court to enforce its own orders.” Nat’l\\nGypsum, 118 F.3d at 1069.\\n Accordingly, in National Gypsum, we held that bankruptcy courts need\\nnot enforce agreements to arbitrate whether a creditor’s efforts to collect a debt\\nviolated a discharge order. Id. at 1071. A debtor’s right to be free from collection\\nefforts for discharged debts is a creature of the Bankruptcy Code. 11 U.S.C.\\n§ 524(a). An action to enforce such a right implicates an important bankruptcy\\npolicy, the ability of a bankruptcy court to enforce its own orders, such that\\nrequiring arbitration “would be inconsistent with the Bankruptcy Code.” Nat’l\\nGypsum, 118 F.3d at 1071.\\n 5\\n\\f No. 18-20809\\n On appeal, we review whether a bankruptcy court was obliged to enforce\\nan arbitration clause de novo. In re Gandy, 299 F.3d at 494. If the FAA does\\nnot require a bankruptcy court to enforce an arbitration clause, then the\\nbankruptcy court has discretion regarding whether to order arbitration, and\\n“the exercise of that discretion is reviewable only for abuse.” Id.\\n III.\\n Wells Fargo’s appeal presents a single issue: Does our holding in\\nNational Gypsum—that bankruptcy courts have discretion to refuse to compel\\narbitration in proceedings seeking enforcement of a discharge injunction—\\nremain good law following the Supreme Court’s decision in Epic Systems? We\\nconclude that it does.\\n Under the rule of orderliness, “one panel of this circuit may not overturn\\nanother panel absent an intervening decision to the contrary by the Supreme\\nCourt or this court en banc.” United States v. Simkanin, 420 F.3d 397, 420 n.25\\n(5th Cir. 2005). To overrule one of our precedents, a “Supreme Court decision\\nmust be more than merely illuminating with respect to the case before us.”\\nMartin v. Medtronic, Inc., 254 F.3d 573, 577 (5th Cir. 2001). Instead, “a panel\\nof this court can only overrule a prior panel decision if ‘such overruling is\\nunequivocally directed by controlling Supreme Court precedent.’” Id. (quoting\\nUnited States v. Zuniga-Salinas, 945 F.2d 1302, 1306 (5th Cir. 1991)).\\n Far from unequivocally directing us to overrule National Gypsum, Epic\\nSystems shows that National Gypsum’s doctrinal foundation, i.e., McMahon,\\nremains sound. For one thing, Epic Systems cites McMahon for support. 138 S.\\nCt. at 1627. For another, McMahon and Epic Systems apply essentially the\\nsame tests for determining whether a statute overrides the FAA’s command to\\nenforce arbitration agreements according to their terms. In McMahon, the\\nCourt said that:\\n\\n\\n 6\\n\\f No. 18-20809\\n Like any statutory directive, the Arbitration Act’s mandate may be\\n overridden by a contrary congressional command. The burden is\\n on the party opposing arbitration, however, to show that Congress\\n intended to preclude a waiver of judicial remedies for the statutory\\n rights at issue. If Congress did intend to limit or prohibit waiver of\\n a judicial forum for a particular claim, such an intent “will be\\n deducible from [the statute’s] text or legislative history,” or from\\n an inherent conflict between arbitration and the statute’s\\n underlying purposes.\\nMcMahon, 482 U.S. at 226-27 (alteration in original) (citations omitted)\\n(quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S.\\n614, 628 (1985)). While the Supreme Court’s decision in Epic Systems has a\\ndifferent tone, the test it employs is substantially the same as McMahon’s:\\n Even if the Arbitration Act normally requires us to enforce\\n arbitration agreements like theirs, the employees reply that the\\n [National Labor Relations Act] overrides that guidance in these\\n cases and commands us to hold their agreements unlawful yet.\\n\\n This argument faces a stout uphill climb. When confronted\\n with two Acts of Congress allegedly touching on the same topic,\\n this Court is not at liberty to pick and choose among congressional\\n enactments and must instead strive to give effect to both. A party\\n seeking to suggest that two statutes cannot be harmonized, and\\n that one displaces the other, bears the heavy burden of showing a\\n clearly expressed congressional intention that such a result should\\n follow. The intention must be clear and manifest.\\nEpic Sys., 138 S. Ct. at 1623-24 (citations and internal quotation marks\\nomitted). The difference between a “deducible” congressional intent, McMahon,\\n482 U.S. at 227, and a “clear and manifest” intent, Epic Sys., 138 S. Ct. at 1624,\\nis not an unequivocal direction to overrule our precedent.\\n Wells Fargo argues that Epic Systems altered McMahon, because the\\nformer “expressly rejected the use of legislative history.” While Epic Systems\\nsays that “legislative history is not the law,” Epic Sys., 138 S. Ct. at 1631, that\\nstatement clarifies that the legislative history upon which the dissent relies\\ndoes not trump the “[l]inguistic and statutory context” identified by the\\n 7\\n\\f No. 18-20809\\nmajority. Id. That is not the same as saying that legislative history can never\\nbe relevant when interpreting a statute.\\n Even if Epic Systems’s comments regarding legislative history partially\\noverrule McMahon, that change would not affect the validity of National\\nGypsum, because National Gypsum did not rely on legislative history. Instead,\\nin determining whether the FAA’s requirements were overridden, National\\nGypsum looked to the purposes of the Bankruptcy Code. 118 F.3d at 1069. And\\nstatutory purpose remains a valid tool for determining whether a given statute\\ndisplaces the FAA. See Epic Sys., 138 S. Ct. at 1627 (“Union organization and\\ncollective bargaining in the workplace are the bread and butter of the NLRA,\\nwhile the particulars of dispute resolution procedures in Article III courts or\\narbitration proceedings are usually left to other statutes and rules . . . .”).\\nConsequently, we conclude that National Gypsum’s application of McMahon\\nremains good law following Epic Systems.\\n IV.\\n For the foregoing reasons, we AFFIRM.\\n\\n\\n\\n\\n 8\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4595,"cells":{"id":{"kind":"number","value":4671801,"string":"4,671,801"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Evan Crocker v. Navient Solutions, L.L.C."},"decision_date":{"kind":"string","value":"2019-10-22"},"docket_number":{"kind":"string","value":"18-20254"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before STEWART, SOUTHWICK and ENGELHARDT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"LESLIE H. SOUTHWICK, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-20254 Document: 00515169017 Page: 1 Date Filed: 10/22/2019\\n\\n\\n\\n\\n REVISED OCTOBER 22, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-20254 October 21, 2019\\n Lyle W. Cayce\\nIn re: Evan Brian Crocker, also known as Haas Legal, P.L.L.C. Clerk\\n\\n Debtor\\n\\nEVAN BRIAN CROCKER, on behalf of themselves and all those similarly\\nsituated, also known as Haas Legal, P.L.L.C, formerly known as Evan Brian\\nHaas: MICHAEL SHAHBAZI, on behalf of themselves and all those similarly\\nsituated, formerly known as Montana Shahbazi; WENDY L. LANDES, on\\nbehalf of themselves and all those similarly situated; RAEGENA SEITZ-\\nMOULDS, on behalf of themselves and all those similarly situated,\\n\\n Appellees\\n\\nv.\\n\\nNAVIENT SOLUTIONS, L.L.C.; NAVIENT CREDIT FINANCE\\nCORPORATION,\\n\\n Appellants\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore STEWART, SOUTHWICK and ENGELHARDT, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n\\f Case: 18-20254 Document: 00515169017 Page: 2 Date Filed: 10/22/2019\\n\\n\\n\\n\\n An individual in Texas and another in Virginia separately obtained loans\\nfrom the same lender to pay education expenses. Both later filed for\\nbankruptcy in their respective states. In time, orders of discharge were\\nentered. One of the discharged debtors then filed suit against the lender in the\\nsame Bankruptcy Court of the Southern District of Texas that had ordered the\\ndischarge of his debts. Later, the Virginia debtor joined the Texas suit. The\\nsuit seeks to certify a nationwide class of those who claim their education-loan\\ndebts were validly discharged but from whom this lender continues to demand\\npayment. A declaratory judgment, injunction, and damages are sought.\\n The lender filed a motion for summary judgment, arguing bankruptcy\\ncourts cannot enforce the injunctions arising from discharge orders entered by\\ncourts in other judicial districts, and these private-education-loan debts are\\nstatutorily excepted from discharge. The bankruptcy court held the opposite\\nas to both, then certified the two holdings for interlocutory appeal.\\n We conclude that a bankruptcy court does not have authority to enforce\\nthe discharge injunctions entered in other districts. On the other hand, we\\nagree with the bankruptcy court that the particular education loans involved\\nhere are not statutorily excepted from discharge. The cause is REMANDED.\\n\\n\\n FACTUAL AND PROCEDURAL HISTORY\\n In 2009, Evan Crocker 1 obtained a $15,000 loan to fund his bar\\nexamination preparation. The lender was a subsidiary of SLM Corporation,\\nd/b/a Sallie Mae, which is a for-profit, public corporation whose loans are not\\npart of any governmental loan program. The loan documents informed Crocker\\nthat his repayment obligation “may not be dischargeable in bankruptcy.”\\nCrocker’s loan was transferred to SLM Education Credit Finance Corporation,\\n\\n\\n 1 Evan Brian Haas changed his name to Evan Brian Crocker in 2017. We use his\\ncurrent name throughout this opinion.\\n\\f Case: 18-20254 Document: 00515169017 Page: 3 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\nwhich subsequently became Navient Credit Finance Corporation. In the\\ncomplaint, Navient Solutions is said to be the entity pursuing collection. We\\nwill not differentiate among Navient entities in our discussion.\\n In 2015, Crocker filed for voluntary Chapter 7 bankruptcy in the United\\nStates Bankruptcy Court for the Southern District of Texas. He scheduled his\\nbar-study loan claim as an “Educational . . . Private loan” and did not dispute\\nthe debt. In February 2016, the court granted him a discharge under 11 U.S.C.\\n§ 727, informed him that “[m]ost debts are covered by the discharge, but not\\nall,” and closed his case.\\n Michael Shahbazi has a similar story. In 2002, Shahbazi obtained an\\n$11,658.99 loan from Sallie Mae for tuition and expenses while he attended a\\ntechnical school. He was given notice that his loan was “an education loan that\\nmust be repaid.” Exactly how Navient obtained its interest is unclear to us,\\nbut it is servicing this loan.\\n In 2011, Shahbazi filed for voluntary Chapter 7 bankruptcy in the\\nUnited States Bankruptcy Court for the Eastern District of Virginia. He\\nscheduled his Sallie Mae loan as a “Student Loan” and did not dispute the debt.\\nIn December 2011, the court granted him a discharge and closed his\\nbankruptcy proceeding. This discharge order specifically listed “Debts for most\\nstudent loans” as not being discharged.\\n It is alleged that after both discharges, Navient had both of these\\nplaintiffs contacted frequently by telephone and email to demand repayment.\\nIn August 2016, Crocker filed an adversary proceeding against Navient in the\\nBankruptcy Court for the Southern District of Texas, the same court that had\\ngranted him a discharge. He sought (1) a declaratory judgment that his private\\neducation debt had been discharged; (2) entry of judgment holding Navient in\\ncontempt for violating the injunction arising from his discharge; and (3) a\\n\\n\\n 3\\n\\f Case: 18-20254 Document: 00515169017 Page: 4 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\ntemporary injunction. The court entered an agreed preliminary injunction on\\nAugust 18, 2016, barring Navient from pursuing collection until further order.\\n Crocker, with Shahbazi as an additional plaintiff, filed an amended\\ncomplaint, seeking to certify a nationwide class of those who (1) obtained\\nprepetition private education loans from Navient or related companies to cover\\nexpenses at an institution not accredited under Title IV; (2) later filed for\\nbankruptcy and were issued discharge orders; (3) have never reaffirmed their\\nprepetition private education loan debt; and (4) are being induced to pay their\\nallegedly discharged private education loans. Damages were now also sought.\\n Navient moved for summary judgment on these claims, arguing that a\\nbankruptcy court has no jurisdiction to interpret and enforce discharge orders\\nentered by courts in other judicial districts and that the plaintiffs’ education\\nloans were nondischargeable. The bankruptcy court denied the motion in\\nMarch 2018. 2 It rejected that the general rule giving an issuing court sole\\nauthority to enforce its own injunctions applied to the automatic injunction\\ncreated by statute when a bankruptcy court grants a discharge under 11 U.S.C.\\n§ 727. The court also determined that the kind of loans for educational\\npurposes relevant here, which the parties refer to as “private loans,” were not\\nwithin the ambit of the Bankruptcy Code’s bar on the discharge of some\\nstudent loans. See 11 U.S.C. § 523(a)(8).\\n In the same order, the bankruptcy court first authorized an interlocutory\\nappeal, then certified the order for direct appeal to this court, eschewing the\\nusual initial appellate review by a district court. A bankruptcy court may\\ncertify a ruling for direct review by a circuit court of appeals when, among other\\n\\n\\n 2 Wendy L. Landes and Raegena Seitz-Moulds were included without objection as\\nadditional putative class members in a Third Amended Complaint, filed after Navient’s\\nmotion for summary judgment but before the bankruptcy court ruled. No party argues that\\nthe issues before us are altered by their joinder. Accordingly, we do not separately discuss\\nthe facts of the bankruptcies of the two last-added parties.\\n 4\\n\\f Case: 18-20254 Document: 00515169017 Page: 5 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\nreasons, it “involves a question of law as to which there is no controlling\\ndecision” by that circuit court or the Supreme Court, or because an appeal at\\nthat stage in the proceedings “may materially advance the progress of the\\ncase.” 28 U.S.C. § 158(d)(2)(A)(i), (iii). If a bankruptcy court so certifies, the\\ncircuit court of appeals then exercises its discretion. § 158(d)(2)(A). A motions\\npanel of this court granted the unopposed motion to authorize the appeal.\\n\\n DISCUSSION\\n We review “grants and denials of summary judgment de novo. Summary\\njudgment is appropriate when ‘there is no genuine dispute as to any material\\nfact and the movant is entitled to judgment as a matter of law.’” Lyda\\nSwinterton Builders, Inc. v. Okla. Sur. Co., 903 F.3d 435, 444 (5th Cir. 2018)\\n(quoting FED. R. CIV. P. 56). Federal Rule of Civil Procedure 56 is incorporated\\ninto the Federal Rules of Bankruptcy Procedure. FED. R. BANKR. P. 7056.\\n Navient has two principal contentions on appeal. The first is that the\\nbankruptcy court either has no jurisdiction to enforce the statutory injunctions\\narising from a bankruptcy discharge that another bankruptcy court ordered,\\nor at least for prudential reasons may not do so. Second, Navient contends\\nthat the plaintiffs’ education loans are within the category of loans that under\\nthe Bankruptcy Code are nondischargeable.\\n There are no meaningful factual issues presented to us. Instead, we have\\nlegal issues of statutory interpretation. We now turn to those.\\n\\n\\nI. Authority to enforce a Section 524 discharge order entered by a bankruptcy\\ncourt in another judicial district\\n In broad brush, these proceedings concern two closed Chapter 7\\nbankruptcies in which generic discharges, i.e., discharges not specifying the\\ndischarged debts, were issued at completion. A discharge “operates as an\\ninjunction” against an extensive list of actions that a creditor might take to\\n 5\\n\\f Case: 18-20254 Document: 00515169017 Page: 6 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\ncollect on the discharged debt. 11 U.S.C. § 524(a)(2), (3). The discharge is a\\n“substantive right,” and that right is “often enforced by a motion for contempt,\\nbut [it is] also enforceable through a declaratory judgment action.” Nat’l\\nGypsum Co. v. NGC Settlement Tr. & Asbestos Claims Mgmt. Corp. (In re Nat’l\\nGypsum Co.), 118 F.3d 1056, 1063 (5th Cir. 1997) (citations omitted). The\\ndeclaratory judgment was sought in National Gypsum by the opening of an\\nadversary proceeding in the bankruptcy court that had granted the debtor’s\\ndischarge. Id. at 1060. Indeed, Federal Rule of Bankruptcy Procedure 7001(6)\\nstates that an adversary proceeding is, among other things, “a proceeding to\\ndetermine the dischargeability of a debt.”\\n Thus, an available procedure under National Gypsum is a declaratory\\njudgment action. A violation of the declaratory judgment will lead to its own\\nremedies such as “damages or an injunction.” United Teacher Assocs. Ins. Co.\\nv. Union Labor Life Ins. Co., 414 F.3d 558, 570 (5th Cir. 2005); see also 28\\nU.S.C. § 2202. The issue for us is identifying the proper court or courts in\\nwhich such an action can be brought. May a bankruptcy court other than the\\none that granted the discharge enforce the injunction?\\n The closest this circuit has come to answering the question is to hold, in\\nthe class action context, that a bankruptcy judge in the Southern District of\\nTexas may exercise ‘jurisdiction over claims that arise in other cases\\nadministered by other judges” in the same judicial district. Wilborn v. Wells\\nFargo Bank, N.A. (In re Wilborn), 609 F.3d 748, 753 (5th Cir. 2010). The\\nWilborn court only briefly discussed the issue of enforcing an injunction arising\\nfrom the discharge order of a different bankruptcy court in the same district.\\nIn the present proceedings, the bankruptcy court’s understanding of its\\nauthority extended well beyond its home district. The question of a bankruptcy\\njudge’s injunctive reach within its own district has not been answered.\\n\\n\\n 6\\n\\f Case: 18-20254 Document: 00515169017 Page: 7 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\n The two plaintiff-debtors received general discharges in bankruptcy.\\nCentral to the dispute is that Congress has excepted from discharge, among\\nother categories of debt, certain types of student-loan debt. 11 U.S.C. §\\n523(a)(8). We will deal with the issue of dischargeability in the second part of\\nour opinion and will wait to quote the relevant statute until then.\\n We have already summarized that the bankruptcy court at this stage\\nanswered only two questions. The first answer we review is the “yes” the court\\ngave to the question of whether a bankruptcy court in a judicial district other\\nthan the one in which the discharge was entered has authority to interpret the\\ndischarge and enforce the injunction. The court rejected Navient’s argument\\nthat the general rule should apply that the court issuing an injunction is the\\nonly one that can enforce it through contempt proceedings. The bankruptcy\\ncourt first held that general rule was inapplicable because no discretion or\\nindividual judgment is exercised in creating the injunction. 3 The form order\\nused for the discharges for the initial two plaintiffs here does not even mention\\nan injunction. The injunction instead arises from this statutory command: “A\\ndischarge in a case under this title . . . operates as an injunction against the\\ncommencement or continuation of an action.” § 524(a). Because there is “no\\nsubjective thought process that requires deference nor is there any risk of\\nmisinterpretation of a particular judge’s reasoning,” the bankruptcy court\\nconcluded that the general limitation on enforcement of injunctions only by the\\nissuing court was inapplicable. The court did not cite any case authority to\\nsupport its analysis. The basic point was that the bankruptcy statutes\\n\\n\\n\\n\\n 3 There is at least one aspect of the bankruptcy discharge that requires individual\\njudicial consideration. The applicable education loans are not discharged “unless excepting\\nsuch debt from discharge under this paragraph would impose an undue hardship on the\\ndebtor and the debtor’s dependents.” § 523(a)(8). Different bankruptcy judges can look at\\nthe same facts and reach contrary decisions.\\n 7\\n\\f Case: 18-20254 Document: 00515169017 Page: 8 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\nthemselves make clear that no purpose is served by requiring a return to the\\nissuing court to interpret a discharge injunction.\\n Navient, of course, disagrees that discharge injunctions should be\\ntreated differently than others. A principal authority it cites is one of this\\ncourt’s precedents dealing with non-bankruptcy injunctions. There, Chief\\nJudge Charles Clark explained in the context of a claim of securities fraud that\\n“[e]nforcement of an injunction through a contempt proceeding must occur in\\nthe issuing jurisdiction because contempt is an affront to the court issuing the\\norder.” Waffenschmidt v. MacKay, 763 F.2d 711, 716 (5th Cir. 1985). A\\nbankruptcy court does continue to have jurisdiction to enforce its orders, and\\nthat jurisdiction remains even after the bankruptcy case is closed. See, e.g.,\\nGalaz v. Katona, 841 F.3d 316, 322 (5th Cir. 2016). The issue for us arises\\nbecause Galaz and other Fifth Circuit precedents do not hold that authority is\\nexclusive in the original court. Navient also argues that regardless of\\njurisdiction, there are prudential reasons supporting its argument.\\n Navient’s appellate brief recounts the background for an injunction that\\narises from a discharge, drawing from a scholarly article. Charles Jordan\\nTabb, The Historical Evolution of the Bankruptcy Discharge, 65 AM. BANKR. L.\\nJ. 325 (1991). We look at parts of the background in order to understand how\\na bankruptcy discharge was enforced before a statute was enacted that\\nimposed an injunction. Importantly, we also consider whether another part of\\nthe same statutory enactment arguably created a right of enforcement of the\\ninjunction by “foreign” courts. If so, then its repeal in 1978 has some meaning.\\n There was no statutory injunction arising from a discharge until 1970.\\nId. at 326 n.3. A House Report on 1970 bankruptcy legislation explained\\nproblems with prior law, including the harassment of debtors:\\n The present discharge provisions of the Bankruptcy Act authorize\\n the bankruptcy court to determine the right to a discharge, but do\\n\\n 8\\n\\f Case: 18-20254 Document: 00515169017 Page: 9 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\n not give the bankruptcy court express jurisdiction to determine the\\n effect of the discharge. . . . Under present practice, if a bankrupt is\\n sued in State court on a discharged debt, the State court may\\n determine whether the debt in question was or was not discharged.\\n In other words, the jurisdiction over the granting and the enforcing\\n of a discharge is divided, with the result that debtors are\\n frequently harassed and coerced by creditors into paying debts\\n that may have been discharged.\\nH.R. REP. NO. 91-1502, at 3 (1970).\\n The 1970 legislation was adopted and provided for an injunction:\\n f. An order of discharge shall—\\n (1) declare that any judgment theretofore or thereafter obtained in\\n any other court is null and void . . . ; and\\n (2) enjoin all creditors whose debts are discharged from thereafter\\n instituting or continuing any action or employing any process to\\n collect such debts as personal liabilities of the bankrupt.\\nAct of Oct. 29, 1970, Pub. L. No. 91-467, § 3, 84 Stat. 990, 991 (amending\\nSection 14 of the 1898 Bankruptcy Code, codified as 11 U.S.C. § 32(f)).\\n The statutory detailing of the injunction that results from a discharge\\nhas been revised, but the meaning for our purposes is the same: the discharge\\n“operates as an injunction against the commencement or continuation of an\\naction” to collect a relevant debt. 11 U.S.C. § 524(a)(2).\\n Nothing in the statute creating an injunction explains whether this form\\nof injunction could be enforced only by the bankruptcy court in the issuing\\ndistrict. Another 1970 provision, though, which appeared immediately after\\nthe injunction section, did specifically refer to enforcement in other courts. It\\nallowed the order of discharge to be registered in another district and to be\\n“enforced in like manner” in the new district as in the issuing district:\\n g. An order of discharge which has become final may be registered\\n in any other district by filing therein a certified copy of such order\\n and when so registered shall have the same effect as an order of\\n the bankruptcy court of the district where registered and may be\\n enforced in like manner.\\n 9\\n\\f Case: 18-20254 Document: 00515169017 Page: 10 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\n§ 3, 84 Stat. 990, 991 (codified as 11 U.S.C. § 32(g)). 4 Bankruptcy Rule 404(g)\\nused almost this exact language. 11 U.S.C. app. at 283 (Supp. III 1974).\\n The 1970 subsection on registration was repealed with adoption of the\\nBankruptcy Code of 1978. 11 U.S.C. Tbl. I (showing that former Section 32(g)\\nwas repealed). Further, the Bankruptcy Rule that implemented Section 32(g)\\nwas revised after the 1978 Code was adopted by deleting “may be enforced in\\nlike manner.” FED. R. BANKR. P. 4004(f). Enacted revisions in the wording of\\nstatutes are part of “statutory history,” not “the sort of unenacted legislative\\nhistory that often is neither truly legislative (having failed to survive\\nbicameralism and presentment) nor truly historical (consisting of advocacy\\naimed at winning in future litigation what couldn’t be won in past statutes).”\\nBNSF Ry. Co. v. Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J., dissenting).\\nWhen Congress makes a significant change in language when it amends an\\nexisting statute, it “presumptively connotes a change in meaning.” ANTONIN\\nSCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL\\nTEXTS 256 (2012). Congress’s decision to eliminate language that seemed to\\nallow enforcement of the discharge injunction in a new district 5 gives weight\\n\\n\\n\\n 4An explanation for what those promoting the 1970 legislation were at least trying to\\ndo was given by the National Conference of Referees in Bankruptcy:\\n When a bankrupt has moved out of the district where he obtained his\\n discharge in bankruptcy and is sued by a creditor on a discharged debt in the\\n state to which he moved, the bankrupt should be able to enforce the discharge\\n and its injunctive provisions through the district court where he is currently\\n residing. Section 14g [11 U.S.C. section 32(g)] is meant to permit the bankrupt\\n access to his local United States court by registering therein a certified copy of\\n the order granting the discharge.\\nH.R. REP. NO. 91-1502, at 11.\\n 5 Learned commentators concluded that Section 32(g) authorized enforcement of a\\n\\ndischarge injunction in a new district. One wrote that with “the 1970 Amendments to the\\n1898 Act, Congress developed the portable and registerable discharge injunction.” Robert P.\\nWasson, Jr., Remedying Violations of the Discharge Injunction Under Bankruptcy Code\\n524…, 20 BANKR. DEV. J. 77, 88 (2003).\\n 10\\n\\f Case: 18-20254 Document: 00515169017 Page: 11 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\nto the argument that after the 1978 Bankruptcy Code was adopted,\\nenforcement in “like manner” in a different district was prohibited.\\n We now turn to the law that exists today. Registering a judgment in a\\nnew court is not a creature primarily of bankruptcy law. Some quite learned\\nprofessors described the adoption of a general statutory provision for\\nregistration in 1948, after an earlier Civil Rules version was rejected as\\narguably being beyond the rulemaking power of the Supreme Court. 11\\nCHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARK KAY KANE, FEDERAL\\nPRACTICE AND PROCEDURE § 2787 (2012). The current statute states:\\n A judgment in an action for the recovery of money or\\n property entered in any court of appeals, district court, bankruptcy\\n court, or in the Court of International Trade may be registered by\\n filing a certified copy of the judgment in any other district or, with\\n respect to the Court of International Trade, in any judicial district,\\n when the judgment has become final by appeal or expiration of the\\n time for appeal or when ordered by the court that entered the\\n judgment for good cause shown. Such a judgment entered in favor\\n of the United States may be so registered any time after judgment\\n is entered. A judgment so registered shall have the same effect as\\n a judgment of the district court of the district where registered and\\n may be enforced in like manner.\\n28 U.S.C. § 1963. Bankruptcy courts were added to the statute in 1996.\\nFederal Courts Improvement Act of 1996, Pub. L. No. 104-317, § 203, 110 Stat.\\n3847, 3849.\\n Section 1963 permits the clearing of jurisdictional hurdles when the\\nprior judgment was entered in a suit in which federal question was the basis\\nfor jurisdiction. The hurdle arises because “an action solely to enforce the\\njudgment would lack that federal question jurisdiction and therefore could not\\nbe maintained in federal court” absent some other jurisdictional basis. JAMES\\nWILLIAM MOORE, ET AL., MOORE’S FEDERAL PRACTICE ¶ 130.33 (explaining that\\n“a suit on a judgment does not involve a federal question, however important\\n\\n\\n 11\\n\\f Case: 18-20254 Document: 00515169017 Page: 12 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\nfederal questions may have been to the resolution of the original controversy,”\\nand citing Stiller v. Hardman, 324 F.2d 626, 628 (2d Cir. 1963)). 6\\n The 1970 Bankruptcy Code amendment to permit registration was\\nlabeled “an adaptation of 28 U.S.C. section 1963,” as it clearly was. H.R. REP.\\nNO. 91-1502, at 11. One significant difference, though, is that Section 1963 is\\nlimited to judgments that order the recovery of property or money, which\\norders discharging debts would not be. As importantly, Section 1963 “does not\\npermit enforcement elsewhere of a decree for injunctive relief.” 11 WRIGHT,\\nMILLER, & KANE, FEDERAL PRACTICE § 2787.\\n In conclusion, the 1970 registration statute was by far the most direct\\nsupport for allowing one bankruptcy court to enforce another’s discharge\\ninjunction. That statute, though, is no more, which supports that Congress\\nabolished such enforcement. Current Bankruptcy Rule 4004(f) guides\\nregistration but does not authorize “like manner” enforcement as did its\\npredecessor. The foregoing convinces us that registration does not alter the\\nusual procedures for enforcing an injunction.\\n\\n\\n\\n\\n 6 An earlier version of MOORE’S has, since the adoption of Bankruptcy Rule 404(g) and\\nthen continuing with current Rule 4004(f), been cited by the Federal Rules Advisory\\nCommittee to explain each Rule. See Rule 404(g), Adv. Comm. Notes (1976); Rule 4004(f),\\nAdv. Comm. Notes (1983), both citing JAMES WILLIAM MOORE ET AL., MOORE’S FEDERAL\\nPRACTICE ¶ 1.04[2] (2d ed. 1967). We could not locate any archival record of the 1967 treatise\\nsection, but some if not all of that section was quoted in a district court opinion. See Dichter\\nv. Disco Corp., 606 F. Supp. 721, 725 (S.D. Ohio 1984). The following excerpt likely is at least\\nsome of the reason for the reference to MOORE’S in the Advisory Committee Notes:\\n It may be suggested that by authorizing the judgment-creditor to\\n enforce his judgment through registration in other districts, as an alternative\\n to an action on the judgment, substantive rights are conferred upon him, venue\\n requirements are altered, and the jurisdiction of the district court is enlarged.\\n But in purpose and effect the registration of judgments in other districts is only\\n a more convenient and effective method of enforcing them according to their\\n original terms.\\nId. (quoting MOORE’S FEDERAL PRACTICE ¶ 1.04[2] at 223 (1967)).\\n 12\\n\\f Case: 18-20254 Document: 00515169017 Page: 13 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\n We return, then, to the bankruptcy court’s first basis for its ruling, which\\nrelied on, of all things, logic alone to support that because a discharge\\ninjunction needs no discretionary interpretation, there should not be any\\nobligation to return to the issuing court for its enforcement. With respect for\\nso venerable a basis for argument, i.e., straightforward logical reasoning, we\\nconclude more is needed here to overcome the contrary authority.\\n The bankruptcy court gave as a second basis for its decision, not\\ncompletely distinguishable from its first, that when enforcing a discharge, a\\ncourt is simply enforcing a statute. Holding a creditor in contempt “goes to the\\nvery core of the bankruptcy process itself.” The court relied on a scholarly\\nopinion by Bankruptcy Judge Isgur analyzing the fundamentals in Cano v.\\nGMAC Mortg. Corp. (In re Cano), 410 B.R. 506 (Bankr. S.D. Tex. 2009). The\\nbankruptcy court here also cited both 28 U.S.C. § 157, which sets out many of\\nthe procedures for bankruptcy courts and the authority of the district courts\\nover them, and 28 U.S.C. § 1334, which grants to district courts “original and\\nexclusive jurisdiction of all cases under” the Bankruptcy Code, with some\\nexceptions.\\n We need not analyze today the complexities of Section 157 addressed by\\nCano, including the differences among cases and proceedings “arising under\\ntitle 11 or arising in or related to a case under title 11.’’ § 157(a) (emphasis\\nadded). We limit our analysis because our question is limited: may a different\\nbankruptcy court than the one that issued the discharge that caused the\\ninjunction to arise, enforce that injunction regardless of whether the\\nimpediment is jurisdiction, venue, prudential considerations, or something\\nelse? The Cano court identified but did not resolve that issue: “[r]equiring\\nPlaintiffs to seek civil contempt damages from their ‘home court’ may be the\\nmore appropriate remedy and the only remedy authorized.” Cano, 410 B.R. at\\n543. The Cano opinion did not need to resolve the issue before us.\\n 13\\n\\f Case: 18-20254 Document: 00515169017 Page: 14 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\n We next examine precedents concerning contempt authority. “Civil\\ncontempt is the normal sanction for violations of the discharge injunction.”\\nRICHARD LEVIN & HENRY J. SOMMER, COLLIER ON BANKRUPTCY ¶ 524.02(c)\\n(2018). We have used absolute language, though not in a bankruptcy context,\\nthat “[i]t is elementary that the court against which a contempt is committed\\nhas exclusive jurisdiction to punish for such contempt.” United States v.\\nBarnett, 330 F.2d 369, 385 (5th Cir. 1963) (citing In re Debs, 158 U.S. 564, 594–\\n95 (1895)).\\n Other circuits have insisted on a return to the bankruptcy court whose\\ndischarge order created the injunction. The Eleventh Circuit has held that\\nonly the bankruptcy court issuing the discharge has jurisdiction to enforce the\\ninjunction through contempt. Alderwoods Grp., Inc. v. Garcia, 682 F.3d 958,\\n961 (11th Cir. 2012). 7 The Seventh Circuit has said the “responsibility for\\nenforcing the discharge order [is] in the court that issued it.” Cox v. Zale\\nDelaware, Inc., 239 F.3d 910, 916–17 (7th Cir. 2001) (citing FED. R. BANKR. P.\\n9020). The cited Bankruptcy Rule 9020 simply says Rule 9014 on “Contested\\nMatters” is what “governs a motion for an order of contempt.” The Ninth\\nCircuit has held that both Section 524 and the Bankruptcy Rules require a\\ncontempt action in the bankruptcy court that issued the discharge order. See\\nBarrientos v. Wells Fargo Bank, N.A., 633 F.3d 1186, 1189 (9th Cir. 2011).\\n The Second Circuit has limited enforcement of discharge injunctions\\nthrough contempt proceedings to the originating court: “the bankruptcy court\\nretains a unique expertise in interpreting its own injunctions and determining\\nwhen they have been violated.” Anderson v. Credit One Bank, N.A., (In re\\n\\n\\n\\n\\n 7 Without intimating that it has derivative precedential effect in this circuit, we note\\nas a matter of collegial respect that the opinion is from the circuit with which we until 1981\\nwere joined, and authoring Judge Tjoflat’s notable judicial service began on the Fifth Circuit.\\n 14\\n\\f Case: 18-20254 Document: 00515169017 Page: 15 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\nAnderson), 884 F.3d 382, 390–91 (2d Cir. 2018). Without labeling the reason\\nas one of jurisdiction, the court explained:\\n The power to enforce an injunction is complementary to the\\n duty to obey the injunction, which the Supreme Court has\\n described as a duty borne out of “respect for judicial process.” GTE\\n Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 387,\\n 100 S.Ct. 1194, 63 L.Ed.2d 467 (1980) (internal quotation marks\\n omitted). That same respect for judicial process requires us to hold\\n that the bankruptcy court alone has the power to enforce the\\n discharge injunction in Section 524.\\nId. at 391.\\n Though the Eleventh Circuit in Alderwoods concluded that the bar to\\nseeking enforcement in a foreign court was jurisdictional, we pretermit so\\nfoundational a holding. We start with the reality that a violation of the\\ninjunction is an affront to the issuing court. Yes, the injunction arises from\\nstatute and not from judicial discretion. Indeed, as here, the injunction may\\nnot even be mentioned in the court’s order. Nonetheless, a central\\nconsideration for us is that there is not a sufficiently clear path for deviating\\nfrom the usual rule. Instead, what is clear are various obstacles we have\\nidentified to taking that path. We now discuss a final one.\\n A recent Supreme Court decision placed the civil contempt that results\\nfrom violating a bankruptcy discharge injunction under the general principles\\nfor contempt. It richly phrased its analysis: “When a statutory term is\\n‘obviously transplanted from another legal source,’ it ‘brings the old soil with\\nit.’” Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (quoting Hall v. Hall,\\n138 S. Ct. 1118, 1128 (2018)). Rooted in the soil are “the traditional standards\\nin equity practice for determining when a party may be held in civil contempt\\nfor violating an injunction.” Id.\\n We do not see a holding in Taggart that all the rules for civil contempt\\nwere transplanted into bankruptcy, but we do see an imperative that any\\n\\n 15\\n\\f Case: 18-20254 Document: 00515169017 Page: 16 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\ndeviation from those rules have a substantial justification. Beginning in 1970,\\nthere was a statutory argument from Section 32(g) of the 1898 Bankruptcy\\nCode that there was no need to return to the original bankruptcy court, but\\nthat argument was repealed in 1978 along with the section. The remainder of\\nwhat has been argued to us does not suffice to show that we should allow an\\nexception from the usual enforcement rules for injunctions. Though Taggart\\ndid not lock the gate to any deviations from traditional contempt rules in\\nbankruptcy, very little opportunity to open it was provided.\\n We adopt the language of the Second Circuit that returning to the\\nissuing bankruptcy court to enforce an injunction is required at least in order\\nto uphold “respect for judicial process.” Anderson, 884 F.3d at 391. The\\nbankruptcy court erred in holding that it could address contempt for violations\\nof injunctions arising from discharges by bankruptcy courts in other districts.\\nTherefore, as to Shahbazi and at least those debtors whose discharges were\\nentered by courts in other districts, the bankruptcy court in these proceedings\\nhas no authority to enforce the resulting injunction.\\n Though the bankruptcy court did not reach the issue of certification of a\\nclass, we point out that because of the limitation on enforcement we have just\\nidentified, and indeed because we are aware of no prior certification of a class\\nthat includes debtors whose discharges were entered by bankruptcy courts in\\nother districts, certifying such a class would be highly dubious. We also leave\\nfor the court on remand the separate issue, if it becomes relevant, of whether\\nthat court has authority to enforce the injunctions arising from discharges\\nentered by any bankruptcy court in the same judicial district.\\n\\n\\nII. Dischargeability of private student loans\\n The bankruptcy court also answered the question of whether the loans\\nthat the plaintiffs received were subject to the statutory prohibition of\\n 16\\n\\f Case: 18-20254 Document: 00515169017 Page: 17 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\ndischarge of certain education loans. The court’s answer to that question was\\n“no.” Though the ruling will impact only the discharges of loans by that court\\nor perhaps in that judicial district, it remains an answer we must review.\\n Congress has excepted certain categories of debt from discharge,\\nincluding much student-loan debt. All exceptions to discharge are to be\\ninterpreted narrowly in favor of the debtor to preserve the “fresh start” the\\nBankruptcy Code provides for debtors. Hickman v. Texas (In re Hickman), 260\\nF.3d 400, 404–05 (5th Cir. 2001). 8 The current articulation of the exception is\\nthat “the discharge under section 727 [and other sections] does not discharge\\nan individual debtor from any debt –”\\n ...\\n (8) unless excepting such debt from discharge under this\\n paragraph would impose an undue hardship on the debtor and the\\n debtor’s dependents, for--\\n (A)(i) an educational benefit overpayment or loan made,\\n insured or guaranteed by a governmental unit, or made under\\n any program funded in whole or in part by a governmental unit\\n or nonprofit institution; or\\n (ii) an obligation to repay funds received as an educational\\n benefit, scholarship, or stipend; or\\n (B) any other educational loan that is a qualified education\\n loan, as defined in section 221(d)(1) of the Internal Revenue\\n Code of 1986, incurred by a debtor who is an individual.\\n11 U.S.C. § 523(a). In summary, Subsection (A)(i) applies to loans, etc. in which\\na governmental unit or a nonprofit institution had a defined role. Subsection\\n(B) requires a journey through multiple statutes to understand its meaning.\\nA partial explanation is that the referenced Internal Revenue Code section\\n\\n\\n 8 We quote what might seem to be authority that the opposite presumption applies to\\neducation loans. Though referring to a party’s argument, the Supreme Court could be seen\\nas agreeing that Congress made “student loan debt presumptively nondischargeable.” Tenn.\\nStudent Assistance Corp. v. Hood, 541 U.S. 440, 450 (2004). In context, though, the Court is\\nreferring only to education loans from states. Id.\\n 17\\n\\f Case: 18-20254 Document: 00515169017 Page: 18 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\ndefines a “qualified education loan” as, among other things, “any indebtedness\\nincurred by the taxpayer solely to pay qualified higher education expenses,”\\nalong with other conditions. 26 U.S.C. § 221(d). The qualified expenses are\\n“the cost of attendance” at the eligible education institution, reduced by\\nscholarships and other payments. Id. An eligible institution is defined, with\\nexceptions, in Internal Revenue Code Section 25A(f)(2), as one “which is\\neligible to participate in a program under Title IV” of the Higher Education\\nAct. There is no claim that Subsection (B) applies.\\n Subsection (A)(ii) is Navient’s target, which deals clearly with\\nscholarships and stipends. Less clear, but definable, is what else it deals with.\\nWe restate the statutory language: there must be “an obligation to repay funds\\nreceived as an educational benefit, scholarship, or stipend.” § 523(a)(8)(A)(ii).\\nNavient argues this language plainly includes private student loans, and that\\nFifth Circuit precedent supports this argument. Navient also contends that\\nlower court cases that disagree had misapplied canons of statutory\\ninterpretation to reach their conclusions. Finally, Section 523(a)(8)’s\\nlegislative history supports including private student loans.\\n The plaintiffs, though, argue that Subsection (8)(A)(ii)’s text and the\\nBankruptcy Code’s purpose to give debtors a fresh start require reading the\\nsubsection narrowly. Further, reading the subsection through the canons of\\nstatutory interpretation affirms this narrow reading, as do the drafters’\\nlanguage and grammar choices. Finally, the legislative history does not show\\nCongress intended to exempt private education loans from discharge. 9\\n\\n\\n\\n\\n 9 Navient does not argue there is relevance to the fact that both Crocker and Shahbazi\\nclassified the relevant debts as “educational” on Schedule F of their bankruptcy filings.\\nImportantly, we do not see on the forms in the record or in the instructions for completing\\nsuch forms any guidance on labeling a debt as “educational” or a statement that it should not\\nbe so labeled unless it is nondischargeable under Section 523(a)(8).\\n 18\\n\\f Case: 18-20254 Document: 00515169017 Page: 19 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\n The bankruptcy court here determined Subsection (8)(A)(ii) was\\nunambiguous. The court considered the absence of the word “loan” and the\\ninclusion of the concepts of stipends and scholarships to narrow the meaning\\nof receiving an educational benefit to include only such funding as “tuition\\nadvances by an employer that must be repaid if the employee leaves her\\nemployment within a certain period of time.” The court also focused on the\\nCongressional use of the word “as” to precede “educational benefit.” To the\\ncourt, that meant that what was received was the educational benefit, akin to\\nscholarships and stipends, not that what was received could be used to pay for\\neducational benefits. These private education loans were thus dischargeable.\\n There are some general interpretive rules to apply. Discharge exceptions\\nare to be construed “narrowly” and “in favor of the debtor” in order to further\\nthe Bankruptcy Code’s purpose of giving debtor’s a “fresh start.” Miller v. J.D.\\nAbrams Inc. (In re Miller), 156 F.3d 598, 602 (5th Cir. 1998). Exceptions to\\ndischarge “should be confined to those plainly expressed.” Kawaauhau v.\\nGeiger, 523 U.S. 57, 62 (1998). Regardless, we may not ignore plain textual\\nlanguage, and as we discuss, Congressional action generally has enlarged the\\ncategory of education loans that are not dischargeable.\\n We start with text and context, then discuss some of the prior statutory\\nlanguage that the current statute has replaced or supplemented. An initial\\nread of Subsection (A)(ii) does not suggest that Congress used the phrase\\n“obligation to repay funds received as an educational benefit” in order to\\ninclude private student loans. The immediately preceding Subsection (A)(i)\\nexempts “educational . . . loan[s].” Subsection (B) exempts “education loan[s].”\\nSubsection (A)(ii) makes no reference to loans, its focus seemingly elsewhere.\\n Navient argues that an “obligation to repay funds received” is expansive\\nand includes loans, citing to other statutes and federal regulations that use\\n“obligation to repay” in reference to loans. The fact that an obligation to repay\\n 19\\n\\f Case: 18-20254 Document: 00515169017 Page: 20 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\nis one way to refer to loans is correct, but we are trying to discern the meaning\\nin the context of a particular enactment. If “‘Congress includes particular\\nlanguage in one section of a statute but omits it in another’ — let alone in the\\nvery next provision” — courts presume “Congress intended a different\\nmeaning.” Loughrin v. United States, 573 U.S. 351, 358 (2014) (quoting\\nRussello v. United States, 464 U.S. 16, 23 (1983)). Congress sandwiched\\nSubsection (A)(ii), which does not mention loans at least by name, between two\\nsubsections that explicitly do. That structure is at least a start to saying\\neducational benefits are not loans.\\n We now look more closely at Subsection (A)(ii)’s text. The subsection\\napplies to the “obligation to repay” funds received as “an educational benefit,”\\n“scholarship,” or “stipend.” The prefatory language, i.e, that there is “an\\nobligation to repay,” appears only in this subsection. The phrase is superfluous\\nwhen referring to loans, but it is quite relevant to payments with contingent\\nobligations. Next, a stipend is a “fixed and regular payment, such as a salary.”\\nAMERICAN HERITAGE COLLEGE DICTIONARY, 1220 (3d ed. 1997). A scholarship\\nis a “grant of financial aid to a student.” Id. The key phrase, “educational\\nbenefit,” is the broadest. We consider unnecessary a dictionary definition of\\n“educational,” but “benefit” needs one. Because the term is so broad, the\\nlimiting principle of noscitur a sociis potentially should be used — over\\nNavient’s objection, though — to understand the phrase in context. In a recent\\napplication, the Supreme Court said there are times we should “look to noscitur\\na sociis, the well-worn Latin phrase that tells us that statutory words are often\\nknown by the company they keep.” Lagos v. United States, 138 S. Ct. 1684,\\n1688–89 (2018). The “common quality” in a list that is the focus of the noscitur\\na sociis inquiry “should be its most general quality — the least common\\ndenominator, so to speak — relevant to the context.” SCALIA & GARNER,\\nREADING LAW, 196.\\n 20\\n\\f Case: 18-20254 Document: 00515169017 Page: 21 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\n One general quality in the relevant phrase is that stipends and\\nscholarships “signify granting, not borrowing.” McDaniel v. Navient Sols., LLC\\n(In re McDaniel), 590 B.R. 537, 549 (Bankr. D. Colo. 2018). Those grants may\\nbe conditional, but satisfaction of the conditions leaves them as grants. The\\ncommon quality is that scholarships and stipends may not need to be repaid.\\n Navient argues that noscitur a sociis should not apply because the\\nstatutory list is too brief. The Supreme Court recently used the doctrine in a\\nfour-item list: “lost income and necessary child care, transportation, and other\\nexpenses.” Lagos, 138 S. Ct. at 1688 (quoting 18 U.S.C. § 3663A(b)(4)); but see\\nGraham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson,\\n559 U.S. 280, 288 (2010) (“A list of three items . . . is too short to be particularly\\nilluminating.”). Lagos used three specific items to give meaning to a catchall.\\nId. at 1688–89. Authors Scalia and Garner did use a three-item list to explain\\nproper use of this doctrine. SCALIA & GARNER, READING LAW, at 196–97. The\\nexample was a state statute criminalizing the carrying of a firearm in a motor\\nvehicle unless, among other conditions, it was “contained in a closed and\\nfastened case, gunbox, or securely tied package.” Id. (discussing State v.\\nTaylor, 594 N.W. 2d 533, 535–36 (Minn. Ct. App. 1999)). The Minnesota court\\nheld that a purse was not a proper “case” — despite that it was “closed and\\nfastened” — because the commonality of the other two items was that they\\nwere containers that kept a firearm from being readily accessible. Id.\\n The brevity of the list in the text we must review does not compel\\nignoring the relevant term’s neighbors.\\n We offer one definition of “benefit,” namely, a “payment made or an\\nentitlement available in accordance with a wage agreement, an insurance\\npolicy, or a public assistance program.” AMERICAN HERITAGE COLLEGE\\nDICTIONARY, at 127. Whatever definition is used, we begin our analysis with\\n\\n\\n 21\\n\\f Case: 18-20254 Document: 00515169017 Page: 22 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\na tentative acceptance that the benefit generally does not need to be repaid.\\nOur analysis continues, though.\\n Navient claims that a different definition of “benefit” is best: “an\\nadvantage or profit gained from something.” OXFORD ENGLISH DICTIONARY (3d\\ned. 1997). That definition is limitless, invoking the very reason for the noscitur\\na sociis doctrine. Navient’s offering does not capture the essentials of “stipend”\\nand “scholarship,” which identify narrow categories of benefits.\\n Indeed, we see a lack of common sense in interpreting the list as\\ncontaining two specific and quite limited kinds of payments that, among other\\nthings, do not usually require repayment, and a third item preceding the two\\nthat was meant to be a catchall for loans and most everything else financially\\nbenefitting a student. Such an understanding of what Congress did with those\\nwords creates a superfluity of words in the other parts of Section 523(a)(8). If\\nan “obligation to repay funds including educational benefits” includes repaying\\nprivate student loans, that requires defining “educational benefit” to include\\nloans, which then means it also covers the public loans that are the focus of\\nSubsection 523(a)(8)(A)(i). See In re Essangui, 573 B.R. 614, 624 (Bankr. D.\\nMd. 2017). Under Navient’s interpretation, government loans covered by\\nSubsection (A)(i) and qualified education loans covered by Subsection (B)\\nwould also be covered by Subsection (A)(ii), rendering the other subsections\\nserving little purpose. Courts have a “duty to give effect, if possible, to every\\nclause and word of a statute.” Bennett v. Spear, 520 U.S. 154, 173 (1997).\\nConcomitantly, “the canon against surplusage is strongest when an\\ninterpretation would render superfluous another part of the same statutory\\nscheme.” Marx v. Gen. Rev. Corp., 568 U.S. 371, 386 (2013).\\n Navient calls this analysis “hyperbolic,” reframing the surplusage as\\nsimply “some overlap” between the subsections. Navient, though, fails to\\nexplain how the other subsections serve much purpose if the broad reading of\\n 22\\n\\f Case: 18-20254 Document: 00515169017 Page: 23 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\nSubsection (A)(ii) applies. Navient argues that Subsection (A)(ii)’s receipt of\\nfunds requirement leaves Subsection (B) with work to do. For example, a loan\\nobtained by a grandfather for his grandson to attend a Title IV college would\\nnot be covered by Subsection (A)(ii) because the grandfather did not receive the\\nbenefit, but it was covered by Subsection (B). See Wills v. Sallie Mae Servicing\\n(In re Wills), No. 08-80404-FJO-07, 2010 WL 1688221, at *7 (S.D. Ind. Apr. 23,\\n2010). Maybe so, but because every exemption in these provisions is a type of\\nfund used by recipients to advance their education, Congress could have just\\nexempted from discharge any “obligation to repay funds received as an\\neducational benefit” and left it at that. The redundancies created by Navient’s\\ninterpretation of Subsection (A)(ii) create more than a modest overlap and can\\nbe avoided by adopting the narrower interpretation of that subsection.\\n Navient seeks to block any interpretive effort by this court by arguing\\nthat one of our precedents makes the sole issue for us “whether Plaintiffs’ loans\\nexpressed an educational purpose at the time of application, origination, and\\ndisbursement.” See Murphy v. Penn. Higher Educ. Assistance Agency (In re\\nMurphy), 282 F.3d 868, 870–72 (5th Cir. 2002). 10 Pretty bold analysis of\\nMurphy, and errant in our view. Murphy applied the 1990 language applicable\\nto loans insured by the federal government. Id. at 870. The question was\\nwhether such a federally-insured loan was “educational” even as to proceeds\\nspent on living expenses. Id. at 870, 873. The court held that the educational\\n\\n\\n 10 The Murphy court discussed the added difficulties the debtor’s strained reading of\\n“educational benefit” in the 1990 statute’s reference to federally-insured loans would create\\nfor the second use of the phrase in Section 523(a)(8), which the court twice quoted as\\n“education benefit scholarship or stipend,” i.e, without commas. See Murphy, 282 F.3d at\\n870, 871. That made the first two words adjectival, not a separate category, and the court’s\\nanalysis focused on whether the two words modified both “scholarship” and “stipend.” Id. at\\n871–72. It appears to us, though, that Congress in 1990 adopted this language: “obligation\\nto repay funds received as an educational benefit, scholarship or stipend.” Crime Control Act\\nof 1990, Pub. L. No. 101-647, § 3621, 104 Stat. 4789, 4964–65. Regardless, the statute as it\\nexists today does make “educational benefit” a third category in Section 523(a)(8)(A)(ii).\\n 23\\n\\f Case: 18-20254 Document: 00515169017 Page: 24 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\npurpose of such a loan was defined by its purpose upon disbursement by the\\nlender and not by the way it was spent by the borrower. Id. at 873. Murphy\\ndid not analyze our issue, and we must conduct our own evaluation.\\n An argument by plaintiffs about grammar, to which we give less weight\\nthan the foregoing because it relies on such a minor word-choice, is that when\\nCongress exempted funds “received as an educational benefit” rather than “for\\nan educational benefit,” the natural reading is that it describes what the giver\\nwas giving and not what the receiver could make of the gift. The phrase “as\\nan educational benefit” indicates that the funds themselves are the educational\\nbenefit (like tuition payments), whereas the phrase “for an educational benefit”\\nmight well encompass funds conveyed for educational purposes, including\\nprivate student loans. Essangui, 573 B.R. at 621. At least it can be said the\\ndrafters’ word choice does not support inclusion of private student loans.\\n We also examine the statutory history for Subsection (a)(8), i.e., the\\nhistory of enacted revisions. 11 Since 1970, Congress has expanded the scope of\\nnon-dischargeable student loans. See, e.g., Cazenovia Coll. v. Renshaw (In re\\nRenshaw), 222 F.3d 82, 86–88 (2d Cir. 2000) (surveying the history of\\nSubsection (a)(8)). We find that the phrase “educational benefit” first appeared\\nin Subsection (a)(8) in 1990, which excepted from discharge a debt\\n\\n\\n 11 Plaintiffs also urge us to examine legislative history. Various court decisions assert\\nthat in 1990, the nondischargeability of “an obligation to repay funds received as an\\neducational benefit, scholarship, or stipend,” was added to confirm an Eighth Circuit\\ninterpretation holding that certain conditional payments were loans covered by Section (a)(8).\\nSee, e.g., Essangui, 573 B.R. at 618 (citing U.S. Dep’t of Health & Human Servs. v. Smith,\\n807 F.2d 122 (8th Cir. 1986)). A House Judiciary Committee hearing on the bill revealed that\\nthe amendment was drafted by a committee of United States Attorneys. Fed. Debt Collection\\nProcedures: Hearing before the Subcomm. on Econ. & Commercial Law of the Comm. on the\\nJudiciary, H.R., 101st Cong., 2, 3 (1990) (statements by Rep. Brooks and U.S. Att’y Bob\\nWortham). In answers to written questions, the chair of the outside drafting committee wrote\\nthat VA benefits were an example of a relevant “education benefit.” Id. at 74–75 (answers of\\nBob Wortham). We acknowledge this history but do not rely on it. Meaning to a statute\\ncomes from its text, analyzed by employing appropriate tools of statutory interpretation\\nwhich we conclude do not include legislative history.\\n 24\\n\\f Case: 18-20254 Document: 00515169017 Page: 25 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\n for an educational benefit overpayment or loan made, insured or\\n guaranteed by a governmental unit, or made under any program\\n funded in whole or in part by a governmental unit or nonprofit\\n institution, or for an obligation to repay funds received as an\\n educational benefit, scholarship or stipend.\\nCrime Control Act of 1990, Pub. L. No. 101-647, § 3621, 104 Stat. 4789, 4964-\\n65 (codified as 11 U.S.C. § 523(a)(8)) (emphasis added).\\n Before explaining the latest change, made in 2005, we remark on the\\nnear-unanimity of courts’ understanding of the 1990 change. One court, after\\nsurveying the caselaw, stated that the language we italicized above was\\n“generally interpreted . . . to create a new category of nondischargeable debt\\nthat excluded for-profit loans.” Essangui, 573 B.R. at 619. Navient agrees that\\nwas the trend, but it argues that by the amendments to Subsection (a)(8) in\\n2005 which we discuss next, Congress brought private student loans within\\nthe exceptions to discharge. The parties do not agree about the post-2005\\ncaselaw. Navient calculates the majority as holding that any funds received\\nfor an educational purpose, including private student loans, were covered by\\nthe new language. 12 See, e.g., Brown v. CitiBank, N.A. (In re Brown), 539 B.R.\\n853, 858–59 (Bankr. S.D. Cal. 2015). The plaintiffs count the cases differently.\\nThey both agree that since about 2015, there has been increasing caselaw that\\nholds private student loans are not exempt from discharge. See, e.g., Nypaver\\nv. Nypaver (In re Nypaver), 581 B.R. 431, 435–37 (W.D. Pa. 2018).\\n\\n\\n\\n 12 The only circuit court opinion cited to us on this issue is unpublished. Desormes v.\\nInfilaw Corp. (In re Desormes), 569 F. App’x 42 (2d Cir. 2014). Thus, no matter what we\\ndecide, there will not be a split in precedential circuit authority. The opinion was quite brief,\\nwith the only description of the debt being that it came from a “student loan” and “was\\nexcepted from discharge under 11 U.S.C. § 523(a)(8)(A)(ii).” Id. at 43. There was no analysis\\nof how to interpret the three-item statutory list. The debtor’s argument centered on the\\nsupposed necessity for “a transfer of funds directly to the debtor” before a loan would “be\\nreceived within the meaning of the statute.” Id. The bankruptcy court’s opinion indicates the\\nloan was from the school to pay the student’s tuition. Desormes v. Charlotte School of Law,\\nInc. (In re Desormes), 2012 WL 4106765 at *1 (Bankr. D. Conn. 2012).\\n 25\\n\\f Case: 18-20254 Document: 00515169017 Page: 26 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\n In 2005, Congress replaced the entirety of Subsection (a)(8) with a new\\nsubsection with subparts. We italicize the only significant new language:\\n (8) unless excepting such debt from discharge under this\\n paragraph would impose an undue hardship on the debtor and the\\n debtor's dependents, for —\\n (A)(i) an educational benefit overpayment or loan made,\\n insured, or guaranteed by a governmental unit, or made under any\\n program funded in whole or in part by a governmental unit or\\n nonprofit institution; or\\n (ii) an obligation to repay funds received as an educational\\n benefit, scholarship, or stipend; or\\n (B) any other educational loan that is a qualified education\\n loan, as defined in section 221(d)(1) of the Internal Revenue Code\\n of 1986, incurred by a debtor who is an individual.\\nBankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L.\\nNo. 109-8, Title II, § 220, 119 Stat. 23, 59 (emphasis added) (codified as 11\\nU.S.C. § 523(a)).\\n The significant change was to make nondischargeable “any other . . .\\nqualified educational loan,” which Navient concedes the loans here are not, by\\nadding Subsection (B). Most importantly for us, Congress barely tweaked the\\n1990 language of “obligation to repay funds received as an educational benefit,\\nscholarship or stipend” — it inserted a comma after “scholarship.” Navient\\nacknowledges that from 1990 to 2005, the interpretation of stipends,\\nscholarships, and educational benefits had excluded for-profit loans. We see\\nwhat did not happen to this language in 2005 as invoking this principle: “If a\\nword or phrase has been . . . given a uniform interpretation by inferior courts...,\\na later version of that act perpetuating the wording is presumed to carry\\nforward that interpretation.” Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive\\nCmtys. Project, Inc., 135 S. Ct. 2507, 2520 (2015) (quoting SCALIA & GARNER,\\nREADING LAW 322). Navient argues that severing Subsection (A)(ii) from (A)(i)\\nallowed (A)(ii) to cover a broader scope of education financing, including\\n 26\\n\\f Case: 18-20254 Document: 00515169017 Page: 27 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\nprivate education loans. All we see is a change to the structure of the overall\\nstatute but no real change to the language that controls the case before us.\\n Navient’s assertion that the 2005 amendment made all private student\\nloans nondischargeable is not only unsupported by the text, it is unsupported\\nby some of Navient’s authorities. Among them is Corletta v. Tex. Higher Educ.\\nCoordinating Bd. (In re Pappas), 517 B.R. 708, 716–17 (Bankr. W.D. Tex.\\n2014). That case says no more than that Congress amended Subsection (a)(8)\\nin 2005 “to apply to private loans as well” without identifying Subsection\\n(a)(8)(A)(ii) as the mechanism for this change. Id. at 717. What brought a new\\ncategory of private loans into the discharge arena was the language of\\nSubsection (a)(8)(B), the only meaningful 2005 addition.\\n This court has recently discussed the 2005 change to the statute. See\\nThomas v. Dep’t of Educ. (In re Thomas), 931 F.3d 449 (5th Cir. 2019). The\\ncase concerned the “undue hardship” test that allows the discharge of an\\neducation loan. Id. at 451–55. The loans at issue were from the United States\\nDepartment of Education. Id. at 450. That made them nondischargeable\\nunder Subsection 523(a)(8)(A)(i) as being “insured or guaranteed by a\\ngovernmental unit, or made under any program funded in whole or in part by\\na governmental unit or nonprofit institution.”\\n The 2005 revision was “in response to the growing trend of commercial\\nlending,” and the amendment’s purpose was to “make qualified private student\\nloans harder to discharge, prohibiting discharge in all cases, unless repayment\\nwould create ‘undue hardship’ for the debtor.” Id. at 453. That is a description\\nof the new Subsection (a)(8)(B). The definition of a “qualified education loan”\\nis in Section 221(d)(1) of the Internal Revenue Code of 1986, and, as stated\\nbefore, Navient accepts that Subsection (a)(8)(B) does not apply here.\\n In a supplementary letter to this court on Thomas, Navient implicitly\\nrecognized that much of the new opinion was not on point, but it quoted the\\n 27\\n\\f Case: 18-20254 Document: 00515169017 Page: 28 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\ncourt’s language that “Section 523(a)(8) as it stands today excepts virtually all\\nstudent loans from discharge” with the caveat about undue hardship. Thomas,\\n931 F.3d at 453. That statement is a fair summary of the reach of\\nnondischargeability, but before us is a category of loan that has not (yet) been\\nreached by Subsection 523(a)(8).\\n We find nothing in this explanation of the 2005 revisions to alter our\\ninterpretation that Subsection 523(a)(8)(A)(ii) applies only to educational\\npayments that are not initially loans but whose terms will create a\\nreimbursement obligation upon the failure of conditions of the payments.\\n In conclusion, the only possibly applicable part of the relevant statute is\\nSubsection 523(a)(8)(A)(ii). In interpreting that provision, we rely on the\\nnoscitur a sociis doctrine, the need to avoid surplusage, Congressional\\nratification in 2005 of prior interpretations, and the command that discharge\\nexceptions are interpreted narrowly in favor of debtors. We conclude that\\n“educational benefit” is limited to conditional payments with similarities to\\nscholarships and stipends. The loans at issue here, though obtained in order\\nto pay expenses of education, do not qualify as “an obligation to repay funds\\nreceived as an educational benefit, scholarship, or stipend” because their\\nrepayment was unconditional. They therefore are dischargeable.\\n * * *\\n We REVERSE the bankruptcy court’s determination that it has\\nauthority to enforce a discharge injunction entered by a different district’s\\nbankruptcy court. Any debtors seeking enforcement of injunctions due to\\ndischarges entered in other districts should have their proceedings dismissed\\nor transferred. We AFFIRM the determination that loans such as those in issue\\nhere are dischargeable. We REMAND to the bankruptcy court.\\n\\n\\n\\n\\n 28\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4449054/\", \"author_raw\": \"LESLIE H. SOUTHWICK, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"STEWART"},"judge2":{"kind":"string","value":"SOUTHWICK"},"judge3":{"kind":"string","value":"ENGELHARDT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"STEWART\": \", Circuit\", \"SOUTHWICK\": \", Circuit\", \"ENGELHARDT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4671801/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Evan Crocker v. Navient Solutions, L.L.C.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-20254 Document: 00515169017 Page: 1 Date Filed: 10/22/2019\n\n\n\n\n REVISED OCTOBER 22, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-20254 October 21, 2019\n Lyle W. Cayce\nIn re: Evan Brian Crocker, also known as Haas Legal, P.L.L.C. Clerk\n\n Debtor\n\nEVAN BRIAN CROCKER, on behalf of themselves and all those similarly\nsituated, also known as Haas Legal, P.L.L.C, formerly known as Evan Brian\nHaas: MICHAEL SHAHBAZI, on behalf of themselves and all those similarly\nsituated, formerly known as Montana Shahbazi; WENDY L. LANDES, on\nbehalf of themselves and all those similarly situated; RAEGENA SEITZ-\nMOULDS, on behalf of themselves and all those similarly situated,\n\n Appellees\n\nv.\n\nNAVIENT SOLUTIONS, L.L.C.; NAVIENT CREDIT FINANCE\nCORPORATION,\n\n Appellants\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore STEWART, SOUTHWICK and ENGELHARDT, Circuit Judges.\nLESLIE H. SOUTHWICK, Circuit Judge:\n\f Case: 18-20254 Document: 00515169017 Page: 2 Date Filed: 10/22/2019\n\n\n\n\n An individual in Texas and another in Virginia separately obtained loans\nfrom the same lender to pay education expenses. Both later filed for\nbankruptcy in their respective states. In time, orders of discharge were\nentered. One of the discharged debtors then filed suit against the lender in the\nsame Bankruptcy Court of the Southern District of Texas that had ordered the\ndischarge of his debts. Later, the Virginia debtor joined the Texas suit. The\nsuit seeks to certify a nationwide class of those who claim their education-loan\ndebts were validly discharged but from whom this lender continues to demand\npayment. A declaratory judgment, injunction, and damages are sought.\n The lender filed a motion for summary judgment, arguing bankruptcy\ncourts cannot enforce the injunctions arising from discharge orders entered by\ncourts in other judicial districts, and these private-education-loan debts are\nstatutorily excepted from discharge. The bankruptcy court held the opposite\nas to both, then certified the two holdings for interlocutory appeal.\n We conclude that a bankruptcy court does not have authority to enforce\nthe discharge injunctions entered in other districts. On the other hand, we\nagree with the bankruptcy court that the particular education loans involved\nhere are not statutorily excepted from discharge. The cause is REMANDED.\n\n\n FACTUAL AND PROCEDURAL HISTORY\n In 2009, Evan Crocker 1 obtained a $15,000 loan to fund his bar\nexamination preparation. The lender was a subsidiary of SLM Corporation,\nd/b/a Sallie Mae, which is a for-profit, public corporation whose loans are not\npart of any governmental loan program. The loan documents informed Crocker\nthat his repayment obligation “may not be dischargeable in bankruptcy.”\nCrocker’s loan was transferred to SLM Education Credit Finance Corporation,\n\n\n 1 Evan Brian Haas changed his name to Evan Brian Crocker in 2017. We use his\ncurrent name throughout this opinion.\n\f Case: 18-20254 Document: 00515169017 Page: 3 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\nwhich subsequently became Navient Credit Finance Corporation. In the\ncomplaint, Navient Solutions is said to be the entity pursuing collection. We\nwill not differentiate among Navient entities in our discussion.\n In 2015, Crocker filed for voluntary Chapter 7 bankruptcy in the United\nStates Bankruptcy Court for the Southern District of Texas. He scheduled his\nbar-study loan claim as an “Educational . . . Private loan” and did not dispute\nthe debt. In February 2016, the court granted him a discharge under 11 U.S.C.\n§ 727, informed him that “[m]ost debts are covered by the discharge, but not\nall,” and closed his case.\n Michael Shahbazi has a similar story. In 2002, Shahbazi obtained an\n$11,658.99 loan from Sallie Mae for tuition and expenses while he attended a\ntechnical school. He was given notice that his loan was “an education loan that\nmust be repaid.” Exactly how Navient obtained its interest is unclear to us,\nbut it is servicing this loan.\n In 2011, Shahbazi filed for voluntary Chapter 7 bankruptcy in the\nUnited States Bankruptcy Court for the Eastern District of Virginia. He\nscheduled his Sallie Mae loan as a “Student Loan” and did not dispute the debt.\nIn December 2011, the court granted him a discharge and closed his\nbankruptcy proceeding. This discharge order specifically listed “Debts for most\nstudent loans” as not being discharged.\n It is alleged that after both discharges, Navient had both of these\nplaintiffs contacted frequently by telephone and email to demand repayment.\nIn August 2016, Crocker filed an adversary proceeding against Navient in the\nBankruptcy Court for the Southern District of Texas, the same court that had\ngranted him a discharge. He sought (1) a declaratory judgment that his private\neducation debt had been discharged; (2) entry of judgment holding Navient in\ncontempt for violating the injunction arising from his discharge; and (3) a\n\n\n 3\n\f Case: 18-20254 Document: 00515169017 Page: 4 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\ntemporary injunction. The court entered an agreed preliminary injunction on\nAugust 18, 2016, barring Navient from pursuing collection until further order.\n Crocker, with Shahbazi as an additional plaintiff, filed an amended\ncomplaint, seeking to certify a nationwide class of those who (1) obtained\nprepetition private education loans from Navient or related companies to cover\nexpenses at an institution not accredited under Title IV; (2) later filed for\nbankruptcy and were issued discharge orders; (3) have never reaffirmed their\nprepetition private education loan debt; and (4) are being induced to pay their\nallegedly discharged private education loans. Damages were now also sought.\n Navient moved for summary judgment on these claims, arguing that a\nbankruptcy court has no jurisdiction to interpret and enforce discharge orders\nentered by courts in other judicial districts and that the plaintiffs’ education\nloans were nondischargeable. The bankruptcy court denied the motion in\nMarch 2018. 2 It rejected that the general rule giving an issuing court sole\nauthority to enforce its own injunctions applied to the automatic injunction\ncreated by statute when a bankruptcy court grants a discharge under 11 U.S.C.\n§ 727. The court also determined that the kind of loans for educational\npurposes relevant here, which the parties refer to as “private loans,” were not\nwithin the ambit of the Bankruptcy Code’s bar on the discharge of some\nstudent loans. See 11 U.S.C. § 523(a)(8).\n In the same order, the bankruptcy court first authorized an interlocutory\nappeal, then certified the order for direct appeal to this court, eschewing the\nusual initial appellate review by a district court. A bankruptcy court may\ncertify a ruling for direct review by a circuit court of appeals when, among other\n\n\n 2 Wendy L. Landes and Raegena Seitz-Moulds were included without objection as\nadditional putative class members in a Third Amended Complaint, filed after Navient’s\nmotion for summary judgment but before the bankruptcy court ruled. No party argues that\nthe issues before us are altered by their joinder. Accordingly, we do not separately discuss\nthe facts of the bankruptcies of the two last-added parties.\n 4\n\f Case: 18-20254 Document: 00515169017 Page: 5 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\nreasons, it “involves a question of law as to which there is no controlling\ndecision” by that circuit court or the Supreme Court, or because an appeal at\nthat stage in the proceedings “may materially advance the progress of the\ncase.” 28 U.S.C. § 158(d)(2)(A)(i), (iii). If a bankruptcy court so certifies, the\ncircuit court of appeals then exercises its discretion. § 158(d)(2)(A). A motions\npanel of this court granted the unopposed motion to authorize the appeal.\n\n DISCUSSION\n We review “grants and denials of summary judgment de novo. Summary\njudgment is appropriate when ‘there is no genuine dispute as to any material\nfact and the movant is entitled to judgment as a matter of law.’” Lyda\nSwinterton Builders, Inc. v. Okla. Sur. Co., 903 F.3d 435, 444 (5th Cir. 2018)\n(quoting FED. R. CIV. P. 56). Federal Rule of Civil Procedure 56 is incorporated\ninto the Federal Rules of Bankruptcy Procedure. FED. R. BANKR. P. 7056.\n Navient has two principal contentions on appeal. The first is that the\nbankruptcy court either has no jurisdiction to enforce the statutory injunctions\narising from a bankruptcy discharge that another bankruptcy court ordered,\nor at least for prudential reasons may not do so. Second, Navient contends\nthat the plaintiffs’ education loans are within the category of loans that under\nthe Bankruptcy Code are nondischargeable.\n There are no meaningful factual issues presented to us. Instead, we have\nlegal issues of statutory interpretation. We now turn to those.\n\n\nI. Authority to enforce a Section 524 discharge order entered by a bankruptcy\ncourt in another judicial district\n In broad brush, these proceedings concern two closed Chapter 7\nbankruptcies in which generic discharges, i.e., discharges not specifying the\ndischarged debts, were issued at completion. A discharge “operates as an\ninjunction” against an extensive list of actions that a creditor might take to\n 5\n\f Case: 18-20254 Document: 00515169017 Page: 6 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\ncollect on the discharged debt. 11 U.S.C. § 524(a)(2), (3). The discharge is a\n“substantive right,” and that right is “often enforced by a motion for contempt,\nbut [it is] also enforceable through a declaratory judgment action.” Nat’l\nGypsum Co. v. NGC Settlement Tr. & Asbestos Claims Mgmt. Corp. (In re Nat’l\nGypsum Co.), 118 F.3d 1056, 1063 (5th Cir. 1997) (citations omitted). The\ndeclaratory judgment was sought in National Gypsum by the opening of an\nadversary proceeding in the bankruptcy court that had granted the debtor’s\ndischarge. Id. at 1060. Indeed, Federal Rule of Bankruptcy Procedure 7001(6)\nstates that an adversary proceeding is, among other things, “a proceeding to\ndetermine the dischargeability of a debt.”\n Thus, an available procedure under National Gypsum is a declaratory\njudgment action. A violation of the declaratory judgment will lead to its own\nremedies such as “damages or an injunction.” United Teacher Assocs. Ins. Co.\nv. Union Labor Life Ins. Co., 414 F.3d 558, 570 (5th Cir. 2005); see also 28\nU.S.C. § 2202. The issue for us is identifying the proper court or courts in\nwhich such an action can be brought. May a bankruptcy court other than the\none that granted the discharge enforce the injunction?\n The closest this circuit has come to answering the question is to hold, in\nthe class action context, that a bankruptcy judge in the Southern District of\nTexas may exercise ‘jurisdiction over claims that arise in other cases\nadministered by other judges” in the same judicial district. Wilborn v. Wells\nFargo Bank, N.A. (In re Wilborn), 609 F.3d 748, 753 (5th Cir. 2010). The\nWilborn court only briefly discussed the issue of enforcing an injunction arising\nfrom the discharge order of a different bankruptcy court in the same district.\nIn the present proceedings, the bankruptcy court’s understanding of its\nauthority extended well beyond its home district. The question of a bankruptcy\njudge’s injunctive reach within its own district has not been answered.\n\n\n 6\n\f Case: 18-20254 Document: 00515169017 Page: 7 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\n The two plaintiff-debtors received general discharges in bankruptcy.\nCentral to the dispute is that Congress has excepted from discharge, among\nother categories of debt, certain types of student-loan debt. 11 U.S.C. §\n523(a)(8). We will deal with the issue of dischargeability in the second part of\nour opinion and will wait to quote the relevant statute until then.\n We have already summarized that the bankruptcy court at this stage\nanswered only two questions. The first answer we review is the “yes” the court\ngave to the question of whether a bankruptcy court in a judicial district other\nthan the one in which the discharge was entered has authority to interpret the\ndischarge and enforce the injunction. The court rejected Navient’s argument\nthat the general rule should apply that the court issuing an injunction is the\nonly one that can enforce it through contempt proceedings. The bankruptcy\ncourt first held that general rule was inapplicable because no discretion or\nindividual judgment is exercised in creating the injunction. 3 The form order\nused for the discharges for the initial two plaintiffs here does not even mention\nan injunction. The injunction instead arises from this statutory command: “A\ndischarge in a case under this title . . . operates as an injunction against the\ncommencement or continuation of an action.” § 524(a). Because there is “no\nsubjective thought process that requires deference nor is there any risk of\nmisinterpretation of a particular judge’s reasoning,” the bankruptcy court\nconcluded that the general limitation on enforcement of injunctions only by the\nissuing court was inapplicable. The court did not cite any case authority to\nsupport its analysis. The basic point was that the bankruptcy statutes\n\n\n\n\n 3 There is at least one aspect of the bankruptcy discharge that requires individual\njudicial consideration. The applicable education loans are not discharged “unless excepting\nsuch debt from discharge under this paragraph would impose an undue hardship on the\ndebtor and the debtor’s dependents.” § 523(a)(8). Different bankruptcy judges can look at\nthe same facts and reach contrary decisions.\n 7\n\f Case: 18-20254 Document: 00515169017 Page: 8 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\nthemselves make clear that no purpose is served by requiring a return to the\nissuing court to interpret a discharge injunction.\n Navient, of course, disagrees that discharge injunctions should be\ntreated differently than others. A principal authority it cites is one of this\ncourt’s precedents dealing with non-bankruptcy injunctions. There, Chief\nJudge Charles Clark explained in the context of a claim of securities fraud that\n“[e]nforcement of an injunction through a contempt proceeding must occur in\nthe issuing jurisdiction because contempt is an affront to the court issuing the\norder.” Waffenschmidt v. MacKay, 763 F.2d 711, 716 (5th Cir. 1985). A\nbankruptcy court does continue to have jurisdiction to enforce its orders, and\nthat jurisdiction remains even after the bankruptcy case is closed. See, e.g.,\nGalaz v. Katona, 841 F.3d 316, 322 (5th Cir. 2016). The issue for us arises\nbecause Galaz and other Fifth Circuit precedents do not hold that authority is\nexclusive in the original court. Navient also argues that regardless of\njurisdiction, there are prudential reasons supporting its argument.\n Navient’s appellate brief recounts the background for an injunction that\narises from a discharge, drawing from a scholarly article. Charles Jordan\nTabb, The Historical Evolution of the Bankruptcy Discharge, 65 AM. BANKR. L.\nJ. 325 (1991). We look at parts of the background in order to understand how\na bankruptcy discharge was enforced before a statute was enacted that\nimposed an injunction. Importantly, we also consider whether another part of\nthe same statutory enactment arguably created a right of enforcement of the\ninjunction by “foreign” courts. If so, then its repeal in 1978 has some meaning.\n There was no statutory injunction arising from a discharge until 1970.\nId. at 326 n.3. A House Report on 1970 bankruptcy legislation explained\nproblems with prior law, including the harassment of debtors:\n The present discharge provisions of the Bankruptcy Act authorize\n the bankruptcy court to determine the right to a discharge, but do\n\n 8\n\f Case: 18-20254 Document: 00515169017 Page: 9 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\n not give the bankruptcy court express jurisdiction to determine the\n effect of the discharge. . . . Under present practice, if a bankrupt is\n sued in State court on a discharged debt, the State court may\n determine whether the debt in question was or was not discharged.\n In other words, the jurisdiction over the granting and the enforcing\n of a discharge is divided, with the result that debtors are\n frequently harassed and coerced by creditors into paying debts\n that may have been discharged.\nH.R. REP. NO. 91-1502, at 3 (1970).\n The 1970 legislation was adopted and provided for an injunction:\n f. An order of discharge shall—\n (1) declare that any judgment theretofore or thereafter obtained in\n any other court is null and void . . . ; and\n (2) enjoin all creditors whose debts are discharged from thereafter\n instituting or continuing any action or employing any process to\n collect such debts as personal liabilities of the bankrupt.\nAct of Oct. 29, 1970, Pub. L. No. 91-467, § 3, 84 Stat. 990, 991 (amending\nSection 14 of the 1898 Bankruptcy Code, codified as 11 U.S.C. § 32(f)).\n The statutory detailing of the injunction that results from a discharge\nhas been revised, but the meaning for our purposes is the same: the discharge\n“operates as an injunction against the commencement or continuation of an\naction” to collect a relevant debt. 11 U.S.C. § 524(a)(2).\n Nothing in the statute creating an injunction explains whether this form\nof injunction could be enforced only by the bankruptcy court in the issuing\ndistrict. Another 1970 provision, though, which appeared immediately after\nthe injunction section, did specifically refer to enforcement in other courts. It\nallowed the order of discharge to be registered in another district and to be\n“enforced in like manner” in the new district as in the issuing district:\n g. An order of discharge which has become final may be registered\n in any other district by filing therein a certified copy of such order\n and when so registered shall have the same effect as an order of\n the bankruptcy court of the district where registered and may be\n enforced in like manner.\n 9\n\f Case: 18-20254 Document: 00515169017 Page: 10 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\n§ 3, 84 Stat. 990, 991 (codified as 11 U.S.C. § 32(g)). 4 Bankruptcy Rule 404(g)\nused almost this exact language. 11 U.S.C. app. at 283 (Supp. III 1974).\n The 1970 subsection on registration was repealed with adoption of the\nBankruptcy Code of 1978. 11 U.S.C. Tbl. I (showing that former Section 32(g)\nwas repealed). Further, the Bankruptcy Rule that implemented Section 32(g)\nwas revised after the 1978 Code was adopted by deleting “may be enforced in\nlike manner.” FED. R. BANKR. P. 4004(f). Enacted revisions in the wording of\nstatutes are part of “statutory history,” not “the sort of unenacted legislative\nhistory that often is neither truly legislative (having failed to survive\nbicameralism and presentment) nor truly historical (consisting of advocacy\naimed at winning in future litigation what couldn’t be won in past statutes).”\nBNSF Ry. Co. v. Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J., dissenting).\nWhen Congress makes a significant change in language when it amends an\nexisting statute, it “presumptively connotes a change in meaning.” ANTONIN\nSCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL\nTEXTS 256 (2012). Congress’s decision to eliminate language that seemed to\nallow enforcement of the discharge injunction in a new district 5 gives weight\n\n\n\n 4An explanation for what those promoting the 1970 legislation were at least trying to\ndo was given by the National Conference of Referees in Bankruptcy:\n When a bankrupt has moved out of the district where he obtained his\n discharge in bankruptcy and is sued by a creditor on a discharged debt in the\n state to which he moved, the bankrupt should be able to enforce the discharge\n and its injunctive provisions through the district court where he is currently\n residing. Section 14g [11 U.S.C. section 32(g)] is meant to permit the bankrupt\n access to his local United States court by registering therein a certified copy of\n the order granting the discharge.\nH.R. REP. NO. 91-1502, at 11.\n 5 Learned commentators concluded that Section 32(g) authorized enforcement of a\n\ndischarge injunction in a new district. One wrote that with “the 1970 Amendments to the\n1898 Act, Congress developed the portable and registerable discharge injunction.” Robert P.\nWasson, Jr., Remedying Violations of the Discharge Injunction Under Bankruptcy Code\n524…, 20 BANKR. DEV. J. 77, 88 (2003).\n 10\n\f Case: 18-20254 Document: 00515169017 Page: 11 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\nto the argument that after the 1978 Bankruptcy Code was adopted,\nenforcement in “like manner” in a different district was prohibited.\n We now turn to the law that exists today. Registering a judgment in a\nnew court is not a creature primarily of bankruptcy law. Some quite learned\nprofessors described the adoption of a general statutory provision for\nregistration in 1948, after an earlier Civil Rules version was rejected as\narguably being beyond the rulemaking power of the Supreme Court. 11\nCHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARK KAY KANE, FEDERAL\nPRACTICE AND PROCEDURE § 2787 (2012). The current statute states:\n A judgment in an action for the recovery of money or\n property entered in any court of appeals, district court, bankruptcy\n court, or in the Court of International Trade may be registered by\n filing a certified copy of the judgment in any other district or, with\n respect to the Court of International Trade, in any judicial district,\n when the judgment has become final by appeal or expiration of the\n time for appeal or when ordered by the court that entered the\n judgment for good cause shown. Such a judgment entered in favor\n of the United States may be so registered any time after judgment\n is entered. A judgment so registered shall have the same effect as\n a judgment of the district court of the district where registered and\n may be enforced in like manner.\n28 U.S.C. § 1963. Bankruptcy courts were added to the statute in 1996.\nFederal Courts Improvement Act of 1996, Pub. L. No. 104-317, § 203, 110 Stat.\n3847, 3849.\n Section 1963 permits the clearing of jurisdictional hurdles when the\nprior judgment was entered in a suit in which federal question was the basis\nfor jurisdiction. The hurdle arises because “an action solely to enforce the\njudgment would lack that federal question jurisdiction and therefore could not\nbe maintained in federal court” absent some other jurisdictional basis. JAMES\nWILLIAM MOORE, ET AL., MOORE’S FEDERAL PRACTICE ¶ 130.33 (explaining that\n“a suit on a judgment does not involve a federal question, however important\n\n\n 11\n\f Case: 18-20254 Document: 00515169017 Page: 12 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\nfederal questions may have been to the resolution of the original controversy,”\nand citing Stiller v. Hardman, 324 F.2d 626, 628 (2d Cir. 1963)). 6\n The 1970 Bankruptcy Code amendment to permit registration was\nlabeled “an adaptation of 28 U.S.C. section 1963,” as it clearly was. H.R. REP.\nNO. 91-1502, at 11. One significant difference, though, is that Section 1963 is\nlimited to judgments that order the recovery of property or money, which\norders discharging debts would not be. As importantly, Section 1963 “does not\npermit enforcement elsewhere of a decree for injunctive relief.” 11 WRIGHT,\nMILLER, & KANE, FEDERAL PRACTICE § 2787.\n In conclusion, the 1970 registration statute was by far the most direct\nsupport for allowing one bankruptcy court to enforce another’s discharge\ninjunction. That statute, though, is no more, which supports that Congress\nabolished such enforcement. Current Bankruptcy Rule 4004(f) guides\nregistration but does not authorize “like manner” enforcement as did its\npredecessor. The foregoing convinces us that registration does not alter the\nusual procedures for enforcing an injunction.\n\n\n\n\n 6 An earlier version of MOORE’S has, since the adoption of Bankruptcy Rule 404(g) and\nthen continuing with current Rule 4004(f), been cited by the Federal Rules Advisory\nCommittee to explain each Rule. See Rule 404(g), Adv. Comm. Notes (1976); Rule 4004(f),\nAdv. Comm. Notes (1983), both citing JAMES WILLIAM MOORE ET AL., MOORE’S FEDERAL\nPRACTICE ¶ 1.04[2] (2d ed. 1967). We could not locate any archival record of the 1967 treatise\nsection, but some if not all of that section was quoted in a district court opinion. See Dichter\nv. Disco Corp., 606 F. Supp. 721, 725 (S.D. Ohio 1984). The following excerpt likely is at least\nsome of the reason for the reference to MOORE’S in the Advisory Committee Notes:\n It may be suggested that by authorizing the judgment-creditor to\n enforce his judgment through registration in other districts, as an alternative\n to an action on the judgment, substantive rights are conferred upon him, venue\n requirements are altered, and the jurisdiction of the district court is enlarged.\n But in purpose and effect the registration of judgments in other districts is only\n a more convenient and effective method of enforcing them according to their\n original terms.\nId. (quoting MOORE’S FEDERAL PRACTICE ¶ 1.04[2] at 223 (1967)).\n 12\n\f Case: 18-20254 Document: 00515169017 Page: 13 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\n We return, then, to the bankruptcy court’s first basis for its ruling, which\nrelied on, of all things, logic alone to support that because a discharge\ninjunction needs no discretionary interpretation, there should not be any\nobligation to return to the issuing court for its enforcement. With respect for\nso venerable a basis for argument, i.e., straightforward logical reasoning, we\nconclude more is needed here to overcome the contrary authority.\n The bankruptcy court gave as a second basis for its decision, not\ncompletely distinguishable from its first, that when enforcing a discharge, a\ncourt is simply enforcing a statute. Holding a creditor in contempt “goes to the\nvery core of the bankruptcy process itself.” The court relied on a scholarly\nopinion by Bankruptcy Judge Isgur analyzing the fundamentals in Cano v.\nGMAC Mortg. Corp. (In re Cano), 410 B.R. 506 (Bankr. S.D. Tex. 2009). The\nbankruptcy court here also cited both 28 U.S.C. § 157, which sets out many of\nthe procedures for bankruptcy courts and the authority of the district courts\nover them, and 28 U.S.C. § 1334, which grants to district courts “original and\nexclusive jurisdiction of all cases under” the Bankruptcy Code, with some\nexceptions.\n We need not analyze today the complexities of Section 157 addressed by\nCano, including the differences among cases and proceedings “arising under\ntitle 11 or arising in or related to a case under title 11.’’ § 157(a) (emphasis\nadded). We limit our analysis because our question is limited: may a different\nbankruptcy court than the one that issued the discharge that caused the\ninjunction to arise, enforce that injunction regardless of whether the\nimpediment is jurisdiction, venue, prudential considerations, or something\nelse? The Cano court identified but did not resolve that issue: “[r]equiring\nPlaintiffs to seek civil contempt damages from their ‘home court’ may be the\nmore appropriate remedy and the only remedy authorized.” Cano, 410 B.R. at\n543. The Cano opinion did not need to resolve the issue before us.\n 13\n\f Case: 18-20254 Document: 00515169017 Page: 14 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\n We next examine precedents concerning contempt authority. “Civil\ncontempt is the normal sanction for violations of the discharge injunction.”\nRICHARD LEVIN & HENRY J. SOMMER, COLLIER ON BANKRUPTCY ¶ 524.02(c)\n(2018). We have used absolute language, though not in a bankruptcy context,\nthat “[i]t is elementary that the court against which a contempt is committed\nhas exclusive jurisdiction to punish for such contempt.” United States v.\nBarnett, 330 F.2d 369, 385 (5th Cir. 1963) (citing In re Debs, 158 U.S. 564, 594–\n95 (1895)).\n Other circuits have insisted on a return to the bankruptcy court whose\ndischarge order created the injunction. The Eleventh Circuit has held that\nonly the bankruptcy court issuing the discharge has jurisdiction to enforce the\ninjunction through contempt. Alderwoods Grp., Inc. v. Garcia, 682 F.3d 958,\n961 (11th Cir. 2012). 7 The Seventh Circuit has said the “responsibility for\nenforcing the discharge order [is] in the court that issued it.” Cox v. Zale\nDelaware, Inc., 239 F.3d 910, 916–17 (7th Cir. 2001) (citing FED. R. BANKR. P.\n9020). The cited Bankruptcy Rule 9020 simply says Rule 9014 on “Contested\nMatters” is what “governs a motion for an order of contempt.” The Ninth\nCircuit has held that both Section 524 and the Bankruptcy Rules require a\ncontempt action in the bankruptcy court that issued the discharge order. See\nBarrientos v. Wells Fargo Bank, N.A., 633 F.3d 1186, 1189 (9th Cir. 2011).\n The Second Circuit has limited enforcement of discharge injunctions\nthrough contempt proceedings to the originating court: “the bankruptcy court\nretains a unique expertise in interpreting its own injunctions and determining\nwhen they have been violated.” Anderson v. Credit One Bank, N.A., (In re\n\n\n\n\n 7 Without intimating that it has derivative precedential effect in this circuit, we note\nas a matter of collegial respect that the opinion is from the circuit with which we until 1981\nwere joined, and authoring Judge Tjoflat’s notable judicial service began on the Fifth Circuit.\n 14\n\f Case: 18-20254 Document: 00515169017 Page: 15 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\nAnderson), 884 F.3d 382, 390–91 (2d Cir. 2018). Without labeling the reason\nas one of jurisdiction, the court explained:\n The power to enforce an injunction is complementary to the\n duty to obey the injunction, which the Supreme Court has\n described as a duty borne out of “respect for judicial process.” GTE\n Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 387,\n 100 S.Ct. 1194, 63 L.Ed.2d 467 (1980) (internal quotation marks\n omitted). That same respect for judicial process requires us to hold\n that the bankruptcy court alone has the power to enforce the\n discharge injunction in Section 524.\nId. at 391.\n Though the Eleventh Circuit in Alderwoods concluded that the bar to\nseeking enforcement in a foreign court was jurisdictional, we pretermit so\nfoundational a holding. We start with the reality that a violation of the\ninjunction is an affront to the issuing court. Yes, the injunction arises from\nstatute and not from judicial discretion. Indeed, as here, the injunction may\nnot even be mentioned in the court’s order. Nonetheless, a central\nconsideration for us is that there is not a sufficiently clear path for deviating\nfrom the usual rule. Instead, what is clear are various obstacles we have\nidentified to taking that path. We now discuss a final one.\n A recent Supreme Court decision placed the civil contempt that results\nfrom violating a bankruptcy discharge injunction under the general principles\nfor contempt. It richly phrased its analysis: “When a statutory term is\n‘obviously transplanted from another legal source,’ it ‘brings the old soil with\nit.’” Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (quoting Hall v. Hall,\n138 S. Ct. 1118, 1128 (2018)). Rooted in the soil are “the traditional standards\nin equity practice for determining when a party may be held in civil contempt\nfor violating an injunction.” Id.\n We do not see a holding in Taggart that all the rules for civil contempt\nwere transplanted into bankruptcy, but we do see an imperative that any\n\n 15\n\f Case: 18-20254 Document: 00515169017 Page: 16 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\ndeviation from those rules have a substantial justification. Beginning in 1970,\nthere was a statutory argument from Section 32(g) of the 1898 Bankruptcy\nCode that there was no need to return to the original bankruptcy court, but\nthat argument was repealed in 1978 along with the section. The remainder of\nwhat has been argued to us does not suffice to show that we should allow an\nexception from the usual enforcement rules for injunctions. Though Taggart\ndid not lock the gate to any deviations from traditional contempt rules in\nbankruptcy, very little opportunity to open it was provided.\n We adopt the language of the Second Circuit that returning to the\nissuing bankruptcy court to enforce an injunction is required at least in order\nto uphold “respect for judicial process.” Anderson, 884 F.3d at 391. The\nbankruptcy court erred in holding that it could address contempt for violations\nof injunctions arising from discharges by bankruptcy courts in other districts.\nTherefore, as to Shahbazi and at least those debtors whose discharges were\nentered by courts in other districts, the bankruptcy court in these proceedings\nhas no authority to enforce the resulting injunction.\n Though the bankruptcy court did not reach the issue of certification of a\nclass, we point out that because of the limitation on enforcement we have just\nidentified, and indeed because we are aware of no prior certification of a class\nthat includes debtors whose discharges were entered by bankruptcy courts in\nother districts, certifying such a class would be highly dubious. We also leave\nfor the court on remand the separate issue, if it becomes relevant, of whether\nthat court has authority to enforce the injunctions arising from discharges\nentered by any bankruptcy court in the same judicial district.\n\n\nII. Dischargeability of private student loans\n The bankruptcy court also answered the question of whether the loans\nthat the plaintiffs received were subject to the statutory prohibition of\n 16\n\f Case: 18-20254 Document: 00515169017 Page: 17 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\ndischarge of certain education loans. The court’s answer to that question was\n“no.” Though the ruling will impact only the discharges of loans by that court\nor perhaps in that judicial district, it remains an answer we must review.\n Congress has excepted certain categories of debt from discharge,\nincluding much student-loan debt. All exceptions to discharge are to be\ninterpreted narrowly in favor of the debtor to preserve the “fresh start” the\nBankruptcy Code provides for debtors. Hickman v. Texas (In re Hickman), 260\nF.3d 400, 404–05 (5th Cir. 2001). 8 The current articulation of the exception is\nthat “the discharge under section 727 [and other sections] does not discharge\nan individual debtor from any debt –”\n ...\n (8) unless excepting such debt from discharge under this\n paragraph would impose an undue hardship on the debtor and the\n debtor’s dependents, for--\n (A)(i) an educational benefit overpayment or loan made,\n insured or guaranteed by a governmental unit, or made under\n any program funded in whole or in part by a governmental unit\n or nonprofit institution; or\n (ii) an obligation to repay funds received as an educational\n benefit, scholarship, or stipend; or\n (B) any other educational loan that is a qualified education\n loan, as defined in section 221(d)(1) of the Internal Revenue\n Code of 1986, incurred by a debtor who is an individual.\n11 U.S.C. § 523(a). In summary, Subsection (A)(i) applies to loans, etc. in which\na governmental unit or a nonprofit institution had a defined role. Subsection\n(B) requires a journey through multiple statutes to understand its meaning.\nA partial explanation is that the referenced Internal Revenue Code section\n\n\n 8 We quote what might seem to be authority that the opposite presumption applies to\neducation loans. Though referring to a party’s argument, the Supreme Court could be seen\nas agreeing that Congress made “student loan debt presumptively nondischargeable.” Tenn.\nStudent Assistance Corp. v. Hood, 541 U.S. 440, 450 (2004). In context, though, the Court is\nreferring only to education loans from states. Id.\n 17\n\f Case: 18-20254 Document: 00515169017 Page: 18 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\ndefines a “qualified education loan” as, among other things, “any indebtedness\nincurred by the taxpayer solely to pay qualified higher education expenses,”\nalong with other conditions. 26 U.S.C. § 221(d). The qualified expenses are\n“the cost of attendance” at the eligible education institution, reduced by\nscholarships and other payments. Id. An eligible institution is defined, with\nexceptions, in Internal Revenue Code Section 25A(f)(2), as one “which is\neligible to participate in a program under Title IV” of the Higher Education\nAct. There is no claim that Subsection (B) applies.\n Subsection (A)(ii) is Navient’s target, which deals clearly with\nscholarships and stipends. Less clear, but definable, is what else it deals with.\nWe restate the statutory language: there must be “an obligation to repay funds\nreceived as an educational benefit, scholarship, or stipend.” § 523(a)(8)(A)(ii).\nNavient argues this language plainly includes private student loans, and that\nFifth Circuit precedent supports this argument. Navient also contends that\nlower court cases that disagree had misapplied canons of statutory\ninterpretation to reach their conclusions. Finally, Section 523(a)(8)’s\nlegislative history supports including private student loans.\n The plaintiffs, though, argue that Subsection (8)(A)(ii)’s text and the\nBankruptcy Code’s purpose to give debtors a fresh start require reading the\nsubsection narrowly. Further, reading the subsection through the canons of\nstatutory interpretation affirms this narrow reading, as do the drafters’\nlanguage and grammar choices. Finally, the legislative history does not show\nCongress intended to exempt private education loans from discharge. 9\n\n\n\n\n 9 Navient does not argue there is relevance to the fact that both Crocker and Shahbazi\nclassified the relevant debts as “educational” on Schedule F of their bankruptcy filings.\nImportantly, we do not see on the forms in the record or in the instructions for completing\nsuch forms any guidance on labeling a debt as “educational” or a statement that it should not\nbe so labeled unless it is nondischargeable under Section 523(a)(8).\n 18\n\f Case: 18-20254 Document: 00515169017 Page: 19 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\n The bankruptcy court here determined Subsection (8)(A)(ii) was\nunambiguous. The court considered the absence of the word “loan” and the\ninclusion of the concepts of stipends and scholarships to narrow the meaning\nof receiving an educational benefit to include only such funding as “tuition\nadvances by an employer that must be repaid if the employee leaves her\nemployment within a certain period of time.” The court also focused on the\nCongressional use of the word “as” to precede “educational benefit.” To the\ncourt, that meant that what was received was the educational benefit, akin to\nscholarships and stipends, not that what was received could be used to pay for\neducational benefits. These private education loans were thus dischargeable.\n There are some general interpretive rules to apply. Discharge exceptions\nare to be construed “narrowly” and “in favor of the debtor” in order to further\nthe Bankruptcy Code’s purpose of giving debtor’s a “fresh start.” Miller v. J.D.\nAbrams Inc. (In re Miller), 156 F.3d 598, 602 (5th Cir. 1998). Exceptions to\ndischarge “should be confined to those plainly expressed.” Kawaauhau v.\nGeiger, 523 U.S. 57, 62 (1998). Regardless, we may not ignore plain textual\nlanguage, and as we discuss, Congressional action generally has enlarged the\ncategory of education loans that are not dischargeable.\n We start with text and context, then discuss some of the prior statutory\nlanguage that the current statute has replaced or supplemented. An initial\nread of Subsection (A)(ii) does not suggest that Congress used the phrase\n“obligation to repay funds received as an educational benefit” in order to\ninclude private student loans. The immediately preceding Subsection (A)(i)\nexempts “educational . . . loan[s].” Subsection (B) exempts “education loan[s].”\nSubsection (A)(ii) makes no reference to loans, its focus seemingly elsewhere.\n Navient argues that an “obligation to repay funds received” is expansive\nand includes loans, citing to other statutes and federal regulations that use\n“obligation to repay” in reference to loans. The fact that an obligation to repay\n 19\n\f Case: 18-20254 Document: 00515169017 Page: 20 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\nis one way to refer to loans is correct, but we are trying to discern the meaning\nin the context of a particular enactment. If “‘Congress includes particular\nlanguage in one section of a statute but omits it in another’ — let alone in the\nvery next provision” — courts presume “Congress intended a different\nmeaning.” Loughrin v. United States, 573 U.S. 351, 358 (2014) (quoting\nRussello v. United States, 464 U.S. 16, 23 (1983)). Congress sandwiched\nSubsection (A)(ii), which does not mention loans at least by name, between two\nsubsections that explicitly do. That structure is at least a start to saying\neducational benefits are not loans.\n We now look more closely at Subsection (A)(ii)’s text. The subsection\napplies to the “obligation to repay” funds received as “an educational benefit,”\n“scholarship,” or “stipend.” The prefatory language, i.e, that there is “an\nobligation to repay,” appears only in this subsection. The phrase is superfluous\nwhen referring to loans, but it is quite relevant to payments with contingent\nobligations. Next, a stipend is a “fixed and regular payment, such as a salary.”\nAMERICAN HERITAGE COLLEGE DICTIONARY, 1220 (3d ed. 1997). A scholarship\nis a “grant of financial aid to a student.” Id. The key phrase, “educational\nbenefit,” is the broadest. We consider unnecessary a dictionary definition of\n“educational,” but “benefit” needs one. Because the term is so broad, the\nlimiting principle of noscitur a sociis potentially should be used — over\nNavient’s objection, though — to understand the phrase in context. In a recent\napplication, the Supreme Court said there are times we should “look to noscitur\na sociis, the well-worn Latin phrase that tells us that statutory words are often\nknown by the company they keep.” Lagos v. United States, 138 S. Ct. 1684,\n1688–89 (2018). The “common quality” in a list that is the focus of the noscitur\na sociis inquiry “should be its most general quality — the least common\ndenominator, so to speak — relevant to the context.” SCALIA & GARNER,\nREADING LAW, 196.\n 20\n\f Case: 18-20254 Document: 00515169017 Page: 21 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\n One general quality in the relevant phrase is that stipends and\nscholarships “signify granting, not borrowing.” McDaniel v. Navient Sols., LLC\n(In re McDaniel), 590 B.R. 537, 549 (Bankr. D. Colo. 2018). Those grants may\nbe conditional, but satisfaction of the conditions leaves them as grants. The\ncommon quality is that scholarships and stipends may not need to be repaid.\n Navient argues that noscitur a sociis should not apply because the\nstatutory list is too brief. The Supreme Court recently used the doctrine in a\nfour-item list: “lost income and necessary child care, transportation, and other\nexpenses.” Lagos, 138 S. Ct. at 1688 (quoting 18 U.S.C. § 3663A(b)(4)); but see\nGraham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson,\n559 U.S. 280, 288 (2010) (“A list of three items . . . is too short to be particularly\nilluminating.”). Lagos used three specific items to give meaning to a catchall.\nId. at 1688–89. Authors Scalia and Garner did use a three-item list to explain\nproper use of this doctrine. SCALIA & GARNER, READING LAW, at 196–97. The\nexample was a state statute criminalizing the carrying of a firearm in a motor\nvehicle unless, among other conditions, it was “contained in a closed and\nfastened case, gunbox, or securely tied package.” Id. (discussing State v.\nTaylor, 594 N.W. 2d 533, 535–36 (Minn. Ct. App. 1999)). The Minnesota court\nheld that a purse was not a proper “case” — despite that it was “closed and\nfastened” — because the commonality of the other two items was that they\nwere containers that kept a firearm from being readily accessible. Id.\n The brevity of the list in the text we must review does not compel\nignoring the relevant term’s neighbors.\n We offer one definition of “benefit,” namely, a “payment made or an\nentitlement available in accordance with a wage agreement, an insurance\npolicy, or a public assistance program.” AMERICAN HERITAGE COLLEGE\nDICTIONARY, at 127. Whatever definition is used, we begin our analysis with\n\n\n 21\n\f Case: 18-20254 Document: 00515169017 Page: 22 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\na tentative acceptance that the benefit generally does not need to be repaid.\nOur analysis continues, though.\n Navient claims that a different definition of “benefit” is best: “an\nadvantage or profit gained from something.” OXFORD ENGLISH DICTIONARY (3d\ned. 1997). That definition is limitless, invoking the very reason for the noscitur\na sociis doctrine. Navient’s offering does not capture the essentials of “stipend”\nand “scholarship,” which identify narrow categories of benefits.\n Indeed, we see a lack of common sense in interpreting the list as\ncontaining two specific and quite limited kinds of payments that, among other\nthings, do not usually require repayment, and a third item preceding the two\nthat was meant to be a catchall for loans and most everything else financially\nbenefitting a student. Such an understanding of what Congress did with those\nwords creates a superfluity of words in the other parts of Section 523(a)(8). If\nan “obligation to repay funds including educational benefits” includes repaying\nprivate student loans, that requires defining “educational benefit” to include\nloans, which then means it also covers the public loans that are the focus of\nSubsection 523(a)(8)(A)(i). See In re Essangui, 573 B.R. 614, 624 (Bankr. D.\nMd. 2017). Under Navient’s interpretation, government loans covered by\nSubsection (A)(i) and qualified education loans covered by Subsection (B)\nwould also be covered by Subsection (A)(ii), rendering the other subsections\nserving little purpose. Courts have a “duty to give effect, if possible, to every\nclause and word of a statute.” Bennett v. Spear, 520 U.S. 154, 173 (1997).\nConcomitantly, “the canon against surplusage is strongest when an\ninterpretation would render superfluous another part of the same statutory\nscheme.” Marx v. Gen. Rev. Corp., 568 U.S. 371, 386 (2013).\n Navient calls this analysis “hyperbolic,” reframing the surplusage as\nsimply “some overlap” between the subsections. Navient, though, fails to\nexplain how the other subsections serve much purpose if the broad reading of\n 22\n\f Case: 18-20254 Document: 00515169017 Page: 23 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\nSubsection (A)(ii) applies. Navient argues that Subsection (A)(ii)’s receipt of\nfunds requirement leaves Subsection (B) with work to do. For example, a loan\nobtained by a grandfather for his grandson to attend a Title IV college would\nnot be covered by Subsection (A)(ii) because the grandfather did not receive the\nbenefit, but it was covered by Subsection (B). See Wills v. Sallie Mae Servicing\n(In re Wills), No. 08-80404-FJO-07, 2010 WL 1688221, at *7 (S.D. Ind. Apr. 23,\n2010). Maybe so, but because every exemption in these provisions is a type of\nfund used by recipients to advance their education, Congress could have just\nexempted from discharge any “obligation to repay funds received as an\neducational benefit” and left it at that. The redundancies created by Navient’s\ninterpretation of Subsection (A)(ii) create more than a modest overlap and can\nbe avoided by adopting the narrower interpretation of that subsection.\n Navient seeks to block any interpretive effort by this court by arguing\nthat one of our precedents makes the sole issue for us “whether Plaintiffs’ loans\nexpressed an educational purpose at the time of application, origination, and\ndisbursement.” See Murphy v. Penn. Higher Educ. Assistance Agency (In re\nMurphy), 282 F.3d 868, 870–72 (5th Cir. 2002). 10 Pretty bold analysis of\nMurphy, and errant in our view. Murphy applied the 1990 language applicable\nto loans insured by the federal government. Id. at 870. The question was\nwhether such a federally-insured loan was “educational” even as to proceeds\nspent on living expenses. Id. at 870, 873. The court held that the educational\n\n\n 10 The Murphy court discussed the added difficulties the debtor’s strained reading of\n“educational benefit” in the 1990 statute’s reference to federally-insured loans would create\nfor the second use of the phrase in Section 523(a)(8), which the court twice quoted as\n“education benefit scholarship or stipend,” i.e, without commas. See Murphy, 282 F.3d at\n870, 871. That made the first two words adjectival, not a separate category, and the court’s\nanalysis focused on whether the two words modified both “scholarship” and “stipend.” Id. at\n871–72. It appears to us, though, that Congress in 1990 adopted this language: “obligation\nto repay funds received as an educational benefit, scholarship or stipend.” Crime Control Act\nof 1990, Pub. L. No. 101-647, § 3621, 104 Stat. 4789, 4964–65. Regardless, the statute as it\nexists today does make “educational benefit” a third category in Section 523(a)(8)(A)(ii).\n 23\n\f Case: 18-20254 Document: 00515169017 Page: 24 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\npurpose of such a loan was defined by its purpose upon disbursement by the\nlender and not by the way it was spent by the borrower. Id. at 873. Murphy\ndid not analyze our issue, and we must conduct our own evaluation.\n An argument by plaintiffs about grammar, to which we give less weight\nthan the foregoing because it relies on such a minor word-choice, is that when\nCongress exempted funds “received as an educational benefit” rather than “for\nan educational benefit,” the natural reading is that it describes what the giver\nwas giving and not what the receiver could make of the gift. The phrase “as\nan educational benefit” indicates that the funds themselves are the educational\nbenefit (like tuition payments), whereas the phrase “for an educational benefit”\nmight well encompass funds conveyed for educational purposes, including\nprivate student loans. Essangui, 573 B.R. at 621. At least it can be said the\ndrafters’ word choice does not support inclusion of private student loans.\n We also examine the statutory history for Subsection (a)(8), i.e., the\nhistory of enacted revisions. 11 Since 1970, Congress has expanded the scope of\nnon-dischargeable student loans. See, e.g., Cazenovia Coll. v. Renshaw (In re\nRenshaw), 222 F.3d 82, 86–88 (2d Cir. 2000) (surveying the history of\nSubsection (a)(8)). We find that the phrase “educational benefit” first appeared\nin Subsection (a)(8) in 1990, which excepted from discharge a debt\n\n\n 11 Plaintiffs also urge us to examine legislative history. Various court decisions assert\nthat in 1990, the nondischargeability of “an obligation to repay funds received as an\neducational benefit, scholarship, or stipend,” was added to confirm an Eighth Circuit\ninterpretation holding that certain conditional payments were loans covered by Section (a)(8).\nSee, e.g., Essangui, 573 B.R. at 618 (citing U.S. Dep’t of Health & Human Servs. v. Smith,\n807 F.2d 122 (8th Cir. 1986)). A House Judiciary Committee hearing on the bill revealed that\nthe amendment was drafted by a committee of United States Attorneys. Fed. Debt Collection\nProcedures: Hearing before the Subcomm. on Econ. & Commercial Law of the Comm. on the\nJudiciary, H.R., 101st Cong., 2, 3 (1990) (statements by Rep. Brooks and U.S. Att’y Bob\nWortham). In answers to written questions, the chair of the outside drafting committee wrote\nthat VA benefits were an example of a relevant “education benefit.” Id. at 74–75 (answers of\nBob Wortham). We acknowledge this history but do not rely on it. Meaning to a statute\ncomes from its text, analyzed by employing appropriate tools of statutory interpretation\nwhich we conclude do not include legislative history.\n 24\n\f Case: 18-20254 Document: 00515169017 Page: 25 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\n for an educational benefit overpayment or loan made, insured or\n guaranteed by a governmental unit, or made under any program\n funded in whole or in part by a governmental unit or nonprofit\n institution, or for an obligation to repay funds received as an\n educational benefit, scholarship or stipend.\nCrime Control Act of 1990, Pub. L. No. 101-647, § 3621, 104 Stat. 4789, 4964-\n65 (codified as 11 U.S.C. § 523(a)(8)) (emphasis added).\n Before explaining the latest change, made in 2005, we remark on the\nnear-unanimity of courts’ understanding of the 1990 change. One court, after\nsurveying the caselaw, stated that the language we italicized above was\n“generally interpreted . . . to create a new category of nondischargeable debt\nthat excluded for-profit loans.” Essangui, 573 B.R. at 619. Navient agrees that\nwas the trend, but it argues that by the amendments to Subsection (a)(8) in\n2005 which we discuss next, Congress brought private student loans within\nthe exceptions to discharge. The parties do not agree about the post-2005\ncaselaw. Navient calculates the majority as holding that any funds received\nfor an educational purpose, including private student loans, were covered by\nthe new language. 12 See, e.g., Brown v. CitiBank, N.A. (In re Brown), 539 B.R.\n853, 858–59 (Bankr. S.D. Cal. 2015). The plaintiffs count the cases differently.\nThey both agree that since about 2015, there has been increasing caselaw that\nholds private student loans are not exempt from discharge. See, e.g., Nypaver\nv. Nypaver (In re Nypaver), 581 B.R. 431, 435–37 (W.D. Pa. 2018).\n\n\n\n 12 The only circuit court opinion cited to us on this issue is unpublished. Desormes v.\nInfilaw Corp. (In re Desormes), 569 F. App’x 42 (2d Cir. 2014). Thus, no matter what we\ndecide, there will not be a split in precedential circuit authority. The opinion was quite brief,\nwith the only description of the debt being that it came from a “student loan” and “was\nexcepted from discharge under 11 U.S.C. § 523(a)(8)(A)(ii).” Id. at 43. There was no analysis\nof how to interpret the three-item statutory list. The debtor’s argument centered on the\nsupposed necessity for “a transfer of funds directly to the debtor” before a loan would “be\nreceived within the meaning of the statute.” Id. The bankruptcy court’s opinion indicates the\nloan was from the school to pay the student’s tuition. Desormes v. Charlotte School of Law,\nInc. (In re Desormes), 2012 WL 4106765 at *1 (Bankr. D. Conn. 2012).\n 25\n\f Case: 18-20254 Document: 00515169017 Page: 26 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\n In 2005, Congress replaced the entirety of Subsection (a)(8) with a new\nsubsection with subparts. We italicize the only significant new language:\n (8) unless excepting such debt from discharge under this\n paragraph would impose an undue hardship on the debtor and the\n debtor's dependents, for —\n (A)(i) an educational benefit overpayment or loan made,\n insured, or guaranteed by a governmental unit, or made under any\n program funded in whole or in part by a governmental unit or\n nonprofit institution; or\n (ii) an obligation to repay funds received as an educational\n benefit, scholarship, or stipend; or\n (B) any other educational loan that is a qualified education\n loan, as defined in section 221(d)(1) of the Internal Revenue Code\n of 1986, incurred by a debtor who is an individual.\nBankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L.\nNo. 109-8, Title II, § 220, 119 Stat. 23, 59 (emphasis added) (codified as 11\nU.S.C. § 523(a)).\n The significant change was to make nondischargeable “any other . . .\nqualified educational loan,” which Navient concedes the loans here are not, by\nadding Subsection (B). Most importantly for us, Congress barely tweaked the\n1990 language of “obligation to repay funds received as an educational benefit,\nscholarship or stipend” — it inserted a comma after “scholarship.” Navient\nacknowledges that from 1990 to 2005, the interpretation of stipends,\nscholarships, and educational benefits had excluded for-profit loans. We see\nwhat did not happen to this language in 2005 as invoking this principle: “If a\nword or phrase has been . . . given a uniform interpretation by inferior courts...,\na later version of that act perpetuating the wording is presumed to carry\nforward that interpretation.” Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive\nCmtys. Project, Inc., 135 S. Ct. 2507, 2520 (2015) (quoting SCALIA & GARNER,\nREADING LAW 322). Navient argues that severing Subsection (A)(ii) from (A)(i)\nallowed (A)(ii) to cover a broader scope of education financing, including\n 26\n\f Case: 18-20254 Document: 00515169017 Page: 27 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\nprivate education loans. All we see is a change to the structure of the overall\nstatute but no real change to the language that controls the case before us.\n Navient’s assertion that the 2005 amendment made all private student\nloans nondischargeable is not only unsupported by the text, it is unsupported\nby some of Navient’s authorities. Among them is Corletta v. Tex. Higher Educ.\nCoordinating Bd. (In re Pappas), 517 B.R. 708, 716–17 (Bankr. W.D. Tex.\n2014). That case says no more than that Congress amended Subsection (a)(8)\nin 2005 “to apply to private loans as well” without identifying Subsection\n(a)(8)(A)(ii) as the mechanism for this change. Id. at 717. What brought a new\ncategory of private loans into the discharge arena was the language of\nSubsection (a)(8)(B), the only meaningful 2005 addition.\n This court has recently discussed the 2005 change to the statute. See\nThomas v. Dep’t of Educ. (In re Thomas), 931 F.3d 449 (5th Cir. 2019). The\ncase concerned the “undue hardship” test that allows the discharge of an\neducation loan. Id. at 451–55. The loans at issue were from the United States\nDepartment of Education. Id. at 450. That made them nondischargeable\nunder Subsection 523(a)(8)(A)(i) as being “insured or guaranteed by a\ngovernmental unit, or made under any program funded in whole or in part by\na governmental unit or nonprofit institution.”\n The 2005 revision was “in response to the growing trend of commercial\nlending,” and the amendment’s purpose was to “make qualified private student\nloans harder to discharge, prohibiting discharge in all cases, unless repayment\nwould create ‘undue hardship’ for the debtor.” Id. at 453. That is a description\nof the new Subsection (a)(8)(B). The definition of a “qualified education loan”\nis in Section 221(d)(1) of the Internal Revenue Code of 1986, and, as stated\nbefore, Navient accepts that Subsection (a)(8)(B) does not apply here.\n In a supplementary letter to this court on Thomas, Navient implicitly\nrecognized that much of the new opinion was not on point, but it quoted the\n 27\n\f Case: 18-20254 Document: 00515169017 Page: 28 Date Filed: 10/22/2019\n\n\n\n No. 18-20254\ncourt’s language that “Section 523(a)(8) as it stands today excepts virtually all\nstudent loans from discharge” with the caveat about undue hardship. Thomas,\n931 F.3d at 453. That statement is a fair summary of the reach of\nnondischargeability, but before us is a category of loan that has not (yet) been\nreached by Subsection 523(a)(8).\n We find nothing in this explanation of the 2005 revisions to alter our\ninterpretation that Subsection 523(a)(8)(A)(ii) applies only to educational\npayments that are not initially loans but whose terms will create a\nreimbursement obligation upon the failure of conditions of the payments.\n In conclusion, the only possibly applicable part of the relevant statute is\nSubsection 523(a)(8)(A)(ii). In interpreting that provision, we rely on the\nnoscitur a sociis doctrine, the need to avoid surplusage, Congressional\nratification in 2005 of prior interpretations, and the command that discharge\nexceptions are interpreted narrowly in favor of debtors. We conclude that\n“educational benefit” is limited to conditional payments with similarities to\nscholarships and stipends. The loans at issue here, though obtained in order\nto pay expenses of education, do not qualify as “an obligation to repay funds\nreceived as an educational benefit, scholarship, or stipend” because their\nrepayment was unconditional. They therefore are dischargeable.\n * * *\n We REVERSE the bankruptcy court’s determination that it has\nauthority to enforce a discharge injunction entered by a different district’s\nbankruptcy court. Any debtors seeking enforcement of injunctions due to\ndischarges entered in other districts should have their proceedings dismissed\nor transferred. We AFFIRM the determination that loans such as those in issue\nhere are dischargeable. We REMAND to the bankruptcy court.\n\n\n\n\n 28\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Evan Crocker v. Navient Solutions, L.L.C.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-20254 Document: 00515169017 Page: 1 Date Filed: 10/22/2019\\n\\n\\n\\n\\n REVISED OCTOBER 22, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-20254 October 21, 2019\\n Lyle W. Cayce\\nIn re: Evan Brian Crocker, also known as Haas Legal, P.L.L.C. Clerk\\n\\n Debtor\\n\\nEVAN BRIAN CROCKER, on behalf of themselves and all those similarly\\nsituated, also known as Haas Legal, P.L.L.C, formerly known as Evan Brian\\nHaas: MICHAEL SHAHBAZI, on behalf of themselves and all those similarly\\nsituated, formerly known as Montana Shahbazi; WENDY L. LANDES, on\\nbehalf of themselves and all those similarly situated; RAEGENA SEITZ-\\nMOULDS, on behalf of themselves and all those similarly situated,\\n\\n Appellees\\n\\nv.\\n\\nNAVIENT SOLUTIONS, L.L.C.; NAVIENT CREDIT FINANCE\\nCORPORATION,\\n\\n Appellants\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore STEWART, SOUTHWICK and ENGELHARDT, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n\\f Case: 18-20254 Document: 00515169017 Page: 2 Date Filed: 10/22/2019\\n\\n\\n\\n\\n An individual in Texas and another in Virginia separately obtained loans\\nfrom the same lender to pay education expenses. Both later filed for\\nbankruptcy in their respective states. In time, orders of discharge were\\nentered. One of the discharged debtors then filed suit against the lender in the\\nsame Bankruptcy Court of the Southern District of Texas that had ordered the\\ndischarge of his debts. Later, the Virginia debtor joined the Texas suit. The\\nsuit seeks to certify a nationwide class of those who claim their education-loan\\ndebts were validly discharged but from whom this lender continues to demand\\npayment. A declaratory judgment, injunction, and damages are sought.\\n The lender filed a motion for summary judgment, arguing bankruptcy\\ncourts cannot enforce the injunctions arising from discharge orders entered by\\ncourts in other judicial districts, and these private-education-loan debts are\\nstatutorily excepted from discharge. The bankruptcy court held the opposite\\nas to both, then certified the two holdings for interlocutory appeal.\\n We conclude that a bankruptcy court does not have authority to enforce\\nthe discharge injunctions entered in other districts. On the other hand, we\\nagree with the bankruptcy court that the particular education loans involved\\nhere are not statutorily excepted from discharge. The cause is REMANDED.\\n\\n\\n FACTUAL AND PROCEDURAL HISTORY\\n In 2009, Evan Crocker 1 obtained a $15,000 loan to fund his bar\\nexamination preparation. The lender was a subsidiary of SLM Corporation,\\nd/b/a Sallie Mae, which is a for-profit, public corporation whose loans are not\\npart of any governmental loan program. The loan documents informed Crocker\\nthat his repayment obligation “may not be dischargeable in bankruptcy.”\\nCrocker’s loan was transferred to SLM Education Credit Finance Corporation,\\n\\n\\n 1 Evan Brian Haas changed his name to Evan Brian Crocker in 2017. We use his\\ncurrent name throughout this opinion.\\n\\f Case: 18-20254 Document: 00515169017 Page: 3 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\nwhich subsequently became Navient Credit Finance Corporation. In the\\ncomplaint, Navient Solutions is said to be the entity pursuing collection. We\\nwill not differentiate among Navient entities in our discussion.\\n In 2015, Crocker filed for voluntary Chapter 7 bankruptcy in the United\\nStates Bankruptcy Court for the Southern District of Texas. He scheduled his\\nbar-study loan claim as an “Educational . . . Private loan” and did not dispute\\nthe debt. In February 2016, the court granted him a discharge under 11 U.S.C.\\n§ 727, informed him that “[m]ost debts are covered by the discharge, but not\\nall,” and closed his case.\\n Michael Shahbazi has a similar story. In 2002, Shahbazi obtained an\\n$11,658.99 loan from Sallie Mae for tuition and expenses while he attended a\\ntechnical school. He was given notice that his loan was “an education loan that\\nmust be repaid.” Exactly how Navient obtained its interest is unclear to us,\\nbut it is servicing this loan.\\n In 2011, Shahbazi filed for voluntary Chapter 7 bankruptcy in the\\nUnited States Bankruptcy Court for the Eastern District of Virginia. He\\nscheduled his Sallie Mae loan as a “Student Loan” and did not dispute the debt.\\nIn December 2011, the court granted him a discharge and closed his\\nbankruptcy proceeding. This discharge order specifically listed “Debts for most\\nstudent loans” as not being discharged.\\n It is alleged that after both discharges, Navient had both of these\\nplaintiffs contacted frequently by telephone and email to demand repayment.\\nIn August 2016, Crocker filed an adversary proceeding against Navient in the\\nBankruptcy Court for the Southern District of Texas, the same court that had\\ngranted him a discharge. He sought (1) a declaratory judgment that his private\\neducation debt had been discharged; (2) entry of judgment holding Navient in\\ncontempt for violating the injunction arising from his discharge; and (3) a\\n\\n\\n 3\\n\\f Case: 18-20254 Document: 00515169017 Page: 4 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\ntemporary injunction. The court entered an agreed preliminary injunction on\\nAugust 18, 2016, barring Navient from pursuing collection until further order.\\n Crocker, with Shahbazi as an additional plaintiff, filed an amended\\ncomplaint, seeking to certify a nationwide class of those who (1) obtained\\nprepetition private education loans from Navient or related companies to cover\\nexpenses at an institution not accredited under Title IV; (2) later filed for\\nbankruptcy and were issued discharge orders; (3) have never reaffirmed their\\nprepetition private education loan debt; and (4) are being induced to pay their\\nallegedly discharged private education loans. Damages were now also sought.\\n Navient moved for summary judgment on these claims, arguing that a\\nbankruptcy court has no jurisdiction to interpret and enforce discharge orders\\nentered by courts in other judicial districts and that the plaintiffs’ education\\nloans were nondischargeable. The bankruptcy court denied the motion in\\nMarch 2018. 2 It rejected that the general rule giving an issuing court sole\\nauthority to enforce its own injunctions applied to the automatic injunction\\ncreated by statute when a bankruptcy court grants a discharge under 11 U.S.C.\\n§ 727. The court also determined that the kind of loans for educational\\npurposes relevant here, which the parties refer to as “private loans,” were not\\nwithin the ambit of the Bankruptcy Code’s bar on the discharge of some\\nstudent loans. See 11 U.S.C. § 523(a)(8).\\n In the same order, the bankruptcy court first authorized an interlocutory\\nappeal, then certified the order for direct appeal to this court, eschewing the\\nusual initial appellate review by a district court. A bankruptcy court may\\ncertify a ruling for direct review by a circuit court of appeals when, among other\\n\\n\\n 2 Wendy L. Landes and Raegena Seitz-Moulds were included without objection as\\nadditional putative class members in a Third Amended Complaint, filed after Navient’s\\nmotion for summary judgment but before the bankruptcy court ruled. No party argues that\\nthe issues before us are altered by their joinder. Accordingly, we do not separately discuss\\nthe facts of the bankruptcies of the two last-added parties.\\n 4\\n\\f Case: 18-20254 Document: 00515169017 Page: 5 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\nreasons, it “involves a question of law as to which there is no controlling\\ndecision” by that circuit court or the Supreme Court, or because an appeal at\\nthat stage in the proceedings “may materially advance the progress of the\\ncase.” 28 U.S.C. § 158(d)(2)(A)(i), (iii). If a bankruptcy court so certifies, the\\ncircuit court of appeals then exercises its discretion. § 158(d)(2)(A). A motions\\npanel of this court granted the unopposed motion to authorize the appeal.\\n\\n DISCUSSION\\n We review “grants and denials of summary judgment de novo. Summary\\njudgment is appropriate when ‘there is no genuine dispute as to any material\\nfact and the movant is entitled to judgment as a matter of law.’” Lyda\\nSwinterton Builders, Inc. v. Okla. Sur. Co., 903 F.3d 435, 444 (5th Cir. 2018)\\n(quoting FED. R. CIV. P. 56). Federal Rule of Civil Procedure 56 is incorporated\\ninto the Federal Rules of Bankruptcy Procedure. FED. R. BANKR. P. 7056.\\n Navient has two principal contentions on appeal. The first is that the\\nbankruptcy court either has no jurisdiction to enforce the statutory injunctions\\narising from a bankruptcy discharge that another bankruptcy court ordered,\\nor at least for prudential reasons may not do so. Second, Navient contends\\nthat the plaintiffs’ education loans are within the category of loans that under\\nthe Bankruptcy Code are nondischargeable.\\n There are no meaningful factual issues presented to us. Instead, we have\\nlegal issues of statutory interpretation. We now turn to those.\\n\\n\\nI. Authority to enforce a Section 524 discharge order entered by a bankruptcy\\ncourt in another judicial district\\n In broad brush, these proceedings concern two closed Chapter 7\\nbankruptcies in which generic discharges, i.e., discharges not specifying the\\ndischarged debts, were issued at completion. A discharge “operates as an\\ninjunction” against an extensive list of actions that a creditor might take to\\n 5\\n\\f Case: 18-20254 Document: 00515169017 Page: 6 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\ncollect on the discharged debt. 11 U.S.C. § 524(a)(2), (3). The discharge is a\\n“substantive right,” and that right is “often enforced by a motion for contempt,\\nbut [it is] also enforceable through a declaratory judgment action.” Nat’l\\nGypsum Co. v. NGC Settlement Tr. & Asbestos Claims Mgmt. Corp. (In re Nat’l\\nGypsum Co.), 118 F.3d 1056, 1063 (5th Cir. 1997) (citations omitted). The\\ndeclaratory judgment was sought in National Gypsum by the opening of an\\nadversary proceeding in the bankruptcy court that had granted the debtor’s\\ndischarge. Id. at 1060. Indeed, Federal Rule of Bankruptcy Procedure 7001(6)\\nstates that an adversary proceeding is, among other things, “a proceeding to\\ndetermine the dischargeability of a debt.”\\n Thus, an available procedure under National Gypsum is a declaratory\\njudgment action. A violation of the declaratory judgment will lead to its own\\nremedies such as “damages or an injunction.” United Teacher Assocs. Ins. Co.\\nv. Union Labor Life Ins. Co., 414 F.3d 558, 570 (5th Cir. 2005); see also 28\\nU.S.C. § 2202. The issue for us is identifying the proper court or courts in\\nwhich such an action can be brought. May a bankruptcy court other than the\\none that granted the discharge enforce the injunction?\\n The closest this circuit has come to answering the question is to hold, in\\nthe class action context, that a bankruptcy judge in the Southern District of\\nTexas may exercise ‘jurisdiction over claims that arise in other cases\\nadministered by other judges” in the same judicial district. Wilborn v. Wells\\nFargo Bank, N.A. (In re Wilborn), 609 F.3d 748, 753 (5th Cir. 2010). The\\nWilborn court only briefly discussed the issue of enforcing an injunction arising\\nfrom the discharge order of a different bankruptcy court in the same district.\\nIn the present proceedings, the bankruptcy court’s understanding of its\\nauthority extended well beyond its home district. The question of a bankruptcy\\njudge’s injunctive reach within its own district has not been answered.\\n\\n\\n 6\\n\\f Case: 18-20254 Document: 00515169017 Page: 7 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\n The two plaintiff-debtors received general discharges in bankruptcy.\\nCentral to the dispute is that Congress has excepted from discharge, among\\nother categories of debt, certain types of student-loan debt. 11 U.S.C. §\\n523(a)(8). We will deal with the issue of dischargeability in the second part of\\nour opinion and will wait to quote the relevant statute until then.\\n We have already summarized that the bankruptcy court at this stage\\nanswered only two questions. The first answer we review is the “yes” the court\\ngave to the question of whether a bankruptcy court in a judicial district other\\nthan the one in which the discharge was entered has authority to interpret the\\ndischarge and enforce the injunction. The court rejected Navient’s argument\\nthat the general rule should apply that the court issuing an injunction is the\\nonly one that can enforce it through contempt proceedings. The bankruptcy\\ncourt first held that general rule was inapplicable because no discretion or\\nindividual judgment is exercised in creating the injunction. 3 The form order\\nused for the discharges for the initial two plaintiffs here does not even mention\\nan injunction. The injunction instead arises from this statutory command: “A\\ndischarge in a case under this title . . . operates as an injunction against the\\ncommencement or continuation of an action.” § 524(a). Because there is “no\\nsubjective thought process that requires deference nor is there any risk of\\nmisinterpretation of a particular judge’s reasoning,” the bankruptcy court\\nconcluded that the general limitation on enforcement of injunctions only by the\\nissuing court was inapplicable. The court did not cite any case authority to\\nsupport its analysis. The basic point was that the bankruptcy statutes\\n\\n\\n\\n\\n 3 There is at least one aspect of the bankruptcy discharge that requires individual\\njudicial consideration. The applicable education loans are not discharged “unless excepting\\nsuch debt from discharge under this paragraph would impose an undue hardship on the\\ndebtor and the debtor’s dependents.” § 523(a)(8). Different bankruptcy judges can look at\\nthe same facts and reach contrary decisions.\\n 7\\n\\f Case: 18-20254 Document: 00515169017 Page: 8 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\nthemselves make clear that no purpose is served by requiring a return to the\\nissuing court to interpret a discharge injunction.\\n Navient, of course, disagrees that discharge injunctions should be\\ntreated differently than others. A principal authority it cites is one of this\\ncourt’s precedents dealing with non-bankruptcy injunctions. There, Chief\\nJudge Charles Clark explained in the context of a claim of securities fraud that\\n“[e]nforcement of an injunction through a contempt proceeding must occur in\\nthe issuing jurisdiction because contempt is an affront to the court issuing the\\norder.” Waffenschmidt v. MacKay, 763 F.2d 711, 716 (5th Cir. 1985). A\\nbankruptcy court does continue to have jurisdiction to enforce its orders, and\\nthat jurisdiction remains even after the bankruptcy case is closed. See, e.g.,\\nGalaz v. Katona, 841 F.3d 316, 322 (5th Cir. 2016). The issue for us arises\\nbecause Galaz and other Fifth Circuit precedents do not hold that authority is\\nexclusive in the original court. Navient also argues that regardless of\\njurisdiction, there are prudential reasons supporting its argument.\\n Navient’s appellate brief recounts the background for an injunction that\\narises from a discharge, drawing from a scholarly article. Charles Jordan\\nTabb, The Historical Evolution of the Bankruptcy Discharge, 65 AM. BANKR. L.\\nJ. 325 (1991). We look at parts of the background in order to understand how\\na bankruptcy discharge was enforced before a statute was enacted that\\nimposed an injunction. Importantly, we also consider whether another part of\\nthe same statutory enactment arguably created a right of enforcement of the\\ninjunction by “foreign” courts. If so, then its repeal in 1978 has some meaning.\\n There was no statutory injunction arising from a discharge until 1970.\\nId. at 326 n.3. A House Report on 1970 bankruptcy legislation explained\\nproblems with prior law, including the harassment of debtors:\\n The present discharge provisions of the Bankruptcy Act authorize\\n the bankruptcy court to determine the right to a discharge, but do\\n\\n 8\\n\\f Case: 18-20254 Document: 00515169017 Page: 9 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\n not give the bankruptcy court express jurisdiction to determine the\\n effect of the discharge. . . . Under present practice, if a bankrupt is\\n sued in State court on a discharged debt, the State court may\\n determine whether the debt in question was or was not discharged.\\n In other words, the jurisdiction over the granting and the enforcing\\n of a discharge is divided, with the result that debtors are\\n frequently harassed and coerced by creditors into paying debts\\n that may have been discharged.\\nH.R. REP. NO. 91-1502, at 3 (1970).\\n The 1970 legislation was adopted and provided for an injunction:\\n f. An order of discharge shall—\\n (1) declare that any judgment theretofore or thereafter obtained in\\n any other court is null and void . . . ; and\\n (2) enjoin all creditors whose debts are discharged from thereafter\\n instituting or continuing any action or employing any process to\\n collect such debts as personal liabilities of the bankrupt.\\nAct of Oct. 29, 1970, Pub. L. No. 91-467, § 3, 84 Stat. 990, 991 (amending\\nSection 14 of the 1898 Bankruptcy Code, codified as 11 U.S.C. § 32(f)).\\n The statutory detailing of the injunction that results from a discharge\\nhas been revised, but the meaning for our purposes is the same: the discharge\\n“operates as an injunction against the commencement or continuation of an\\naction” to collect a relevant debt. 11 U.S.C. § 524(a)(2).\\n Nothing in the statute creating an injunction explains whether this form\\nof injunction could be enforced only by the bankruptcy court in the issuing\\ndistrict. Another 1970 provision, though, which appeared immediately after\\nthe injunction section, did specifically refer to enforcement in other courts. It\\nallowed the order of discharge to be registered in another district and to be\\n“enforced in like manner” in the new district as in the issuing district:\\n g. An order of discharge which has become final may be registered\\n in any other district by filing therein a certified copy of such order\\n and when so registered shall have the same effect as an order of\\n the bankruptcy court of the district where registered and may be\\n enforced in like manner.\\n 9\\n\\f Case: 18-20254 Document: 00515169017 Page: 10 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\n§ 3, 84 Stat. 990, 991 (codified as 11 U.S.C. § 32(g)). 4 Bankruptcy Rule 404(g)\\nused almost this exact language. 11 U.S.C. app. at 283 (Supp. III 1974).\\n The 1970 subsection on registration was repealed with adoption of the\\nBankruptcy Code of 1978. 11 U.S.C. Tbl. I (showing that former Section 32(g)\\nwas repealed). Further, the Bankruptcy Rule that implemented Section 32(g)\\nwas revised after the 1978 Code was adopted by deleting “may be enforced in\\nlike manner.” FED. R. BANKR. P. 4004(f). Enacted revisions in the wording of\\nstatutes are part of “statutory history,” not “the sort of unenacted legislative\\nhistory that often is neither truly legislative (having failed to survive\\nbicameralism and presentment) nor truly historical (consisting of advocacy\\naimed at winning in future litigation what couldn’t be won in past statutes).”\\nBNSF Ry. Co. v. Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J., dissenting).\\nWhen Congress makes a significant change in language when it amends an\\nexisting statute, it “presumptively connotes a change in meaning.” ANTONIN\\nSCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL\\nTEXTS 256 (2012). Congress’s decision to eliminate language that seemed to\\nallow enforcement of the discharge injunction in a new district 5 gives weight\\n\\n\\n\\n 4An explanation for what those promoting the 1970 legislation were at least trying to\\ndo was given by the National Conference of Referees in Bankruptcy:\\n When a bankrupt has moved out of the district where he obtained his\\n discharge in bankruptcy and is sued by a creditor on a discharged debt in the\\n state to which he moved, the bankrupt should be able to enforce the discharge\\n and its injunctive provisions through the district court where he is currently\\n residing. Section 14g [11 U.S.C. section 32(g)] is meant to permit the bankrupt\\n access to his local United States court by registering therein a certified copy of\\n the order granting the discharge.\\nH.R. REP. NO. 91-1502, at 11.\\n 5 Learned commentators concluded that Section 32(g) authorized enforcement of a\\n\\ndischarge injunction in a new district. One wrote that with “the 1970 Amendments to the\\n1898 Act, Congress developed the portable and registerable discharge injunction.” Robert P.\\nWasson, Jr., Remedying Violations of the Discharge Injunction Under Bankruptcy Code\\n524…, 20 BANKR. DEV. J. 77, 88 (2003).\\n 10\\n\\f Case: 18-20254 Document: 00515169017 Page: 11 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\nto the argument that after the 1978 Bankruptcy Code was adopted,\\nenforcement in “like manner” in a different district was prohibited.\\n We now turn to the law that exists today. Registering a judgment in a\\nnew court is not a creature primarily of bankruptcy law. Some quite learned\\nprofessors described the adoption of a general statutory provision for\\nregistration in 1948, after an earlier Civil Rules version was rejected as\\narguably being beyond the rulemaking power of the Supreme Court. 11\\nCHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARK KAY KANE, FEDERAL\\nPRACTICE AND PROCEDURE § 2787 (2012). The current statute states:\\n A judgment in an action for the recovery of money or\\n property entered in any court of appeals, district court, bankruptcy\\n court, or in the Court of International Trade may be registered by\\n filing a certified copy of the judgment in any other district or, with\\n respect to the Court of International Trade, in any judicial district,\\n when the judgment has become final by appeal or expiration of the\\n time for appeal or when ordered by the court that entered the\\n judgment for good cause shown. Such a judgment entered in favor\\n of the United States may be so registered any time after judgment\\n is entered. A judgment so registered shall have the same effect as\\n a judgment of the district court of the district where registered and\\n may be enforced in like manner.\\n28 U.S.C. § 1963. Bankruptcy courts were added to the statute in 1996.\\nFederal Courts Improvement Act of 1996, Pub. L. No. 104-317, § 203, 110 Stat.\\n3847, 3849.\\n Section 1963 permits the clearing of jurisdictional hurdles when the\\nprior judgment was entered in a suit in which federal question was the basis\\nfor jurisdiction. The hurdle arises because “an action solely to enforce the\\njudgment would lack that federal question jurisdiction and therefore could not\\nbe maintained in federal court” absent some other jurisdictional basis. JAMES\\nWILLIAM MOORE, ET AL., MOORE’S FEDERAL PRACTICE ¶ 130.33 (explaining that\\n“a suit on a judgment does not involve a federal question, however important\\n\\n\\n 11\\n\\f Case: 18-20254 Document: 00515169017 Page: 12 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\nfederal questions may have been to the resolution of the original controversy,”\\nand citing Stiller v. Hardman, 324 F.2d 626, 628 (2d Cir. 1963)). 6\\n The 1970 Bankruptcy Code amendment to permit registration was\\nlabeled “an adaptation of 28 U.S.C. section 1963,” as it clearly was. H.R. REP.\\nNO. 91-1502, at 11. One significant difference, though, is that Section 1963 is\\nlimited to judgments that order the recovery of property or money, which\\norders discharging debts would not be. As importantly, Section 1963 “does not\\npermit enforcement elsewhere of a decree for injunctive relief.” 11 WRIGHT,\\nMILLER, & KANE, FEDERAL PRACTICE § 2787.\\n In conclusion, the 1970 registration statute was by far the most direct\\nsupport for allowing one bankruptcy court to enforce another’s discharge\\ninjunction. That statute, though, is no more, which supports that Congress\\nabolished such enforcement. Current Bankruptcy Rule 4004(f) guides\\nregistration but does not authorize “like manner” enforcement as did its\\npredecessor. The foregoing convinces us that registration does not alter the\\nusual procedures for enforcing an injunction.\\n\\n\\n\\n\\n 6 An earlier version of MOORE’S has, since the adoption of Bankruptcy Rule 404(g) and\\nthen continuing with current Rule 4004(f), been cited by the Federal Rules Advisory\\nCommittee to explain each Rule. See Rule 404(g), Adv. Comm. Notes (1976); Rule 4004(f),\\nAdv. Comm. Notes (1983), both citing JAMES WILLIAM MOORE ET AL., MOORE’S FEDERAL\\nPRACTICE ¶ 1.04[2] (2d ed. 1967). We could not locate any archival record of the 1967 treatise\\nsection, but some if not all of that section was quoted in a district court opinion. See Dichter\\nv. Disco Corp., 606 F. Supp. 721, 725 (S.D. Ohio 1984). The following excerpt likely is at least\\nsome of the reason for the reference to MOORE’S in the Advisory Committee Notes:\\n It may be suggested that by authorizing the judgment-creditor to\\n enforce his judgment through registration in other districts, as an alternative\\n to an action on the judgment, substantive rights are conferred upon him, venue\\n requirements are altered, and the jurisdiction of the district court is enlarged.\\n But in purpose and effect the registration of judgments in other districts is only\\n a more convenient and effective method of enforcing them according to their\\n original terms.\\nId. (quoting MOORE’S FEDERAL PRACTICE ¶ 1.04[2] at 223 (1967)).\\n 12\\n\\f Case: 18-20254 Document: 00515169017 Page: 13 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\n We return, then, to the bankruptcy court’s first basis for its ruling, which\\nrelied on, of all things, logic alone to support that because a discharge\\ninjunction needs no discretionary interpretation, there should not be any\\nobligation to return to the issuing court for its enforcement. With respect for\\nso venerable a basis for argument, i.e., straightforward logical reasoning, we\\nconclude more is needed here to overcome the contrary authority.\\n The bankruptcy court gave as a second basis for its decision, not\\ncompletely distinguishable from its first, that when enforcing a discharge, a\\ncourt is simply enforcing a statute. Holding a creditor in contempt “goes to the\\nvery core of the bankruptcy process itself.” The court relied on a scholarly\\nopinion by Bankruptcy Judge Isgur analyzing the fundamentals in Cano v.\\nGMAC Mortg. Corp. (In re Cano), 410 B.R. 506 (Bankr. S.D. Tex. 2009). The\\nbankruptcy court here also cited both 28 U.S.C. § 157, which sets out many of\\nthe procedures for bankruptcy courts and the authority of the district courts\\nover them, and 28 U.S.C. § 1334, which grants to district courts “original and\\nexclusive jurisdiction of all cases under” the Bankruptcy Code, with some\\nexceptions.\\n We need not analyze today the complexities of Section 157 addressed by\\nCano, including the differences among cases and proceedings “arising under\\ntitle 11 or arising in or related to a case under title 11.’’ § 157(a) (emphasis\\nadded). We limit our analysis because our question is limited: may a different\\nbankruptcy court than the one that issued the discharge that caused the\\ninjunction to arise, enforce that injunction regardless of whether the\\nimpediment is jurisdiction, venue, prudential considerations, or something\\nelse? The Cano court identified but did not resolve that issue: “[r]equiring\\nPlaintiffs to seek civil contempt damages from their ‘home court’ may be the\\nmore appropriate remedy and the only remedy authorized.” Cano, 410 B.R. at\\n543. The Cano opinion did not need to resolve the issue before us.\\n 13\\n\\f Case: 18-20254 Document: 00515169017 Page: 14 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\n We next examine precedents concerning contempt authority. “Civil\\ncontempt is the normal sanction for violations of the discharge injunction.”\\nRICHARD LEVIN & HENRY J. SOMMER, COLLIER ON BANKRUPTCY ¶ 524.02(c)\\n(2018). We have used absolute language, though not in a bankruptcy context,\\nthat “[i]t is elementary that the court against which a contempt is committed\\nhas exclusive jurisdiction to punish for such contempt.” United States v.\\nBarnett, 330 F.2d 369, 385 (5th Cir. 1963) (citing In re Debs, 158 U.S. 564, 594–\\n95 (1895)).\\n Other circuits have insisted on a return to the bankruptcy court whose\\ndischarge order created the injunction. The Eleventh Circuit has held that\\nonly the bankruptcy court issuing the discharge has jurisdiction to enforce the\\ninjunction through contempt. Alderwoods Grp., Inc. v. Garcia, 682 F.3d 958,\\n961 (11th Cir. 2012). 7 The Seventh Circuit has said the “responsibility for\\nenforcing the discharge order [is] in the court that issued it.” Cox v. Zale\\nDelaware, Inc., 239 F.3d 910, 916–17 (7th Cir. 2001) (citing FED. R. BANKR. P.\\n9020). The cited Bankruptcy Rule 9020 simply says Rule 9014 on “Contested\\nMatters” is what “governs a motion for an order of contempt.” The Ninth\\nCircuit has held that both Section 524 and the Bankruptcy Rules require a\\ncontempt action in the bankruptcy court that issued the discharge order. See\\nBarrientos v. Wells Fargo Bank, N.A., 633 F.3d 1186, 1189 (9th Cir. 2011).\\n The Second Circuit has limited enforcement of discharge injunctions\\nthrough contempt proceedings to the originating court: “the bankruptcy court\\nretains a unique expertise in interpreting its own injunctions and determining\\nwhen they have been violated.” Anderson v. Credit One Bank, N.A., (In re\\n\\n\\n\\n\\n 7 Without intimating that it has derivative precedential effect in this circuit, we note\\nas a matter of collegial respect that the opinion is from the circuit with which we until 1981\\nwere joined, and authoring Judge Tjoflat’s notable judicial service began on the Fifth Circuit.\\n 14\\n\\f Case: 18-20254 Document: 00515169017 Page: 15 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\nAnderson), 884 F.3d 382, 390–91 (2d Cir. 2018). Without labeling the reason\\nas one of jurisdiction, the court explained:\\n The power to enforce an injunction is complementary to the\\n duty to obey the injunction, which the Supreme Court has\\n described as a duty borne out of “respect for judicial process.” GTE\\n Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 387,\\n 100 S.Ct. 1194, 63 L.Ed.2d 467 (1980) (internal quotation marks\\n omitted). That same respect for judicial process requires us to hold\\n that the bankruptcy court alone has the power to enforce the\\n discharge injunction in Section 524.\\nId. at 391.\\n Though the Eleventh Circuit in Alderwoods concluded that the bar to\\nseeking enforcement in a foreign court was jurisdictional, we pretermit so\\nfoundational a holding. We start with the reality that a violation of the\\ninjunction is an affront to the issuing court. Yes, the injunction arises from\\nstatute and not from judicial discretion. Indeed, as here, the injunction may\\nnot even be mentioned in the court’s order. Nonetheless, a central\\nconsideration for us is that there is not a sufficiently clear path for deviating\\nfrom the usual rule. Instead, what is clear are various obstacles we have\\nidentified to taking that path. We now discuss a final one.\\n A recent Supreme Court decision placed the civil contempt that results\\nfrom violating a bankruptcy discharge injunction under the general principles\\nfor contempt. It richly phrased its analysis: “When a statutory term is\\n‘obviously transplanted from another legal source,’ it ‘brings the old soil with\\nit.’” Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (quoting Hall v. Hall,\\n138 S. Ct. 1118, 1128 (2018)). Rooted in the soil are “the traditional standards\\nin equity practice for determining when a party may be held in civil contempt\\nfor violating an injunction.” Id.\\n We do not see a holding in Taggart that all the rules for civil contempt\\nwere transplanted into bankruptcy, but we do see an imperative that any\\n\\n 15\\n\\f Case: 18-20254 Document: 00515169017 Page: 16 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\ndeviation from those rules have a substantial justification. Beginning in 1970,\\nthere was a statutory argument from Section 32(g) of the 1898 Bankruptcy\\nCode that there was no need to return to the original bankruptcy court, but\\nthat argument was repealed in 1978 along with the section. The remainder of\\nwhat has been argued to us does not suffice to show that we should allow an\\nexception from the usual enforcement rules for injunctions. Though Taggart\\ndid not lock the gate to any deviations from traditional contempt rules in\\nbankruptcy, very little opportunity to open it was provided.\\n We adopt the language of the Second Circuit that returning to the\\nissuing bankruptcy court to enforce an injunction is required at least in order\\nto uphold “respect for judicial process.” Anderson, 884 F.3d at 391. The\\nbankruptcy court erred in holding that it could address contempt for violations\\nof injunctions arising from discharges by bankruptcy courts in other districts.\\nTherefore, as to Shahbazi and at least those debtors whose discharges were\\nentered by courts in other districts, the bankruptcy court in these proceedings\\nhas no authority to enforce the resulting injunction.\\n Though the bankruptcy court did not reach the issue of certification of a\\nclass, we point out that because of the limitation on enforcement we have just\\nidentified, and indeed because we are aware of no prior certification of a class\\nthat includes debtors whose discharges were entered by bankruptcy courts in\\nother districts, certifying such a class would be highly dubious. We also leave\\nfor the court on remand the separate issue, if it becomes relevant, of whether\\nthat court has authority to enforce the injunctions arising from discharges\\nentered by any bankruptcy court in the same judicial district.\\n\\n\\nII. Dischargeability of private student loans\\n The bankruptcy court also answered the question of whether the loans\\nthat the plaintiffs received were subject to the statutory prohibition of\\n 16\\n\\f Case: 18-20254 Document: 00515169017 Page: 17 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\ndischarge of certain education loans. The court’s answer to that question was\\n“no.” Though the ruling will impact only the discharges of loans by that court\\nor perhaps in that judicial district, it remains an answer we must review.\\n Congress has excepted certain categories of debt from discharge,\\nincluding much student-loan debt. All exceptions to discharge are to be\\ninterpreted narrowly in favor of the debtor to preserve the “fresh start” the\\nBankruptcy Code provides for debtors. Hickman v. Texas (In re Hickman), 260\\nF.3d 400, 404–05 (5th Cir. 2001). 8 The current articulation of the exception is\\nthat “the discharge under section 727 [and other sections] does not discharge\\nan individual debtor from any debt –”\\n ...\\n (8) unless excepting such debt from discharge under this\\n paragraph would impose an undue hardship on the debtor and the\\n debtor’s dependents, for--\\n (A)(i) an educational benefit overpayment or loan made,\\n insured or guaranteed by a governmental unit, or made under\\n any program funded in whole or in part by a governmental unit\\n or nonprofit institution; or\\n (ii) an obligation to repay funds received as an educational\\n benefit, scholarship, or stipend; or\\n (B) any other educational loan that is a qualified education\\n loan, as defined in section 221(d)(1) of the Internal Revenue\\n Code of 1986, incurred by a debtor who is an individual.\\n11 U.S.C. § 523(a). In summary, Subsection (A)(i) applies to loans, etc. in which\\na governmental unit or a nonprofit institution had a defined role. Subsection\\n(B) requires a journey through multiple statutes to understand its meaning.\\nA partial explanation is that the referenced Internal Revenue Code section\\n\\n\\n 8 We quote what might seem to be authority that the opposite presumption applies to\\neducation loans. Though referring to a party’s argument, the Supreme Court could be seen\\nas agreeing that Congress made “student loan debt presumptively nondischargeable.” Tenn.\\nStudent Assistance Corp. v. Hood, 541 U.S. 440, 450 (2004). In context, though, the Court is\\nreferring only to education loans from states. Id.\\n 17\\n\\f Case: 18-20254 Document: 00515169017 Page: 18 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\ndefines a “qualified education loan” as, among other things, “any indebtedness\\nincurred by the taxpayer solely to pay qualified higher education expenses,”\\nalong with other conditions. 26 U.S.C. § 221(d). The qualified expenses are\\n“the cost of attendance” at the eligible education institution, reduced by\\nscholarships and other payments. Id. An eligible institution is defined, with\\nexceptions, in Internal Revenue Code Section 25A(f)(2), as one “which is\\neligible to participate in a program under Title IV” of the Higher Education\\nAct. There is no claim that Subsection (B) applies.\\n Subsection (A)(ii) is Navient’s target, which deals clearly with\\nscholarships and stipends. Less clear, but definable, is what else it deals with.\\nWe restate the statutory language: there must be “an obligation to repay funds\\nreceived as an educational benefit, scholarship, or stipend.” § 523(a)(8)(A)(ii).\\nNavient argues this language plainly includes private student loans, and that\\nFifth Circuit precedent supports this argument. Navient also contends that\\nlower court cases that disagree had misapplied canons of statutory\\ninterpretation to reach their conclusions. Finally, Section 523(a)(8)’s\\nlegislative history supports including private student loans.\\n The plaintiffs, though, argue that Subsection (8)(A)(ii)’s text and the\\nBankruptcy Code’s purpose to give debtors a fresh start require reading the\\nsubsection narrowly. Further, reading the subsection through the canons of\\nstatutory interpretation affirms this narrow reading, as do the drafters’\\nlanguage and grammar choices. Finally, the legislative history does not show\\nCongress intended to exempt private education loans from discharge. 9\\n\\n\\n\\n\\n 9 Navient does not argue there is relevance to the fact that both Crocker and Shahbazi\\nclassified the relevant debts as “educational” on Schedule F of their bankruptcy filings.\\nImportantly, we do not see on the forms in the record or in the instructions for completing\\nsuch forms any guidance on labeling a debt as “educational” or a statement that it should not\\nbe so labeled unless it is nondischargeable under Section 523(a)(8).\\n 18\\n\\f Case: 18-20254 Document: 00515169017 Page: 19 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\n The bankruptcy court here determined Subsection (8)(A)(ii) was\\nunambiguous. The court considered the absence of the word “loan” and the\\ninclusion of the concepts of stipends and scholarships to narrow the meaning\\nof receiving an educational benefit to include only such funding as “tuition\\nadvances by an employer that must be repaid if the employee leaves her\\nemployment within a certain period of time.” The court also focused on the\\nCongressional use of the word “as” to precede “educational benefit.” To the\\ncourt, that meant that what was received was the educational benefit, akin to\\nscholarships and stipends, not that what was received could be used to pay for\\neducational benefits. These private education loans were thus dischargeable.\\n There are some general interpretive rules to apply. Discharge exceptions\\nare to be construed “narrowly” and “in favor of the debtor” in order to further\\nthe Bankruptcy Code’s purpose of giving debtor’s a “fresh start.” Miller v. J.D.\\nAbrams Inc. (In re Miller), 156 F.3d 598, 602 (5th Cir. 1998). Exceptions to\\ndischarge “should be confined to those plainly expressed.” Kawaauhau v.\\nGeiger, 523 U.S. 57, 62 (1998). Regardless, we may not ignore plain textual\\nlanguage, and as we discuss, Congressional action generally has enlarged the\\ncategory of education loans that are not dischargeable.\\n We start with text and context, then discuss some of the prior statutory\\nlanguage that the current statute has replaced or supplemented. An initial\\nread of Subsection (A)(ii) does not suggest that Congress used the phrase\\n“obligation to repay funds received as an educational benefit” in order to\\ninclude private student loans. The immediately preceding Subsection (A)(i)\\nexempts “educational . . . loan[s].” Subsection (B) exempts “education loan[s].”\\nSubsection (A)(ii) makes no reference to loans, its focus seemingly elsewhere.\\n Navient argues that an “obligation to repay funds received” is expansive\\nand includes loans, citing to other statutes and federal regulations that use\\n“obligation to repay” in reference to loans. The fact that an obligation to repay\\n 19\\n\\f Case: 18-20254 Document: 00515169017 Page: 20 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\nis one way to refer to loans is correct, but we are trying to discern the meaning\\nin the context of a particular enactment. If “‘Congress includes particular\\nlanguage in one section of a statute but omits it in another’ — let alone in the\\nvery next provision” — courts presume “Congress intended a different\\nmeaning.” Loughrin v. United States, 573 U.S. 351, 358 (2014) (quoting\\nRussello v. United States, 464 U.S. 16, 23 (1983)). Congress sandwiched\\nSubsection (A)(ii), which does not mention loans at least by name, between two\\nsubsections that explicitly do. That structure is at least a start to saying\\neducational benefits are not loans.\\n We now look more closely at Subsection (A)(ii)’s text. The subsection\\napplies to the “obligation to repay” funds received as “an educational benefit,”\\n“scholarship,” or “stipend.” The prefatory language, i.e, that there is “an\\nobligation to repay,” appears only in this subsection. The phrase is superfluous\\nwhen referring to loans, but it is quite relevant to payments with contingent\\nobligations. Next, a stipend is a “fixed and regular payment, such as a salary.”\\nAMERICAN HERITAGE COLLEGE DICTIONARY, 1220 (3d ed. 1997). A scholarship\\nis a “grant of financial aid to a student.” Id. The key phrase, “educational\\nbenefit,” is the broadest. We consider unnecessary a dictionary definition of\\n“educational,” but “benefit” needs one. Because the term is so broad, the\\nlimiting principle of noscitur a sociis potentially should be used — over\\nNavient’s objection, though — to understand the phrase in context. In a recent\\napplication, the Supreme Court said there are times we should “look to noscitur\\na sociis, the well-worn Latin phrase that tells us that statutory words are often\\nknown by the company they keep.” Lagos v. United States, 138 S. Ct. 1684,\\n1688–89 (2018). The “common quality” in a list that is the focus of the noscitur\\na sociis inquiry “should be its most general quality — the least common\\ndenominator, so to speak — relevant to the context.” SCALIA & GARNER,\\nREADING LAW, 196.\\n 20\\n\\f Case: 18-20254 Document: 00515169017 Page: 21 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\n One general quality in the relevant phrase is that stipends and\\nscholarships “signify granting, not borrowing.” McDaniel v. Navient Sols., LLC\\n(In re McDaniel), 590 B.R. 537, 549 (Bankr. D. Colo. 2018). Those grants may\\nbe conditional, but satisfaction of the conditions leaves them as grants. The\\ncommon quality is that scholarships and stipends may not need to be repaid.\\n Navient argues that noscitur a sociis should not apply because the\\nstatutory list is too brief. The Supreme Court recently used the doctrine in a\\nfour-item list: “lost income and necessary child care, transportation, and other\\nexpenses.” Lagos, 138 S. Ct. at 1688 (quoting 18 U.S.C. § 3663A(b)(4)); but see\\nGraham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson,\\n559 U.S. 280, 288 (2010) (“A list of three items . . . is too short to be particularly\\nilluminating.”). Lagos used three specific items to give meaning to a catchall.\\nId. at 1688–89. Authors Scalia and Garner did use a three-item list to explain\\nproper use of this doctrine. SCALIA & GARNER, READING LAW, at 196–97. The\\nexample was a state statute criminalizing the carrying of a firearm in a motor\\nvehicle unless, among other conditions, it was “contained in a closed and\\nfastened case, gunbox, or securely tied package.” Id. (discussing State v.\\nTaylor, 594 N.W. 2d 533, 535–36 (Minn. Ct. App. 1999)). The Minnesota court\\nheld that a purse was not a proper “case” — despite that it was “closed and\\nfastened” — because the commonality of the other two items was that they\\nwere containers that kept a firearm from being readily accessible. Id.\\n The brevity of the list in the text we must review does not compel\\nignoring the relevant term’s neighbors.\\n We offer one definition of “benefit,” namely, a “payment made or an\\nentitlement available in accordance with a wage agreement, an insurance\\npolicy, or a public assistance program.” AMERICAN HERITAGE COLLEGE\\nDICTIONARY, at 127. Whatever definition is used, we begin our analysis with\\n\\n\\n 21\\n\\f Case: 18-20254 Document: 00515169017 Page: 22 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\na tentative acceptance that the benefit generally does not need to be repaid.\\nOur analysis continues, though.\\n Navient claims that a different definition of “benefit” is best: “an\\nadvantage or profit gained from something.” OXFORD ENGLISH DICTIONARY (3d\\ned. 1997). That definition is limitless, invoking the very reason for the noscitur\\na sociis doctrine. Navient’s offering does not capture the essentials of “stipend”\\nand “scholarship,” which identify narrow categories of benefits.\\n Indeed, we see a lack of common sense in interpreting the list as\\ncontaining two specific and quite limited kinds of payments that, among other\\nthings, do not usually require repayment, and a third item preceding the two\\nthat was meant to be a catchall for loans and most everything else financially\\nbenefitting a student. Such an understanding of what Congress did with those\\nwords creates a superfluity of words in the other parts of Section 523(a)(8). If\\nan “obligation to repay funds including educational benefits” includes repaying\\nprivate student loans, that requires defining “educational benefit” to include\\nloans, which then means it also covers the public loans that are the focus of\\nSubsection 523(a)(8)(A)(i). See In re Essangui, 573 B.R. 614, 624 (Bankr. D.\\nMd. 2017). Under Navient’s interpretation, government loans covered by\\nSubsection (A)(i) and qualified education loans covered by Subsection (B)\\nwould also be covered by Subsection (A)(ii), rendering the other subsections\\nserving little purpose. Courts have a “duty to give effect, if possible, to every\\nclause and word of a statute.” Bennett v. Spear, 520 U.S. 154, 173 (1997).\\nConcomitantly, “the canon against surplusage is strongest when an\\ninterpretation would render superfluous another part of the same statutory\\nscheme.” Marx v. Gen. Rev. Corp., 568 U.S. 371, 386 (2013).\\n Navient calls this analysis “hyperbolic,” reframing the surplusage as\\nsimply “some overlap” between the subsections. Navient, though, fails to\\nexplain how the other subsections serve much purpose if the broad reading of\\n 22\\n\\f Case: 18-20254 Document: 00515169017 Page: 23 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\nSubsection (A)(ii) applies. Navient argues that Subsection (A)(ii)’s receipt of\\nfunds requirement leaves Subsection (B) with work to do. For example, a loan\\nobtained by a grandfather for his grandson to attend a Title IV college would\\nnot be covered by Subsection (A)(ii) because the grandfather did not receive the\\nbenefit, but it was covered by Subsection (B). See Wills v. Sallie Mae Servicing\\n(In re Wills), No. 08-80404-FJO-07, 2010 WL 1688221, at *7 (S.D. Ind. Apr. 23,\\n2010). Maybe so, but because every exemption in these provisions is a type of\\nfund used by recipients to advance their education, Congress could have just\\nexempted from discharge any “obligation to repay funds received as an\\neducational benefit” and left it at that. The redundancies created by Navient’s\\ninterpretation of Subsection (A)(ii) create more than a modest overlap and can\\nbe avoided by adopting the narrower interpretation of that subsection.\\n Navient seeks to block any interpretive effort by this court by arguing\\nthat one of our precedents makes the sole issue for us “whether Plaintiffs’ loans\\nexpressed an educational purpose at the time of application, origination, and\\ndisbursement.” See Murphy v. Penn. Higher Educ. Assistance Agency (In re\\nMurphy), 282 F.3d 868, 870–72 (5th Cir. 2002). 10 Pretty bold analysis of\\nMurphy, and errant in our view. Murphy applied the 1990 language applicable\\nto loans insured by the federal government. Id. at 870. The question was\\nwhether such a federally-insured loan was “educational” even as to proceeds\\nspent on living expenses. Id. at 870, 873. The court held that the educational\\n\\n\\n 10 The Murphy court discussed the added difficulties the debtor’s strained reading of\\n“educational benefit” in the 1990 statute’s reference to federally-insured loans would create\\nfor the second use of the phrase in Section 523(a)(8), which the court twice quoted as\\n“education benefit scholarship or stipend,” i.e, without commas. See Murphy, 282 F.3d at\\n870, 871. That made the first two words adjectival, not a separate category, and the court’s\\nanalysis focused on whether the two words modified both “scholarship” and “stipend.” Id. at\\n871–72. It appears to us, though, that Congress in 1990 adopted this language: “obligation\\nto repay funds received as an educational benefit, scholarship or stipend.” Crime Control Act\\nof 1990, Pub. L. No. 101-647, § 3621, 104 Stat. 4789, 4964–65. Regardless, the statute as it\\nexists today does make “educational benefit” a third category in Section 523(a)(8)(A)(ii).\\n 23\\n\\f Case: 18-20254 Document: 00515169017 Page: 24 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\npurpose of such a loan was defined by its purpose upon disbursement by the\\nlender and not by the way it was spent by the borrower. Id. at 873. Murphy\\ndid not analyze our issue, and we must conduct our own evaluation.\\n An argument by plaintiffs about grammar, to which we give less weight\\nthan the foregoing because it relies on such a minor word-choice, is that when\\nCongress exempted funds “received as an educational benefit” rather than “for\\nan educational benefit,” the natural reading is that it describes what the giver\\nwas giving and not what the receiver could make of the gift. The phrase “as\\nan educational benefit” indicates that the funds themselves are the educational\\nbenefit (like tuition payments), whereas the phrase “for an educational benefit”\\nmight well encompass funds conveyed for educational purposes, including\\nprivate student loans. Essangui, 573 B.R. at 621. At least it can be said the\\ndrafters’ word choice does not support inclusion of private student loans.\\n We also examine the statutory history for Subsection (a)(8), i.e., the\\nhistory of enacted revisions. 11 Since 1970, Congress has expanded the scope of\\nnon-dischargeable student loans. See, e.g., Cazenovia Coll. v. Renshaw (In re\\nRenshaw), 222 F.3d 82, 86–88 (2d Cir. 2000) (surveying the history of\\nSubsection (a)(8)). We find that the phrase “educational benefit” first appeared\\nin Subsection (a)(8) in 1990, which excepted from discharge a debt\\n\\n\\n 11 Plaintiffs also urge us to examine legislative history. Various court decisions assert\\nthat in 1990, the nondischargeability of “an obligation to repay funds received as an\\neducational benefit, scholarship, or stipend,” was added to confirm an Eighth Circuit\\ninterpretation holding that certain conditional payments were loans covered by Section (a)(8).\\nSee, e.g., Essangui, 573 B.R. at 618 (citing U.S. Dep’t of Health & Human Servs. v. Smith,\\n807 F.2d 122 (8th Cir. 1986)). A House Judiciary Committee hearing on the bill revealed that\\nthe amendment was drafted by a committee of United States Attorneys. Fed. Debt Collection\\nProcedures: Hearing before the Subcomm. on Econ. & Commercial Law of the Comm. on the\\nJudiciary, H.R., 101st Cong., 2, 3 (1990) (statements by Rep. Brooks and U.S. Att’y Bob\\nWortham). In answers to written questions, the chair of the outside drafting committee wrote\\nthat VA benefits were an example of a relevant “education benefit.” Id. at 74–75 (answers of\\nBob Wortham). We acknowledge this history but do not rely on it. Meaning to a statute\\ncomes from its text, analyzed by employing appropriate tools of statutory interpretation\\nwhich we conclude do not include legislative history.\\n 24\\n\\f Case: 18-20254 Document: 00515169017 Page: 25 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\n for an educational benefit overpayment or loan made, insured or\\n guaranteed by a governmental unit, or made under any program\\n funded in whole or in part by a governmental unit or nonprofit\\n institution, or for an obligation to repay funds received as an\\n educational benefit, scholarship or stipend.\\nCrime Control Act of 1990, Pub. L. No. 101-647, § 3621, 104 Stat. 4789, 4964-\\n65 (codified as 11 U.S.C. § 523(a)(8)) (emphasis added).\\n Before explaining the latest change, made in 2005, we remark on the\\nnear-unanimity of courts’ understanding of the 1990 change. One court, after\\nsurveying the caselaw, stated that the language we italicized above was\\n“generally interpreted . . . to create a new category of nondischargeable debt\\nthat excluded for-profit loans.” Essangui, 573 B.R. at 619. Navient agrees that\\nwas the trend, but it argues that by the amendments to Subsection (a)(8) in\\n2005 which we discuss next, Congress brought private student loans within\\nthe exceptions to discharge. The parties do not agree about the post-2005\\ncaselaw. Navient calculates the majority as holding that any funds received\\nfor an educational purpose, including private student loans, were covered by\\nthe new language. 12 See, e.g., Brown v. CitiBank, N.A. (In re Brown), 539 B.R.\\n853, 858–59 (Bankr. S.D. Cal. 2015). The plaintiffs count the cases differently.\\nThey both agree that since about 2015, there has been increasing caselaw that\\nholds private student loans are not exempt from discharge. See, e.g., Nypaver\\nv. Nypaver (In re Nypaver), 581 B.R. 431, 435–37 (W.D. Pa. 2018).\\n\\n\\n\\n 12 The only circuit court opinion cited to us on this issue is unpublished. Desormes v.\\nInfilaw Corp. (In re Desormes), 569 F. App’x 42 (2d Cir. 2014). Thus, no matter what we\\ndecide, there will not be a split in precedential circuit authority. The opinion was quite brief,\\nwith the only description of the debt being that it came from a “student loan” and “was\\nexcepted from discharge under 11 U.S.C. § 523(a)(8)(A)(ii).” Id. at 43. There was no analysis\\nof how to interpret the three-item statutory list. The debtor’s argument centered on the\\nsupposed necessity for “a transfer of funds directly to the debtor” before a loan would “be\\nreceived within the meaning of the statute.” Id. The bankruptcy court’s opinion indicates the\\nloan was from the school to pay the student’s tuition. Desormes v. Charlotte School of Law,\\nInc. (In re Desormes), 2012 WL 4106765 at *1 (Bankr. D. Conn. 2012).\\n 25\\n\\f Case: 18-20254 Document: 00515169017 Page: 26 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\n In 2005, Congress replaced the entirety of Subsection (a)(8) with a new\\nsubsection with subparts. We italicize the only significant new language:\\n (8) unless excepting such debt from discharge under this\\n paragraph would impose an undue hardship on the debtor and the\\n debtor's dependents, for —\\n (A)(i) an educational benefit overpayment or loan made,\\n insured, or guaranteed by a governmental unit, or made under any\\n program funded in whole or in part by a governmental unit or\\n nonprofit institution; or\\n (ii) an obligation to repay funds received as an educational\\n benefit, scholarship, or stipend; or\\n (B) any other educational loan that is a qualified education\\n loan, as defined in section 221(d)(1) of the Internal Revenue Code\\n of 1986, incurred by a debtor who is an individual.\\nBankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L.\\nNo. 109-8, Title II, § 220, 119 Stat. 23, 59 (emphasis added) (codified as 11\\nU.S.C. § 523(a)).\\n The significant change was to make nondischargeable “any other . . .\\nqualified educational loan,” which Navient concedes the loans here are not, by\\nadding Subsection (B). Most importantly for us, Congress barely tweaked the\\n1990 language of “obligation to repay funds received as an educational benefit,\\nscholarship or stipend” — it inserted a comma after “scholarship.” Navient\\nacknowledges that from 1990 to 2005, the interpretation of stipends,\\nscholarships, and educational benefits had excluded for-profit loans. We see\\nwhat did not happen to this language in 2005 as invoking this principle: “If a\\nword or phrase has been . . . given a uniform interpretation by inferior courts...,\\na later version of that act perpetuating the wording is presumed to carry\\nforward that interpretation.” Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive\\nCmtys. Project, Inc., 135 S. Ct. 2507, 2520 (2015) (quoting SCALIA & GARNER,\\nREADING LAW 322). Navient argues that severing Subsection (A)(ii) from (A)(i)\\nallowed (A)(ii) to cover a broader scope of education financing, including\\n 26\\n\\f Case: 18-20254 Document: 00515169017 Page: 27 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\nprivate education loans. All we see is a change to the structure of the overall\\nstatute but no real change to the language that controls the case before us.\\n Navient’s assertion that the 2005 amendment made all private student\\nloans nondischargeable is not only unsupported by the text, it is unsupported\\nby some of Navient’s authorities. Among them is Corletta v. Tex. Higher Educ.\\nCoordinating Bd. (In re Pappas), 517 B.R. 708, 716–17 (Bankr. W.D. Tex.\\n2014). That case says no more than that Congress amended Subsection (a)(8)\\nin 2005 “to apply to private loans as well” without identifying Subsection\\n(a)(8)(A)(ii) as the mechanism for this change. Id. at 717. What brought a new\\ncategory of private loans into the discharge arena was the language of\\nSubsection (a)(8)(B), the only meaningful 2005 addition.\\n This court has recently discussed the 2005 change to the statute. See\\nThomas v. Dep’t of Educ. (In re Thomas), 931 F.3d 449 (5th Cir. 2019). The\\ncase concerned the “undue hardship” test that allows the discharge of an\\neducation loan. Id. at 451–55. The loans at issue were from the United States\\nDepartment of Education. Id. at 450. That made them nondischargeable\\nunder Subsection 523(a)(8)(A)(i) as being “insured or guaranteed by a\\ngovernmental unit, or made under any program funded in whole or in part by\\na governmental unit or nonprofit institution.”\\n The 2005 revision was “in response to the growing trend of commercial\\nlending,” and the amendment’s purpose was to “make qualified private student\\nloans harder to discharge, prohibiting discharge in all cases, unless repayment\\nwould create ‘undue hardship’ for the debtor.” Id. at 453. That is a description\\nof the new Subsection (a)(8)(B). The definition of a “qualified education loan”\\nis in Section 221(d)(1) of the Internal Revenue Code of 1986, and, as stated\\nbefore, Navient accepts that Subsection (a)(8)(B) does not apply here.\\n In a supplementary letter to this court on Thomas, Navient implicitly\\nrecognized that much of the new opinion was not on point, but it quoted the\\n 27\\n\\f Case: 18-20254 Document: 00515169017 Page: 28 Date Filed: 10/22/2019\\n\\n\\n\\n No. 18-20254\\ncourt’s language that “Section 523(a)(8) as it stands today excepts virtually all\\nstudent loans from discharge” with the caveat about undue hardship. Thomas,\\n931 F.3d at 453. That statement is a fair summary of the reach of\\nnondischargeability, but before us is a category of loan that has not (yet) been\\nreached by Subsection 523(a)(8).\\n We find nothing in this explanation of the 2005 revisions to alter our\\ninterpretation that Subsection 523(a)(8)(A)(ii) applies only to educational\\npayments that are not initially loans but whose terms will create a\\nreimbursement obligation upon the failure of conditions of the payments.\\n In conclusion, the only possibly applicable part of the relevant statute is\\nSubsection 523(a)(8)(A)(ii). In interpreting that provision, we rely on the\\nnoscitur a sociis doctrine, the need to avoid surplusage, Congressional\\nratification in 2005 of prior interpretations, and the command that discharge\\nexceptions are interpreted narrowly in favor of debtors. We conclude that\\n“educational benefit” is limited to conditional payments with similarities to\\nscholarships and stipends. The loans at issue here, though obtained in order\\nto pay expenses of education, do not qualify as “an obligation to repay funds\\nreceived as an educational benefit, scholarship, or stipend” because their\\nrepayment was unconditional. They therefore are dischargeable.\\n * * *\\n We REVERSE the bankruptcy court’s determination that it has\\nauthority to enforce a discharge injunction entered by a different district’s\\nbankruptcy court. Any debtors seeking enforcement of injunctions due to\\ndischarges entered in other districts should have their proceedings dismissed\\nor transferred. We AFFIRM the determination that loans such as those in issue\\nhere are dischargeable. We REMAND to the bankruptcy court.\\n\\n\\n\\n\\n 28\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4596,"cells":{"id":{"kind":"number","value":4672058,"string":"4,672,058"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Eleanor Keller v. Attala County"},"decision_date":{"kind":"string","value":"2019-10-23"},"docket_number":{"kind":"string","value":"18-60081"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before STEWART, DENNIS, and WILLETT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n October 22, 2019\\n No. 18-60081 Lyle W. Cayce\\n Clerk\\n\\nELEANOR KELLER, individually and on behalf of all Heirs-at-Law and/or\\nwrongful death beneficiaries of Gerald Simpson, Deceased; THE ESTATE OF\\nGERALD SIMPSON, by and through Glen Simpson, Administrator of Estate,\\n\\n Plaintiffs - Appellees\\n\\nv.\\n\\nDARRIN FLEMING,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n Northern District of Mississippi\\n USDC No. 1:16-CV-136\\n\\n\\nBefore STEWART, DENNIS, and WILLETT, Circuit Judges.\\nPER CURIAM:\\n Our prior opinion, Keller v. Fleming, 930 F.3d 746 (5th Cir. 2019), is\\nwithdrawn, and a revised opinion will be forthcoming.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4449311/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"STEWART"},"judge2":{"kind":"string","value":"DENNIS"},"judge3":{"kind":"string","value":"WILLETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"STEWART\": \", Circuit\", \"DENNIS\": \", Circuit\", \"WILLETT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4672058/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Eleanor Keller v. Attala County\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n October 22, 2019\n No. 18-60081 Lyle W. Cayce\n Clerk\n\nELEANOR KELLER, individually and on behalf of all Heirs-at-Law and/or\nwrongful death beneficiaries of Gerald Simpson, Deceased; THE ESTATE OF\nGERALD SIMPSON, by and through Glen Simpson, Administrator of Estate,\n\n Plaintiffs - Appellees\n\nv.\n\nDARRIN FLEMING,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n Northern District of Mississippi\n USDC No. 1:16-CV-136\n\n\nBefore STEWART, DENNIS, and WILLETT, Circuit Judges.\nPER CURIAM:\n Our prior opinion, Keller v. Fleming, 930 F.3d 746 (5th Cir. 2019), is\nwithdrawn, and a revised opinion will be forthcoming.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Eleanor Keller v. Attala County\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-23\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nIN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n October 22, 2019\\n No. 18-60081 Lyle W. Cayce\\n Clerk\\n\\nELEANOR KELLER, individually and on behalf of all Heirs-at-Law and/or\\nwrongful death beneficiaries of Gerald Simpson, Deceased; THE ESTATE OF\\nGERALD SIMPSON, by and through Glen Simpson, Administrator of Estate,\\n\\n Plaintiffs - Appellees\\n\\nv.\\n\\nDARRIN FLEMING,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n Northern District of Mississippi\\n USDC No. 1:16-CV-136\\n\\n\\nBefore STEWART, DENNIS, and WILLETT, Circuit Judges.\\nPER CURIAM:\\n Our prior opinion, Keller v. Fleming, 930 F.3d 746 (5th Cir. 2019), is\\nwithdrawn, and a revised opinion will be forthcoming.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4597,"cells":{"id":{"kind":"number","value":4672296,"string":"4,672,296"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Rajin Patel v. Texas Tech University"},"decision_date":{"kind":"string","value":"2019-10-23"},"docket_number":{"kind":"string","value":"19-10009"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before KING, HIGGINSON, and DUNCAN, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"STUART KYLE DUNCAN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 19-10009 Document: 00515171167 Page: 1 Date Filed: 10/23/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 19-10009 FILED\\n October 23, 2019\\n Lyle W. Cayce\\nRAJIN PATEL, Clerk\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nTEXAS TECH UNIVERSITY; DUANE JONES, Individually and in his\\nOfficial Capacity as Adjunct Professor; WILLIAM PASEWARK, Individually\\nand in his Official Capacity as Texas Tech University Rawls College of\\nBusiness Associate Dean of Graduate Programs and Research; ROBERT\\nRICKETTS, Individually and in his Official Capacity as Area Coordinator in\\nAccounting; BRITTANY TODD, Individually and in her Individual Capacity\\nas Associate Director of the Office of Student Conduct,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore KING, HIGGINSON, and DUNCAN, Circuit Judges.\\nSTUART KYLE DUNCAN, Circuit Judge:\\n Rajin Patel appeals the district court’s order granting defendants’ motion\\nfor summary judgment and dismissing his complaint. We affirm.\\n I.\\n Patel, a graduate student at Texas Tech University, sued the university\\nand several of its officers and agents (collectively, “Defendants”) asserting\\nsubstantive due process and equal protection claims in connection with the\\n\\f Case: 19-10009 Document: 00515171167 Page: 2 Date Filed: 10/23/2019\\n\\n\\n\\n No. 19-10009\\nuniversity’s evaluation of allegations that Patel cheated on an exam. The story\\nbegins with a business law final exam administered by Defendant Duane\\nJones. While grading the exam, Jones noted distinct similarities between\\nPatel’s answers and answers from a test bank, indicating Patel may have\\ncheated. Jones reported Patel to the Office of Student Conduct (“OSC”). In\\nturn, OSC—led by then-associate director Defendant Brittany Todd—\\nconducted an internal investigation that resulted in a report adverse to Patel.\\nOSC then convened a panel that heard evidence from Patel, Jones, and OSC.\\nThe panel found Patel responsible for plagiarism and cheating and assessed\\nfinancial and academic penalties. The panel’s determination was based on the\\nsimilarities between the test bank answers and Patel’s test answers. Texas\\nTech denied Patel’s internal appeal.\\n Patel then sued Texas Tech and all individually named Defendants in\\ntheir official and individual capacities. He asserted claims under 42 U.S.C.\\n§ 1983 for substantive due process and equal protection violations, as well as\\na breach of contract claim against Texas Tech. Defendants 1 filed motions to\\nstrike Patel’s expert reports and a motion for summary judgment. While it\\ndenied the motions to strike, the district court declined to consider the expert\\nreports when ruling on summary judgment because the reports were unsworn.\\nFinding no genuine issue of material fact as to Patel’s claims, the district court\\ngranted Defendants’ motion for summary judgment and dismissed his\\ncomplaint. Patel appeals the district court’s failure to consider his expert\\nreports as well as the summary judgment dismissing his substantive due\\nprocess and equal protection claims. 2\\n\\n\\n 1 The court dismissed Patel’s individual-capacity claims against certain defendants on\\nqualified immunity grounds. Those rulings are not before us.\\n Patel voluntarily dismissed his breach of contract claim before the district court’s\\n 2\\n\\nsummary judgment ruling.\\n 2\\n\\f Case: 19-10009 Document: 00515171167 Page: 3 Date Filed: 10/23/2019\\n\\n\\n\\n No. 19-10009\\n II.\\n We first address whether the district court erred in refusing to consider\\nPatel’s unsworn expert reports when ruling on summary judgment. We review\\na district court’s evidentiary rulings that determine the summary judgment\\nrecord for abuse of discretion. Maurer v. Independence Town, 870 F.3d 380, 383\\n(5th Cir. 2017). Although that standard is deferential, an “erroneous view of the\\nlaw” satisfies it. Id. at 384 (citation omitted).\\n The expert reports at issue come from Dr. Robert Coyle and Dr. Alan\\nPerlman. Dr. Coyle’s report opines that Patel has a learning disability that\\nrequires him to study by rote memorization. Dr. Perlman’s report applies\\nlinguistic theory to conclude that the similarities between Patel’s answers and\\nthe test bank answers are insufficient to show Patel cheated. Although the\\ndistrict court declined to consider the expert reports because they were\\nunsworn, it made no finding that the opinions expressed in the reports could\\nnot be placed in admissible form.\\n In discounting the reports, the district court mistakenly relied on a prior\\nversion of Federal Rule of Civil Procedure 56 and cases applying it. See Lee v.\\nOffshore Logistical and Transport, L.L.C., 859 F.3d 353, 354 (5th Cir. 2017) (“In\\n2010, Rule 56 was amended to clarify and streamline the procedures regarding\\nsummary judgment motions and to make clear the process for supporting\\nassertions of fact and objecting thereto.”). New Rule 56(c), added in 2010,\\npermits a party to support or dispute summary judgment through unsworn\\ndeclarations, provided their contents can be presented in admissible form at\\ntrial. “Although the substance or content of the evidence submitted to support\\nor dispute a fact on summary judgment must be admissible . . ., the material\\nmay be presented in a form that would not, in itself, be admissible at trial.” Id.\\nat 355 (quoting 11 Moore’s Federal Practice–Civil ¶ 56.91 (2017)); see also, e.g.,\\nMaurer, 870 F.3d at 384 (“At the summary judgment stage, evidence need not\\n 3\\n\\f Case: 19-10009 Document: 00515171167 Page: 4 Date Filed: 10/23/2019\\n\\n\\n\\n No. 19-10009\\nbe authenticated or otherwise presented in an admissible form.”) (citations\\nomitted). The district court declined to consider Patel’s two reports solely\\nbecause they were unsworn, without considering whether those opinions were\\n“capable of being presented in a form that would be admissible in evidence.” Id.\\n(quoting LSR Consulting, L.L.C. v. Wells Fargo Bank, NZ, 835 F.3d 530, 534\\n(5th Cir. 2016)) (cleaned up). This contravened the new summary judgment rule\\nand was therefore an abuse of discretion. Consequently, we will consider Patel’s\\nexpert reports in determining whether Defendants were entitled to summary\\njudgment. See Maurer, 870 F.3d at 385 (because the district court mistakenly\\nexcluded evidence under the new summary judgment rule, “[w]e will\\n. . . consider the [excluded evidence] in determining whether the [movant] was\\nentitled to summary judgment”); Curtis v. M&S Petroleum, Inc., 174 F.3d 661,\\n667–68 (5th Cir. 1999) (after first reviewing evidentiary rulings, “[t]hen, with\\nthe record defined, we must review de novo the order granting judgment as a\\nmatter of law”) (citations omitted).\\n III.\\n We now turn to Patel’s contention that the district court erred in\\ngranting Defendants summary judgment. We review a summary judgment de\\nnovo. Ezell v. Kan. City S. Ry. Co., 866 F.3d 294, 297 (5th Cir. 2017). Summary\\njudgment is appropriate only “if the movant shows that there is no genuine\\ndispute as to any material fact and the movant is entitled to judgment as a\\nmatter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if, under the applicable\\nsubstantive law, “its resolution could affect the outcome of the action.” Sierra\\nClub, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir.\\n2010) (citation omitted).\\n Patel’s claims are, in essence, that the university’s evaluation of the\\ncheating allegations violated his substantive due process and equal protection\\nrights. In opposing summary judgment, Patel points to evidence—including the\\n 4\\n\\f Case: 19-10009 Document: 00515171167 Page: 5 Date Filed: 10/23/2019\\n\\n\\n\\n No. 19-10009\\ntwo expert reports—purporting to show that, contrary to the OSC panel’s\\ndetermination, he did not cheat or plagiarize during the final exam. This\\nmisapprehends the gravamen of claims concerning allegedly unconstitutional\\nacademic decisions, such as the one at issue here. “When judges are asked to\\nreview the substance of a genuinely academic decision, . . . they should show\\ngreat respect for the faculty’s professional judgment.” Regents of Univ. of Mich.\\nv. Ewing, 474 U.S. 214, 225 (1985). “Plainly, they may not override [an academic\\ndecision] unless it is such a substantial departure from accepted academic\\nnorms as to demonstrate that the person or committee responsible did not\\nactually exercise professional judgment.” Id. “Courts must accept, as consistent\\nwith due process, an academic decision that is not beyond the pale of reasoned\\nacademic decision-making when viewed against the background of the student’s\\nentire career.” Wheeler v. Miller, 168 F.3d 241, 250 (5th Cir. 1999). This\\nexceedingly narrow scope for judicial review of academic decisions applies to\\nboth due process and equal protection claims. See id. at 252. 3\\n With respect to his substantive due process claim, Patel fails to identify\\nany summary judgment evidence raising a genuine fact issue that Defendants\\n“did not actually exercise professional judgment” in resolving the cheating\\nallegations, Ewing, 474 U.S. at 225, or that the result of the process was\\n“beyond the pale of reasoned academic decision-making,” Wheeler, 168 F.3d at\\n250. Instead Patel merely asserts, for example, that Jones failed to exercise\\n\\n\\n 3 The Sixth Circuit recently addressed a similar scenario where a student contested\\nhis dismissal from medical school for cheating on an exam. See Endres v. N.E. Ohio Med.\\nUniv., 938 F.3d 281 (6th Cir. 2019). Endres does not conflict with our decision here. That case\\ninvolved a “procedural due process” claim that the student was not afforded adequate\\nprocedural safeguards before dismissal, id. at 297, not the “substantive due process” claim\\nPatel asserts. We also note that the Sixth Circuit distinguishes the process constitutionally\\nrequired for “academic” versus “disciplinary” decisions. See id. (explaining that dismissal for\\n“disciplinary misconduct” demands “more robust process” than dismissal for “academic\\nunderperformance”). Our circuit has not had occasion to address this distinction in the\\ncontext of procedural due process claims. In any event, it has no bearing on this case.\\n 5\\n\\f Case: 19-10009 Document: 00515171167 Page: 6 Date Filed: 10/23/2019\\n\\n\\n\\n No. 19-10009\\nprofessional judgment by reporting him for cheating and that Todd and the\\npanel failed to adequately investigate the allegations against him. These\\nconclusory allegations cannot create a genuine fact issue sufficient to defeat\\nsummary judgment. See, e.g., Little v. Liquid Air Corp., 37 F.3d 1069, 1075\\n(5th Cir. 1994). The record is devoid of evidence even suggesting that any\\nDefendants acted unreasonably in reporting, investigating, or resolving the\\nallegations against Patel. To the contrary, the record reflects that Defendants\\nfollowed protocol in reporting and investigating the allegations and that the\\nresult of the process was supported by evidence. In response to this, Patel only\\noffers evidence suggesting, at most, it may have been reasonable for the\\nuniversity to conclude that he did not in fact plagiarize or cheat. Again, this\\nmisses the point: the applicable constitutional standard asks not whether Patel\\nin fact cheated but instead whether the decisionmaker “did not actually\\nexercise professional judgment” in reaching its decision. Ewing, 474 U.S. at\\n225. We thus conclude that Patel’s substantive due process claim was properly\\ndismissed on summary judgment.\\n Patel likewise fails to demonstrate a genuine issue of material fact as to\\nhis equal protection claim. He alleges that Jones only reported Patel even\\nthough Jones received an anonymous report that two other unnamed students\\nmay have cheated. This “class of one” equal protection claim requires Patel to\\nshow that “(1) he . . . was intentionally treated differently from others similarly\\nsituated and (2) there was no rational basis for the difference in treatment.”\\nLindquist v. City of Pasadena Tex., 669 F.3d 225, 233 (5th Cir. 2012); see also\\nVill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Patel points to no\\nsummary judgment evidence creating a genuine fact issue as to either prong.\\nThat is, nothing in the record suggests that Patel was intentionally treated in\\na manner irrationally different from other similarly situated students. See\\nEwing, 474 U.S. at 228 n. 14 (even when student identifies possible academic\\n 6\\n\\f Case: 19-10009 Document: 00515171167 Page: 7 Date Filed: 10/23/2019\\n\\n\\n\\n No. 19-10009\\ncomparators through statistical evidence, courts “are not in a position to say”\\nthose students were “similarly situated” for purposes of challenging academic\\ndecisions). We therefore conclude the district court properly granted summary\\njudgment dismissing Patel’s equal protection claim.\\n AFFIRMED\\n\\n\\n\\n\\n 7\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4449549/\", \"author_raw\": \"STUART KYLE DUNCAN, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"KING"},"judge2":{"kind":"string","value":"HIGGINSON"},"judge3":{"kind":"string","value":"DUNCAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"KING\": \", Circuit\", \"HIGGINSON\": \", Circuit\", \"DUNCAN\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4672296/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Rajin Patel v. Texas Tech University\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 19-10009 Document: 00515171167 Page: 1 Date Filed: 10/23/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 19-10009 FILED\n October 23, 2019\n Lyle W. Cayce\nRAJIN PATEL, Clerk\n\n Plaintiff - Appellant\n\nv.\n\nTEXAS TECH UNIVERSITY; DUANE JONES, Individually and in his\nOfficial Capacity as Adjunct Professor; WILLIAM PASEWARK, Individually\nand in his Official Capacity as Texas Tech University Rawls College of\nBusiness Associate Dean of Graduate Programs and Research; ROBERT\nRICKETTS, Individually and in his Official Capacity as Area Coordinator in\nAccounting; BRITTANY TODD, Individually and in her Individual Capacity\nas Associate Director of the Office of Student Conduct,\n\n Defendants - Appellees\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\nBefore KING, HIGGINSON, and DUNCAN, Circuit Judges.\nSTUART KYLE DUNCAN, Circuit Judge:\n Rajin Patel appeals the district court’s order granting defendants’ motion\nfor summary judgment and dismissing his complaint. We affirm.\n I.\n Patel, a graduate student at Texas Tech University, sued the university\nand several of its officers and agents (collectively, “Defendants”) asserting\nsubstantive due process and equal protection claims in connection with the\n\f Case: 19-10009 Document: 00515171167 Page: 2 Date Filed: 10/23/2019\n\n\n\n No. 19-10009\nuniversity’s evaluation of allegations that Patel cheated on an exam. The story\nbegins with a business law final exam administered by Defendant Duane\nJones. While grading the exam, Jones noted distinct similarities between\nPatel’s answers and answers from a test bank, indicating Patel may have\ncheated. Jones reported Patel to the Office of Student Conduct (“OSC”). In\nturn, OSC—led by then-associate director Defendant Brittany Todd—\nconducted an internal investigation that resulted in a report adverse to Patel.\nOSC then convened a panel that heard evidence from Patel, Jones, and OSC.\nThe panel found Patel responsible for plagiarism and cheating and assessed\nfinancial and academic penalties. The panel’s determination was based on the\nsimilarities between the test bank answers and Patel’s test answers. Texas\nTech denied Patel’s internal appeal.\n Patel then sued Texas Tech and all individually named Defendants in\ntheir official and individual capacities. He asserted claims under 42 U.S.C.\n§ 1983 for substantive due process and equal protection violations, as well as\na breach of contract claim against Texas Tech. Defendants 1 filed motions to\nstrike Patel’s expert reports and a motion for summary judgment. While it\ndenied the motions to strike, the district court declined to consider the expert\nreports when ruling on summary judgment because the reports were unsworn.\nFinding no genuine issue of material fact as to Patel’s claims, the district court\ngranted Defendants’ motion for summary judgment and dismissed his\ncomplaint. Patel appeals the district court’s failure to consider his expert\nreports as well as the summary judgment dismissing his substantive due\nprocess and equal protection claims. 2\n\n\n 1 The court dismissed Patel’s individual-capacity claims against certain defendants on\nqualified immunity grounds. Those rulings are not before us.\n Patel voluntarily dismissed his breach of contract claim before the district court’s\n 2\n\nsummary judgment ruling.\n 2\n\f Case: 19-10009 Document: 00515171167 Page: 3 Date Filed: 10/23/2019\n\n\n\n No. 19-10009\n II.\n We first address whether the district court erred in refusing to consider\nPatel’s unsworn expert reports when ruling on summary judgment. We review\na district court’s evidentiary rulings that determine the summary judgment\nrecord for abuse of discretion. Maurer v. Independence Town, 870 F.3d 380, 383\n(5th Cir. 2017). Although that standard is deferential, an “erroneous view of the\nlaw” satisfies it. Id. at 384 (citation omitted).\n The expert reports at issue come from Dr. Robert Coyle and Dr. Alan\nPerlman. Dr. Coyle’s report opines that Patel has a learning disability that\nrequires him to study by rote memorization. Dr. Perlman’s report applies\nlinguistic theory to conclude that the similarities between Patel’s answers and\nthe test bank answers are insufficient to show Patel cheated. Although the\ndistrict court declined to consider the expert reports because they were\nunsworn, it made no finding that the opinions expressed in the reports could\nnot be placed in admissible form.\n In discounting the reports, the district court mistakenly relied on a prior\nversion of Federal Rule of Civil Procedure 56 and cases applying it. See Lee v.\nOffshore Logistical and Transport, L.L.C., 859 F.3d 353, 354 (5th Cir. 2017) (“In\n2010, Rule 56 was amended to clarify and streamline the procedures regarding\nsummary judgment motions and to make clear the process for supporting\nassertions of fact and objecting thereto.”). New Rule 56(c), added in 2010,\npermits a party to support or dispute summary judgment through unsworn\ndeclarations, provided their contents can be presented in admissible form at\ntrial. “Although the substance or content of the evidence submitted to support\nor dispute a fact on summary judgment must be admissible . . ., the material\nmay be presented in a form that would not, in itself, be admissible at trial.” Id.\nat 355 (quoting 11 Moore’s Federal Practice–Civil ¶ 56.91 (2017)); see also, e.g.,\nMaurer, 870 F.3d at 384 (“At the summary judgment stage, evidence need not\n 3\n\f Case: 19-10009 Document: 00515171167 Page: 4 Date Filed: 10/23/2019\n\n\n\n No. 19-10009\nbe authenticated or otherwise presented in an admissible form.”) (citations\nomitted). The district court declined to consider Patel’s two reports solely\nbecause they were unsworn, without considering whether those opinions were\n“capable of being presented in a form that would be admissible in evidence.” Id.\n(quoting LSR Consulting, L.L.C. v. Wells Fargo Bank, NZ, 835 F.3d 530, 534\n(5th Cir. 2016)) (cleaned up). This contravened the new summary judgment rule\nand was therefore an abuse of discretion. Consequently, we will consider Patel’s\nexpert reports in determining whether Defendants were entitled to summary\njudgment. See Maurer, 870 F.3d at 385 (because the district court mistakenly\nexcluded evidence under the new summary judgment rule, “[w]e will\n. . . consider the [excluded evidence] in determining whether the [movant] was\nentitled to summary judgment”); Curtis v. M&S Petroleum, Inc., 174 F.3d 661,\n667–68 (5th Cir. 1999) (after first reviewing evidentiary rulings, “[t]hen, with\nthe record defined, we must review de novo the order granting judgment as a\nmatter of law”) (citations omitted).\n III.\n We now turn to Patel’s contention that the district court erred in\ngranting Defendants summary judgment. We review a summary judgment de\nnovo. Ezell v. Kan. City S. Ry. Co., 866 F.3d 294, 297 (5th Cir. 2017). Summary\njudgment is appropriate only “if the movant shows that there is no genuine\ndispute as to any material fact and the movant is entitled to judgment as a\nmatter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if, under the applicable\nsubstantive law, “its resolution could affect the outcome of the action.” Sierra\nClub, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir.\n2010) (citation omitted).\n Patel’s claims are, in essence, that the university’s evaluation of the\ncheating allegations violated his substantive due process and equal protection\nrights. In opposing summary judgment, Patel points to evidence—including the\n 4\n\f Case: 19-10009 Document: 00515171167 Page: 5 Date Filed: 10/23/2019\n\n\n\n No. 19-10009\ntwo expert reports—purporting to show that, contrary to the OSC panel’s\ndetermination, he did not cheat or plagiarize during the final exam. This\nmisapprehends the gravamen of claims concerning allegedly unconstitutional\nacademic decisions, such as the one at issue here. “When judges are asked to\nreview the substance of a genuinely academic decision, . . . they should show\ngreat respect for the faculty’s professional judgment.” Regents of Univ. of Mich.\nv. Ewing, 474 U.S. 214, 225 (1985). “Plainly, they may not override [an academic\ndecision] unless it is such a substantial departure from accepted academic\nnorms as to demonstrate that the person or committee responsible did not\nactually exercise professional judgment.” Id. “Courts must accept, as consistent\nwith due process, an academic decision that is not beyond the pale of reasoned\nacademic decision-making when viewed against the background of the student’s\nentire career.” Wheeler v. Miller, 168 F.3d 241, 250 (5th Cir. 1999). This\nexceedingly narrow scope for judicial review of academic decisions applies to\nboth due process and equal protection claims. See id. at 252. 3\n With respect to his substantive due process claim, Patel fails to identify\nany summary judgment evidence raising a genuine fact issue that Defendants\n“did not actually exercise professional judgment” in resolving the cheating\nallegations, Ewing, 474 U.S. at 225, or that the result of the process was\n“beyond the pale of reasoned academic decision-making,” Wheeler, 168 F.3d at\n250. Instead Patel merely asserts, for example, that Jones failed to exercise\n\n\n 3 The Sixth Circuit recently addressed a similar scenario where a student contested\nhis dismissal from medical school for cheating on an exam. See Endres v. N.E. Ohio Med.\nUniv., 938 F.3d 281 (6th Cir. 2019). Endres does not conflict with our decision here. That case\ninvolved a “procedural due process” claim that the student was not afforded adequate\nprocedural safeguards before dismissal, id. at 297, not the “substantive due process” claim\nPatel asserts. We also note that the Sixth Circuit distinguishes the process constitutionally\nrequired for “academic” versus “disciplinary” decisions. See id. (explaining that dismissal for\n“disciplinary misconduct” demands “more robust process” than dismissal for “academic\nunderperformance”). Our circuit has not had occasion to address this distinction in the\ncontext of procedural due process claims. In any event, it has no bearing on this case.\n 5\n\f Case: 19-10009 Document: 00515171167 Page: 6 Date Filed: 10/23/2019\n\n\n\n No. 19-10009\nprofessional judgment by reporting him for cheating and that Todd and the\npanel failed to adequately investigate the allegations against him. These\nconclusory allegations cannot create a genuine fact issue sufficient to defeat\nsummary judgment. See, e.g., Little v. Liquid Air Corp., 37 F.3d 1069, 1075\n(5th Cir. 1994). The record is devoid of evidence even suggesting that any\nDefendants acted unreasonably in reporting, investigating, or resolving the\nallegations against Patel. To the contrary, the record reflects that Defendants\nfollowed protocol in reporting and investigating the allegations and that the\nresult of the process was supported by evidence. In response to this, Patel only\noffers evidence suggesting, at most, it may have been reasonable for the\nuniversity to conclude that he did not in fact plagiarize or cheat. Again, this\nmisses the point: the applicable constitutional standard asks not whether Patel\nin fact cheated but instead whether the decisionmaker “did not actually\nexercise professional judgment” in reaching its decision. Ewing, 474 U.S. at\n225. We thus conclude that Patel’s substantive due process claim was properly\ndismissed on summary judgment.\n Patel likewise fails to demonstrate a genuine issue of material fact as to\nhis equal protection claim. He alleges that Jones only reported Patel even\nthough Jones received an anonymous report that two other unnamed students\nmay have cheated. This “class of one” equal protection claim requires Patel to\nshow that “(1) he . . . was intentionally treated differently from others similarly\nsituated and (2) there was no rational basis for the difference in treatment.”\nLindquist v. City of Pasadena Tex., 669 F.3d 225, 233 (5th Cir. 2012); see also\nVill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Patel points to no\nsummary judgment evidence creating a genuine fact issue as to either prong.\nThat is, nothing in the record suggests that Patel was intentionally treated in\na manner irrationally different from other similarly situated students. See\nEwing, 474 U.S. at 228 n. 14 (even when student identifies possible academic\n 6\n\f Case: 19-10009 Document: 00515171167 Page: 7 Date Filed: 10/23/2019\n\n\n\n No. 19-10009\ncomparators through statistical evidence, courts “are not in a position to say”\nthose students were “similarly situated” for purposes of challenging academic\ndecisions). We therefore conclude the district court properly granted summary\njudgment dismissing Patel’s equal protection claim.\n AFFIRMED\n\n\n\n\n 7\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Rajin Patel v. Texas Tech University\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-23\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 19-10009 Document: 00515171167 Page: 1 Date Filed: 10/23/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 19-10009 FILED\\n October 23, 2019\\n Lyle W. Cayce\\nRAJIN PATEL, Clerk\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nTEXAS TECH UNIVERSITY; DUANE JONES, Individually and in his\\nOfficial Capacity as Adjunct Professor; WILLIAM PASEWARK, Individually\\nand in his Official Capacity as Texas Tech University Rawls College of\\nBusiness Associate Dean of Graduate Programs and Research; ROBERT\\nRICKETTS, Individually and in his Official Capacity as Area Coordinator in\\nAccounting; BRITTANY TODD, Individually and in her Individual Capacity\\nas Associate Director of the Office of Student Conduct,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore KING, HIGGINSON, and DUNCAN, Circuit Judges.\\nSTUART KYLE DUNCAN, Circuit Judge:\\n Rajin Patel appeals the district court’s order granting defendants’ motion\\nfor summary judgment and dismissing his complaint. We affirm.\\n I.\\n Patel, a graduate student at Texas Tech University, sued the university\\nand several of its officers and agents (collectively, “Defendants”) asserting\\nsubstantive due process and equal protection claims in connection with the\\n\\f Case: 19-10009 Document: 00515171167 Page: 2 Date Filed: 10/23/2019\\n\\n\\n\\n No. 19-10009\\nuniversity’s evaluation of allegations that Patel cheated on an exam. The story\\nbegins with a business law final exam administered by Defendant Duane\\nJones. While grading the exam, Jones noted distinct similarities between\\nPatel’s answers and answers from a test bank, indicating Patel may have\\ncheated. Jones reported Patel to the Office of Student Conduct (“OSC”). In\\nturn, OSC—led by then-associate director Defendant Brittany Todd—\\nconducted an internal investigation that resulted in a report adverse to Patel.\\nOSC then convened a panel that heard evidence from Patel, Jones, and OSC.\\nThe panel found Patel responsible for plagiarism and cheating and assessed\\nfinancial and academic penalties. The panel’s determination was based on the\\nsimilarities between the test bank answers and Patel’s test answers. Texas\\nTech denied Patel’s internal appeal.\\n Patel then sued Texas Tech and all individually named Defendants in\\ntheir official and individual capacities. He asserted claims under 42 U.S.C.\\n§ 1983 for substantive due process and equal protection violations, as well as\\na breach of contract claim against Texas Tech. Defendants 1 filed motions to\\nstrike Patel’s expert reports and a motion for summary judgment. While it\\ndenied the motions to strike, the district court declined to consider the expert\\nreports when ruling on summary judgment because the reports were unsworn.\\nFinding no genuine issue of material fact as to Patel’s claims, the district court\\ngranted Defendants’ motion for summary judgment and dismissed his\\ncomplaint. Patel appeals the district court’s failure to consider his expert\\nreports as well as the summary judgment dismissing his substantive due\\nprocess and equal protection claims. 2\\n\\n\\n 1 The court dismissed Patel’s individual-capacity claims against certain defendants on\\nqualified immunity grounds. Those rulings are not before us.\\n Patel voluntarily dismissed his breach of contract claim before the district court’s\\n 2\\n\\nsummary judgment ruling.\\n 2\\n\\f Case: 19-10009 Document: 00515171167 Page: 3 Date Filed: 10/23/2019\\n\\n\\n\\n No. 19-10009\\n II.\\n We first address whether the district court erred in refusing to consider\\nPatel’s unsworn expert reports when ruling on summary judgment. We review\\na district court’s evidentiary rulings that determine the summary judgment\\nrecord for abuse of discretion. Maurer v. Independence Town, 870 F.3d 380, 383\\n(5th Cir. 2017). Although that standard is deferential, an “erroneous view of the\\nlaw” satisfies it. Id. at 384 (citation omitted).\\n The expert reports at issue come from Dr. Robert Coyle and Dr. Alan\\nPerlman. Dr. Coyle’s report opines that Patel has a learning disability that\\nrequires him to study by rote memorization. Dr. Perlman’s report applies\\nlinguistic theory to conclude that the similarities between Patel’s answers and\\nthe test bank answers are insufficient to show Patel cheated. Although the\\ndistrict court declined to consider the expert reports because they were\\nunsworn, it made no finding that the opinions expressed in the reports could\\nnot be placed in admissible form.\\n In discounting the reports, the district court mistakenly relied on a prior\\nversion of Federal Rule of Civil Procedure 56 and cases applying it. See Lee v.\\nOffshore Logistical and Transport, L.L.C., 859 F.3d 353, 354 (5th Cir. 2017) (“In\\n2010, Rule 56 was amended to clarify and streamline the procedures regarding\\nsummary judgment motions and to make clear the process for supporting\\nassertions of fact and objecting thereto.”). New Rule 56(c), added in 2010,\\npermits a party to support or dispute summary judgment through unsworn\\ndeclarations, provided their contents can be presented in admissible form at\\ntrial. “Although the substance or content of the evidence submitted to support\\nor dispute a fact on summary judgment must be admissible . . ., the material\\nmay be presented in a form that would not, in itself, be admissible at trial.” Id.\\nat 355 (quoting 11 Moore’s Federal Practice–Civil ¶ 56.91 (2017)); see also, e.g.,\\nMaurer, 870 F.3d at 384 (“At the summary judgment stage, evidence need not\\n 3\\n\\f Case: 19-10009 Document: 00515171167 Page: 4 Date Filed: 10/23/2019\\n\\n\\n\\n No. 19-10009\\nbe authenticated or otherwise presented in an admissible form.”) (citations\\nomitted). The district court declined to consider Patel’s two reports solely\\nbecause they were unsworn, without considering whether those opinions were\\n“capable of being presented in a form that would be admissible in evidence.” Id.\\n(quoting LSR Consulting, L.L.C. v. Wells Fargo Bank, NZ, 835 F.3d 530, 534\\n(5th Cir. 2016)) (cleaned up). This contravened the new summary judgment rule\\nand was therefore an abuse of discretion. Consequently, we will consider Patel’s\\nexpert reports in determining whether Defendants were entitled to summary\\njudgment. See Maurer, 870 F.3d at 385 (because the district court mistakenly\\nexcluded evidence under the new summary judgment rule, “[w]e will\\n. . . consider the [excluded evidence] in determining whether the [movant] was\\nentitled to summary judgment”); Curtis v. M&S Petroleum, Inc., 174 F.3d 661,\\n667–68 (5th Cir. 1999) (after first reviewing evidentiary rulings, “[t]hen, with\\nthe record defined, we must review de novo the order granting judgment as a\\nmatter of law”) (citations omitted).\\n III.\\n We now turn to Patel’s contention that the district court erred in\\ngranting Defendants summary judgment. We review a summary judgment de\\nnovo. Ezell v. Kan. City S. Ry. Co., 866 F.3d 294, 297 (5th Cir. 2017). Summary\\njudgment is appropriate only “if the movant shows that there is no genuine\\ndispute as to any material fact and the movant is entitled to judgment as a\\nmatter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if, under the applicable\\nsubstantive law, “its resolution could affect the outcome of the action.” Sierra\\nClub, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir.\\n2010) (citation omitted).\\n Patel’s claims are, in essence, that the university’s evaluation of the\\ncheating allegations violated his substantive due process and equal protection\\nrights. In opposing summary judgment, Patel points to evidence—including the\\n 4\\n\\f Case: 19-10009 Document: 00515171167 Page: 5 Date Filed: 10/23/2019\\n\\n\\n\\n No. 19-10009\\ntwo expert reports—purporting to show that, contrary to the OSC panel’s\\ndetermination, he did not cheat or plagiarize during the final exam. This\\nmisapprehends the gravamen of claims concerning allegedly unconstitutional\\nacademic decisions, such as the one at issue here. “When judges are asked to\\nreview the substance of a genuinely academic decision, . . . they should show\\ngreat respect for the faculty’s professional judgment.” Regents of Univ. of Mich.\\nv. Ewing, 474 U.S. 214, 225 (1985). “Plainly, they may not override [an academic\\ndecision] unless it is such a substantial departure from accepted academic\\nnorms as to demonstrate that the person or committee responsible did not\\nactually exercise professional judgment.” Id. “Courts must accept, as consistent\\nwith due process, an academic decision that is not beyond the pale of reasoned\\nacademic decision-making when viewed against the background of the student’s\\nentire career.” Wheeler v. Miller, 168 F.3d 241, 250 (5th Cir. 1999). This\\nexceedingly narrow scope for judicial review of academic decisions applies to\\nboth due process and equal protection claims. See id. at 252. 3\\n With respect to his substantive due process claim, Patel fails to identify\\nany summary judgment evidence raising a genuine fact issue that Defendants\\n“did not actually exercise professional judgment” in resolving the cheating\\nallegations, Ewing, 474 U.S. at 225, or that the result of the process was\\n“beyond the pale of reasoned academic decision-making,” Wheeler, 168 F.3d at\\n250. Instead Patel merely asserts, for example, that Jones failed to exercise\\n\\n\\n 3 The Sixth Circuit recently addressed a similar scenario where a student contested\\nhis dismissal from medical school for cheating on an exam. See Endres v. N.E. Ohio Med.\\nUniv., 938 F.3d 281 (6th Cir. 2019). Endres does not conflict with our decision here. That case\\ninvolved a “procedural due process” claim that the student was not afforded adequate\\nprocedural safeguards before dismissal, id. at 297, not the “substantive due process” claim\\nPatel asserts. We also note that the Sixth Circuit distinguishes the process constitutionally\\nrequired for “academic” versus “disciplinary” decisions. See id. (explaining that dismissal for\\n“disciplinary misconduct” demands “more robust process” than dismissal for “academic\\nunderperformance”). Our circuit has not had occasion to address this distinction in the\\ncontext of procedural due process claims. In any event, it has no bearing on this case.\\n 5\\n\\f Case: 19-10009 Document: 00515171167 Page: 6 Date Filed: 10/23/2019\\n\\n\\n\\n No. 19-10009\\nprofessional judgment by reporting him for cheating and that Todd and the\\npanel failed to adequately investigate the allegations against him. These\\nconclusory allegations cannot create a genuine fact issue sufficient to defeat\\nsummary judgment. See, e.g., Little v. Liquid Air Corp., 37 F.3d 1069, 1075\\n(5th Cir. 1994). The record is devoid of evidence even suggesting that any\\nDefendants acted unreasonably in reporting, investigating, or resolving the\\nallegations against Patel. To the contrary, the record reflects that Defendants\\nfollowed protocol in reporting and investigating the allegations and that the\\nresult of the process was supported by evidence. In response to this, Patel only\\noffers evidence suggesting, at most, it may have been reasonable for the\\nuniversity to conclude that he did not in fact plagiarize or cheat. Again, this\\nmisses the point: the applicable constitutional standard asks not whether Patel\\nin fact cheated but instead whether the decisionmaker “did not actually\\nexercise professional judgment” in reaching its decision. Ewing, 474 U.S. at\\n225. We thus conclude that Patel’s substantive due process claim was properly\\ndismissed on summary judgment.\\n Patel likewise fails to demonstrate a genuine issue of material fact as to\\nhis equal protection claim. He alleges that Jones only reported Patel even\\nthough Jones received an anonymous report that two other unnamed students\\nmay have cheated. This “class of one” equal protection claim requires Patel to\\nshow that “(1) he . . . was intentionally treated differently from others similarly\\nsituated and (2) there was no rational basis for the difference in treatment.”\\nLindquist v. City of Pasadena Tex., 669 F.3d 225, 233 (5th Cir. 2012); see also\\nVill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Patel points to no\\nsummary judgment evidence creating a genuine fact issue as to either prong.\\nThat is, nothing in the record suggests that Patel was intentionally treated in\\na manner irrationally different from other similarly situated students. See\\nEwing, 474 U.S. at 228 n. 14 (even when student identifies possible academic\\n 6\\n\\f Case: 19-10009 Document: 00515171167 Page: 7 Date Filed: 10/23/2019\\n\\n\\n\\n No. 19-10009\\ncomparators through statistical evidence, courts “are not in a position to say”\\nthose students were “similarly situated” for purposes of challenging academic\\ndecisions). We therefore conclude the district court properly granted summary\\njudgment dismissing Patel’s equal protection claim.\\n AFFIRMED\\n\\n\\n\\n\\n 7\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4598,"cells":{"id":{"kind":"number","value":4672798,"string":"4,672,798"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Tony Sparks"},"decision_date":{"kind":"string","value":"2019-10-24"},"docket_number":{"kind":"string","value":"18-50225"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before ELROD, GRAVES, and OLDHAM, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"ANDREW S. OLDHAM, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-50225 Document: 00515173123 Page: 1 Date Filed: 10/24/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-50225 October 24, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n\\n Plaintiff-Appellee,\\n\\nv.\\n\\nTONY SPARKS,\\n\\n Defendant-Appellant.\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\n\\nBefore ELROD, GRAVES, and OLDHAM, Circuit Judges. *\\nANDREW S. OLDHAM, Circuit Judge:\\n Tony Sparks and his fellow gang members carjacked Todd and Stacie\\nBagley at gunpoint. The gang locked the Bagleys in the trunk for hours,\\nemptied the Bagleys’ bank account, and tried to pawn Stacie’s wedding ring.\\nDuring the gang’s crime spree, the Bagleys sang gospel songs from the trunk\\nand told their captors about Jesus. Eventually one of the gang members popped\\nthe trunk, cursed at the couple, and executed Todd in front of his wife. That\\nsame gang member shot Stacie in the face but failed to kill her. Others\\nincinerated the car to destroy the evidence and burned Stacie alive.\\n\\n\\n * Judge Graves concurs in the judgment only.\\n\\f Case: 18-50225 Document: 00515173123 Page: 2 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\n For his role in this crime, Sparks received a below-Guidelines 35-year\\nsentence. Sparks says that violates the Eighth Amendment. We disagree.\\n I.\\n A.\\n On June 20, 1999, Tony Sparks went to a convenience store in Killeen,\\nTexas, with Christopher Vialva and Christopher Lewis. 1 The three of them\\nwere members of a local gang known as the 212 PIRU Bloods. They planned to\\ndupe a Good Samaritan into giving them a ride before carjacking him or her at\\ngunpoint. Sparks brought the gun, a .22 caliber pistol.\\n Police initially thwarted the plan by detaining the trio for violating the\\ncity’s juvenile curfew law. (Sparks was 16 at the time.) Before being detained,\\nLewis threw the pistol into the bushes. Sparks’s mother picked up Sparks and\\nLewis, and Vialva was released because he was an adult.\\n The following day, Sparks, Vialva, and Lewis regrouped. They recruited\\ntwo other members of their gang, Brandon Bernard and Terry Brown, to help\\nwith the carjacking. Vialva and Bernard retrieved the .22 caliber pistol that\\nLewis had discarded the night before. Because it was wet with dew, they\\nworried that it would not function. So Bernard obtained a Glock .40 caliber\\npistol to use for the carjacking.\\n That afternoon, the five gang members went to an IGA supermarket to\\nfind a carjacking victim. Bernard and Brown acted as lookouts while Sparks,\\nVialva, and Lewis approached potential victims to ask for a ride. No one offered\\nthem a ride, so they drove to a “Mickey’s” convenience store. Bernard and\\nBrown went to a nearby laundromat to play video games. Sparks, Vialva, and\\nLewis went to the front of the convenience store.\\n\\n\\n 1We previously reported the factual background of this case in United States v.\\nBernard, 299 F.3d 467 (5th Cir. 2002). The factual recitation here comes principally from\\nBernard, as supplemented by Sparks’s record.\\n 2\\n\\f Case: 18-50225 Document: 00515173123 Page: 3 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\n Shortly after arriving at the convenience store, Sparks found Todd\\nBagley using a payphone outside. Todd and his wife Stacie were youth\\nministers from Iowa. They’d previously lived in Killeen because Todd was a\\nveteran of the U.S. Army and had been stationed at Fort Hood. The young\\ncouple had gone to church at Grace Christian, where they worked with the\\nyouth group. They were back in Killeen on a vacation to see old friends and\\nattend a revival meeting at the church.\\n Sparks approached Todd and asked if he would give Sparks, Vialva, and\\nLewis a ride to another location. Todd conferred with Stacie, and the young\\ncouple unsuspectingly agreed to give the gang members a ride. Bernard and\\nBrown returned to their homes to wait for further instructions from Vialva.\\n Sparks, Vialva, and Lewis got into the back seat of the Bagleys’ car. Todd\\ndrove while his wife sat in the front passenger seat. In accordance with their\\nplan, Sparks and Vialva pulled out two handguns, and Vialva pointed his gun\\nat Todd. Vialva told the Bagleys that the “plan had changed,” and he forced\\nTodd to drive to a semi-rural location near the edge of Killeen. While Vialva\\npointed a gun at the Bagleys, Sparks and Vialva robbed them of their money,\\nwallets, purse, debit card, identification, and jewelry. Vialva demanded their\\nbank account’s pin number and then forced the Bagleys into the trunk of their\\ncar.\\n With the Bagleys locked in the trunk, Sparks, Vialva, and Lewis went on\\nan hours-long crime spree. They went to an ATM to steal all of the Bagleys’\\nmoney. That effort was frustrated, however, because the youth ministers had\\nless than $100 in their bank account. They tried to pawn Stacie’s wedding ring.\\nThey used what little money they could steal from the Bagleys to buy cigars,\\ncigarettes, and fast food from Wendy’s.\\n Meanwhile, the Bagleys evangelized from the trunk. According to Lewis\\n(who later testified), the Bagleys asked him and Sparks about God, Jesus, and\\n 3\\n\\f Case: 18-50225 Document: 00515173123 Page: 4 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\nchurch. The Bagleys acknowledged not having earthly wealth, but they told\\ntheir captors that faith in Jesus is more valuable than money. The Bagleys\\ntalked about the revival meeting at Grace Christian. And the Bagleys urged\\ntheir captors to have faith in Jesus Christ. The Bagleys begged for their lives.\\n As night began to fall, Sparks told the gang that he needed to go home\\nto avoid violating his 8 p.m. probation curfew for a previous robbery conviction.\\nThe group dropped Sparks off at his home. Sparks took the Bagleys’ jewelry\\nwith him. But Vialva asked Sparks not to take his .22 caliber handgun. After\\ninitially refusing, Sparks agreed.\\n Bernard and Brown purchased fuel to burn the Bagleys’ car. Vialva and\\nLewis picked them up, and the four gang members drove (again, with the\\nBagleys still locked in the trunk) to the Belton Lake Recreation Area on the\\nFort Hood military installation. Vialva parked the Bagleys’ car on top of a little\\nhill. Brown and Bernard poured lighter fluid on the interior of the car. All the\\nwhile, the Bagleys sang and prayed in the trunk.\\n Stacie’s last words were “Jesus loves you,” and “Jesus, take care of us.”\\nVialva crudely cursed at her, told Lewis to pop the trunk, and then executed\\nTodd in front of his wife. Vialva shot Todd in the head with the .40 caliber\\nGlock, killing him instantly. Then Vialva shot Stacie in the face but failed to\\nkill her. Bernard set the car on fire and burned Stacie alive. Todd was 26.\\nStacie was 28.\\n B.\\n Sparks pleaded guilty to aiding and abetting a carjacking, and he hoped\\nto receive an offense-level reduction for acceptance of responsibility. U.S.S.G.\\n§ 3E1.1. But as he was awaiting sentencing, Sparks was implicated in a plot to\\nescape from his detention center. As Sparks himself acknowledges, another\\ninmate, Christopher Kirvin, choked a prison guard unconscious and stole her\\nkeys. The Pre-Sentence Report (“PSR”) implicated Sparks based on a witness\\n 4\\n\\f Case: 18-50225 Document: 00515173123 Page: 5 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\nwho heard Sparks planning the escape attempt with Kirvin. Sparks flushed a\\ntoilet repeatedly during the assault to mask the sound of the prison guard’s\\nscreams. Based on the escape attempt, the PSR added two points to Sparks’s\\noffense level for obstructing justice. Id. § 3C1.1. It also denied Sparks an\\noffense-level reduction for accepting responsibility. Id. § 3E1.1. Given the\\nnature of the crime and the Bagleys’ murders, the PSR recommended an\\noffense level of 45—two levels above the highest value on the sentencing table.\\n When the district court sentenced Sparks in 2001, it agreed with the\\nPSR’s factual findings and sentencing calculation. Applying the Guidelines,\\nwhich were mandatory before United States v. Booker, 543 U.S. 220 (2005), the\\ncourt sentenced Sparks to life in prison without the possibility of parole\\n(“LWOP”).\\n We affirmed Sparks’s sentence on direct appeal. See United States v.\\nSparks, 31 F. App’x 156 (5th Cir. 2001). In 2003, Sparks filed a pro se motion\\nunder 28 U.S.C. § 2255 to vacate his sentence, and the district court denied it.\\nSparks filed an appeal, but we dismissed it for want of prosecution. United\\nStates v. Sparks, No. 03-50781 (5th Cir. Nov. 19, 2003).\\n Since then, several Supreme Court decisions involving the Eighth\\nAmendment raised constitutional concerns about Sparks’s LWOP sentence. In\\nGraham v. Florida, 560 U.S. 48 (2010), the Court held that juveniles may not\\nbe sentenced to life without parole for non-homicide offenses. In Miller v.\\nAlabama, 567 U.S. 460 (2012), the Court held that juveniles may not receive\\nmandatory sentences of life without parole. And in Montgomery v. Louisiana,\\n136 S. Ct. 718 (2016), the Court made Miller retroactive to cases on collateral\\nreview.\\n We authorized Sparks to file a successive § 2255 motion based on\\nGraham. In re Sparks, 657 F.3d 258, 262 (5th Cir. 2011). The district court\\ndenied the motion. But we granted a certificate of appealability, United States\\n 5\\n\\f Case: 18-50225 Document: 00515173123 Page: 6 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\nv. Sparks, No. 13-50807 (5th Cir. July 10, 2014), and remanded the case for\\nreconsideration at the Government’s request, United States v. Sparks, No. 13-\\n50807 (5th Cir. Feb. 10, 2015). We also authorized Sparks to file a successive\\n§ 2255 motion based on Miller, which the Government did not oppose. In re\\nSparks, No. 16-50973 (5th Cir. Nov. 18, 2016).\\n Upon joint motion of the parties, the district court consolidated the\\nmotions and ordered a resentencing. It provided Sparks with court-appointed\\nexperts and conducted a five-day sentencing hearing. At the hearing, the\\nGovernment introduced evidence that Sparks committed repeated acts of brutal\\nviolence during his first decade in prison. In 2004, Sparks participated in a riot\\ninvolving approximately 600 inmates, carrying a baseball bat during the\\nfighting. In July 2006, Sparks stabbed his cellmate 12 times in the back, neck,\\nhead, and right arm. In September 2007, he stabbed another inmate in the\\nneck, resulting in a spinal cord injury that left the inmate unable to walk or\\nurinate by himself. In March 2008, Sparks attempted to murder an inmate by\\nstabbing him repeatedly in the head, resulting in brain damage and the loss of\\nthe victim’s right eye. Sparks’s violence led to his transfer to ADX Florence in\\nColorado, a supermax facility where the nation’s most dangerous federal\\nprisoners are located. Before that transfer, he had been sanctioned for at least\\n23 incidents. And in 2014, Sparks instructed two inmates to assault another\\ninmate.\\n The district court carefully examined Sparks’s youth and its attendant\\ncharacteristics in a twenty-six-page memorandum opinion. The district court\\nincluded a thorough discussion of Miller and the 18 U.S.C. § 3553(a) factors.\\nThe court also considered the PSR, which could not identify any basis under\\n§ 3553(a) for varying from the recommended sentence of life imprisonment.\\nThe district court could not “imagine a worse offense, nor [could] the court\\nimagine a more callous perpetrator than the defendant.” Nonetheless, the\\n 6\\n\\f Case: 18-50225 Document: 00515173123 Page: 7 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\ndistrict court chose to vary downward and sentenced Sparks to 35 years, with\\ncredit for time in custody. Sparks appealed.\\n II.\\n Sparks’s principal argument on appeal is that the district court violated\\nMiller v. Alabama. That case held the Eighth Amendment prohibits mandatory\\nLWOP sentences for juveniles. Miller, 567 U.S. at 465. It’s not clear from\\nSparks’s briefs whether he thinks his below-Guidelines sentence violates the\\nsubstantive or procedural aspects of the Miller decision. At argument, his\\ncounsel urged us to consider both. We do so.\\n A.\\n Miller announced a substantive Eight Amendment rule: The\\nConstitution prohibits sentencing a juvenile to mandatory LWOP because it\\n“poses too great a risk of disproportionate punishment.” 567 U.S. at 479. But\\nMiller did “not consider” whether “the Eighth Amendment requires a\\ncategorical bar on life without parole for juveniles.” Ibid.\\n Three corollaries follow from Miller’s substantive rule. First, it “did not\\nforeclose a sentencer’s ability to impose life without parole” on a discretionary\\nbasis. Montgomery, 136 S. Ct. at 726; see also Miller, 567 U.S. at 483. Our sister\\ncircuits’ post-Miller decisions recognize as much. See Contreras v. Davis, 716 F.\\nApp’x 160, 163 (4th Cir. 2017); Kelly v. Brown, 851 F.3d 686, 687–88 (7th Cir.\\n2017); United States v. Jefferson, 816 F.3d 1016, 1019 (8th Cir. 2016); Davis v.\\nMcCollum, 798 F.3d 1317, 1320–21 (10th Cir. 2015); Croft v. Williams, 773 F.3d\\n170, 171 (7th Cir. 2014); Evans-Garcia v. United States, 744 F.3d 235, 241 (1st\\nCir. 2014); Bell v. Uribe, 748 F.3d 857, 869–70 (9th Cir. 2014); United States v.\\nReingold, 731 F.3d 204, 214 (2d Cir. 2013). 2 Numerous state courts have reached\\n\\n\\n 2The Fourth Circuit in Malvo v. Mathena, 893 F.3d 265 (4th Cir. 2018), held that\\nMontgomery expanded Miller to cover discretionary LWOP sentences. Id. at 273–74. The\\nSupreme Court granted certiorari. 139 S. Ct. 1317 (2019) (mem.).\\n 7\\n\\f Case: 18-50225 Document: 00515173123 Page: 8 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\nthe same conclusion. See, e.g., Lucero v. People, 394 P.3d 1128, 1132 (Colo. 2017);\\nConley v. State, 972 N.E.2d 864, 879 (Ind. 2012); State v. Russell, 908 N.W.2d\\n669, 676 (Neb. 2018); Jones v. Commonwealth, 795 S.E.2d 705, 722 (Va. 2017).\\nThus, if a sentencing court has the option to choose a sentence other than life\\nwithout parole, it can choose life without parole without violating Miller.\\n Second, Miller has no relevance to sentences less than LWOP. See United\\nStates v. Walton, 537 F. App’x 430, 437 (5th Cir. 2013) (per curiam). This means\\nthat sentences of life with the possibility of parole or early release do not\\nimplicate Miller. See Bowling v. Dir., Va. Dep’t of Corr., 920 F.3d 192, 197 (4th\\nCir. 2019); Goins v. Smith, 556 F. App’x 434, 440 (6th Cir. 2014); Lucero, 394\\nP.3d at 1132; Lewis v. State, 428 S.W.3d 860, 863–64 (Tex. Crim. App. 2014).\\nNor do sentences to a term of years. See Walton, 537 F. App’x at 437; United\\nStates v. Morgan, 727 F. App’x 994, 997 (11th Cir. 2018) (per curiam); United\\nStates v. Lopez, 860 F.3d 201, 211 (4th Cir. 2017); Lucero, 394 P.3d at 1133. All\\nof these sentences can be imposed on a mandatory basis for juveniles without\\nimplicating Miller because they are not LWOP sentences.\\n Third, a term-of-years sentence cannot be characterized as a de facto life\\nsentence. Miller dealt with a statute that specifically imposed a mandatory\\nsentence of life. The Court distinguished that sentencing scheme from\\n“impliedly constitutional alternatives whereby ‘a judge or jury could choose,\\nrather than a life-without-parole sentence, a lifetime prison term with the\\npossibility of parole or a lengthy term of years.’ ” Lucero, 394 P.3d at 1133\\n(quoting Miller, 567 U.S. at 489). Given Miller’s endorsement of “a lengthy\\nterm of years” as a constitutional alternative to life without parole, it would be\\nbizarre to read Miller as somehow foreclosing such sentences.\\n A panel of the Third Circuit nevertheless tried. See United States v.\\nGrant, 887 F.3d 131 (3d Cir. 2018), reh’g en banc granted, opinion vacated, 905\\nF.3d 258 (3d Cir. 2018). In Grant, the panel sought to “effectuate” Miller by\\n 8\\n\\f Case: 18-50225 Document: 00515173123 Page: 9 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\ninventing a “rebuttable presumption” that a juvenile offender “should be\\nafforded an opportunity for release before the national age of retirement.” Id.\\nat 152–53. The panel conceded it had no “principled basis” for drawing that\\nline. Id. at 150. The panel further conceded it couldn’t be sure what line it was\\ndrawing: “We cannot say with certainty what the precise national age of\\nretirement is, as it is a figure that incrementally fluctuates over time.” Id. at\\n151. It also admitted that reliance on a “national retirement age” would fail to\\naccount for “locality, state, gender, race, wealth, or other differentiating\\ncharacteristics.” Ibid. The panel went on to discuss the history of Social\\nSecurity, Gallup polls, and one academic study before pronouncing a “national\\nretirement age” of sixty-five. Id. at 151–52. But even in its pronouncement of\\nthe rule, the panel appeared to recognize the arbitrariness of its decision:\\n“Without definitively determining the issue, we consider sixty-five as an\\nadequate approximation of the national age of retirement to date. However,\\ndistrict courts retain the discretion to determine the national age of retirement\\nat sentencing, and remain free to consider evidence of the evolving nature of\\nthis estimate.” Id. at 152. Such reasoning is not bound by law.\\n Sparks cannot show a substantive Miller violation. First, he received a\\ndiscretionary sentence under § 3553(a) rather than a mandatory sentence.\\nSecond, he was sentenced to thirty-five years in prison rather than life without\\nparole. Because Sparks did not receive a mandatory sentence of life without\\n\\n\\n\\n\\n 9\\n\\f Case: 18-50225 Document: 00515173123 Page: 10 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\nparole, he has failed to demonstrate a violation of Miller’s substantive\\nrequirements. 3\\n B.\\n The procedural component of Miller “requires a sentencer to consider a\\njuvenile offender’s youth and attendant characteristics before determining\\nthat life without parole is a proportionate sentence.” Montgomery, 136 S. Ct.\\nat 734. In Miller and Montgomery, the Supreme Court considered state laws in\\nAlabama and Louisiana imposing mandatory LWOP sentences on juveniles.\\nBut federal prisoners have procedural protections that state prisoners do not\\nhave—namely, the sentencing factors in § 3553(a) and the advisory Sentencing\\nGuidelines.\\n Under § 3553(a), a sentencing court “shall impose a sentence sufficient,\\nbut not greater than necessary, to comply with the purposes” of sentencing. In\\nchoosing an appropriate sentence, the court must examine “the nature and\\ncircumstances of the offense and the history and characteristics of the\\ndefendant.” 18 U.S.C. § 3553(a)(1). It must also consider the policy statements\\nof the Sentencing Commission, id. § 3553(a)(5), which expressly allow for\\nconsideration of the defendant’s age, “including youth,” U.S.S.G. § 5H1.1, p.s.\\n The § 3553(a) analysis satisfies Miller’s procedural requirement that the\\ncourt consider the defendant’s youth and its attendant characteristics before\\nimposing a sentence of life without parole. See Moore v. United States, 871 F.3d\\n72, 79 (1st Cir. 2017); Lopez, 860 F.3d at 211; Jefferson, 816 F.3d at 1018 n.3\\n\\n\\n\\n\\n 3 It is unclear whether Sparks also intended to challenge the substantive\\nreasonableness of his sentence under Gall v. United States, 552 U.S. 38 (2007). The issue is\\nnot adequately briefed, but even if it were, Sparks has failed to show an abuse of discretion.\\nId. at 51. Sparks has a remarkable history of violence in prison. Even so, the district court\\nvaried down from the Guidelines, sentencing him to 35 years. Sparks has not rebutted the\\npresumption that his below-Guidelines sentence is reasonable. See United States v. Simpson,\\n796 F.3d 548, 557 (5th Cir. 2015).\\n 10\\n\\f Case: 18-50225 Document: 00515173123 Page: 11 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\n(noting that the “Supreme Court has not yet applied its constitutional decision\\nin Miller to a life sentence imposed by a federal court,” and questioning Miller’s\\napplicability to a sentence imposed under the advisory Guidelines). Thus, a\\nsentence that satisfies § 3553(a)’s procedural requirements cannot be\\nchallenged under the procedural component of the Miller decision.\\n Reflecting some confusion over the procedural requirements of Miller, the\\ndistrict court’s opinion contains separate discussions of Miller and § 3553(a).\\nOther courts have similarly treated the so-called “Miller factors” as separate\\nfrom the § 3553(a) factors. See, e.g., United States v. Orsinger, 698 F. App’x 527,\\n527 (9th Cir. 2017) (per curiam) (noting that the district court considered the\\nevidence in “light of the factors identified in Miller and in 18 U.S.C. § 3553(a)”);\\nUnited States v. Garcia, 666 F. App’x 74, 78 (2d Cir. 2016) (per curiam) (referring\\nto “Miller and § 3553(a) factors” as separate and distinct); United States v.\\nGuzman, 664 F. App’x 120, 122 (2d Cir. 2016) (per curiam) (noting that the\\ndistrict court “gave ample consideration to each of the Miller factors, together\\nwith the sometimes-overlapping § 3553(a) factors”); United States v. Guerrero,\\n560 F. App’x 110, 112 (2d Cir. 2014) (per curiam) (holding that the “district court\\nproperly considered all of the Miller factors . . . and other mitigating factors\\nunder 18 U.S.C. § 3553(a)”), aff’g United States v. Maldonado, No. 09-CR-339-\\n02, 2012 WL 5878673, at *9 (S.D.N.Y. Nov. 21, 2012) (discussing “Miller factors”\\nseparately from § 3553(a) factors).\\n In a recent en banc opinion, the Ninth Circuit vacated a sentence imposed\\nunder § 3553(a) after hearing “evidence related to a number of the Miller\\nfactors” because the district court’s “sentencing remarks focused on the\\npunishment warranted by the terrible crime Briones participated in, rather\\nthan whether Briones was irredeemable.” United States v. Briones, 929 F.3d\\n1057, 1066 (9th Cir. 2019) (en banc). Though the Ninth Circuit claimed not to\\nhold that “the district court erred simply by failing to use any specific words,”\\n 11\\n\\f Case: 18-50225 Document: 00515173123 Page: 12 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\nid. at 1067, that appears to be exactly what the court did, see id. at 1073\\n(Bennett, J., dissenting). We reject the view that a procedurally proper sentence\\nimposed under § 3553(a) can be vacated merely because the district court failed\\nto quote certain magic words from the Supreme Court’s Miller decision. As the\\nCourt has clearly said, “Miller did not require trial courts to make a finding of\\nfact regarding a child’s incorrigibility.” Montgomery, 136 S. Ct. at 735. The Court\\nwas “careful to limit the scope of any attendant procedural requirement to avoid\\nintruding more than necessary upon the States’ sovereign administration of\\ntheir criminal justice systems.” Ibid. Hence, the Court reiterated, “Miller did not\\nimpose a formal factfinding requirement.” Ibid.\\n In this case, the district court appointed taxpayer-funded experts for\\nSparks, held a lengthy five-day hearing, and wrote twenty-six pages explaining\\nits sentence. This fulsome process gave Sparks far more than the minimum\\nprocedure necessary to conduct a proper § 3553(a) analysis. And we agree with\\nthe Government that Miller does not add procedural requirements over and\\nabove § 3553(a).\\n III.\\n Sparks also argues that the district court erred in calculating the offense\\nlevel under the Guidelines. The district court increased Sparks’s offense level\\nby two points for obstructing justice, U.S.S.G. § 3C1.1, and denied him a two-\\npoint reduction for accepting responsibility, id. § 3E1.1. Those decisions were\\nbased on the court’s finding that Sparks attempted to escape from his detention\\ncenter. Sparks claims he was not involved in the attempt.\\n We review the district court’s factual findings for abuse of discretion,\\nwhich occurs when the court relies on “clearly erroneous facts.” Gall, 552 U.S.\\nat 51. “Generally, a PSR ‘bears sufficient indicia of reliability to be considered\\nas evidence by the sentencing judge in making factual determinations.’” United\\nStates v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (quoting United States v.\\n 12\\n\\f Case: 18-50225 Document: 00515173123 Page: 13 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\nNava, 624 F.3d 226, 231 (5th Cir. 2010)). A district court may adopt facts\\ncontained in the PSR “without further inquiry” if those facts have an “adequate\\nevidentiary basis with sufficient indicia of reliability.” Ibid. (quoting United\\nStates v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007)).\\n Sparks’s PSR contains reliable evidence that he tried to escape from his\\ndetention center. That evidence includes an interview with a witness who\\nheard Sparks discussing the escape plan with another inmate, Christopher\\nKirvin. The witness said that when Kirvin attacked a prison guard, Sparks\\nrepeatedly flushed a toilet to mask the sound of her screams. Sparks also\\nadmitted to a probation officer that he participated in the escape attempt. The\\ndistrict court reasonably relied on the PSR.\\n * * *\\n Sparks’s sentence is AFFIRMED.\\n\\n\\n\\n\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4450051/\", \"author_raw\": \"ANDREW S. OLDHAM, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"ELROD"},"judge2":{"kind":"string","value":"GRAVES"},"judge3":{"kind":"string","value":"OLDHAM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"ELROD\": \", Circuit\", \"GRAVES\": \", Circuit\", \"OLDHAM\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4672798/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Tony Sparks\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-50225 Document: 00515173123 Page: 1 Date Filed: 10/24/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-50225 October 24, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n\n Plaintiff-Appellee,\n\nv.\n\nTONY SPARKS,\n\n Defendant-Appellant.\n\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n\n\n\nBefore ELROD, GRAVES, and OLDHAM, Circuit Judges. *\nANDREW S. OLDHAM, Circuit Judge:\n Tony Sparks and his fellow gang members carjacked Todd and Stacie\nBagley at gunpoint. The gang locked the Bagleys in the trunk for hours,\nemptied the Bagleys’ bank account, and tried to pawn Stacie’s wedding ring.\nDuring the gang’s crime spree, the Bagleys sang gospel songs from the trunk\nand told their captors about Jesus. Eventually one of the gang members popped\nthe trunk, cursed at the couple, and executed Todd in front of his wife. That\nsame gang member shot Stacie in the face but failed to kill her. Others\nincinerated the car to destroy the evidence and burned Stacie alive.\n\n\n * Judge Graves concurs in the judgment only.\n\f Case: 18-50225 Document: 00515173123 Page: 2 Date Filed: 10/24/2019\n\n\n\n No. 18-50225\n For his role in this crime, Sparks received a below-Guidelines 35-year\nsentence. Sparks says that violates the Eighth Amendment. We disagree.\n I.\n A.\n On June 20, 1999, Tony Sparks went to a convenience store in Killeen,\nTexas, with Christopher Vialva and Christopher Lewis. 1 The three of them\nwere members of a local gang known as the 212 PIRU Bloods. They planned to\ndupe a Good Samaritan into giving them a ride before carjacking him or her at\ngunpoint. Sparks brought the gun, a .22 caliber pistol.\n Police initially thwarted the plan by detaining the trio for violating the\ncity’s juvenile curfew law. (Sparks was 16 at the time.) Before being detained,\nLewis threw the pistol into the bushes. Sparks’s mother picked up Sparks and\nLewis, and Vialva was released because he was an adult.\n The following day, Sparks, Vialva, and Lewis regrouped. They recruited\ntwo other members of their gang, Brandon Bernard and Terry Brown, to help\nwith the carjacking. Vialva and Bernard retrieved the .22 caliber pistol that\nLewis had discarded the night before. Because it was wet with dew, they\nworried that it would not function. So Bernard obtained a Glock .40 caliber\npistol to use for the carjacking.\n That afternoon, the five gang members went to an IGA supermarket to\nfind a carjacking victim. Bernard and Brown acted as lookouts while Sparks,\nVialva, and Lewis approached potential victims to ask for a ride. No one offered\nthem a ride, so they drove to a “Mickey’s” convenience store. Bernard and\nBrown went to a nearby laundromat to play video games. Sparks, Vialva, and\nLewis went to the front of the convenience store.\n\n\n 1We previously reported the factual background of this case in United States v.\nBernard, 299 F.3d 467 (5th Cir. 2002). The factual recitation here comes principally from\nBernard, as supplemented by Sparks’s record.\n 2\n\f Case: 18-50225 Document: 00515173123 Page: 3 Date Filed: 10/24/2019\n\n\n\n No. 18-50225\n Shortly after arriving at the convenience store, Sparks found Todd\nBagley using a payphone outside. Todd and his wife Stacie were youth\nministers from Iowa. They’d previously lived in Killeen because Todd was a\nveteran of the U.S. Army and had been stationed at Fort Hood. The young\ncouple had gone to church at Grace Christian, where they worked with the\nyouth group. They were back in Killeen on a vacation to see old friends and\nattend a revival meeting at the church.\n Sparks approached Todd and asked if he would give Sparks, Vialva, and\nLewis a ride to another location. Todd conferred with Stacie, and the young\ncouple unsuspectingly agreed to give the gang members a ride. Bernard and\nBrown returned to their homes to wait for further instructions from Vialva.\n Sparks, Vialva, and Lewis got into the back seat of the Bagleys’ car. Todd\ndrove while his wife sat in the front passenger seat. In accordance with their\nplan, Sparks and Vialva pulled out two handguns, and Vialva pointed his gun\nat Todd. Vialva told the Bagleys that the “plan had changed,” and he forced\nTodd to drive to a semi-rural location near the edge of Killeen. While Vialva\npointed a gun at the Bagleys, Sparks and Vialva robbed them of their money,\nwallets, purse, debit card, identification, and jewelry. Vialva demanded their\nbank account’s pin number and then forced the Bagleys into the trunk of their\ncar.\n With the Bagleys locked in the trunk, Sparks, Vialva, and Lewis went on\nan hours-long crime spree. They went to an ATM to steal all of the Bagleys’\nmoney. That effort was frustrated, however, because the youth ministers had\nless than $100 in their bank account. They tried to pawn Stacie’s wedding ring.\nThey used what little money they could steal from the Bagleys to buy cigars,\ncigarettes, and fast food from Wendy’s.\n Meanwhile, the Bagleys evangelized from the trunk. According to Lewis\n(who later testified), the Bagleys asked him and Sparks about God, Jesus, and\n 3\n\f Case: 18-50225 Document: 00515173123 Page: 4 Date Filed: 10/24/2019\n\n\n\n No. 18-50225\nchurch. The Bagleys acknowledged not having earthly wealth, but they told\ntheir captors that faith in Jesus is more valuable than money. The Bagleys\ntalked about the revival meeting at Grace Christian. And the Bagleys urged\ntheir captors to have faith in Jesus Christ. The Bagleys begged for their lives.\n As night began to fall, Sparks told the gang that he needed to go home\nto avoid violating his 8 p.m. probation curfew for a previous robbery conviction.\nThe group dropped Sparks off at his home. Sparks took the Bagleys’ jewelry\nwith him. But Vialva asked Sparks not to take his .22 caliber handgun. After\ninitially refusing, Sparks agreed.\n Bernard and Brown purchased fuel to burn the Bagleys’ car. Vialva and\nLewis picked them up, and the four gang members drove (again, with the\nBagleys still locked in the trunk) to the Belton Lake Recreation Area on the\nFort Hood military installation. Vialva parked the Bagleys’ car on top of a little\nhill. Brown and Bernard poured lighter fluid on the interior of the car. All the\nwhile, the Bagleys sang and prayed in the trunk.\n Stacie’s last words were “Jesus loves you,” and “Jesus, take care of us.”\nVialva crudely cursed at her, told Lewis to pop the trunk, and then executed\nTodd in front of his wife. Vialva shot Todd in the head with the .40 caliber\nGlock, killing him instantly. Then Vialva shot Stacie in the face but failed to\nkill her. Bernard set the car on fire and burned Stacie alive. Todd was 26.\nStacie was 28.\n B.\n Sparks pleaded guilty to aiding and abetting a carjacking, and he hoped\nto receive an offense-level reduction for acceptance of responsibility. U.S.S.G.\n§ 3E1.1. But as he was awaiting sentencing, Sparks was implicated in a plot to\nescape from his detention center. As Sparks himself acknowledges, another\ninmate, Christopher Kirvin, choked a prison guard unconscious and stole her\nkeys. The Pre-Sentence Report (“PSR”) implicated Sparks based on a witness\n 4\n\f Case: 18-50225 Document: 00515173123 Page: 5 Date Filed: 10/24/2019\n\n\n\n No. 18-50225\nwho heard Sparks planning the escape attempt with Kirvin. Sparks flushed a\ntoilet repeatedly during the assault to mask the sound of the prison guard’s\nscreams. Based on the escape attempt, the PSR added two points to Sparks’s\noffense level for obstructing justice. Id. § 3C1.1. It also denied Sparks an\noffense-level reduction for accepting responsibility. Id. § 3E1.1. Given the\nnature of the crime and the Bagleys’ murders, the PSR recommended an\noffense level of 45—two levels above the highest value on the sentencing table.\n When the district court sentenced Sparks in 2001, it agreed with the\nPSR’s factual findings and sentencing calculation. Applying the Guidelines,\nwhich were mandatory before United States v. Booker, 543 U.S. 220 (2005), the\ncourt sentenced Sparks to life in prison without the possibility of parole\n(“LWOP”).\n We affirmed Sparks’s sentence on direct appeal. See United States v.\nSparks, 31 F. App’x 156 (5th Cir. 2001). In 2003, Sparks filed a pro se motion\nunder 28 U.S.C. § 2255 to vacate his sentence, and the district court denied it.\nSparks filed an appeal, but we dismissed it for want of prosecution. United\nStates v. Sparks, No. 03-50781 (5th Cir. Nov. 19, 2003).\n Since then, several Supreme Court decisions involving the Eighth\nAmendment raised constitutional concerns about Sparks’s LWOP sentence. In\nGraham v. Florida, 560 U.S. 48 (2010), the Court held that juveniles may not\nbe sentenced to life without parole for non-homicide offenses. In Miller v.\nAlabama, 567 U.S. 460 (2012), the Court held that juveniles may not receive\nmandatory sentences of life without parole. And in Montgomery v. Louisiana,\n136 S. Ct. 718 (2016), the Court made Miller retroactive to cases on collateral\nreview.\n We authorized Sparks to file a successive § 2255 motion based on\nGraham. In re Sparks, 657 F.3d 258, 262 (5th Cir. 2011). The district court\ndenied the motion. But we granted a certificate of appealability, United States\n 5\n\f Case: 18-50225 Document: 00515173123 Page: 6 Date Filed: 10/24/2019\n\n\n\n No. 18-50225\nv. Sparks, No. 13-50807 (5th Cir. July 10, 2014), and remanded the case for\nreconsideration at the Government’s request, United States v. Sparks, No. 13-\n50807 (5th Cir. Feb. 10, 2015). We also authorized Sparks to file a successive\n§ 2255 motion based on Miller, which the Government did not oppose. In re\nSparks, No. 16-50973 (5th Cir. Nov. 18, 2016).\n Upon joint motion of the parties, the district court consolidated the\nmotions and ordered a resentencing. It provided Sparks with court-appointed\nexperts and conducted a five-day sentencing hearing. At the hearing, the\nGovernment introduced evidence that Sparks committed repeated acts of brutal\nviolence during his first decade in prison. In 2004, Sparks participated in a riot\ninvolving approximately 600 inmates, carrying a baseball bat during the\nfighting. In July 2006, Sparks stabbed his cellmate 12 times in the back, neck,\nhead, and right arm. In September 2007, he stabbed another inmate in the\nneck, resulting in a spinal cord injury that left the inmate unable to walk or\nurinate by himself. In March 2008, Sparks attempted to murder an inmate by\nstabbing him repeatedly in the head, resulting in brain damage and the loss of\nthe victim’s right eye. Sparks’s violence led to his transfer to ADX Florence in\nColorado, a supermax facility where the nation’s most dangerous federal\nprisoners are located. Before that transfer, he had been sanctioned for at least\n23 incidents. And in 2014, Sparks instructed two inmates to assault another\ninmate.\n The district court carefully examined Sparks’s youth and its attendant\ncharacteristics in a twenty-six-page memorandum opinion. The district court\nincluded a thorough discussion of Miller and the 18 U.S.C. § 3553(a) factors.\nThe court also considered the PSR, which could not identify any basis under\n§ 3553(a) for varying from the recommended sentence of life imprisonment.\nThe district court could not “imagine a worse offense, nor [could] the court\nimagine a more callous perpetrator than the defendant.” Nonetheless, the\n 6\n\f Case: 18-50225 Document: 00515173123 Page: 7 Date Filed: 10/24/2019\n\n\n\n No. 18-50225\ndistrict court chose to vary downward and sentenced Sparks to 35 years, with\ncredit for time in custody. Sparks appealed.\n II.\n Sparks’s principal argument on appeal is that the district court violated\nMiller v. Alabama. That case held the Eighth Amendment prohibits mandatory\nLWOP sentences for juveniles. Miller, 567 U.S. at 465. It’s not clear from\nSparks’s briefs whether he thinks his below-Guidelines sentence violates the\nsubstantive or procedural aspects of the Miller decision. At argument, his\ncounsel urged us to consider both. We do so.\n A.\n Miller announced a substantive Eight Amendment rule: The\nConstitution prohibits sentencing a juvenile to mandatory LWOP because it\n“poses too great a risk of disproportionate punishment.” 567 U.S. at 479. But\nMiller did “not consider” whether “the Eighth Amendment requires a\ncategorical bar on life without parole for juveniles.” Ibid.\n Three corollaries follow from Miller’s substantive rule. First, it “did not\nforeclose a sentencer’s ability to impose life without parole” on a discretionary\nbasis. Montgomery, 136 S. Ct. at 726; see also Miller, 567 U.S. at 483. Our sister\ncircuits’ post-Miller decisions recognize as much. See Contreras v. Davis, 716 F.\nApp’x 160, 163 (4th Cir. 2017); Kelly v. Brown, 851 F.3d 686, 687–88 (7th Cir.\n2017); United States v. Jefferson, 816 F.3d 1016, 1019 (8th Cir. 2016); Davis v.\nMcCollum, 798 F.3d 1317, 1320–21 (10th Cir. 2015); Croft v. Williams, 773 F.3d\n170, 171 (7th Cir. 2014); Evans-Garcia v. United States, 744 F.3d 235, 241 (1st\nCir. 2014); Bell v. Uribe, 748 F.3d 857, 869–70 (9th Cir. 2014); United States v.\nReingold, 731 F.3d 204, 214 (2d Cir. 2013). 2 Numerous state courts have reached\n\n\n 2The Fourth Circuit in Malvo v. Mathena, 893 F.3d 265 (4th Cir. 2018), held that\nMontgomery expanded Miller to cover discretionary LWOP sentences. Id. at 273–74. The\nSupreme Court granted certiorari. 139 S. Ct. 1317 (2019) (mem.).\n 7\n\f Case: 18-50225 Document: 00515173123 Page: 8 Date Filed: 10/24/2019\n\n\n\n No. 18-50225\nthe same conclusion. See, e.g., Lucero v. People, 394 P.3d 1128, 1132 (Colo. 2017);\nConley v. State, 972 N.E.2d 864, 879 (Ind. 2012); State v. Russell, 908 N.W.2d\n669, 676 (Neb. 2018); Jones v. Commonwealth, 795 S.E.2d 705, 722 (Va. 2017).\nThus, if a sentencing court has the option to choose a sentence other than life\nwithout parole, it can choose life without parole without violating Miller.\n Second, Miller has no relevance to sentences less than LWOP. See United\nStates v. Walton, 537 F. App’x 430, 437 (5th Cir. 2013) (per curiam). This means\nthat sentences of life with the possibility of parole or early release do not\nimplicate Miller. See Bowling v. Dir., Va. Dep’t of Corr., 920 F.3d 192, 197 (4th\nCir. 2019); Goins v. Smith, 556 F. App’x 434, 440 (6th Cir. 2014); Lucero, 394\nP.3d at 1132; Lewis v. State, 428 S.W.3d 860, 863–64 (Tex. Crim. App. 2014).\nNor do sentences to a term of years. See Walton, 537 F. App’x at 437; United\nStates v. Morgan, 727 F. App’x 994, 997 (11th Cir. 2018) (per curiam); United\nStates v. Lopez, 860 F.3d 201, 211 (4th Cir. 2017); Lucero, 394 P.3d at 1133. All\nof these sentences can be imposed on a mandatory basis for juveniles without\nimplicating Miller because they are not LWOP sentences.\n Third, a term-of-years sentence cannot be characterized as a de facto life\nsentence. Miller dealt with a statute that specifically imposed a mandatory\nsentence of life. The Court distinguished that sentencing scheme from\n“impliedly constitutional alternatives whereby ‘a judge or jury could choose,\nrather than a life-without-parole sentence, a lifetime prison term with the\npossibility of parole or a lengthy term of years.’ ” Lucero, 394 P.3d at 1133\n(quoting Miller, 567 U.S. at 489). Given Miller’s endorsement of “a lengthy\nterm of years” as a constitutional alternative to life without parole, it would be\nbizarre to read Miller as somehow foreclosing such sentences.\n A panel of the Third Circuit nevertheless tried. See United States v.\nGrant, 887 F.3d 131 (3d Cir. 2018), reh’g en banc granted, opinion vacated, 905\nF.3d 258 (3d Cir. 2018). In Grant, the panel sought to “effectuate” Miller by\n 8\n\f Case: 18-50225 Document: 00515173123 Page: 9 Date Filed: 10/24/2019\n\n\n\n No. 18-50225\ninventing a “rebuttable presumption” that a juvenile offender “should be\nafforded an opportunity for release before the national age of retirement.” Id.\nat 152–53. The panel conceded it had no “principled basis” for drawing that\nline. Id. at 150. The panel further conceded it couldn’t be sure what line it was\ndrawing: “We cannot say with certainty what the precise national age of\nretirement is, as it is a figure that incrementally fluctuates over time.” Id. at\n151. It also admitted that reliance on a “national retirement age” would fail to\naccount for “locality, state, gender, race, wealth, or other differentiating\ncharacteristics.” Ibid. The panel went on to discuss the history of Social\nSecurity, Gallup polls, and one academic study before pronouncing a “national\nretirement age” of sixty-five. Id. at 151–52. But even in its pronouncement of\nthe rule, the panel appeared to recognize the arbitrariness of its decision:\n“Without definitively determining the issue, we consider sixty-five as an\nadequate approximation of the national age of retirement to date. However,\ndistrict courts retain the discretion to determine the national age of retirement\nat sentencing, and remain free to consider evidence of the evolving nature of\nthis estimate.” Id. at 152. Such reasoning is not bound by law.\n Sparks cannot show a substantive Miller violation. First, he received a\ndiscretionary sentence under § 3553(a) rather than a mandatory sentence.\nSecond, he was sentenced to thirty-five years in prison rather than life without\nparole. Because Sparks did not receive a mandatory sentence of life without\n\n\n\n\n 9\n\f Case: 18-50225 Document: 00515173123 Page: 10 Date Filed: 10/24/2019\n\n\n\n No. 18-50225\nparole, he has failed to demonstrate a violation of Miller’s substantive\nrequirements. 3\n B.\n The procedural component of Miller “requires a sentencer to consider a\njuvenile offender’s youth and attendant characteristics before determining\nthat life without parole is a proportionate sentence.” Montgomery, 136 S. Ct.\nat 734. In Miller and Montgomery, the Supreme Court considered state laws in\nAlabama and Louisiana imposing mandatory LWOP sentences on juveniles.\nBut federal prisoners have procedural protections that state prisoners do not\nhave—namely, the sentencing factors in § 3553(a) and the advisory Sentencing\nGuidelines.\n Under § 3553(a), a sentencing court “shall impose a sentence sufficient,\nbut not greater than necessary, to comply with the purposes” of sentencing. In\nchoosing an appropriate sentence, the court must examine “the nature and\ncircumstances of the offense and the history and characteristics of the\ndefendant.” 18 U.S.C. § 3553(a)(1). It must also consider the policy statements\nof the Sentencing Commission, id. § 3553(a)(5), which expressly allow for\nconsideration of the defendant’s age, “including youth,” U.S.S.G. § 5H1.1, p.s.\n The § 3553(a) analysis satisfies Miller’s procedural requirement that the\ncourt consider the defendant’s youth and its attendant characteristics before\nimposing a sentence of life without parole. See Moore v. United States, 871 F.3d\n72, 79 (1st Cir. 2017); Lopez, 860 F.3d at 211; Jefferson, 816 F.3d at 1018 n.3\n\n\n\n\n 3 It is unclear whether Sparks also intended to challenge the substantive\nreasonableness of his sentence under Gall v. United States, 552 U.S. 38 (2007). The issue is\nnot adequately briefed, but even if it were, Sparks has failed to show an abuse of discretion.\nId. at 51. Sparks has a remarkable history of violence in prison. Even so, the district court\nvaried down from the Guidelines, sentencing him to 35 years. Sparks has not rebutted the\npresumption that his below-Guidelines sentence is reasonable. See United States v. Simpson,\n796 F.3d 548, 557 (5th Cir. 2015).\n 10\n\f Case: 18-50225 Document: 00515173123 Page: 11 Date Filed: 10/24/2019\n\n\n\n No. 18-50225\n(noting that the “Supreme Court has not yet applied its constitutional decision\nin Miller to a life sentence imposed by a federal court,” and questioning Miller’s\napplicability to a sentence imposed under the advisory Guidelines). Thus, a\nsentence that satisfies § 3553(a)’s procedural requirements cannot be\nchallenged under the procedural component of the Miller decision.\n Reflecting some confusion over the procedural requirements of Miller, the\ndistrict court’s opinion contains separate discussions of Miller and § 3553(a).\nOther courts have similarly treated the so-called “Miller factors” as separate\nfrom the § 3553(a) factors. See, e.g., United States v. Orsinger, 698 F. App’x 527,\n527 (9th Cir. 2017) (per curiam) (noting that the district court considered the\nevidence in “light of the factors identified in Miller and in 18 U.S.C. § 3553(a)”);\nUnited States v. Garcia, 666 F. App’x 74, 78 (2d Cir. 2016) (per curiam) (referring\nto “Miller and § 3553(a) factors” as separate and distinct); United States v.\nGuzman, 664 F. App’x 120, 122 (2d Cir. 2016) (per curiam) (noting that the\ndistrict court “gave ample consideration to each of the Miller factors, together\nwith the sometimes-overlapping § 3553(a) factors”); United States v. Guerrero,\n560 F. App’x 110, 112 (2d Cir. 2014) (per curiam) (holding that the “district court\nproperly considered all of the Miller factors . . . and other mitigating factors\nunder 18 U.S.C. § 3553(a)”), aff’g United States v. Maldonado, No. 09-CR-339-\n02, 2012 WL 5878673, at *9 (S.D.N.Y. Nov. 21, 2012) (discussing “Miller factors”\nseparately from § 3553(a) factors).\n In a recent en banc opinion, the Ninth Circuit vacated a sentence imposed\nunder § 3553(a) after hearing “evidence related to a number of the Miller\nfactors” because the district court’s “sentencing remarks focused on the\npunishment warranted by the terrible crime Briones participated in, rather\nthan whether Briones was irredeemable.” United States v. Briones, 929 F.3d\n1057, 1066 (9th Cir. 2019) (en banc). Though the Ninth Circuit claimed not to\nhold that “the district court erred simply by failing to use any specific words,”\n 11\n\f Case: 18-50225 Document: 00515173123 Page: 12 Date Filed: 10/24/2019\n\n\n\n No. 18-50225\nid. at 1067, that appears to be exactly what the court did, see id. at 1073\n(Bennett, J., dissenting). We reject the view that a procedurally proper sentence\nimposed under § 3553(a) can be vacated merely because the district court failed\nto quote certain magic words from the Supreme Court’s Miller decision. As the\nCourt has clearly said, “Miller did not require trial courts to make a finding of\nfact regarding a child’s incorrigibility.” Montgomery, 136 S. Ct. at 735. The Court\nwas “careful to limit the scope of any attendant procedural requirement to avoid\nintruding more than necessary upon the States’ sovereign administration of\ntheir criminal justice systems.” Ibid. Hence, the Court reiterated, “Miller did not\nimpose a formal factfinding requirement.” Ibid.\n In this case, the district court appointed taxpayer-funded experts for\nSparks, held a lengthy five-day hearing, and wrote twenty-six pages explaining\nits sentence. This fulsome process gave Sparks far more than the minimum\nprocedure necessary to conduct a proper § 3553(a) analysis. And we agree with\nthe Government that Miller does not add procedural requirements over and\nabove § 3553(a).\n III.\n Sparks also argues that the district court erred in calculating the offense\nlevel under the Guidelines. The district court increased Sparks’s offense level\nby two points for obstructing justice, U.S.S.G. § 3C1.1, and denied him a two-\npoint reduction for accepting responsibility, id. § 3E1.1. Those decisions were\nbased on the court’s finding that Sparks attempted to escape from his detention\ncenter. Sparks claims he was not involved in the attempt.\n We review the district court’s factual findings for abuse of discretion,\nwhich occurs when the court relies on “clearly erroneous facts.” Gall, 552 U.S.\nat 51. “Generally, a PSR ‘bears sufficient indicia of reliability to be considered\nas evidence by the sentencing judge in making factual determinations.’” United\nStates v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (quoting United States v.\n 12\n\f Case: 18-50225 Document: 00515173123 Page: 13 Date Filed: 10/24/2019\n\n\n\n No. 18-50225\nNava, 624 F.3d 226, 231 (5th Cir. 2010)). A district court may adopt facts\ncontained in the PSR “without further inquiry” if those facts have an “adequate\nevidentiary basis with sufficient indicia of reliability.” Ibid. (quoting United\nStates v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007)).\n Sparks’s PSR contains reliable evidence that he tried to escape from his\ndetention center. That evidence includes an interview with a witness who\nheard Sparks discussing the escape plan with another inmate, Christopher\nKirvin. The witness said that when Kirvin attacked a prison guard, Sparks\nrepeatedly flushed a toilet to mask the sound of her screams. Sparks also\nadmitted to a probation officer that he participated in the escape attempt. The\ndistrict court reasonably relied on the PSR.\n * * *\n Sparks’s sentence is AFFIRMED.\n\n\n\n\n 13\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Tony Sparks\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-24\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-50225 Document: 00515173123 Page: 1 Date Filed: 10/24/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-50225 October 24, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n\\n Plaintiff-Appellee,\\n\\nv.\\n\\nTONY SPARKS,\\n\\n Defendant-Appellant.\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\n\\nBefore ELROD, GRAVES, and OLDHAM, Circuit Judges. *\\nANDREW S. OLDHAM, Circuit Judge:\\n Tony Sparks and his fellow gang members carjacked Todd and Stacie\\nBagley at gunpoint. The gang locked the Bagleys in the trunk for hours,\\nemptied the Bagleys’ bank account, and tried to pawn Stacie’s wedding ring.\\nDuring the gang’s crime spree, the Bagleys sang gospel songs from the trunk\\nand told their captors about Jesus. Eventually one of the gang members popped\\nthe trunk, cursed at the couple, and executed Todd in front of his wife. That\\nsame gang member shot Stacie in the face but failed to kill her. Others\\nincinerated the car to destroy the evidence and burned Stacie alive.\\n\\n\\n * Judge Graves concurs in the judgment only.\\n\\f Case: 18-50225 Document: 00515173123 Page: 2 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\n For his role in this crime, Sparks received a below-Guidelines 35-year\\nsentence. Sparks says that violates the Eighth Amendment. We disagree.\\n I.\\n A.\\n On June 20, 1999, Tony Sparks went to a convenience store in Killeen,\\nTexas, with Christopher Vialva and Christopher Lewis. 1 The three of them\\nwere members of a local gang known as the 212 PIRU Bloods. They planned to\\ndupe a Good Samaritan into giving them a ride before carjacking him or her at\\ngunpoint. Sparks brought the gun, a .22 caliber pistol.\\n Police initially thwarted the plan by detaining the trio for violating the\\ncity’s juvenile curfew law. (Sparks was 16 at the time.) Before being detained,\\nLewis threw the pistol into the bushes. Sparks’s mother picked up Sparks and\\nLewis, and Vialva was released because he was an adult.\\n The following day, Sparks, Vialva, and Lewis regrouped. They recruited\\ntwo other members of their gang, Brandon Bernard and Terry Brown, to help\\nwith the carjacking. Vialva and Bernard retrieved the .22 caliber pistol that\\nLewis had discarded the night before. Because it was wet with dew, they\\nworried that it would not function. So Bernard obtained a Glock .40 caliber\\npistol to use for the carjacking.\\n That afternoon, the five gang members went to an IGA supermarket to\\nfind a carjacking victim. Bernard and Brown acted as lookouts while Sparks,\\nVialva, and Lewis approached potential victims to ask for a ride. No one offered\\nthem a ride, so they drove to a “Mickey’s” convenience store. Bernard and\\nBrown went to a nearby laundromat to play video games. Sparks, Vialva, and\\nLewis went to the front of the convenience store.\\n\\n\\n 1We previously reported the factual background of this case in United States v.\\nBernard, 299 F.3d 467 (5th Cir. 2002). The factual recitation here comes principally from\\nBernard, as supplemented by Sparks’s record.\\n 2\\n\\f Case: 18-50225 Document: 00515173123 Page: 3 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\n Shortly after arriving at the convenience store, Sparks found Todd\\nBagley using a payphone outside. Todd and his wife Stacie were youth\\nministers from Iowa. They’d previously lived in Killeen because Todd was a\\nveteran of the U.S. Army and had been stationed at Fort Hood. The young\\ncouple had gone to church at Grace Christian, where they worked with the\\nyouth group. They were back in Killeen on a vacation to see old friends and\\nattend a revival meeting at the church.\\n Sparks approached Todd and asked if he would give Sparks, Vialva, and\\nLewis a ride to another location. Todd conferred with Stacie, and the young\\ncouple unsuspectingly agreed to give the gang members a ride. Bernard and\\nBrown returned to their homes to wait for further instructions from Vialva.\\n Sparks, Vialva, and Lewis got into the back seat of the Bagleys’ car. Todd\\ndrove while his wife sat in the front passenger seat. In accordance with their\\nplan, Sparks and Vialva pulled out two handguns, and Vialva pointed his gun\\nat Todd. Vialva told the Bagleys that the “plan had changed,” and he forced\\nTodd to drive to a semi-rural location near the edge of Killeen. While Vialva\\npointed a gun at the Bagleys, Sparks and Vialva robbed them of their money,\\nwallets, purse, debit card, identification, and jewelry. Vialva demanded their\\nbank account’s pin number and then forced the Bagleys into the trunk of their\\ncar.\\n With the Bagleys locked in the trunk, Sparks, Vialva, and Lewis went on\\nan hours-long crime spree. They went to an ATM to steal all of the Bagleys’\\nmoney. That effort was frustrated, however, because the youth ministers had\\nless than $100 in their bank account. They tried to pawn Stacie’s wedding ring.\\nThey used what little money they could steal from the Bagleys to buy cigars,\\ncigarettes, and fast food from Wendy’s.\\n Meanwhile, the Bagleys evangelized from the trunk. According to Lewis\\n(who later testified), the Bagleys asked him and Sparks about God, Jesus, and\\n 3\\n\\f Case: 18-50225 Document: 00515173123 Page: 4 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\nchurch. The Bagleys acknowledged not having earthly wealth, but they told\\ntheir captors that faith in Jesus is more valuable than money. The Bagleys\\ntalked about the revival meeting at Grace Christian. And the Bagleys urged\\ntheir captors to have faith in Jesus Christ. The Bagleys begged for their lives.\\n As night began to fall, Sparks told the gang that he needed to go home\\nto avoid violating his 8 p.m. probation curfew for a previous robbery conviction.\\nThe group dropped Sparks off at his home. Sparks took the Bagleys’ jewelry\\nwith him. But Vialva asked Sparks not to take his .22 caliber handgun. After\\ninitially refusing, Sparks agreed.\\n Bernard and Brown purchased fuel to burn the Bagleys’ car. Vialva and\\nLewis picked them up, and the four gang members drove (again, with the\\nBagleys still locked in the trunk) to the Belton Lake Recreation Area on the\\nFort Hood military installation. Vialva parked the Bagleys’ car on top of a little\\nhill. Brown and Bernard poured lighter fluid on the interior of the car. All the\\nwhile, the Bagleys sang and prayed in the trunk.\\n Stacie’s last words were “Jesus loves you,” and “Jesus, take care of us.”\\nVialva crudely cursed at her, told Lewis to pop the trunk, and then executed\\nTodd in front of his wife. Vialva shot Todd in the head with the .40 caliber\\nGlock, killing him instantly. Then Vialva shot Stacie in the face but failed to\\nkill her. Bernard set the car on fire and burned Stacie alive. Todd was 26.\\nStacie was 28.\\n B.\\n Sparks pleaded guilty to aiding and abetting a carjacking, and he hoped\\nto receive an offense-level reduction for acceptance of responsibility. U.S.S.G.\\n§ 3E1.1. But as he was awaiting sentencing, Sparks was implicated in a plot to\\nescape from his detention center. As Sparks himself acknowledges, another\\ninmate, Christopher Kirvin, choked a prison guard unconscious and stole her\\nkeys. The Pre-Sentence Report (“PSR”) implicated Sparks based on a witness\\n 4\\n\\f Case: 18-50225 Document: 00515173123 Page: 5 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\nwho heard Sparks planning the escape attempt with Kirvin. Sparks flushed a\\ntoilet repeatedly during the assault to mask the sound of the prison guard’s\\nscreams. Based on the escape attempt, the PSR added two points to Sparks’s\\noffense level for obstructing justice. Id. § 3C1.1. It also denied Sparks an\\noffense-level reduction for accepting responsibility. Id. § 3E1.1. Given the\\nnature of the crime and the Bagleys’ murders, the PSR recommended an\\noffense level of 45—two levels above the highest value on the sentencing table.\\n When the district court sentenced Sparks in 2001, it agreed with the\\nPSR’s factual findings and sentencing calculation. Applying the Guidelines,\\nwhich were mandatory before United States v. Booker, 543 U.S. 220 (2005), the\\ncourt sentenced Sparks to life in prison without the possibility of parole\\n(“LWOP”).\\n We affirmed Sparks’s sentence on direct appeal. See United States v.\\nSparks, 31 F. App’x 156 (5th Cir. 2001). In 2003, Sparks filed a pro se motion\\nunder 28 U.S.C. § 2255 to vacate his sentence, and the district court denied it.\\nSparks filed an appeal, but we dismissed it for want of prosecution. United\\nStates v. Sparks, No. 03-50781 (5th Cir. Nov. 19, 2003).\\n Since then, several Supreme Court decisions involving the Eighth\\nAmendment raised constitutional concerns about Sparks’s LWOP sentence. In\\nGraham v. Florida, 560 U.S. 48 (2010), the Court held that juveniles may not\\nbe sentenced to life without parole for non-homicide offenses. In Miller v.\\nAlabama, 567 U.S. 460 (2012), the Court held that juveniles may not receive\\nmandatory sentences of life without parole. And in Montgomery v. Louisiana,\\n136 S. Ct. 718 (2016), the Court made Miller retroactive to cases on collateral\\nreview.\\n We authorized Sparks to file a successive § 2255 motion based on\\nGraham. In re Sparks, 657 F.3d 258, 262 (5th Cir. 2011). The district court\\ndenied the motion. But we granted a certificate of appealability, United States\\n 5\\n\\f Case: 18-50225 Document: 00515173123 Page: 6 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\nv. Sparks, No. 13-50807 (5th Cir. July 10, 2014), and remanded the case for\\nreconsideration at the Government’s request, United States v. Sparks, No. 13-\\n50807 (5th Cir. Feb. 10, 2015). We also authorized Sparks to file a successive\\n§ 2255 motion based on Miller, which the Government did not oppose. In re\\nSparks, No. 16-50973 (5th Cir. Nov. 18, 2016).\\n Upon joint motion of the parties, the district court consolidated the\\nmotions and ordered a resentencing. It provided Sparks with court-appointed\\nexperts and conducted a five-day sentencing hearing. At the hearing, the\\nGovernment introduced evidence that Sparks committed repeated acts of brutal\\nviolence during his first decade in prison. In 2004, Sparks participated in a riot\\ninvolving approximately 600 inmates, carrying a baseball bat during the\\nfighting. In July 2006, Sparks stabbed his cellmate 12 times in the back, neck,\\nhead, and right arm. In September 2007, he stabbed another inmate in the\\nneck, resulting in a spinal cord injury that left the inmate unable to walk or\\nurinate by himself. In March 2008, Sparks attempted to murder an inmate by\\nstabbing him repeatedly in the head, resulting in brain damage and the loss of\\nthe victim’s right eye. Sparks’s violence led to his transfer to ADX Florence in\\nColorado, a supermax facility where the nation’s most dangerous federal\\nprisoners are located. Before that transfer, he had been sanctioned for at least\\n23 incidents. And in 2014, Sparks instructed two inmates to assault another\\ninmate.\\n The district court carefully examined Sparks’s youth and its attendant\\ncharacteristics in a twenty-six-page memorandum opinion. The district court\\nincluded a thorough discussion of Miller and the 18 U.S.C. § 3553(a) factors.\\nThe court also considered the PSR, which could not identify any basis under\\n§ 3553(a) for varying from the recommended sentence of life imprisonment.\\nThe district court could not “imagine a worse offense, nor [could] the court\\nimagine a more callous perpetrator than the defendant.” Nonetheless, the\\n 6\\n\\f Case: 18-50225 Document: 00515173123 Page: 7 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\ndistrict court chose to vary downward and sentenced Sparks to 35 years, with\\ncredit for time in custody. Sparks appealed.\\n II.\\n Sparks’s principal argument on appeal is that the district court violated\\nMiller v. Alabama. That case held the Eighth Amendment prohibits mandatory\\nLWOP sentences for juveniles. Miller, 567 U.S. at 465. It’s not clear from\\nSparks’s briefs whether he thinks his below-Guidelines sentence violates the\\nsubstantive or procedural aspects of the Miller decision. At argument, his\\ncounsel urged us to consider both. We do so.\\n A.\\n Miller announced a substantive Eight Amendment rule: The\\nConstitution prohibits sentencing a juvenile to mandatory LWOP because it\\n“poses too great a risk of disproportionate punishment.” 567 U.S. at 479. But\\nMiller did “not consider” whether “the Eighth Amendment requires a\\ncategorical bar on life without parole for juveniles.” Ibid.\\n Three corollaries follow from Miller’s substantive rule. First, it “did not\\nforeclose a sentencer’s ability to impose life without parole” on a discretionary\\nbasis. Montgomery, 136 S. Ct. at 726; see also Miller, 567 U.S. at 483. Our sister\\ncircuits’ post-Miller decisions recognize as much. See Contreras v. Davis, 716 F.\\nApp’x 160, 163 (4th Cir. 2017); Kelly v. Brown, 851 F.3d 686, 687–88 (7th Cir.\\n2017); United States v. Jefferson, 816 F.3d 1016, 1019 (8th Cir. 2016); Davis v.\\nMcCollum, 798 F.3d 1317, 1320–21 (10th Cir. 2015); Croft v. Williams, 773 F.3d\\n170, 171 (7th Cir. 2014); Evans-Garcia v. United States, 744 F.3d 235, 241 (1st\\nCir. 2014); Bell v. Uribe, 748 F.3d 857, 869–70 (9th Cir. 2014); United States v.\\nReingold, 731 F.3d 204, 214 (2d Cir. 2013). 2 Numerous state courts have reached\\n\\n\\n 2The Fourth Circuit in Malvo v. Mathena, 893 F.3d 265 (4th Cir. 2018), held that\\nMontgomery expanded Miller to cover discretionary LWOP sentences. Id. at 273–74. The\\nSupreme Court granted certiorari. 139 S. Ct. 1317 (2019) (mem.).\\n 7\\n\\f Case: 18-50225 Document: 00515173123 Page: 8 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\nthe same conclusion. See, e.g., Lucero v. People, 394 P.3d 1128, 1132 (Colo. 2017);\\nConley v. State, 972 N.E.2d 864, 879 (Ind. 2012); State v. Russell, 908 N.W.2d\\n669, 676 (Neb. 2018); Jones v. Commonwealth, 795 S.E.2d 705, 722 (Va. 2017).\\nThus, if a sentencing court has the option to choose a sentence other than life\\nwithout parole, it can choose life without parole without violating Miller.\\n Second, Miller has no relevance to sentences less than LWOP. See United\\nStates v. Walton, 537 F. App’x 430, 437 (5th Cir. 2013) (per curiam). This means\\nthat sentences of life with the possibility of parole or early release do not\\nimplicate Miller. See Bowling v. Dir., Va. Dep’t of Corr., 920 F.3d 192, 197 (4th\\nCir. 2019); Goins v. Smith, 556 F. App’x 434, 440 (6th Cir. 2014); Lucero, 394\\nP.3d at 1132; Lewis v. State, 428 S.W.3d 860, 863–64 (Tex. Crim. App. 2014).\\nNor do sentences to a term of years. See Walton, 537 F. App’x at 437; United\\nStates v. Morgan, 727 F. App’x 994, 997 (11th Cir. 2018) (per curiam); United\\nStates v. Lopez, 860 F.3d 201, 211 (4th Cir. 2017); Lucero, 394 P.3d at 1133. All\\nof these sentences can be imposed on a mandatory basis for juveniles without\\nimplicating Miller because they are not LWOP sentences.\\n Third, a term-of-years sentence cannot be characterized as a de facto life\\nsentence. Miller dealt with a statute that specifically imposed a mandatory\\nsentence of life. The Court distinguished that sentencing scheme from\\n“impliedly constitutional alternatives whereby ‘a judge or jury could choose,\\nrather than a life-without-parole sentence, a lifetime prison term with the\\npossibility of parole or a lengthy term of years.’ ” Lucero, 394 P.3d at 1133\\n(quoting Miller, 567 U.S. at 489). Given Miller’s endorsement of “a lengthy\\nterm of years” as a constitutional alternative to life without parole, it would be\\nbizarre to read Miller as somehow foreclosing such sentences.\\n A panel of the Third Circuit nevertheless tried. See United States v.\\nGrant, 887 F.3d 131 (3d Cir. 2018), reh’g en banc granted, opinion vacated, 905\\nF.3d 258 (3d Cir. 2018). In Grant, the panel sought to “effectuate” Miller by\\n 8\\n\\f Case: 18-50225 Document: 00515173123 Page: 9 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\ninventing a “rebuttable presumption” that a juvenile offender “should be\\nafforded an opportunity for release before the national age of retirement.” Id.\\nat 152–53. The panel conceded it had no “principled basis” for drawing that\\nline. Id. at 150. The panel further conceded it couldn’t be sure what line it was\\ndrawing: “We cannot say with certainty what the precise national age of\\nretirement is, as it is a figure that incrementally fluctuates over time.” Id. at\\n151. It also admitted that reliance on a “national retirement age” would fail to\\naccount for “locality, state, gender, race, wealth, or other differentiating\\ncharacteristics.” Ibid. The panel went on to discuss the history of Social\\nSecurity, Gallup polls, and one academic study before pronouncing a “national\\nretirement age” of sixty-five. Id. at 151–52. But even in its pronouncement of\\nthe rule, the panel appeared to recognize the arbitrariness of its decision:\\n“Without definitively determining the issue, we consider sixty-five as an\\nadequate approximation of the national age of retirement to date. However,\\ndistrict courts retain the discretion to determine the national age of retirement\\nat sentencing, and remain free to consider evidence of the evolving nature of\\nthis estimate.” Id. at 152. Such reasoning is not bound by law.\\n Sparks cannot show a substantive Miller violation. First, he received a\\ndiscretionary sentence under § 3553(a) rather than a mandatory sentence.\\nSecond, he was sentenced to thirty-five years in prison rather than life without\\nparole. Because Sparks did not receive a mandatory sentence of life without\\n\\n\\n\\n\\n 9\\n\\f Case: 18-50225 Document: 00515173123 Page: 10 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\nparole, he has failed to demonstrate a violation of Miller’s substantive\\nrequirements. 3\\n B.\\n The procedural component of Miller “requires a sentencer to consider a\\njuvenile offender’s youth and attendant characteristics before determining\\nthat life without parole is a proportionate sentence.” Montgomery, 136 S. Ct.\\nat 734. In Miller and Montgomery, the Supreme Court considered state laws in\\nAlabama and Louisiana imposing mandatory LWOP sentences on juveniles.\\nBut federal prisoners have procedural protections that state prisoners do not\\nhave—namely, the sentencing factors in § 3553(a) and the advisory Sentencing\\nGuidelines.\\n Under § 3553(a), a sentencing court “shall impose a sentence sufficient,\\nbut not greater than necessary, to comply with the purposes” of sentencing. In\\nchoosing an appropriate sentence, the court must examine “the nature and\\ncircumstances of the offense and the history and characteristics of the\\ndefendant.” 18 U.S.C. § 3553(a)(1). It must also consider the policy statements\\nof the Sentencing Commission, id. § 3553(a)(5), which expressly allow for\\nconsideration of the defendant’s age, “including youth,” U.S.S.G. § 5H1.1, p.s.\\n The § 3553(a) analysis satisfies Miller’s procedural requirement that the\\ncourt consider the defendant’s youth and its attendant characteristics before\\nimposing a sentence of life without parole. See Moore v. United States, 871 F.3d\\n72, 79 (1st Cir. 2017); Lopez, 860 F.3d at 211; Jefferson, 816 F.3d at 1018 n.3\\n\\n\\n\\n\\n 3 It is unclear whether Sparks also intended to challenge the substantive\\nreasonableness of his sentence under Gall v. United States, 552 U.S. 38 (2007). The issue is\\nnot adequately briefed, but even if it were, Sparks has failed to show an abuse of discretion.\\nId. at 51. Sparks has a remarkable history of violence in prison. Even so, the district court\\nvaried down from the Guidelines, sentencing him to 35 years. Sparks has not rebutted the\\npresumption that his below-Guidelines sentence is reasonable. See United States v. Simpson,\\n796 F.3d 548, 557 (5th Cir. 2015).\\n 10\\n\\f Case: 18-50225 Document: 00515173123 Page: 11 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\n(noting that the “Supreme Court has not yet applied its constitutional decision\\nin Miller to a life sentence imposed by a federal court,” and questioning Miller’s\\napplicability to a sentence imposed under the advisory Guidelines). Thus, a\\nsentence that satisfies § 3553(a)’s procedural requirements cannot be\\nchallenged under the procedural component of the Miller decision.\\n Reflecting some confusion over the procedural requirements of Miller, the\\ndistrict court’s opinion contains separate discussions of Miller and § 3553(a).\\nOther courts have similarly treated the so-called “Miller factors” as separate\\nfrom the § 3553(a) factors. See, e.g., United States v. Orsinger, 698 F. App’x 527,\\n527 (9th Cir. 2017) (per curiam) (noting that the district court considered the\\nevidence in “light of the factors identified in Miller and in 18 U.S.C. § 3553(a)”);\\nUnited States v. Garcia, 666 F. App’x 74, 78 (2d Cir. 2016) (per curiam) (referring\\nto “Miller and § 3553(a) factors” as separate and distinct); United States v.\\nGuzman, 664 F. App’x 120, 122 (2d Cir. 2016) (per curiam) (noting that the\\ndistrict court “gave ample consideration to each of the Miller factors, together\\nwith the sometimes-overlapping § 3553(a) factors”); United States v. Guerrero,\\n560 F. App’x 110, 112 (2d Cir. 2014) (per curiam) (holding that the “district court\\nproperly considered all of the Miller factors . . . and other mitigating factors\\nunder 18 U.S.C. § 3553(a)”), aff’g United States v. Maldonado, No. 09-CR-339-\\n02, 2012 WL 5878673, at *9 (S.D.N.Y. Nov. 21, 2012) (discussing “Miller factors”\\nseparately from § 3553(a) factors).\\n In a recent en banc opinion, the Ninth Circuit vacated a sentence imposed\\nunder § 3553(a) after hearing “evidence related to a number of the Miller\\nfactors” because the district court’s “sentencing remarks focused on the\\npunishment warranted by the terrible crime Briones participated in, rather\\nthan whether Briones was irredeemable.” United States v. Briones, 929 F.3d\\n1057, 1066 (9th Cir. 2019) (en banc). Though the Ninth Circuit claimed not to\\nhold that “the district court erred simply by failing to use any specific words,”\\n 11\\n\\f Case: 18-50225 Document: 00515173123 Page: 12 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\nid. at 1067, that appears to be exactly what the court did, see id. at 1073\\n(Bennett, J., dissenting). We reject the view that a procedurally proper sentence\\nimposed under § 3553(a) can be vacated merely because the district court failed\\nto quote certain magic words from the Supreme Court’s Miller decision. As the\\nCourt has clearly said, “Miller did not require trial courts to make a finding of\\nfact regarding a child’s incorrigibility.” Montgomery, 136 S. Ct. at 735. The Court\\nwas “careful to limit the scope of any attendant procedural requirement to avoid\\nintruding more than necessary upon the States’ sovereign administration of\\ntheir criminal justice systems.” Ibid. Hence, the Court reiterated, “Miller did not\\nimpose a formal factfinding requirement.” Ibid.\\n In this case, the district court appointed taxpayer-funded experts for\\nSparks, held a lengthy five-day hearing, and wrote twenty-six pages explaining\\nits sentence. This fulsome process gave Sparks far more than the minimum\\nprocedure necessary to conduct a proper § 3553(a) analysis. And we agree with\\nthe Government that Miller does not add procedural requirements over and\\nabove § 3553(a).\\n III.\\n Sparks also argues that the district court erred in calculating the offense\\nlevel under the Guidelines. The district court increased Sparks’s offense level\\nby two points for obstructing justice, U.S.S.G. § 3C1.1, and denied him a two-\\npoint reduction for accepting responsibility, id. § 3E1.1. Those decisions were\\nbased on the court’s finding that Sparks attempted to escape from his detention\\ncenter. Sparks claims he was not involved in the attempt.\\n We review the district court’s factual findings for abuse of discretion,\\nwhich occurs when the court relies on “clearly erroneous facts.” Gall, 552 U.S.\\nat 51. “Generally, a PSR ‘bears sufficient indicia of reliability to be considered\\nas evidence by the sentencing judge in making factual determinations.’” United\\nStates v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (quoting United States v.\\n 12\\n\\f Case: 18-50225 Document: 00515173123 Page: 13 Date Filed: 10/24/2019\\n\\n\\n\\n No. 18-50225\\nNava, 624 F.3d 226, 231 (5th Cir. 2010)). A district court may adopt facts\\ncontained in the PSR “without further inquiry” if those facts have an “adequate\\nevidentiary basis with sufficient indicia of reliability.” Ibid. (quoting United\\nStates v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007)).\\n Sparks’s PSR contains reliable evidence that he tried to escape from his\\ndetention center. That evidence includes an interview with a witness who\\nheard Sparks discussing the escape plan with another inmate, Christopher\\nKirvin. The witness said that when Kirvin attacked a prison guard, Sparks\\nrepeatedly flushed a toilet to mask the sound of her screams. Sparks also\\nadmitted to a probation officer that he participated in the escape attempt. The\\ndistrict court reasonably relied on the PSR.\\n * * *\\n Sparks’s sentence is AFFIRMED.\\n\\n\\n\\n\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4599,"cells":{"id":{"kind":"number","value":4673037,"string":"4,673,037"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Kenneth Barfield"},"decision_date":{"kind":"string","value":"2019-10-25"},"docket_number":{"kind":"string","value":"18-50399"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before HIGGINBOTHAM, DENNIS, and HO, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-50399 Document: 00515173841 Page: 1 Date Filed: 10/25/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-50399 FILED\\n October 25, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nKENNETH JAMES BARFIELD,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore HIGGINBOTHAM, DENNIS, and HO, Circuit Judges.\\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\\n Kenneth James Barfield challenges his 360-month sentence for\\npossession with intent to distribute methamphetamine. He contends that the\\ndistrict court erred by holding him accountable not only for the\\nmethamphetamine seized from him but also for the full quantity he confessed\\nto having trafficked in the preceding months. Finding no clear error, we affirm.\\n I.\\n On April 26, 2017, 24-year-old Barfield was released from prison after\\nserving a four-year sentence for assault of an elderly person. His freedom\\nwould not last long. Suspecting that Barfield was involved in narcotics\\ntrafficking, the Midland Police Department Narcotics Unit began surveilling\\n\\f Case: 18-50399 Document: 00515173841 Page: 2 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\nhim shortly after his release. On one occasion, detectives provided a\\ncooperating source (CS) with $475 in cash, with which he successfully\\npurchased 12.9 grams of meth from Barfield. On November 17, 2017, the\\nNarcotics Unit instructed a patrol officer to pull Barfield over for driving\\nwithout a valid license. Inside Barfield’s vehicle, the officer discovered a digital\\nscale, needles, small plastic bags, and 23.4 grams of meth. The search also\\nrevealed $917 in cash, including the $475 Barfield had received from the CS.\\n Barfield was taken into custody and charged with possession with intent\\nto distribute methamphetamine. 1 The Government sought to enhance the\\nstatutory penalty range based on Barfield’s prior meth conviction. 2 Barfield\\npleaded guilty. The Government’s proffered factual basis for the plea included\\nthe following:\\n Once at the Midland Police Department, [a detective] read the\\n defendant his Miranda warnings, and the defendant advised he\\n understood his rights. The government’s evidence would reflect\\n that during the interview, the defendant admitted ownership to\\n the 25.1 grams of methamphetamine, 3 located inside the vehicle.\\n The government believes the evidence would also reflect the\\n defendant stated that he’d gotten out of prison April of 2017 and\\n had been selling methamphetamine since then. The government\\n further believes that the statements made by Barfield, as reflected\\n by the testimony of the officers, would be that he admitted to\\n obtaining a pound of methamphetamine per week from April 2017\\n until his arrest.\\n\\nBarfield’s counsel objected to two of the prosecutor’s allegations: (1) that\\nBarfield had sold meth since his release in April 2017, and (2) that he had\\nobtained a pound of meth per week from April until his arrest in November.\\nHe did not deny that Barfield had made those statements to police, nor did he\\n\\n\\n 1 See 21 U.S.C. § 841(b)(1)(B).\\n 2 See id. § 851.\\n 3 The initial field report estimated the meth seized from Barfield’s vehicle to weigh\\n\\n25.1 grams, but that figure was revised downward to 23.4 grams upon further evaluation.\\n 2\\n\\f Case: 18-50399 Document: 00515173841 Page: 3 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\nexplain the basis for his objection.\\n The prosecutor responded that he was “satisfied that the elements [of\\nthe crime would be] met” even if those two statements were removed from the\\nfactual basis. The Court agreed and excluded the statements, but noted that\\n“[t]hat doesn’t meant the government’s giving up on them.” Rather, the Court\\nadvised the parties that they “may argue about those” statements again at\\nsentencing.\\n After Barfield pleaded guilty, the Probation Office prepared his PSR.\\nUnder “Offense Conduct,” the PSR related:\\n When Barfield was questioned by officers at the MPD, Barfield\\n stated he had been distributing methamphetamine since he was\\n released from prison, which was in April 2017. Barfield admitted\\n to obtaining a pound of methamphetamine a week. . . . Barfield\\n distributed at least 1 pound (453.6 grams) of actual\\n methamphetamine a week as of April 2017 (27 weeks).\\n\\nBased on that admission, the PSR held Barfield accountable for 12.2 kilograms\\nof actual methamphetamine. 4 This drug quantity yielded a base offense level\\nof 38 and, in combination with Barfield’s lengthy criminal record, a Guidelines\\nsentencing range of 360 months to life. 5\\n Barfield submitted a written objection to the drug quantity alleged in the\\nPSR, claiming that he “was extremely high on methamphetamine” when he\\nmade his post-arrest statement about receiving a pound of meth per week. In\\naddition, Barfield claimed that he overstated his involvement in the meth\\ntrade “out of fear” and the hope that he might “talk himself out of being\\narrested” by indicating that he could give prosecutors information on a major\\n\\n\\n\\n 4 Specifically, the Probation Office calculated that at 80% or higher purity, each pound\\ncontained 453.6 grams of actual meth, which, multiplied by the 27 weeks between Barfield’s\\nrelease and his re-arrest, yielded a total drug quantity of 12.2 kilograms.\\n 5 Barfield received a total criminal history score of 13, placing him in criminal history\\n\\ncategory VI—the highest category contemplated by the Guidelines. See U.S.S.G. ch. 5, pt. A.\\n 3\\n\\f Case: 18-50399 Document: 00515173841 Page: 4 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\ndrug-trafficking operation, rather than the minor street-level dealing he\\nactually engaged in.\\n The Government did not offer a transcript or recording of Barfield’s post-\\narrest interview, nor did it call the officers who interviewed him to testify at\\nthe sentencing hearing. Although the district judge found the defense’s\\nargument “novel” and “interesting,” he ultimately concluded that Barfield’s\\npost-arrest statement had “sufficient indicia of reliability” to support the PSR’s\\ntotal drug-quantity figure. 6 The court overruled Barfield’s objection, denied his\\nrequest for a downward departure and variance, and adopted the PSR in full.\\nWhen asked if he had anything to say to the court, Barfield reurged his\\nobjection to the drug quantity. He did not deny telling investigators that he\\nhad received a pound of meth per week; instead, he appeared to challenge the\\nplausibility of his own claim, saying: “Man, I’ve never even seen that amount\\nof dope. I don’t have bank accounts. I didn’t have large amounts of money to\\neven sum that up.” The district court imposed a sentence of 360 months—at\\nthe low end of Barfield’s Guidelines range—to be followed by eight years of\\nsupervised release.\\n On appeal, Barfield argues that the district court erred by “including as\\nrelevant conduct an amount of methamphetamine that was not supported by\\nan adequate evidentiary basis.” He contends that a drug quantity based on\\n“mathematical extrapolation” is only permissible if accompanied by\\ncorroborating evidence, such as testimony or recordings. In his view, the PSR’s\\n\\n\\n\\n 6 These statements are from the sentencing hearing in a separate case, United States\\nv. Casey Lee Jones, where Barfield’s attorney had raised substantially the same objection to\\na drug-quantity calculation based on a defendant’s post-arrest admissions. Because the Jones\\nhearing had taken place only a week before, both defense counsel and the district judge in\\nthis case referred to Jones as a shorthand for their arguments and conclusions about drug\\nquantity. A transcript of the Jones hearing is included in the record. At Barfield’s sentencing,\\nthe judge expressly stated that he was overruling Barfield’s objection “for the same reason”\\nas in Jones.\\n 4\\n\\f Case: 18-50399 Document: 00515173841 Page: 5 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\n12.2-kilogram drug-weight figure was based on nothing more than “one bald,\\nconclusory statement in the presentence report” unsupported by testimonial or\\ndocumentary evidence. Moreover, Barfield argues, the Government failed to\\nestablish that the drug transactions conducted between April and November\\n2017 could be attributed to him as relevant conduct.\\n II.\\n A.\\n “The district court’s interpretation or application of the Sentencing\\nGuidelines is reviewed de novo, while its factual findings are reviewed for clear\\nerror.” 7 More specifically, the “district court’s determination of what\\nconstitutes relevant conduct for purposes of sentencing” is a factual finding\\nthat “is reviewed for clear error.” 8 “A factual finding is not clearly erroneous if\\nit is plausible in light of the record as a whole.” 9 The Court will find clear error\\n“only if a review of all the evidence leaves us ‘with the definite and firm\\nconviction that a mistake has been committed.’” 10\\n B.\\n In determining a defendant’s base offense level, a “district court may\\nconsider other offenses in addition to the acts underlying the offense of\\nconviction, as long as those offenses constitute ‘relevant conduct’ as defined in\\nthe Guidelines.” 11 Relevant conduct includes “all acts and omissions [that the\\ndefendant] committed, aided, abetted, counseled, commanded, induced,\\n\\n\\n\\n 7 United States v. Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016) (internal\\nquotation marks omitted) (quoting United States v. Lige, 635 F.3d 668, 670 (5th Cir. 2011)).\\n 8 United States v. Wall, 180 F.3d 641, 644 (5th Cir. 1999); see United States v. Alford,\\n\\n142 F.3d 825, 831 (5th Cir. 1998) (“Factual findings regarding sentencing factors are entitled\\nto considerable deference and will be reversed only if they are clearly erroneous.”).\\n 9 United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013) (per curiam).\\n 10 United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011) (quoting United States\\n\\nv. Castillo, 430 F.3d 230, 238 (5th Cir. 2005)).\\n 11 United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009); see U.S.S.G. § 2D1.1 n.5.\\n\\n 5\\n\\f Case: 18-50399 Document: 00515173841 Page: 6 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\nprocured, or willfully caused” and which “occurred during the commission of\\nthe offense of conviction, in preparation for that offense, or in the course of\\nattempting to avoid detection or responsibility for that offense.” 12\\n A defendant convicted of a drug offense is sentenced based on the amount\\nof drugs involved in the offense. 13 In a drug-trafficking case, relevant conduct\\nmay include all acts and omissions “that were part of the same course of\\nconduct or common scheme or plan as the offense of conviction.” 14 The\\nGuidelines instruct that “[w]here there is no drug seizure or the amount seized\\ndoes not reflect the scale of the offense,” the district court should “approximate\\nthe quantity of the controlled substance” based on, for example, “similar\\ntransactions in controlled substances by the defendant.” 15 Finally, where there\\nare “multiple transactions,” the court should add the drug quantities together\\nand hold the defendant accountable for the total. 16\\n Like all factual findings used in sentencing, relevant conduct must be\\nproven by “a preponderance of the relevant and sufficiently reliable\\nevidence.” 17 In determining the total drug quantity attributable to a defendant\\nas relevant conduct, “[t]he court may extrapolate . . . from any information that\\nhas sufficient indicia of reliability to support its probable accuracy.” 18\\nGenerally, a PSR “bears sufficient indicia of reliability to be considered as\\n\\n\\n\\n\\n 12 U.S.S.G. § 1B1.3(a)(1)(A); see United States v. Schorovsky, 202 F.3d 727, 729 (5th\\nCir. 2000) (“The offense level of a defendant convicted of drug trafficking is determined by\\nthe quantity of drugs involved in the offense,” which “includes drugs with which the\\ndefendant was directly involved and drugs that can be attributed to the defendant as part of\\nher relevant conduct . . . .”).\\n 13 See U.S.S.G. § 2D1.1(c).\\n 14 Id. § 1B1.3(a)(2); see Wall, 180 F.3d at 645.\\n 15 U.S.S.G. § 2D1.1 n.5.\\n 16 Id. § 2D1.1 n.7.\\n 17 United States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013); see U.S.S.G. § 6A1.3\\n\\ncommentary; United States v. Morrow, 177 F.3d 272, 303 (5th Cir. 1999).\\n 18 United States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006).\\n\\n 6\\n\\f Case: 18-50399 Document: 00515173841 Page: 7 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\nevidence by the sentencing judge in making factual determinations.” 19 The\\nstandard for reliability is not meant to be onerous; indeed, even uncorroborated\\nhearsay can support a relevant conduct finding. 20 However, “[b]ald,\\nconclusionary statements do not acquire the patina of reliability by mere\\ninclusion in the PSR.” 21\\n If the court determines that the factual allegations of the PSR are\\nsufficiently reliable, then “the defendant bears the burden of demonstrating\\nthat the PSR is inaccurate; in the absence of rebuttal evidence, the sentencing\\ncourt may properly rely on the PSR and adopt it.” 22 However, “[i]f the factual\\nrecitation [in the PSR] lacks sufficient indicia of reliability, then it is error for\\nthe district court to consider it at sentencing—regardless of whether the\\ndefendant objects or offers rebuttal evidence.” 23\\n III.\\n A.\\n We turn first to Barfield’s claim that the weekly meth transactions to\\nwhich he confessed should not have been considered relevant conduct because\\nthe Government failed to show they were part of the “same course of conduct”\\nor “common scheme or plan” as the drugs actually seized from him. 24 This\\ncontention is untenable under Fifth Circuit precedent. “Particularly in drug\\ncases, this circuit has broadly defined what constitutes ‘the same course of\\n\\n\\n\\n\\n 19 United States v. Nava, 624 F.3d 226, 231 (5th Cir. 2010) (quoting United States v.\\nTrujillo, 502 F.3d 353, 357 (5th Cir. 2007)); see Alford, 142 F.3d at 832 (The court “may adopt\\nfacts contained in the PSR without further inquiry if the facts have an adequate evidentiary\\nbasis . . . .”).\\n 20 See United States v. Malone, 828 F.3d 331, 337 (5th Cir. 2016).\\n 21 United States v. Elwood, 999 F.2d 814, 817–18 (5th Cir. 1993).\\n 22 Zuniga, 720 F.3d at 591 (quoting United States v. Ollison, 555 F.3d 152, 164 (5th\\n\\nCir. 2009)).\\n 23 Id. (quoting United States v. Harris, 702 F.3d 226, 231 (5th Cir. 2012)).\\n 24 U.S.S.G. § 1B1.3(a)(2).\\n\\n 7\\n\\f Case: 18-50399 Document: 00515173841 Page: 8 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\nconduct’ or ‘common scheme or plan.’” 25 To qualify as relevant conduct,\\n“repeated instances of criminal behavior,” such as separate drug transactions,\\nneed only have “sufficient similarity and temporal proximity to reasonably\\nsuggest that [they] constitute a pattern of criminal conduct.” 26\\n Although the record does not include a verbatim transcript of Barfield’s\\npost-arrest statement, its contents as reported in the PSR satisfy both the\\nsimilarity and the temporal-proximity requirements. According to the PSR,\\nBarfield told investigators that he had obtained and distributed a pound of\\nmethamphetamine per week for 27 weeks—that is, “since he was released from\\nprison . . . in April 2017.” By his own admission, then, Barfield carried out\\nidentical weekly drug transactions at regular, tightly spaced intervals right up\\nuntil his arrest. This account leaves no doubt that Barfield engaged in “a\\npattern of criminal conduct.” 27\\n B.\\n Barfield’s drug-quantity challenge is at the heart of his appeal and,\\nunlike his relevant-conduct argument, it presents a question of law not\\nsquarely addressed by binding Fifth Circuit precedent. We must decide\\nwhether it is clear error for a district court to rely on a PSR’s account of a\\ndefendant’s post-arrest, Mirandized admission of relevant conduct where the\\ndefendant has objected to the reliability of his own statement but has failed to\\nintroduce evidence to rebut it. In keeping with our own precedent and the\\nweight of out-of-circuit authority, we hold that the answer is no: where a\\n\\n\\n\\n\\n 25 United States v. Bryant, 991 F.2d 171, 177 (5th Cir. 1993).\\n 26 United States v. Pippens, 68 F.3d 471, 1995 WL 581901, at *3 (5th Cir. 1995)\\n(unpublished) (per curiam) (quoting United States v. Bethley, 973 F.2d 396, 401 (5th Cir.\\n1992)).\\n 27 Id.; see United States v. Munoz-Vargas, 551 F. App’x 206, 207–08, 208 n.4 (5th Cir.\\n\\n2014) (unpublished); United States v. Curtis, 96 F. App’x 223, 224 (5th Cir. 2004)\\n(unpublished) (per curiam).\\n 8\\n\\f Case: 18-50399 Document: 00515173841 Page: 9 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\ndefendant does not introduce evidence to rebut his post-arrest admission of\\nrelevant conduct, the district court may consider it at sentencing.\\n 1.\\n The closest in-circuit precedential case is our 1993 opinion in United\\nStates v. Barnes. 28 In Barnes, the Court found no clear error in the district\\njudge’s reliance on the defendant’s “uncorroborated statements as proof of\\nrelevant conduct.” 29 The Court explained that after Barnes was arrested, he\\n stated that he had expected a 400 pound shipment of marijuana\\n on November 8, and that he had negotiated for 100 kilograms of\\n cocaine. These amounts were used as part of his relevant conduct\\n in calculating the base offense level. He does not assert that he did\\n not make the statements. He contends only that they are an\\n insufficient basis for the finding. . . . Barnes offers no evidence\\n which contradicts his statements, nor does he argue that they are\\n inherently unreliable. In short, there was no clear error. 30\\n\\nIn so holding, we expressly stated that a defendant’s uncorroborated admission\\nof prior drug trafficking “may be the sole basis for the findings on relevant\\nconduct.” 31\\n The only potential distinction between this case and Barnes is that,\\nunlike Barnes, Barfield does “argue that [his statements] are inherently\\nunreliable” because they were “self-serving” and made under the influence of\\ndrugs. He does not, however, produce any evidence to support his alleged\\nintoxication. Moreover, it hardly seems “self-serving” to overstate one’s\\ninvolvement in criminal activity. As the Government observes, “the idea of\\ninflating drug trafficking conduct to discourage arrest does not comport with\\nlogic or common sense. On the contrary, traditionally, a defendant downplays\\n\\n\\n 28 3 F.3d 437, 1993 WL 347015 (5th Cir. 1993) (per curiam). Barnes is unpublished,\\nbut unpublished opinions issued prior to 1996 are precedential. 5TH CIR. R. 47.5.3.\\n 29 1993 WL 347015, at *4.\\n 30 Id.\\n 31 Id.\\n\\n 9\\n\\f Case: 18-50399 Document: 00515173841 Page: 10 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\n[his own] criminal involvement.” 32\\n A more recent unpublished case further supports the district court’s\\ndecision here. In United States v. Humphrey, the defendant was apprehended\\nwith only one kilogram of cocaine but “admitted to selling one fourth of a\\nkilogram of cocaine at least once, but sometimes three times, a week during\\nthe two years before his arrest.” 33 Thus, the court “estimated his past cocaine\\nsales . . . and aggregated these amounts in its drug-quantity finding.” 34 We\\naffirmed, holding that “[t]he court properly considered Humphrey’s admission\\n. . . and plausibly determined he was not merely a one-time drug distributor.” 35\\n Likewise, in United States v. Retiz, another unpublished opinion issued\\nin 2018, we held that the PSR’s report of the defendant’s post-arrest statement\\nwas sufficient to support an aggregated drug quantity. 36 As the Court\\nrecounted,\\n [t]he district court adopted the PSR and its recitation of Retiz’\\n drug-related relevant conduct. This included, inter alia, his\\n admission that he personally distributed one ounce of\\n methamphetamine per week for a year and assisted his cousin in\\n distributing an additional ounce per week for a year, in addition to\\n possessing and distributing cocaine and marijuana on other\\n occasions. On the basis of those undisputed facts, the court . . .\\n approximated the drug-quantity for sentencing purposes by\\n aggregating the amounts reflected in the PSR. The court’s drug-\\n quantity calculation was consistent with the record, the\\n\\n\\n\\n\\n 32 See United States v. Stephenson, 557 F.3d 449, 457 (7th Cir. 2009) (affirming the\\ndistrict court’s rejection of the defendant’s “claim that he exaggerated the amount of his sales\\nto curry favor and inflate his value as a potential government source”).\\n 33 730 F. App’x 265, 266 (5th Cir. 2018) (unpublished) (per curiam), cert. denied, 139\\n\\nS. Ct. 575 (2018).\\n 34 Id.\\n 35 Id.\\n 36 736 F. App’x 500, 501 (5th Cir. 2018) (unpublished) (per curiam), cert. denied, 139\\n\\nS. Ct. 854 (2019).\\n 10\\n\\f Case: 18-50399 Document: 00515173841 Page: 11 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\n Guidelines, and our precedent. 37\\n\\n Finally, cases from outside our circuit weigh in the Government’s favor\\nas well. In an unpublished opinion in United States v. Pinkerton, the Sixth\\nCircuit held that the district court properly “relied on [the defendant’s] own\\nadmissions,” as reported in his PSR, “to estimate the quantity of\\nmethamphetamine for which he was sentenced.” 38 In an earlier, published\\ncase, the Sixth Circuit affirmed the district court’s aggregation of drug\\namounts based “solely o[n] statements [the defendant] made to codefendants\\nand FBI agents while intoxicated.” 39 The Seventh Circuit has likewise held\\nthat a defendant’s uncorroborated admissions are proper bases for a relevant\\nconduct finding. In United States v. Johnson, for example, the court held that\\nthe district judge properly relied on the PSR’s account of the defendant’s “post-\\narrest statement that he dealt one ounce of crack cocaine every day for the\\npreceding seven to eight months.” 40 The Fourth, 41 Eighth, 42 and Eleventh 43\\n\\n\\n 37 Id.; see also United States v. Allen, 686 F. App’x 289, 290 (5th Cir. 2017)\\n(unpublished) (per curiam), cert. denied, 138 S. Ct. 262 (2017) (affirming the district court’s\\nrelevant-conduct finding based on a PSR that “contained a report detailing a post-arrest\\nstatement by Allen in which he admitted receiving each of the amounts of methamphetamine\\nthat were attributed to him”).\\n 38 279 F. App’x 382, 385 (6th Cir. 2008) (unpublished).\\n 39 United States v. Gibson, 985 F.2d 860, 864 (6th Cir. 1993).\\n 40 342 F.3d 731, 734 (7th Cir. 2003).\\n 41 See United States v. Blue, 536 F. App’x 353, 355 (4th Cir. 2013) (unpublished) (per\\n\\ncuriam) (affirming the district court’s reliance on “drug quantities [that] were derived from a\\npost-arrest statement that [the defendant] made . . . and from a statement made to law\\nenforcement by a co-conspirator”); United States v. Cummings, 337 F. App’x 313, 315 (4th\\nCir. 2009) (unpublished) (per curiam) (rejecting the defendant’s argument “that the district\\ncourt violated his due process rights when it used his post-arrest statements about drug\\ntrafficking as relevant conduct in calculating the drug weight attributable to him”).\\n 42 See United States v. Wyatt, 19 F.3d 1283, 1284 (8th Cir. 1994) (affirming the district\\n\\ncourt’s drug-quantity finding based on the defendant’s “post-arrest statements to authorities\\ndescribing his previous crack transactions” and “testimony corroborating the statements”).\\n 43 See United States v. Melquiades, 139 F. App’x 172, 177 (11th Cir. 2005)\\n\\n(unpublished) (per curiam) (affirming obstruction-of-justice enhancement where the\\ndefendant had denied at sentencing “that he had made post-arrest statements to police\\nofficers regarding the weight of the drug shipment, which was relevant conduct,” in order to\\n 11\\n\\f Case: 18-50399 Document: 00515173841 Page: 12 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\nCircuits have reached similar conclusions as to the reliability of defendants’\\npost-arrest statements in determining relevant conduct.\\n Barfield offers no case law contradicting this cross-circuit consensus that\\na defendant’s unrebutted post-arrest admissions are fair game at sentencing.\\nInstead, he cites cases in which aggregated drug quantities were supported at\\nsentencing by evidence other than the defendant’s admission. It is true that in\\neach case he cites, the district court relied on the testimony of witnesses other\\nthan the defendant—such as agents, informants, or coconspirators—before\\nholding the defendant liable for an aggregated quantity of drugs. 44 However,\\nin none of the cases did the district court also have the defendant’s own post-\\narrest admission to consider. 45 It is no surprise that where a court lacks such\\nan admission, it must rely on other sources of evidence to support an\\naggregated drug quantity. Barfield does not identify any case in which a court\\nfound the defendant’s own admission unreliable or insufficient to support a\\nrelevant-conduct finding. 46\\n\\n\\n“obstruct or impede his sentencing by denying the quantity of drugs to which he had\\npreviously admitted”).\\n 44 See United States v. Baggott, 694 F. App’x 306, 307 (5th Cir. 2017) (unpublished)\\n\\n(per curiam) (interviews of defendant’s drug suppliers); United States v. Hinojosa, 749 F.3d\\n407, 415 (5th Cir. 2014) (testimony of confidential informant and federal agent); United\\nStates v. Rodriguez, 666 F.3d 944, 947 (5th Cir. 2012) (witness testimony). Barfield also cites\\nUnited States v. Walter, 683 F. App’x 323 (5th Cir. 2017) (unpublished) (per curiam), as an\\nexample of a “relevant conduct [finding] based on testimony of law enforcement officer.”\\nHowever, the officer in Walter testified only as to the offense-level enhancement the\\ndefendant received for maintaining a drug premises. Id. at 324; see U.S.S.G. § 2D1.1(b)(12).\\nThe Court’s opinion does not indicate the evidentiary source of the “extrapolated drug\\nquantity” attributed to the defendant as relevant conduct. 683 F. App’x at 324. It notes only\\nthat the drug quantity was based on “unrebutted information contained in the PSR and its\\nsecond addendum.” Id.\\n 45 See cases cited supra note 44; cf. United States v. Warneke, 310 F.3d 542, 550 (7th\\n\\nCir. 2002) (“An admission is even better than a jury’s finding beyond a reasonable doubt; it\\nremoves all contest from the case.”).\\n 46 In the district court, Barfield did not deny that he confessed to receiving a pound of\\n\\nmeth per week. Now, in his appellate reply brief, he attempts to divorce the PSR’s contents\\nfrom their source—himself—by attributing them to the Government. He characterizes the\\nPSR’s aggregated drug quantity not as a report of his own post-arrest statement but rather\\n 12\\n\\f Case: 18-50399 Document: 00515173841 Page: 13 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\n 2.\\n Ultimately, the question for the Court is whether Barfield’s admission is\\n“plausible in light of the record as a whole.” 47 Barfield claims it is not. He urges\\nthe Court to disregard his post-arrest statement as self-serving, unreliable,\\nand undermined by his alleged intoxication. Without any evidence to support\\nBarfield’s claims, however, we can only weigh his assertions against the\\naccount presented by the PSR—and as we have recognized, “it is proper for the\\ndistrict court to rely on a presentence report’s construction of evidence to\\nresolve a factual dispute, rather than relying on the defendant’s version of the\\nfacts.” 48 Given the illogic of Barfield’s explanation for overstating his drug-\\ntrafficking activity, the lack of evidence that he was intoxicated or dishonest\\nduring his interview, and the weight of both precedential and persuasive\\nauthority, we conclude that the district court did not clearly err in holding\\nBarfield accountable for the full quantity of methamphetamine he admitted to\\ndistributing.\\n IV.\\n For the foregoing reasons, Appellant’s conviction and sentence are\\naffirmed.\\n\\n\\n\\n\\nas “a restatement of the prosecutor’s disputed, summary proffer.” As Barfield notes, a\\nprosecutor’s unsworn and unsupported allegations “do not provide, by themselves, a\\nsufficiently reliable basis on which to sentence the defendant.” United States v. Patterson,\\n962 F.2d 409, 415 (5th Cir. 1992). However, Barfield’s drug-quantity figure did not originate\\nwith the prosecutor; it originated with him, and the prosecutor merely repeated it aloud at\\nrearraignment and sentencing. Barfield’s tardy attempt at recharacterization is unavailing.\\n 47 Zuniga, 720 F.3d at 590.\\n 48 United States v. Robins, 978 F.2d 881, 889 (5th Cir. 1992).\\n\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4450290/\", \"author_raw\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"HIGGINBOTHAM"},"judge2":{"kind":"string","value":"DENNIS"},"judge3":{"kind":"string","value":"HO"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"HIGGINBOTHAM\": \", Circuit\", \"DENNIS\": \", Circuit\", \"HO\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4673037/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":10,"string":"10"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Kenneth Barfield\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-10-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-50399 Document: 00515173841 Page: 1 Date Filed: 10/25/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 18-50399 FILED\n October 25, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n Plaintiff - Appellee\n\nv.\n\nKENNETH JAMES BARFIELD,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n\n\nBefore HIGGINBOTHAM, DENNIS, and HO, Circuit Judges.\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\n Kenneth James Barfield challenges his 360-month sentence for\npossession with intent to distribute methamphetamine. He contends that the\ndistrict court erred by holding him accountable not only for the\nmethamphetamine seized from him but also for the full quantity he confessed\nto having trafficked in the preceding months. Finding no clear error, we affirm.\n I.\n On April 26, 2017, 24-year-old Barfield was released from prison after\nserving a four-year sentence for assault of an elderly person. His freedom\nwould not last long. Suspecting that Barfield was involved in narcotics\ntrafficking, the Midland Police Department Narcotics Unit began surveilling\n\f Case: 18-50399 Document: 00515173841 Page: 2 Date Filed: 10/25/2019\n\n\n\n No. 18-50399\nhim shortly after his release. On one occasion, detectives provided a\ncooperating source (CS) with $475 in cash, with which he successfully\npurchased 12.9 grams of meth from Barfield. On November 17, 2017, the\nNarcotics Unit instructed a patrol officer to pull Barfield over for driving\nwithout a valid license. Inside Barfield’s vehicle, the officer discovered a digital\nscale, needles, small plastic bags, and 23.4 grams of meth. The search also\nrevealed $917 in cash, including the $475 Barfield had received from the CS.\n Barfield was taken into custody and charged with possession with intent\nto distribute methamphetamine. 1 The Government sought to enhance the\nstatutory penalty range based on Barfield’s prior meth conviction. 2 Barfield\npleaded guilty. The Government’s proffered factual basis for the plea included\nthe following:\n Once at the Midland Police Department, [a detective] read the\n defendant his Miranda warnings, and the defendant advised he\n understood his rights. The government’s evidence would reflect\n that during the interview, the defendant admitted ownership to\n the 25.1 grams of methamphetamine, 3 located inside the vehicle.\n The government believes the evidence would also reflect the\n defendant stated that he’d gotten out of prison April of 2017 and\n had been selling methamphetamine since then. The government\n further believes that the statements made by Barfield, as reflected\n by the testimony of the officers, would be that he admitted to\n obtaining a pound of methamphetamine per week from April 2017\n until his arrest.\n\nBarfield’s counsel objected to two of the prosecutor’s allegations: (1) that\nBarfield had sold meth since his release in April 2017, and (2) that he had\nobtained a pound of meth per week from April until his arrest in November.\nHe did not deny that Barfield had made those statements to police, nor did he\n\n\n 1 See 21 U.S.C. § 841(b)(1)(B).\n 2 See id. § 851.\n 3 The initial field report estimated the meth seized from Barfield’s vehicle to weigh\n\n25.1 grams, but that figure was revised downward to 23.4 grams upon further evaluation.\n 2\n\f Case: 18-50399 Document: 00515173841 Page: 3 Date Filed: 10/25/2019\n\n\n\n No. 18-50399\nexplain the basis for his objection.\n The prosecutor responded that he was “satisfied that the elements [of\nthe crime would be] met” even if those two statements were removed from the\nfactual basis. The Court agreed and excluded the statements, but noted that\n“[t]hat doesn’t meant the government’s giving up on them.” Rather, the Court\nadvised the parties that they “may argue about those” statements again at\nsentencing.\n After Barfield pleaded guilty, the Probation Office prepared his PSR.\nUnder “Offense Conduct,” the PSR related:\n When Barfield was questioned by officers at the MPD, Barfield\n stated he had been distributing methamphetamine since he was\n released from prison, which was in April 2017. Barfield admitted\n to obtaining a pound of methamphetamine a week. . . . Barfield\n distributed at least 1 pound (453.6 grams) of actual\n methamphetamine a week as of April 2017 (27 weeks).\n\nBased on that admission, the PSR held Barfield accountable for 12.2 kilograms\nof actual methamphetamine. 4 This drug quantity yielded a base offense level\nof 38 and, in combination with Barfield’s lengthy criminal record, a Guidelines\nsentencing range of 360 months to life. 5\n Barfield submitted a written objection to the drug quantity alleged in the\nPSR, claiming that he “was extremely high on methamphetamine” when he\nmade his post-arrest statement about receiving a pound of meth per week. In\naddition, Barfield claimed that he overstated his involvement in the meth\ntrade “out of fear” and the hope that he might “talk himself out of being\narrested” by indicating that he could give prosecutors information on a major\n\n\n\n 4 Specifically, the Probation Office calculated that at 80% or higher purity, each pound\ncontained 453.6 grams of actual meth, which, multiplied by the 27 weeks between Barfield’s\nrelease and his re-arrest, yielded a total drug quantity of 12.2 kilograms.\n 5 Barfield received a total criminal history score of 13, placing him in criminal history\n\ncategory VI—the highest category contemplated by the Guidelines. See U.S.S.G. ch. 5, pt. A.\n 3\n\f Case: 18-50399 Document: 00515173841 Page: 4 Date Filed: 10/25/2019\n\n\n\n No. 18-50399\ndrug-trafficking operation, rather than the minor street-level dealing he\nactually engaged in.\n The Government did not offer a transcript or recording of Barfield’s post-\narrest interview, nor did it call the officers who interviewed him to testify at\nthe sentencing hearing. Although the district judge found the defense’s\nargument “novel” and “interesting,” he ultimately concluded that Barfield’s\npost-arrest statement had “sufficient indicia of reliability” to support the PSR’s\ntotal drug-quantity figure. 6 The court overruled Barfield’s objection, denied his\nrequest for a downward departure and variance, and adopted the PSR in full.\nWhen asked if he had anything to say to the court, Barfield reurged his\nobjection to the drug quantity. He did not deny telling investigators that he\nhad received a pound of meth per week; instead, he appeared to challenge the\nplausibility of his own claim, saying: “Man, I’ve never even seen that amount\nof dope. I don’t have bank accounts. I didn’t have large amounts of money to\neven sum that up.” The district court imposed a sentence of 360 months—at\nthe low end of Barfield’s Guidelines range—to be followed by eight years of\nsupervised release.\n On appeal, Barfield argues that the district court erred by “including as\nrelevant conduct an amount of methamphetamine that was not supported by\nan adequate evidentiary basis.” He contends that a drug quantity based on\n“mathematical extrapolation” is only permissible if accompanied by\ncorroborating evidence, such as testimony or recordings. In his view, the PSR’s\n\n\n\n 6 These statements are from the sentencing hearing in a separate case, United States\nv. Casey Lee Jones, where Barfield’s attorney had raised substantially the same objection to\na drug-quantity calculation based on a defendant’s post-arrest admissions. Because the Jones\nhearing had taken place only a week before, both defense counsel and the district judge in\nthis case referred to Jones as a shorthand for their arguments and conclusions about drug\nquantity. A transcript of the Jones hearing is included in the record. At Barfield’s sentencing,\nthe judge expressly stated that he was overruling Barfield’s objection “for the same reason”\nas in Jones.\n 4\n\f Case: 18-50399 Document: 00515173841 Page: 5 Date Filed: 10/25/2019\n\n\n\n No. 18-50399\n12.2-kilogram drug-weight figure was based on nothing more than “one bald,\nconclusory statement in the presentence report” unsupported by testimonial or\ndocumentary evidence. Moreover, Barfield argues, the Government failed to\nestablish that the drug transactions conducted between April and November\n2017 could be attributed to him as relevant conduct.\n II.\n A.\n “The district court’s interpretation or application of the Sentencing\nGuidelines is reviewed de novo, while its factual findings are reviewed for clear\nerror.” 7 More specifically, the “district court’s determination of what\nconstitutes relevant conduct for purposes of sentencing” is a factual finding\nthat “is reviewed for clear error.” 8 “A factual finding is not clearly erroneous if\nit is plausible in light of the record as a whole.” 9 The Court will find clear error\n“only if a review of all the evidence leaves us ‘with the definite and firm\nconviction that a mistake has been committed.’” 10\n B.\n In determining a defendant’s base offense level, a “district court may\nconsider other offenses in addition to the acts underlying the offense of\nconviction, as long as those offenses constitute ‘relevant conduct’ as defined in\nthe Guidelines.” 11 Relevant conduct includes “all acts and omissions [that the\ndefendant] committed, aided, abetted, counseled, commanded, induced,\n\n\n\n 7 United States v. Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016) (internal\nquotation marks omitted) (quoting United States v. Lige, 635 F.3d 668, 670 (5th Cir. 2011)).\n 8 United States v. Wall, 180 F.3d 641, 644 (5th Cir. 1999); see United States v. Alford,\n\n142 F.3d 825, 831 (5th Cir. 1998) (“Factual findings regarding sentencing factors are entitled\nto considerable deference and will be reversed only if they are clearly erroneous.”).\n 9 United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013) (per curiam).\n 10 United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011) (quoting United States\n\nv. Castillo, 430 F.3d 230, 238 (5th Cir. 2005)).\n 11 United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009); see U.S.S.G. § 2D1.1 n.5.\n\n 5\n\f Case: 18-50399 Document: 00515173841 Page: 6 Date Filed: 10/25/2019\n\n\n\n No. 18-50399\nprocured, or willfully caused” and which “occurred during the commission of\nthe offense of conviction, in preparation for that offense, or in the course of\nattempting to avoid detection or responsibility for that offense.” 12\n A defendant convicted of a drug offense is sentenced based on the amount\nof drugs involved in the offense. 13 In a drug-trafficking case, relevant conduct\nmay include all acts and omissions “that were part of the same course of\nconduct or common scheme or plan as the offense of conviction.” 14 The\nGuidelines instruct that “[w]here there is no drug seizure or the amount seized\ndoes not reflect the scale of the offense,” the district court should “approximate\nthe quantity of the controlled substance” based on, for example, “similar\ntransactions in controlled substances by the defendant.” 15 Finally, where there\nare “multiple transactions,” the court should add the drug quantities together\nand hold the defendant accountable for the total. 16\n Like all factual findings used in sentencing, relevant conduct must be\nproven by “a preponderance of the relevant and sufficiently reliable\nevidence.” 17 In determining the total drug quantity attributable to a defendant\nas relevant conduct, “[t]he court may extrapolate . . . from any information that\nhas sufficient indicia of reliability to support its probable accuracy.” 18\nGenerally, a PSR “bears sufficient indicia of reliability to be considered as\n\n\n\n\n 12 U.S.S.G. § 1B1.3(a)(1)(A); see United States v. Schorovsky, 202 F.3d 727, 729 (5th\nCir. 2000) (“The offense level of a defendant convicted of drug trafficking is determined by\nthe quantity of drugs involved in the offense,” which “includes drugs with which the\ndefendant was directly involved and drugs that can be attributed to the defendant as part of\nher relevant conduct . . . .”).\n 13 See U.S.S.G. § 2D1.1(c).\n 14 Id. § 1B1.3(a)(2); see Wall, 180 F.3d at 645.\n 15 U.S.S.G. § 2D1.1 n.5.\n 16 Id. § 2D1.1 n.7.\n 17 United States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013); see U.S.S.G. § 6A1.3\n\ncommentary; United States v. Morrow, 177 F.3d 272, 303 (5th Cir. 1999).\n 18 United States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006).\n\n 6\n\f Case: 18-50399 Document: 00515173841 Page: 7 Date Filed: 10/25/2019\n\n\n\n No. 18-50399\nevidence by the sentencing judge in making factual determinations.” 19 The\nstandard for reliability is not meant to be onerous; indeed, even uncorroborated\nhearsay can support a relevant conduct finding. 20 However, “[b]ald,\nconclusionary statements do not acquire the patina of reliability by mere\ninclusion in the PSR.” 21\n If the court determines that the factual allegations of the PSR are\nsufficiently reliable, then “the defendant bears the burden of demonstrating\nthat the PSR is inaccurate; in the absence of rebuttal evidence, the sentencing\ncourt may properly rely on the PSR and adopt it.” 22 However, “[i]f the factual\nrecitation [in the PSR] lacks sufficient indicia of reliability, then it is error for\nthe district court to consider it at sentencing—regardless of whether the\ndefendant objects or offers rebuttal evidence.” 23\n III.\n A.\n We turn first to Barfield’s claim that the weekly meth transactions to\nwhich he confessed should not have been considered relevant conduct because\nthe Government failed to show they were part of the “same course of conduct”\nor “common scheme or plan” as the drugs actually seized from him. 24 This\ncontention is untenable under Fifth Circuit precedent. “Particularly in drug\ncases, this circuit has broadly defined what constitutes ‘the same course of\n\n\n\n\n 19 United States v. Nava, 624 F.3d 226, 231 (5th Cir. 2010) (quoting United States v.\nTrujillo, 502 F.3d 353, 357 (5th Cir. 2007)); see Alford, 142 F.3d at 832 (The court “may adopt\nfacts contained in the PSR without further inquiry if the facts have an adequate evidentiary\nbasis . . . .”).\n 20 See United States v. Malone, 828 F.3d 331, 337 (5th Cir. 2016).\n 21 United States v. Elwood, 999 F.2d 814, 817–18 (5th Cir. 1993).\n 22 Zuniga, 720 F.3d at 591 (quoting United States v. Ollison, 555 F.3d 152, 164 (5th\n\nCir. 2009)).\n 23 Id. (quoting United States v. Harris, 702 F.3d 226, 231 (5th Cir. 2012)).\n 24 U.S.S.G. § 1B1.3(a)(2).\n\n 7\n\f Case: 18-50399 Document: 00515173841 Page: 8 Date Filed: 10/25/2019\n\n\n\n No. 18-50399\nconduct’ or ‘common scheme or plan.’” 25 To qualify as relevant conduct,\n“repeated instances of criminal behavior,” such as separate drug transactions,\nneed only have “sufficient similarity and temporal proximity to reasonably\nsuggest that [they] constitute a pattern of criminal conduct.” 26\n Although the record does not include a verbatim transcript of Barfield’s\npost-arrest statement, its contents as reported in the PSR satisfy both the\nsimilarity and the temporal-proximity requirements. According to the PSR,\nBarfield told investigators that he had obtained and distributed a pound of\nmethamphetamine per week for 27 weeks—that is, “since he was released from\nprison . . . in April 2017.” By his own admission, then, Barfield carried out\nidentical weekly drug transactions at regular, tightly spaced intervals right up\nuntil his arrest. This account leaves no doubt that Barfield engaged in “a\npattern of criminal conduct.” 27\n B.\n Barfield’s drug-quantity challenge is at the heart of his appeal and,\nunlike his relevant-conduct argument, it presents a question of law not\nsquarely addressed by binding Fifth Circuit precedent. We must decide\nwhether it is clear error for a district court to rely on a PSR’s account of a\ndefendant’s post-arrest, Mirandized admission of relevant conduct where the\ndefendant has objected to the reliability of his own statement but has failed to\nintroduce evidence to rebut it. In keeping with our own precedent and the\nweight of out-of-circuit authority, we hold that the answer is no: where a\n\n\n\n\n 25 United States v. Bryant, 991 F.2d 171, 177 (5th Cir. 1993).\n 26 United States v. Pippens, 68 F.3d 471, 1995 WL 581901, at *3 (5th Cir. 1995)\n(unpublished) (per curiam) (quoting United States v. Bethley, 973 F.2d 396, 401 (5th Cir.\n1992)).\n 27 Id.; see United States v. Munoz-Vargas, 551 F. App’x 206, 207–08, 208 n.4 (5th Cir.\n\n2014) (unpublished); United States v. Curtis, 96 F. App’x 223, 224 (5th Cir. 2004)\n(unpublished) (per curiam).\n 8\n\f Case: 18-50399 Document: 00515173841 Page: 9 Date Filed: 10/25/2019\n\n\n\n No. 18-50399\ndefendant does not introduce evidence to rebut his post-arrest admission of\nrelevant conduct, the district court may consider it at sentencing.\n 1.\n The closest in-circuit precedential case is our 1993 opinion in United\nStates v. Barnes. 28 In Barnes, the Court found no clear error in the district\njudge’s reliance on the defendant’s “uncorroborated statements as proof of\nrelevant conduct.” 29 The Court explained that after Barnes was arrested, he\n stated that he had expected a 400 pound shipment of marijuana\n on November 8, and that he had negotiated for 100 kilograms of\n cocaine. These amounts were used as part of his relevant conduct\n in calculating the base offense level. He does not assert that he did\n not make the statements. He contends only that they are an\n insufficient basis for the finding. . . . Barnes offers no evidence\n which contradicts his statements, nor does he argue that they are\n inherently unreliable. In short, there was no clear error. 30\n\nIn so holding, we expressly stated that a defendant’s uncorroborated admission\nof prior drug trafficking “may be the sole basis for the findings on relevant\nconduct.” 31\n The only potential distinction between this case and Barnes is that,\nunlike Barnes, Barfield does “argue that [his statements] are inherently\nunreliable” because they were “self-serving” and made under the influence of\ndrugs. He does not, however, produce any evidence to support his alleged\nintoxication. Moreover, it hardly seems “self-serving” to overstate one’s\ninvolvement in criminal activity. As the Government observes, “the idea of\ninflating drug trafficking conduct to discourage arrest does not comport with\nlogic or common sense. On the contrary, traditionally, a defendant downplays\n\n\n 28 3 F.3d 437, 1993 WL 347015 (5th Cir. 1993) (per curiam). Barnes is unpublished,\nbut unpublished opinions issued prior to 1996 are precedential. 5TH CIR. R. 47.5.3.\n 29 1993 WL 347015, at *4.\n 30 Id.\n 31 Id.\n\n 9\n\f Case: 18-50399 Document: 00515173841 Page: 10 Date Filed: 10/25/2019\n\n\n\n No. 18-50399\n[his own] criminal involvement.” 32\n A more recent unpublished case further supports the district court’s\ndecision here. In United States v. Humphrey, the defendant was apprehended\nwith only one kilogram of cocaine but “admitted to selling one fourth of a\nkilogram of cocaine at least once, but sometimes three times, a week during\nthe two years before his arrest.” 33 Thus, the court “estimated his past cocaine\nsales . . . and aggregated these amounts in its drug-quantity finding.” 34 We\naffirmed, holding that “[t]he court properly considered Humphrey’s admission\n. . . and plausibly determined he was not merely a one-time drug distributor.” 35\n Likewise, in United States v. Retiz, another unpublished opinion issued\nin 2018, we held that the PSR’s report of the defendant’s post-arrest statement\nwas sufficient to support an aggregated drug quantity. 36 As the Court\nrecounted,\n [t]he district court adopted the PSR and its recitation of Retiz’\n drug-related relevant conduct. This included, inter alia, his\n admission that he personally distributed one ounce of\n methamphetamine per week for a year and assisted his cousin in\n distributing an additional ounce per week for a year, in addition to\n possessing and distributing cocaine and marijuana on other\n occasions. On the basis of those undisputed facts, the court . . .\n approximated the drug-quantity for sentencing purposes by\n aggregating the amounts reflected in the PSR. The court’s drug-\n quantity calculation was consistent with the record, the\n\n\n\n\n 32 See United States v. Stephenson, 557 F.3d 449, 457 (7th Cir. 2009) (affirming the\ndistrict court’s rejection of the defendant’s “claim that he exaggerated the amount of his sales\nto curry favor and inflate his value as a potential government source”).\n 33 730 F. App’x 265, 266 (5th Cir. 2018) (unpublished) (per curiam), cert. denied, 139\n\nS. Ct. 575 (2018).\n 34 Id.\n 35 Id.\n 36 736 F. App’x 500, 501 (5th Cir. 2018) (unpublished) (per curiam), cert. denied, 139\n\nS. Ct. 854 (2019).\n 10\n\f Case: 18-50399 Document: 00515173841 Page: 11 Date Filed: 10/25/2019\n\n\n\n No. 18-50399\n Guidelines, and our precedent. 37\n\n Finally, cases from outside our circuit weigh in the Government’s favor\nas well. In an unpublished opinion in United States v. Pinkerton, the Sixth\nCircuit held that the district court properly “relied on [the defendant’s] own\nadmissions,” as reported in his PSR, “to estimate the quantity of\nmethamphetamine for which he was sentenced.” 38 In an earlier, published\ncase, the Sixth Circuit affirmed the district court’s aggregation of drug\namounts based “solely o[n] statements [the defendant] made to codefendants\nand FBI agents while intoxicated.” 39 The Seventh Circuit has likewise held\nthat a defendant’s uncorroborated admissions are proper bases for a relevant\nconduct finding. In United States v. Johnson, for example, the court held that\nthe district judge properly relied on the PSR’s account of the defendant’s “post-\narrest statement that he dealt one ounce of crack cocaine every day for the\npreceding seven to eight months.” 40 The Fourth, 41 Eighth, 42 and Eleventh 43\n\n\n 37 Id.; see also United States v. Allen, 686 F. App’x 289, 290 (5th Cir. 2017)\n(unpublished) (per curiam), cert. denied, 138 S. Ct. 262 (2017) (affirming the district court’s\nrelevant-conduct finding based on a PSR that “contained a report detailing a post-arrest\nstatement by Allen in which he admitted receiving each of the amounts of methamphetamine\nthat were attributed to him”).\n 38 279 F. App’x 382, 385 (6th Cir. 2008) (unpublished).\n 39 United States v. Gibson, 985 F.2d 860, 864 (6th Cir. 1993).\n 40 342 F.3d 731, 734 (7th Cir. 2003).\n 41 See United States v. Blue, 536 F. App’x 353, 355 (4th Cir. 2013) (unpublished) (per\n\ncuriam) (affirming the district court’s reliance on “drug quantities [that] were derived from a\npost-arrest statement that [the defendant] made . . . and from a statement made to law\nenforcement by a co-conspirator”); United States v. Cummings, 337 F. App’x 313, 315 (4th\nCir. 2009) (unpublished) (per curiam) (rejecting the defendant’s argument “that the district\ncourt violated his due process rights when it used his post-arrest statements about drug\ntrafficking as relevant conduct in calculating the drug weight attributable to him”).\n 42 See United States v. Wyatt, 19 F.3d 1283, 1284 (8th Cir. 1994) (affirming the district\n\ncourt’s drug-quantity finding based on the defendant’s “post-arrest statements to authorities\ndescribing his previous crack transactions” and “testimony corroborating the statements”).\n 43 See United States v. Melquiades, 139 F. App’x 172, 177 (11th Cir. 2005)\n\n(unpublished) (per curiam) (affirming obstruction-of-justice enhancement where the\ndefendant had denied at sentencing “that he had made post-arrest statements to police\nofficers regarding the weight of the drug shipment, which was relevant conduct,” in order to\n 11\n\f Case: 18-50399 Document: 00515173841 Page: 12 Date Filed: 10/25/2019\n\n\n\n No. 18-50399\nCircuits have reached similar conclusions as to the reliability of defendants’\npost-arrest statements in determining relevant conduct.\n Barfield offers no case law contradicting this cross-circuit consensus that\na defendant’s unrebutted post-arrest admissions are fair game at sentencing.\nInstead, he cites cases in which aggregated drug quantities were supported at\nsentencing by evidence other than the defendant’s admission. It is true that in\neach case he cites, the district court relied on the testimony of witnesses other\nthan the defendant—such as agents, informants, or coconspirators—before\nholding the defendant liable for an aggregated quantity of drugs. 44 However,\nin none of the cases did the district court also have the defendant’s own post-\narrest admission to consider. 45 It is no surprise that where a court lacks such\nan admission, it must rely on other sources of evidence to support an\naggregated drug quantity. Barfield does not identify any case in which a court\nfound the defendant’s own admission unreliable or insufficient to support a\nrelevant-conduct finding. 46\n\n\n“obstruct or impede his sentencing by denying the quantity of drugs to which he had\npreviously admitted”).\n 44 See United States v. Baggott, 694 F. App’x 306, 307 (5th Cir. 2017) (unpublished)\n\n(per curiam) (interviews of defendant’s drug suppliers); United States v. Hinojosa, 749 F.3d\n407, 415 (5th Cir. 2014) (testimony of confidential informant and federal agent); United\nStates v. Rodriguez, 666 F.3d 944, 947 (5th Cir. 2012) (witness testimony). Barfield also cites\nUnited States v. Walter, 683 F. App’x 323 (5th Cir. 2017) (unpublished) (per curiam), as an\nexample of a “relevant conduct [finding] based on testimony of law enforcement officer.”\nHowever, the officer in Walter testified only as to the offense-level enhancement the\ndefendant received for maintaining a drug premises. Id. at 324; see U.S.S.G. § 2D1.1(b)(12).\nThe Court’s opinion does not indicate the evidentiary source of the “extrapolated drug\nquantity” attributed to the defendant as relevant conduct. 683 F. App’x at 324. It notes only\nthat the drug quantity was based on “unrebutted information contained in the PSR and its\nsecond addendum.” Id.\n 45 See cases cited supra note 44; cf. United States v. Warneke, 310 F.3d 542, 550 (7th\n\nCir. 2002) (“An admission is even better than a jury’s finding beyond a reasonable doubt; it\nremoves all contest from the case.”).\n 46 In the district court, Barfield did not deny that he confessed to receiving a pound of\n\nmeth per week. Now, in his appellate reply brief, he attempts to divorce the PSR’s contents\nfrom their source—himself—by attributing them to the Government. He characterizes the\nPSR’s aggregated drug quantity not as a report of his own post-arrest statement but rather\n 12\n\f Case: 18-50399 Document: 00515173841 Page: 13 Date Filed: 10/25/2019\n\n\n\n No. 18-50399\n 2.\n Ultimately, the question for the Court is whether Barfield’s admission is\n“plausible in light of the record as a whole.” 47 Barfield claims it is not. He urges\nthe Court to disregard his post-arrest statement as self-serving, unreliable,\nand undermined by his alleged intoxication. Without any evidence to support\nBarfield’s claims, however, we can only weigh his assertions against the\naccount presented by the PSR—and as we have recognized, “it is proper for the\ndistrict court to rely on a presentence report’s construction of evidence to\nresolve a factual dispute, rather than relying on the defendant’s version of the\nfacts.” 48 Given the illogic of Barfield’s explanation for overstating his drug-\ntrafficking activity, the lack of evidence that he was intoxicated or dishonest\nduring his interview, and the weight of both precedential and persuasive\nauthority, we conclude that the district court did not clearly err in holding\nBarfield accountable for the full quantity of methamphetamine he admitted to\ndistributing.\n IV.\n For the foregoing reasons, Appellant’s conviction and sentence are\naffirmed.\n\n\n\n\nas “a restatement of the prosecutor’s disputed, summary proffer.” As Barfield notes, a\nprosecutor’s unsworn and unsupported allegations “do not provide, by themselves, a\nsufficiently reliable basis on which to sentence the defendant.” United States v. Patterson,\n962 F.2d 409, 415 (5th Cir. 1992). However, Barfield’s drug-quantity figure did not originate\nwith the prosecutor; it originated with him, and the prosecutor merely repeated it aloud at\nrearraignment and sentencing. Barfield’s tardy attempt at recharacterization is unavailing.\n 47 Zuniga, 720 F.3d at 590.\n 48 United States v. Robins, 978 F.2d 881, 889 (5th Cir. 1992).\n\n 13\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Kenneth Barfield\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-10-25\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-50399 Document: 00515173841 Page: 1 Date Filed: 10/25/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-50399 FILED\\n October 25, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nKENNETH JAMES BARFIELD,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore HIGGINBOTHAM, DENNIS, and HO, Circuit Judges.\\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\\n Kenneth James Barfield challenges his 360-month sentence for\\npossession with intent to distribute methamphetamine. He contends that the\\ndistrict court erred by holding him accountable not only for the\\nmethamphetamine seized from him but also for the full quantity he confessed\\nto having trafficked in the preceding months. Finding no clear error, we affirm.\\n I.\\n On April 26, 2017, 24-year-old Barfield was released from prison after\\nserving a four-year sentence for assault of an elderly person. His freedom\\nwould not last long. Suspecting that Barfield was involved in narcotics\\ntrafficking, the Midland Police Department Narcotics Unit began surveilling\\n\\f Case: 18-50399 Document: 00515173841 Page: 2 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\nhim shortly after his release. On one occasion, detectives provided a\\ncooperating source (CS) with $475 in cash, with which he successfully\\npurchased 12.9 grams of meth from Barfield. On November 17, 2017, the\\nNarcotics Unit instructed a patrol officer to pull Barfield over for driving\\nwithout a valid license. Inside Barfield’s vehicle, the officer discovered a digital\\nscale, needles, small plastic bags, and 23.4 grams of meth. The search also\\nrevealed $917 in cash, including the $475 Barfield had received from the CS.\\n Barfield was taken into custody and charged with possession with intent\\nto distribute methamphetamine. 1 The Government sought to enhance the\\nstatutory penalty range based on Barfield’s prior meth conviction. 2 Barfield\\npleaded guilty. The Government’s proffered factual basis for the plea included\\nthe following:\\n Once at the Midland Police Department, [a detective] read the\\n defendant his Miranda warnings, and the defendant advised he\\n understood his rights. The government’s evidence would reflect\\n that during the interview, the defendant admitted ownership to\\n the 25.1 grams of methamphetamine, 3 located inside the vehicle.\\n The government believes the evidence would also reflect the\\n defendant stated that he’d gotten out of prison April of 2017 and\\n had been selling methamphetamine since then. The government\\n further believes that the statements made by Barfield, as reflected\\n by the testimony of the officers, would be that he admitted to\\n obtaining a pound of methamphetamine per week from April 2017\\n until his arrest.\\n\\nBarfield’s counsel objected to two of the prosecutor’s allegations: (1) that\\nBarfield had sold meth since his release in April 2017, and (2) that he had\\nobtained a pound of meth per week from April until his arrest in November.\\nHe did not deny that Barfield had made those statements to police, nor did he\\n\\n\\n 1 See 21 U.S.C. § 841(b)(1)(B).\\n 2 See id. § 851.\\n 3 The initial field report estimated the meth seized from Barfield’s vehicle to weigh\\n\\n25.1 grams, but that figure was revised downward to 23.4 grams upon further evaluation.\\n 2\\n\\f Case: 18-50399 Document: 00515173841 Page: 3 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\nexplain the basis for his objection.\\n The prosecutor responded that he was “satisfied that the elements [of\\nthe crime would be] met” even if those two statements were removed from the\\nfactual basis. The Court agreed and excluded the statements, but noted that\\n“[t]hat doesn’t meant the government’s giving up on them.” Rather, the Court\\nadvised the parties that they “may argue about those” statements again at\\nsentencing.\\n After Barfield pleaded guilty, the Probation Office prepared his PSR.\\nUnder “Offense Conduct,” the PSR related:\\n When Barfield was questioned by officers at the MPD, Barfield\\n stated he had been distributing methamphetamine since he was\\n released from prison, which was in April 2017. Barfield admitted\\n to obtaining a pound of methamphetamine a week. . . . Barfield\\n distributed at least 1 pound (453.6 grams) of actual\\n methamphetamine a week as of April 2017 (27 weeks).\\n\\nBased on that admission, the PSR held Barfield accountable for 12.2 kilograms\\nof actual methamphetamine. 4 This drug quantity yielded a base offense level\\nof 38 and, in combination with Barfield’s lengthy criminal record, a Guidelines\\nsentencing range of 360 months to life. 5\\n Barfield submitted a written objection to the drug quantity alleged in the\\nPSR, claiming that he “was extremely high on methamphetamine” when he\\nmade his post-arrest statement about receiving a pound of meth per week. In\\naddition, Barfield claimed that he overstated his involvement in the meth\\ntrade “out of fear” and the hope that he might “talk himself out of being\\narrested” by indicating that he could give prosecutors information on a major\\n\\n\\n\\n 4 Specifically, the Probation Office calculated that at 80% or higher purity, each pound\\ncontained 453.6 grams of actual meth, which, multiplied by the 27 weeks between Barfield’s\\nrelease and his re-arrest, yielded a total drug quantity of 12.2 kilograms.\\n 5 Barfield received a total criminal history score of 13, placing him in criminal history\\n\\ncategory VI—the highest category contemplated by the Guidelines. See U.S.S.G. ch. 5, pt. A.\\n 3\\n\\f Case: 18-50399 Document: 00515173841 Page: 4 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\ndrug-trafficking operation, rather than the minor street-level dealing he\\nactually engaged in.\\n The Government did not offer a transcript or recording of Barfield’s post-\\narrest interview, nor did it call the officers who interviewed him to testify at\\nthe sentencing hearing. Although the district judge found the defense’s\\nargument “novel” and “interesting,” he ultimately concluded that Barfield’s\\npost-arrest statement had “sufficient indicia of reliability” to support the PSR’s\\ntotal drug-quantity figure. 6 The court overruled Barfield’s objection, denied his\\nrequest for a downward departure and variance, and adopted the PSR in full.\\nWhen asked if he had anything to say to the court, Barfield reurged his\\nobjection to the drug quantity. He did not deny telling investigators that he\\nhad received a pound of meth per week; instead, he appeared to challenge the\\nplausibility of his own claim, saying: “Man, I’ve never even seen that amount\\nof dope. I don’t have bank accounts. I didn’t have large amounts of money to\\neven sum that up.” The district court imposed a sentence of 360 months—at\\nthe low end of Barfield’s Guidelines range—to be followed by eight years of\\nsupervised release.\\n On appeal, Barfield argues that the district court erred by “including as\\nrelevant conduct an amount of methamphetamine that was not supported by\\nan adequate evidentiary basis.” He contends that a drug quantity based on\\n“mathematical extrapolation” is only permissible if accompanied by\\ncorroborating evidence, such as testimony or recordings. In his view, the PSR’s\\n\\n\\n\\n 6 These statements are from the sentencing hearing in a separate case, United States\\nv. Casey Lee Jones, where Barfield’s attorney had raised substantially the same objection to\\na drug-quantity calculation based on a defendant’s post-arrest admissions. Because the Jones\\nhearing had taken place only a week before, both defense counsel and the district judge in\\nthis case referred to Jones as a shorthand for their arguments and conclusions about drug\\nquantity. A transcript of the Jones hearing is included in the record. At Barfield’s sentencing,\\nthe judge expressly stated that he was overruling Barfield’s objection “for the same reason”\\nas in Jones.\\n 4\\n\\f Case: 18-50399 Document: 00515173841 Page: 5 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\n12.2-kilogram drug-weight figure was based on nothing more than “one bald,\\nconclusory statement in the presentence report” unsupported by testimonial or\\ndocumentary evidence. Moreover, Barfield argues, the Government failed to\\nestablish that the drug transactions conducted between April and November\\n2017 could be attributed to him as relevant conduct.\\n II.\\n A.\\n “The district court’s interpretation or application of the Sentencing\\nGuidelines is reviewed de novo, while its factual findings are reviewed for clear\\nerror.” 7 More specifically, the “district court’s determination of what\\nconstitutes relevant conduct for purposes of sentencing” is a factual finding\\nthat “is reviewed for clear error.” 8 “A factual finding is not clearly erroneous if\\nit is plausible in light of the record as a whole.” 9 The Court will find clear error\\n“only if a review of all the evidence leaves us ‘with the definite and firm\\nconviction that a mistake has been committed.’” 10\\n B.\\n In determining a defendant’s base offense level, a “district court may\\nconsider other offenses in addition to the acts underlying the offense of\\nconviction, as long as those offenses constitute ‘relevant conduct’ as defined in\\nthe Guidelines.” 11 Relevant conduct includes “all acts and omissions [that the\\ndefendant] committed, aided, abetted, counseled, commanded, induced,\\n\\n\\n\\n 7 United States v. Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016) (internal\\nquotation marks omitted) (quoting United States v. Lige, 635 F.3d 668, 670 (5th Cir. 2011)).\\n 8 United States v. Wall, 180 F.3d 641, 644 (5th Cir. 1999); see United States v. Alford,\\n\\n142 F.3d 825, 831 (5th Cir. 1998) (“Factual findings regarding sentencing factors are entitled\\nto considerable deference and will be reversed only if they are clearly erroneous.”).\\n 9 United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013) (per curiam).\\n 10 United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011) (quoting United States\\n\\nv. Castillo, 430 F.3d 230, 238 (5th Cir. 2005)).\\n 11 United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009); see U.S.S.G. § 2D1.1 n.5.\\n\\n 5\\n\\f Case: 18-50399 Document: 00515173841 Page: 6 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\nprocured, or willfully caused” and which “occurred during the commission of\\nthe offense of conviction, in preparation for that offense, or in the course of\\nattempting to avoid detection or responsibility for that offense.” 12\\n A defendant convicted of a drug offense is sentenced based on the amount\\nof drugs involved in the offense. 13 In a drug-trafficking case, relevant conduct\\nmay include all acts and omissions “that were part of the same course of\\nconduct or common scheme or plan as the offense of conviction.” 14 The\\nGuidelines instruct that “[w]here there is no drug seizure or the amount seized\\ndoes not reflect the scale of the offense,” the district court should “approximate\\nthe quantity of the controlled substance” based on, for example, “similar\\ntransactions in controlled substances by the defendant.” 15 Finally, where there\\nare “multiple transactions,” the court should add the drug quantities together\\nand hold the defendant accountable for the total. 16\\n Like all factual findings used in sentencing, relevant conduct must be\\nproven by “a preponderance of the relevant and sufficiently reliable\\nevidence.” 17 In determining the total drug quantity attributable to a defendant\\nas relevant conduct, “[t]he court may extrapolate . . . from any information that\\nhas sufficient indicia of reliability to support its probable accuracy.” 18\\nGenerally, a PSR “bears sufficient indicia of reliability to be considered as\\n\\n\\n\\n\\n 12 U.S.S.G. § 1B1.3(a)(1)(A); see United States v. Schorovsky, 202 F.3d 727, 729 (5th\\nCir. 2000) (“The offense level of a defendant convicted of drug trafficking is determined by\\nthe quantity of drugs involved in the offense,” which “includes drugs with which the\\ndefendant was directly involved and drugs that can be attributed to the defendant as part of\\nher relevant conduct . . . .”).\\n 13 See U.S.S.G. § 2D1.1(c).\\n 14 Id. § 1B1.3(a)(2); see Wall, 180 F.3d at 645.\\n 15 U.S.S.G. § 2D1.1 n.5.\\n 16 Id. § 2D1.1 n.7.\\n 17 United States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013); see U.S.S.G. § 6A1.3\\n\\ncommentary; United States v. Morrow, 177 F.3d 272, 303 (5th Cir. 1999).\\n 18 United States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006).\\n\\n 6\\n\\f Case: 18-50399 Document: 00515173841 Page: 7 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\nevidence by the sentencing judge in making factual determinations.” 19 The\\nstandard for reliability is not meant to be onerous; indeed, even uncorroborated\\nhearsay can support a relevant conduct finding. 20 However, “[b]ald,\\nconclusionary statements do not acquire the patina of reliability by mere\\ninclusion in the PSR.” 21\\n If the court determines that the factual allegations of the PSR are\\nsufficiently reliable, then “the defendant bears the burden of demonstrating\\nthat the PSR is inaccurate; in the absence of rebuttal evidence, the sentencing\\ncourt may properly rely on the PSR and adopt it.” 22 However, “[i]f the factual\\nrecitation [in the PSR] lacks sufficient indicia of reliability, then it is error for\\nthe district court to consider it at sentencing—regardless of whether the\\ndefendant objects or offers rebuttal evidence.” 23\\n III.\\n A.\\n We turn first to Barfield’s claim that the weekly meth transactions to\\nwhich he confessed should not have been considered relevant conduct because\\nthe Government failed to show they were part of the “same course of conduct”\\nor “common scheme or plan” as the drugs actually seized from him. 24 This\\ncontention is untenable under Fifth Circuit precedent. “Particularly in drug\\ncases, this circuit has broadly defined what constitutes ‘the same course of\\n\\n\\n\\n\\n 19 United States v. Nava, 624 F.3d 226, 231 (5th Cir. 2010) (quoting United States v.\\nTrujillo, 502 F.3d 353, 357 (5th Cir. 2007)); see Alford, 142 F.3d at 832 (The court “may adopt\\nfacts contained in the PSR without further inquiry if the facts have an adequate evidentiary\\nbasis . . . .”).\\n 20 See United States v. Malone, 828 F.3d 331, 337 (5th Cir. 2016).\\n 21 United States v. Elwood, 999 F.2d 814, 817–18 (5th Cir. 1993).\\n 22 Zuniga, 720 F.3d at 591 (quoting United States v. Ollison, 555 F.3d 152, 164 (5th\\n\\nCir. 2009)).\\n 23 Id. (quoting United States v. Harris, 702 F.3d 226, 231 (5th Cir. 2012)).\\n 24 U.S.S.G. § 1B1.3(a)(2).\\n\\n 7\\n\\f Case: 18-50399 Document: 00515173841 Page: 8 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\nconduct’ or ‘common scheme or plan.’” 25 To qualify as relevant conduct,\\n“repeated instances of criminal behavior,” such as separate drug transactions,\\nneed only have “sufficient similarity and temporal proximity to reasonably\\nsuggest that [they] constitute a pattern of criminal conduct.” 26\\n Although the record does not include a verbatim transcript of Barfield’s\\npost-arrest statement, its contents as reported in the PSR satisfy both the\\nsimilarity and the temporal-proximity requirements. According to the PSR,\\nBarfield told investigators that he had obtained and distributed a pound of\\nmethamphetamine per week for 27 weeks—that is, “since he was released from\\nprison . . . in April 2017.” By his own admission, then, Barfield carried out\\nidentical weekly drug transactions at regular, tightly spaced intervals right up\\nuntil his arrest. This account leaves no doubt that Barfield engaged in “a\\npattern of criminal conduct.” 27\\n B.\\n Barfield’s drug-quantity challenge is at the heart of his appeal and,\\nunlike his relevant-conduct argument, it presents a question of law not\\nsquarely addressed by binding Fifth Circuit precedent. We must decide\\nwhether it is clear error for a district court to rely on a PSR’s account of a\\ndefendant’s post-arrest, Mirandized admission of relevant conduct where the\\ndefendant has objected to the reliability of his own statement but has failed to\\nintroduce evidence to rebut it. In keeping with our own precedent and the\\nweight of out-of-circuit authority, we hold that the answer is no: where a\\n\\n\\n\\n\\n 25 United States v. Bryant, 991 F.2d 171, 177 (5th Cir. 1993).\\n 26 United States v. Pippens, 68 F.3d 471, 1995 WL 581901, at *3 (5th Cir. 1995)\\n(unpublished) (per curiam) (quoting United States v. Bethley, 973 F.2d 396, 401 (5th Cir.\\n1992)).\\n 27 Id.; see United States v. Munoz-Vargas, 551 F. App’x 206, 207–08, 208 n.4 (5th Cir.\\n\\n2014) (unpublished); United States v. Curtis, 96 F. App’x 223, 224 (5th Cir. 2004)\\n(unpublished) (per curiam).\\n 8\\n\\f Case: 18-50399 Document: 00515173841 Page: 9 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\ndefendant does not introduce evidence to rebut his post-arrest admission of\\nrelevant conduct, the district court may consider it at sentencing.\\n 1.\\n The closest in-circuit precedential case is our 1993 opinion in United\\nStates v. Barnes. 28 In Barnes, the Court found no clear error in the district\\njudge’s reliance on the defendant’s “uncorroborated statements as proof of\\nrelevant conduct.” 29 The Court explained that after Barnes was arrested, he\\n stated that he had expected a 400 pound shipment of marijuana\\n on November 8, and that he had negotiated for 100 kilograms of\\n cocaine. These amounts were used as part of his relevant conduct\\n in calculating the base offense level. He does not assert that he did\\n not make the statements. He contends only that they are an\\n insufficient basis for the finding. . . . Barnes offers no evidence\\n which contradicts his statements, nor does he argue that they are\\n inherently unreliable. In short, there was no clear error. 30\\n\\nIn so holding, we expressly stated that a defendant’s uncorroborated admission\\nof prior drug trafficking “may be the sole basis for the findings on relevant\\nconduct.” 31\\n The only potential distinction between this case and Barnes is that,\\nunlike Barnes, Barfield does “argue that [his statements] are inherently\\nunreliable” because they were “self-serving” and made under the influence of\\ndrugs. He does not, however, produce any evidence to support his alleged\\nintoxication. Moreover, it hardly seems “self-serving” to overstate one’s\\ninvolvement in criminal activity. As the Government observes, “the idea of\\ninflating drug trafficking conduct to discourage arrest does not comport with\\nlogic or common sense. On the contrary, traditionally, a defendant downplays\\n\\n\\n 28 3 F.3d 437, 1993 WL 347015 (5th Cir. 1993) (per curiam). Barnes is unpublished,\\nbut unpublished opinions issued prior to 1996 are precedential. 5TH CIR. R. 47.5.3.\\n 29 1993 WL 347015, at *4.\\n 30 Id.\\n 31 Id.\\n\\n 9\\n\\f Case: 18-50399 Document: 00515173841 Page: 10 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\n[his own] criminal involvement.” 32\\n A more recent unpublished case further supports the district court’s\\ndecision here. In United States v. Humphrey, the defendant was apprehended\\nwith only one kilogram of cocaine but “admitted to selling one fourth of a\\nkilogram of cocaine at least once, but sometimes three times, a week during\\nthe two years before his arrest.” 33 Thus, the court “estimated his past cocaine\\nsales . . . and aggregated these amounts in its drug-quantity finding.” 34 We\\naffirmed, holding that “[t]he court properly considered Humphrey’s admission\\n. . . and plausibly determined he was not merely a one-time drug distributor.” 35\\n Likewise, in United States v. Retiz, another unpublished opinion issued\\nin 2018, we held that the PSR’s report of the defendant’s post-arrest statement\\nwas sufficient to support an aggregated drug quantity. 36 As the Court\\nrecounted,\\n [t]he district court adopted the PSR and its recitation of Retiz’\\n drug-related relevant conduct. This included, inter alia, his\\n admission that he personally distributed one ounce of\\n methamphetamine per week for a year and assisted his cousin in\\n distributing an additional ounce per week for a year, in addition to\\n possessing and distributing cocaine and marijuana on other\\n occasions. On the basis of those undisputed facts, the court . . .\\n approximated the drug-quantity for sentencing purposes by\\n aggregating the amounts reflected in the PSR. The court’s drug-\\n quantity calculation was consistent with the record, the\\n\\n\\n\\n\\n 32 See United States v. Stephenson, 557 F.3d 449, 457 (7th Cir. 2009) (affirming the\\ndistrict court’s rejection of the defendant’s “claim that he exaggerated the amount of his sales\\nto curry favor and inflate his value as a potential government source”).\\n 33 730 F. App’x 265, 266 (5th Cir. 2018) (unpublished) (per curiam), cert. denied, 139\\n\\nS. Ct. 575 (2018).\\n 34 Id.\\n 35 Id.\\n 36 736 F. App’x 500, 501 (5th Cir. 2018) (unpublished) (per curiam), cert. denied, 139\\n\\nS. Ct. 854 (2019).\\n 10\\n\\f Case: 18-50399 Document: 00515173841 Page: 11 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\n Guidelines, and our precedent. 37\\n\\n Finally, cases from outside our circuit weigh in the Government’s favor\\nas well. In an unpublished opinion in United States v. Pinkerton, the Sixth\\nCircuit held that the district court properly “relied on [the defendant’s] own\\nadmissions,” as reported in his PSR, “to estimate the quantity of\\nmethamphetamine for which he was sentenced.” 38 In an earlier, published\\ncase, the Sixth Circuit affirmed the district court’s aggregation of drug\\namounts based “solely o[n] statements [the defendant] made to codefendants\\nand FBI agents while intoxicated.” 39 The Seventh Circuit has likewise held\\nthat a defendant’s uncorroborated admissions are proper bases for a relevant\\nconduct finding. In United States v. Johnson, for example, the court held that\\nthe district judge properly relied on the PSR’s account of the defendant’s “post-\\narrest statement that he dealt one ounce of crack cocaine every day for the\\npreceding seven to eight months.” 40 The Fourth, 41 Eighth, 42 and Eleventh 43\\n\\n\\n 37 Id.; see also United States v. Allen, 686 F. App’x 289, 290 (5th Cir. 2017)\\n(unpublished) (per curiam), cert. denied, 138 S. Ct. 262 (2017) (affirming the district court’s\\nrelevant-conduct finding based on a PSR that “contained a report detailing a post-arrest\\nstatement by Allen in which he admitted receiving each of the amounts of methamphetamine\\nthat were attributed to him”).\\n 38 279 F. App’x 382, 385 (6th Cir. 2008) (unpublished).\\n 39 United States v. Gibson, 985 F.2d 860, 864 (6th Cir. 1993).\\n 40 342 F.3d 731, 734 (7th Cir. 2003).\\n 41 See United States v. Blue, 536 F. App’x 353, 355 (4th Cir. 2013) (unpublished) (per\\n\\ncuriam) (affirming the district court’s reliance on “drug quantities [that] were derived from a\\npost-arrest statement that [the defendant] made . . . and from a statement made to law\\nenforcement by a co-conspirator”); United States v. Cummings, 337 F. App’x 313, 315 (4th\\nCir. 2009) (unpublished) (per curiam) (rejecting the defendant’s argument “that the district\\ncourt violated his due process rights when it used his post-arrest statements about drug\\ntrafficking as relevant conduct in calculating the drug weight attributable to him”).\\n 42 See United States v. Wyatt, 19 F.3d 1283, 1284 (8th Cir. 1994) (affirming the district\\n\\ncourt’s drug-quantity finding based on the defendant’s “post-arrest statements to authorities\\ndescribing his previous crack transactions” and “testimony corroborating the statements”).\\n 43 See United States v. Melquiades, 139 F. App’x 172, 177 (11th Cir. 2005)\\n\\n(unpublished) (per curiam) (affirming obstruction-of-justice enhancement where the\\ndefendant had denied at sentencing “that he had made post-arrest statements to police\\nofficers regarding the weight of the drug shipment, which was relevant conduct,” in order to\\n 11\\n\\f Case: 18-50399 Document: 00515173841 Page: 12 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\nCircuits have reached similar conclusions as to the reliability of defendants’\\npost-arrest statements in determining relevant conduct.\\n Barfield offers no case law contradicting this cross-circuit consensus that\\na defendant’s unrebutted post-arrest admissions are fair game at sentencing.\\nInstead, he cites cases in which aggregated drug quantities were supported at\\nsentencing by evidence other than the defendant’s admission. It is true that in\\neach case he cites, the district court relied on the testimony of witnesses other\\nthan the defendant—such as agents, informants, or coconspirators—before\\nholding the defendant liable for an aggregated quantity of drugs. 44 However,\\nin none of the cases did the district court also have the defendant’s own post-\\narrest admission to consider. 45 It is no surprise that where a court lacks such\\nan admission, it must rely on other sources of evidence to support an\\naggregated drug quantity. Barfield does not identify any case in which a court\\nfound the defendant’s own admission unreliable or insufficient to support a\\nrelevant-conduct finding. 46\\n\\n\\n“obstruct or impede his sentencing by denying the quantity of drugs to which he had\\npreviously admitted”).\\n 44 See United States v. Baggott, 694 F. App’x 306, 307 (5th Cir. 2017) (unpublished)\\n\\n(per curiam) (interviews of defendant’s drug suppliers); United States v. Hinojosa, 749 F.3d\\n407, 415 (5th Cir. 2014) (testimony of confidential informant and federal agent); United\\nStates v. Rodriguez, 666 F.3d 944, 947 (5th Cir. 2012) (witness testimony). Barfield also cites\\nUnited States v. Walter, 683 F. App’x 323 (5th Cir. 2017) (unpublished) (per curiam), as an\\nexample of a “relevant conduct [finding] based on testimony of law enforcement officer.”\\nHowever, the officer in Walter testified only as to the offense-level enhancement the\\ndefendant received for maintaining a drug premises. Id. at 324; see U.S.S.G. § 2D1.1(b)(12).\\nThe Court’s opinion does not indicate the evidentiary source of the “extrapolated drug\\nquantity” attributed to the defendant as relevant conduct. 683 F. App’x at 324. It notes only\\nthat the drug quantity was based on “unrebutted information contained in the PSR and its\\nsecond addendum.” Id.\\n 45 See cases cited supra note 44; cf. United States v. Warneke, 310 F.3d 542, 550 (7th\\n\\nCir. 2002) (“An admission is even better than a jury’s finding beyond a reasonable doubt; it\\nremoves all contest from the case.”).\\n 46 In the district court, Barfield did not deny that he confessed to receiving a pound of\\n\\nmeth per week. Now, in his appellate reply brief, he attempts to divorce the PSR’s contents\\nfrom their source—himself—by attributing them to the Government. He characterizes the\\nPSR’s aggregated drug quantity not as a report of his own post-arrest statement but rather\\n 12\\n\\f Case: 18-50399 Document: 00515173841 Page: 13 Date Filed: 10/25/2019\\n\\n\\n\\n No. 18-50399\\n 2.\\n Ultimately, the question for the Court is whether Barfield’s admission is\\n“plausible in light of the record as a whole.” 47 Barfield claims it is not. He urges\\nthe Court to disregard his post-arrest statement as self-serving, unreliable,\\nand undermined by his alleged intoxication. Without any evidence to support\\nBarfield’s claims, however, we can only weigh his assertions against the\\naccount presented by the PSR—and as we have recognized, “it is proper for the\\ndistrict court to rely on a presentence report’s construction of evidence to\\nresolve a factual dispute, rather than relying on the defendant’s version of the\\nfacts.” 48 Given the illogic of Barfield’s explanation for overstating his drug-\\ntrafficking activity, the lack of evidence that he was intoxicated or dishonest\\nduring his interview, and the weight of both precedential and persuasive\\nauthority, we conclude that the district court did not clearly err in holding\\nBarfield accountable for the full quantity of methamphetamine he admitted to\\ndistributing.\\n IV.\\n For the foregoing reasons, Appellant’s conviction and sentence are\\naffirmed.\\n\\n\\n\\n\\nas “a restatement of the prosecutor’s disputed, summary proffer.” As Barfield notes, a\\nprosecutor’s unsworn and unsupported allegations “do not provide, by themselves, a\\nsufficiently reliable basis on which to sentence the defendant.” United States v. Patterson,\\n962 F.2d 409, 415 (5th Cir. 1992). However, Barfield’s drug-quantity figure did not originate\\nwith the prosecutor; it originated with him, and the prosecutor merely repeated it aloud at\\nrearraignment and sentencing. Barfield’s tardy attempt at recharacterization is unavailing.\\n 47 Zuniga, 720 F.3d at 590.\\n 48 United States v. Robins, 978 F.2d 881, 889 (5th Cir. 1992).\\n\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}}],"truncated":false,"partial":false},"paginationData":{"pageIndex":45,"numItemsPerPage":100,"numTotalItems":31175,"offset":4500,"length":100}},"jwt":"eyJhbGciOiJFZERTQSIsImtpZCI6IjVHZDBvd0g5MTM2eDZjc1FvbE1zcktNWUZoRVFoUm5PVVVybEpjOUhaUEEifQ.eyJyZWFkIjp0cnVlLCJwZXJtaXNzaW9ucyI6eyJyZXBvLmNvbnRlbnQucmVhZCI6dHJ1ZX0sImlhdCI6MTc4NjUzOTA0NywianRpIjoiODQyOWZkOWQtMGFmNi00NTBmLWIwZmEtZGQ3MTgzMzM5YzQ1Iiwic3ViIjoiL2RhdGFzZXRzL2VpdGFucy1wdS9jbC1jb2RpbmctaW5wdXQiLCJleHAiOjE3ODY1NDI2NDcsImlzcyI6Imh0dHBzOi8vaHVnZ2luZ2ZhY2UuY28ifQ.Ej0WKLasbFq38_eLSBqNz3kfKhJIej6aWHmwF8CtsVd42wpEqr33s2lCBbz3tlTSx78tvuZ1igVEOureyoegBg","displayUrls":true,"splitSizeSummaries":[{"config":"default","split":"train","numRows":31175,"numBytesParquet":1629387251}]},"discussionsStats":{"closed":0,"open":1,"total":1},"fullWidth":true,"hasGatedAccess":true,"hasFullAccess":true,"isEmbedded":false,"savedQueries":{"community":[],"user":[]}}">
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4,663,531 | Broward Bulldog, Inc. v. U.S. Department of Justice | 2019-09-23 | 17-13787 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before WILLIAM PRYOR, MARTIN, and JORDAN, Circuit Judges.", "parties": "", "opinions": [{"author": "WILLIAM PRYOR, Circuit Judge:", "type": "010combined", "text": "Case: 17-13787 Date Filed: 09/23/2019 Page: 1 of 79\n\n\n [PUBLISH]\n\... | WILLIAM PRYOR | MARTIN | JORDAN | 1 | {"WILLIAM PRYOR": ", Circuit", "MARTIN": ", Circuit", "JORDAN": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4663531/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
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4,663,719 | PlayNation Play Systems, Inc. v. Velex Corporation | 2019-09-24 | 18-12828 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before MARCUS, JULIE CARNES, and KELLY, * Circuit Judges.", "parties": "", "opinions": [{"author": "MARCUS, Circuit Judge:", "type": "010combined", "text": "Case: 18-12828 Date Filed: 09/24/2019 Page: 1 of 23\n\n\n [PUBLISH]\n\n\n\n ... | MARCUS | JULIE CARNES | KELLY | 1 | {"MARCUS": ", Circuit", "JULIE CARNES": ", Circuit", "KELLY": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4663719/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
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4,663,788 | United States v. Annamalai Annamalai | 2019-09-24 | 15-11854 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before WILSON and JORDAN, Circuit Judges, and MOORE, * District Judge.", "parties": "", "opinions": [{"author": "JORDAN, Circuit Judge:", "type": "010combined", "text": "Case: 15-11854 Date Filed: 09/24/2019 Page: 1 of 44\n\n\n ... | WILSON | JORDAN | MOORE | 1 | {"WILSON": ", Circuit", "JORDAN": ", Circuit", "MOORE": ", District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4663788/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
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4,664,180 | PlayNation Play Systems, Inc. v. Velex Corporation | 2019-09-24 | 18-12828 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before MARCUS, JULIE CARNES, and KELLY, * Circuit Judges.", "parties": "", "opinions": [{"author": "MARCUS, Circuit Judge:", "type": "010combined", "text": "Case: 18-12828 Date Filed: 09/24/2019 Page: 1 of 23\n\n\n [PUBLISH]\n\n\n\n ... | MARCUS | JULIE CARNES | KELLY | 1 | {"MARCUS": ", Circuit", "JULIE CARNES": ", Circuit", "KELLY": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4664180/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
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4,664,179 | Akeem Washington v. Shannon Rivera | 2019-09-25 | 17-13811 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before NEWSOM and ANDERSON, Circuit Judges.", "parties": "", "opinions": [{"author": "ANDERSON, Circuit Judge:", "type": "010combined", "text": "Case: 17-13811 Date Filed: 09/25/2019 Page: 1 of 24\n\n\n\n [PUBLISH... | NEWSOM | ANDERSON | NEWSOM | 1 | {"NEWSOM": ", Circuit", "ANDERSON": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4664179/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
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4,664,350 | Randall Callahan U.S. Department of Health and Human Services | 2019-09-25 | 19-11876 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before WILSON and NEWSOM, Circuit Judges, and COOGLER,* District Judge.", "parties": "", "opinions": [{"author": "NEWSOM, Circuit Judge:", "type": "010combined", "text": "Case: 19-11876 Date Filed: 09/25/2019 Page: 1 of 32\n\n\n [... | WILSON | NEWSOM | COOGLER | 1 | {"WILSON": ", Circuit", "NEWSOM": ", Circuit", "COOGLER": ", District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4664350/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
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4,665,475 | Jimmy Lee Boston v. United States | 2019-09-30 | 17-13870 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and ROBRENO,* District Judge.", "parties": "", "opinions": [{"author": "WILLIAM PRYOR, Circuit Judge:", "type": "010combined", "text": "Case: 17-13870 Date Filed: 09/30/2019 Page: 1 of 16\n\n\n ... | WILLIAM PRYOR | JILL PRYOR | ROBRENO | 1 | {"WILLIAM PRYOR": ", Circuit", "JILL PRYOR": ", Circuit", "ROBRENO": ", District"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4665475/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
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4,665,632 | United States v. Scott W. Rothstein | 2019-09-30 | 18-11796 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before TJOFLAT, WILLIAM PRYOR and GRANT, Circuit Judges.", "parties": "", "opinions": [{"author": "TJOFLAT, Circuit Judge:", "type": "010combined", "text": "Case: 18-11796 Date Filed: 09/30/2019 Page: 1 of 15\n\n\n [PUBLISH]\n\n\n\n ... | TJOFLAT | WILLIAM PRYOR | GRANT | 1 | {"TJOFLAT": ", Circuit", "WILLIAM PRYOR": ", Circuit", "GRANT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4665632/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
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4,658,244 | FIRST STUDENT, INC., a Division of First Group America, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO/CLC, Local 9036, Intervenor | First Student, Inc. v. Nat'l Labor Relations Bd. | 2019-09-03 | 18-1091; C/w 18-1153 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Rogers, Wilkins, Silberman", "parties": "", "opinions": [{"type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued April 1, 2019 Decided September 3, 2019\n\n No. 18-1091\n\nFIRST STUDENT, INC., A DIVISION O... | ROGERS | WILKINS | SILBERMAN | 1 | {} | 3 | 0 | 1 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4658244/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
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4,659,028 | City of Oberlin, Ohio v. FERC | 2019-09-06 | 18-1248 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Before: ROGERS, SRINIVASAN, and WILKINS, Circuit Judges.", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge WILKINS", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued May 6, 2019 De... | ROGERS | SRINIVASAN | WILKINS | 1 | {"ROGERS": ", Circuit", "SRINIVASAN": ", Circuit", "WILKINS": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659028/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
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4,659,029 | American Fuel & Petrochemical v. EPA | 2019-09-06 | 17-1258 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Before: HENDERSON, TATEL, and GRIFFITH, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued February 20, 2019 Decided September 6, 2019\n\n ... | HENDERSON | TATEL | GRIFFITH | 1 | {"HENDERSON": ", Circuit", "TATEL": ", Circuit", "GRIFFITH": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659029/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
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4,660,830 | United States v. Joseph Park | 2019-09-13 | 18-3017 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Before: GARLAND, Chief Judge, and GRIFFITH and PILLARD, Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued November 14, 2018 Decided September 13, 2019\n\n ... | GARLAND | GRIFFITH | PILLARD | 1 | {"GARLAND": ", Chief", "GRIFFITH": ", Circuit", "PILLARD": ", Circuit"} | 4 | 0 | 0 | 3 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4660830/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,660,831 | State of Wisconsin v. EPA | 2019-09-13 | 16-1406 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Before: SRINIVASAN, MILLETT and WILKINS, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued October 3, 2018 Decided September 13, 2019\n\n ... | SRINIVASAN | MILLETT | WILKINS | 1 | {"SRINIVASAN": ", Circuit", "MILLETT": ", Circuit", "WILKINS": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4660831/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
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4,660,832 | Douglas Carlson v. PRC | 2019-09-13 | 18-1328 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Before: MILLETT, KATSAS, and RAO, Circuit Judges.", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge RAO", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued May 10, 2019 Decided Septe... | MILLETT | KATSAS | RAO | 1 | {"MILLETT": ", Circuit", "KATSAS": ", Circuit", "RAO": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4660832/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,661,594 | Khalid Qassim v. Donald Trump | 2019-09-17 | 18-5148 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Before: GARLAND, Chief Judge; HENDERSON***, ROGERS, TATEL, GRIFFITH, SRINIVASAN, MILLETT**, PILLARD**, WILKINS, KATSAS*, and RAO***, Circuit Judges ORDER Following the issuance of the opinion in this case, a member of the court suggested sua sponte that the case be reheard en banc, see D.C. Circuit Handbook... | GARLAND | HENDERSON | ROGERS | 2 | TATEL; GRIFFITH; SRINIVASAN; MILLETT; PILLARD; WILKINS; KATSAS; RAO | {"GARLAND": ", Chief", "HENDERSON": ", Circuit", "ROGERS": ", Circuit", "TATEL": ", Circuit", "GRIFFITH": ", Circuit", "SRINIVASAN": ", Circuit", "MILLETT": ", Circuit", "PILLARD": ", Circuit", "WILKINS": ", Circuit", "KATSAS": ", Circuit", "RAO": ", Circuit"} | 5 | 0 | 2 | 2 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4661594/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
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4,662,801 | Sylvia Singletary v. Howard University | 2019-09-20 | 18-7158 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Before: SRINIVASAN, MILLETT, and KATSAS, Circuit Judges.", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge MILLETT", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued April 26, 2019 De... | SRINIVASAN | MILLETT | KATSAS | 1 | {"SRINIVASAN": ", Circuit", "MILLETT": ", Circuit", "KATSAS": ", Circuit"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4662801/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
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4,658,791 | Board of Regents v. Boston Scientific Corporation | 2019-09-05 | 18-1700 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Before PROST, Chief Judge, REYNA and STOLL, Circuit Judges.", "parties": "", "opinions": [{"author": "STOLL, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n BOARD OF REGENTS OF THE UNIVERSITY OF\n ... | PROST | REYNA | STOLL | 1 | {"PROST": ", Chief", "REYNA": ", Circuit", "STOLL": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4658791/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,659,571 | Intellectual Ventures I LLC v. Capital One Financial Corp | 2019-09-10 | 18-1367 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Before PROST, Chief Judge, BRYSON and REYNA, Circuit Judges.", "parties": "", "opinions": [{"author": "BRYSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n INTELLECTUAL VENTURES I LLC,\n ... | PROST | BRYSON | REYNA | 1 | {"PROST": ", Chief", "BRYSON": ", Circuit", "REYNA": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659571/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,660,378 | Henny Penny Corporation v. Frymaster LLC | 2019-09-12 | 18-1596 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Before LOURIE, CHEN, and STOLL, Circuit Judges.", "parties": "", "opinions": [{"author": "LOURIE, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n HENNY PENNY CORPORATION,\n App... | LOURIE | CHEN | STOLL | 1 | {"LOURIE": ", Circuit", "CHEN": ", Circuit", "STOLL": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4660378/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,660,380 | Curver Luxembourg, Sarl v. Home Expressions Inc. | 2019-09-12 | 18-2214 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Before CHEN, HUGHES, and STOLL, Circuit Judges.", "parties": "", "opinions": [{"author": "CHEN, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n CURVER LUXEMBOURG, SARL,\n Plainti... | CHEN | HUGHES | STOLL | 1 | {"CHEN": ", Circuit", "HUGHES": ", Circuit", "STOLL": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4660380/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,661,218 | Mayo Foundation v. Iancu | 2019-09-16 | 18-2031 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Before NEWMAN, LOURIE, and DYK, Circuit Judges.", "parties": "", "opinions": [{"author": "LOURIE, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\nMAYO FOUNDATION FOR MEDICAL EDUCATION\n AND R... | NEWMAN | LOURIE | DYK | 1 | {"NEWMAN": ", Circuit", "LOURIE": ", Circuit", "DYK": ", Circuit"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4661218/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,662,010 | Intra-Cellular Therapies, Inc v. Iancu | 2019-09-18 | 18-1849 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Before WALLACH, CHEN, and HUGHES, Circuit Judges.", "parties": "", "opinions": [{"author": "CHEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n INTRA-CELLULAR THERAPIES, INC.,\n ... | WALLACH | CHEN | HUGHES | 1 | {"WALLACH": ", Circuit", "CHEN": ", Circuit", "HUGHES": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4662010/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,662,012 | Inspired Development Group v. Inspired Products Group, LLC | 2019-09-18 | 18-1616 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Before PROST, Chief Judge, NEWMAN and STOLL, Circuit Judges.", "parties": "", "opinions": [{"author": "PROST, Chief Judge", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n INSPIRED DEVELOPMENT GROUP, LLC, A\n F... | PROST | NEWMAN | STOLL | 1 | {"PROST": ", Chief", "NEWMAN": ", Circuit", "STOLL": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4662012/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,663,378 | Sonoma Apartment Associates v. United States | 2019-09-23 | 18-1781 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Before NEWMAN, CHEN, and HUGHES, Circuit Judges.", "parties": "", "opinions": [{"author": "HUGHES, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n SONOMA APARTMENT ASSOCIATES, A\n CALIFORNIA... | NEWMAN | CHEN | HUGHES | 1 | {"NEWMAN": ", Circuit", "CHEN": ", Circuit", "HUGHES": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4663378/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,664,108 | Sipco, LLC v. Emerson Electric Co. | 2019-09-25 | 18-1635 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Before O’MALLEY, REYNA, and CHEN, Circuit Judges.", "parties": "", "opinions": [{"author": "CHEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n SIPCO, LLC,\n ... | O'MALLEY | REYNA | CHEN | 1 | {"O'MALLEY": ", Circuit", "REYNA": ", Circuit", "CHEN": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4664108/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,664,609 | Campbell Soup Company v. Gamon Plus, Inc. | 2019-09-26 | 18-2029 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Before PROST, Chief Judge, NEWMAN and MOORE, Circuit Judges.", "parties": "", "opinions": [{"author": "MOORE, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\nCAMPBELL SOUP COMPANY, CAMPBELL SALES\n COMP... | PROST | NEWMAN | MOORE | 1 | {"PROST": ", Chief", "NEWMAN": ", Circuit", "MOORE": ", Circuit"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4664609/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,664,610 | Alternative Carbon Resources v. United States | 2019-09-26 | 18-1948 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Before O’MALLEY, REYNA, and CHEN, Circuit Judges.", "parties": "", "opinions": [{"author": "O'MALLEY, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n ALTERNATIVE CARBON RESOURCES, LLC,\n P... | O'MALLEY | REYNA | CHEN | 1 | {"O'MALLEY": ", Circuit", "REYNA": ", Circuit", "CHEN": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4664610/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,665,061 | Sipco, LLC v. Emerson Electric Co. | 2019-09-27 | 18-1635 | U.S. Court of Appeals for the Federal Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n September 27, 2019\n\n ERRATUM\n ______________________\n\n ... | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4665061/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||||||
4,665,968 | Zeigler v. Rater | 2019-10-01 | 18-2150P | U.S. Court of Appeals for the First Circuit | {"judges": "Before Lynch, Selya, and Barron, Circuit Judges.", "parties": "", "opinions": [{"author": "SELYA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-2150\n\n ALAN ZEIGLER,\n\n ... | LYNCH | SELYA | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4665968/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,665,969 | United States v. Vazquez-Soto | 2019-10-01 | 17-1879P | U.S. Court of Appeals for the First Circuit | {"judges": "Before Torruella, Lipez, and Thompson, Circuit Judges.", "parties": "", "opinions": [{"author": "LIPEZ, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 17-1879\n\n UNITED STATES OF AMERICA,\n\n ... | TORRUELLA | LIPEZ | THOMPSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4665969/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,665,970 | Samayoa Cabrera v. Barr | 2019-10-01 | 18-1923P | U.S. Court of Appeals for the First Circuit | {"judges": "Before Lynch, Selya, and Barron, Circuit Judges.", "parties": "", "opinions": [{"author": "BARRON, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1923\n\n JUAN ALECIO SAMAYOA CABRERA,\n\n ... | LYNCH | SELYA | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4665970/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,666,855 | United States v. Burghardt | 2019-10-03 | 18-1767P | U.S. Court of Appeals for the First Circuit | {"judges": "Before Thompson, Kayatta, and Barron, Circuit Judges.", "parties": "", "opinions": [{"author": "KAYATTA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1767\n\n UNITED STATES OF AMERICA,\n\n ... | THOMPSON | KAYATTA | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4666855/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,667,898 | United States v. Chisholm | 2019-10-08 | 17-1952P | U.S. Court of Appeals for the First Circuit | {"judges": "Before Thompson, Kayatta, and Barron, Circuit Judges.", "parties": "", "opinions": [{"author": "THOMPSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\nNo. 17-1952\n\n UNITED STATES OF AMERICA,\n\n ... | THOMPSON | KAYATTA | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4667898/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,667,899 | Summers v. City of Fitchburg | 2019-10-08 | 18-1725P | U.S. Court of Appeals for the First Circuit | {"judges": "Before Barron, Selya, and Boudin, Circuit Judges.", "parties": "", "opinions": [{"author": "SELYA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1725\n\n JEFFREY D. SUMMERS and JEFFREY'S HOUSE INC.,\n\n ... | BARRON | SELYA | BOUDIN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4667899/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,668,206 | Perez-Kudzma v. United States | 2019-10-09 | 18-2128P | U.S. Court of Appeals for the First Circuit | {"judges": "Before Thompson, Kayatta, and Barron, Circuit Judges.", "parties": "", "opinions": [{"author": "BARRON, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\nNo. 18-2128\n\n CARMENELISA PEREZ-KUDZMA; VICENTE PEREZ ACEVEDO; BIXCIA NORI... | THOMPSON | KAYATTA | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4668206/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,669,158 | United States v. Velazquez-Aponte | 2019-10-11 | 17-1965P | U.S. Court of Appeals for the First Circuit | {"judges": "Before Torruella, Lipez, and Thompson, Circuit Judges.", "parties": "", "opinions": [{"author": "TORRUELLA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNos. 17-1965\n 17-1966\n UNITED STATES OF AMERICA... | TORRUELLA | LIPEZ | THOMPSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4669158/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,670,985 | United States v. Carpenter | 2019-10-18 | 14-1641P | U.S. Court of Appeals for the First Circuit | {"judges": "Before Lynch, Stahl, and Lipez, Circuit Judges.", "parties": "", "opinions": [{"author": "LYNCH, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 14-1641\n\n UNITED STATES OF AMERICA,\n\n ... | LYNCH | STAHL | LIPEZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4670985/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,672,270 | Dorisca v. Marchilli | 2019-10-23 | 18-1862P | U.S. Court of Appeals for the First Circuit | {"judges": "Before Howard, Chief Judge, Thompson and Barron, Circuit Judges.", "parties": "", "opinions": [{"author": "THOMPSON, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1862\n\n JOSENER DORISCA,\n\... | HOWARD | THOMPSON | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4672270/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,673,982 | Darr v. Plaintiffs' Interim Executive | 2019-10-29 | 18-2001P | U.S. Court of Appeals for the First Circuit | {"judges": "Before Lynch, Selya, and Barron, Circuit Judges.", "parties": "", "opinions": [{"author": "LYNCH, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-2001\n\n IN RE: TELEXFREE, LLC; TELEXFREE, INC.; TELEXFREE FINANCIAL,\n ... | LYNCH | SELYA | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4673982/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,674,396 | United States v. Rabb | 2019-10-30 | 18-1678P | U.S. Court of Appeals for the First Circuit | {"judges": "Before Barron, Selya, and Boudin, Circuit Judges.", "parties": "", "opinions": [{"author": "BARRON, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\nNo. 18-1678\n\n UNITED STATES OF AMERICA,\n\n ... | BARRON | SELYA | BOUDIN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4674396/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,674,397 | Enamorado-Rodriguez v. Barr | 2019-10-30 | 19-1084P | U.S. Court of Appeals for the First Circuit | {"judges": "Before Lynch, Lipez, and Thompson, Circuit Judges.", "parties": "", "opinions": [{"author": "LYNCH, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 19-1084\n\n DARLIN ELEAZAR ENAMORADO-RODRIGUEZ,\n\... | LYNCH | LIPEZ | THOMPSON | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4674397/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,665,882 | Sacerdote v. Cammack Larhette Advisors, LLC | 2019-10-01 | 18-1558 | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: WALKER, CALABRESI, AND LIVINGSTON, Circuit Judges.", "parties": "", "opinions": [{"author": "No. 17 Civ. 8834 - Katherine B. Forrest, Judge", "type": "010combined", "text": "18‐1558\n Sacerdote v. Cammack Larhette Advisors, LLC\n\n 1\n\n\n 2 In the\n 3 ... | WALKER | CALABRESI | LIVINGSTON | 1 | {"WALKER": ", Circuit", "CALABRESI": ", Circuit", "LIVINGSTON": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4665882/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,666,608 | United States v. Watkins | 2019-10-03 | 18-3076-cr | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: CABRANES, WESLEY, and LIVINGSTON, Circuit Judges.", "parties": "", "opinions": [{"author": "On July 19, 2018, Magistrate Judge Michael J. Roemer entered a", "type": "010combined", "text": "18‐3076‐cr\nUnited States v. Watkins\n\n\n\n\n In the\n Un... | CABRANES | WESLEY | LIVINGSTON | 1 | {"CABRANES": ", Circuit", "WESLEY": ", Circuit", "LIVINGSTON": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4666608/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,666,609 | Crescenzi v. City of New York | 2019-10-03 | 18-1002 | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: KATZMANN, Chief Judge, and LIVINGSTON and DRONEY, Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "18‐1002\nCrescenzi, et al. v. City of New York, et al.\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CI... | KATZMANN | LIVINGSTON | DRONEY | 1 | {"KATZMANN": ", Chief", "LIVINGSTON": ", Circuit", "DRONEY": ", Circuit"} | 3 | 0 | 2 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4666609/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,667,046 | United States v. Degroate | 2019-10-04 | 18-2236-cr | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: NEWMAN, CABRANES, and LYNCH, Circuit Judges.", "parties": "", "opinions": [{"author": "District of New York (Thomas J. McAvoy, Judge) sentencing him to an", "type": "010combined", "text": "18‐2236‐cr\nUnited States v. Degroate\n\n\n\n\n In the\n Unite... | NEWMAN | CABRANES | LYNCH | 1 | {"NEWMAN": ", Circuit", "CABRANES": ", Circuit", "LYNCH": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4667046/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,667,473 | In re del Valle Ruiz | 2019-10-07 | 18-3226 (L) | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: PARKER, HALL, and DRONEY, Circuit Judges.", "parties": "", "opinions": [{"author": "HALL, Circuit Judge:", "type": "010combined", "text": "18‐3226 (L)\nIn re del Valle Ruiz\n\n\n In the\n United States Court of Appeals\n ... | PARKER | HALL | DRONEY | 1 | {"PARKER": ", Circuit", "HALL": ", Circuit", "DRONEY": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4667473/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,668,491 | United States v. Kendrick (Janine Plaza Pierce) | 2019-10-10 | 16-3030-cr | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: NEWMAN, HALL, Circuit Judges; KELLY, Judge.", "parties": "", "opinions": [{"author": "JON O. NEWMAN, Circuit Judge:", "type": "010combined", "text": "16-3030-cr\nUnited States of America v. Kendrick (Janine Plaza Pierce)\n\n UNITED STATES COURT OF APPEALS\n\n ... | NEWMAN | HALL | KELLY | 1 | {"NEWMAN": ", Circuit", "HALL": ", Circuit", "KELLY": ","} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4668491/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,668,492 | Donald J. Trump v. Deutsche Bank AG | 2019-10-10 | 19-1540-cv | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: NEWMAN, HALL, and LIVINGSTON, Circuit Judges.", "parties": "", "opinions": [{"author": "JON O. NEWMAN, Circuit Judge:", "type": "010combined", "text": "19-1540-cv\nDonald J. Trump v. Deutsche Bank AG\n\n UNITED STATES COURT OF APPEALS\n\n FOR THE SE... | NEWMAN | HALL | LIVINGSTON | 1 | {"NEWMAN": ", Circuit", "HALL": ", Circuit", "LIVINGSTON": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4668492/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,669,465 | Palin v. The New York Times Company | 2019-10-15 | 17-3801-cv | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: WALKER and CHIN, Circuit Judges, and KEENAN.", "parties": "", "opinions": [{"author": "No. 17-cv-04853 - Jed S. Rakoff, Judge", "type": "010combined", "text": "17‐3801‐cv\n Palin v. The New York Times Company\n\n 1\n\n 2 In the\n 3 United States ... | WALKER | CHIN | KEENAN | 1 | {"WALKER": ", Circuit", "CHIN": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4669465/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,670,749 | United States v. Arrington | 2019-10-18 | 17-4092-cr | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: 24 25 LYNCH and LOHIER, Circuit Judges, and COGAN, District Judge.", "parties": "", "opinions": [{"author": "LOHIER, Circuit Judge:", "type": "010combined", "text": "17‐4092‐cr\n United States v. Arrington\n 1 UNITED STATES COURT OF APPEALS\n 2 FOR... | LYNCH | LOHIER | COGAN | 1 | {"LYNCH": ", Circuit", "LOHIER": ", Circuit", "COGAN": ", District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4670749/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,670,750 | Attestor Value v. Republic of Argentina | 2019-10-18 | 16-1124 | U.S. Court of Appeals for the Second Circuit | {"judges": "B e f o r e: KATZMANN, Chief Judge, WINTER, Circuit Judge, and STEIN, District Judge.", "parties": "", "opinions": [{"author": "KATZMANN, Chief Judge, WINTER, Circuit Judge, and STEIN, District Judge", "type": "010combined", "text": "16-1124\nAttestor Value v. Republic of Argentina\n\n\n ... | KATZMANN | WINTER | STEIN | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4670750/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,671,450 | United States v. Moran | 2019-10-22 | 17-4121-cr | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: CALABRESI, CABRANES, AND CHIN, Circuit Judges.", "parties": "", "opinions": [{"author": "CHIN, Circuit Judge:", "type": "010combined", "text": "17-4121-cr\nUnited States v. Moran\n\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n... | CALABRESI | CABRANES | CHIN | 1 | {"CALABRESI": ", Circuit", "CABRANES": ", Circuit", "CHIN": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4671450/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,672,974 | Cugini v. City of New York, Palazzola | 2019-10-25 | 18-1378 | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: SACK, HALL, AND DRONEY, Circuit Judges.", "parties": "", "opinions": [{"author": "SACK, Circuit Judge:", "type": "010combined", "text": "18‐1378\nCugini v. City of New York, Palazzola\n\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n ... | SACK | HALL | DRONEY | 1 | {"SACK": ", Circuit", "HALL": ", Circuit", "DRONEY": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4672974/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,672,975 | Atterbury v. United States Marshals Service | 2019-10-25 | 18-1713-(L) | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: NEWMAN, CABRANES, LYNCH, Circuit Judges.", "parties": "", "opinions": [{"author": "JON O. NEWMAN, Circuit Judge:", "type": "010combined", "text": "18-1713-(L)\nAtterbury v. United States Marshals Service\n\n UNITED STATES COURT OF APPEALS\n\n ... | NEWMAN | CABRANES | LYNCH | 1 | {"NEWMAN": ", Circuit", "CABRANES": ", Circuit", "LYNCH": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4672975/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,674,165 | In Re: Alba Sanchez | 2019-10-30 | 18-679 | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: WALKER, CARNEY, AND SULLIVAN, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "18-679\nIn re: Alba Sanchez\n\n\n In the\n United States Court of Appeals\n For the Secon... | WALKER | CARNEY | SULLIVAN | 1 | {"WALKER": ", Circuit", "CARNEY": ", Circuit", "SULLIVAN": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4674165/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,674,166 | Deem v. DiMella-Deem | 2019-10-30 | 18-2266 | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: WINTER, POOLER, AND SULLIVAN, Circuit Judges.", "parties": "", "opinions": [{"author": "RICHARD J. SULLIVAN, Circuit Judge:", "type": "010combined", "text": "18-2266\nDeem v. DiMella-Deem\n\n\n In the\n United States Court of Appeals\n ... | WINTER | POOLER | SULLIVAN | 1 | {"WINTER": ", Circuit", "POOLER": ", Circuit", "SULLIVAN": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4674166/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,674,657 | United States v. Tanner | 2019-10-31 | 18-3598-cr(L) | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: 25 26 JACOBS, LOHIER, and PARK, Circuit Judges.", "parties": "", "opinions": [{"author": "LOHIER, Circuit Judge:", "type": "010combined", "text": "18‐3598‐cr(L)\n United States v. Tanner et al.\n\n 1 UNITED STATES COURT OF APPEALS\n 2 FOR... | JACOBS | LOHIER | PARK | 1 | {"JACOBS": ", Circuit", "LOHIER": ", Circuit", "PARK": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4674657/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,668,603 | Donna Javitz v. County of Luzerne | 2019-10-10 | 18-2389 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: RESTREPO, PORTER, and FISHER, Circuit Judges.", "parties": "", "opinions": [{"author": "RESTREPO, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n\n _____... | RESTREPO | PORTER | FISHER | 1 | {"RESTREPO": ", Circuit", "PORTER": ", Circuit", "FISHER": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4668603/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,669,330 | Donna Javitz v. County of Luzerne | 2019-10-10 | 18-2389 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: RESTREPO, PORTER, and FISHER, Circuit Judges.", "parties": "", "opinions": [{"author": "RESTREPO, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n\n ... | RESTREPO | PORTER | FISHER | 1 | {"RESTREPO": ", Circuit", "PORTER": ", Circuit", "FISHER": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4669330/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,669,545 | Jane Orie v. Secretary Pennsylvania Departm | 2019-10-15 | 16-1685 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: JORDAN, BIBAS, and MATEY, Circuit Judges (", "parties": "", "opinions": [{"author": "BIBAS, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _______________\n\n No. 16-1685\n... | JORDAN | BIBAS | MATEY | 1 | {"JORDAN": ", Circuit", "BIBAS": ", Circuit", "MATEY": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4669545/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,670,819 | Jane Orie v. Secretary Pennsylvania Departm | 2019-10-15 | 16-1685 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: JORDAN, BIBAS, and MATEY, Circuit Judges (", "parties": "", "opinions": [{"author": "BIBAS, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _______________\n\n No. 16-1685\n... | JORDAN | BIBAS | MATEY | 1 | {"JORDAN": ", Circuit", "BIBAS": ", Circuit", "MATEY": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4670819/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,670,818 | Nikki Bruni v. City of Pittsburgh | 2019-10-18 | 18-1084 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: HARDIMAN, KRAUSE, and GREENBERG, Circuit Judges (Opinion", "parties": "", "opinions": [{"author": "KRAUSE, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _______________\n\n ... | HARDIMAN | KRAUSE | GREENBERG | 1 | {"HARDIMAN": ", Circuit", "KRAUSE": ", Circuit", "GREENBERG": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4670818/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,671,556 | Healthcare Real Estate Partner v. | 2019-10-22 | 18-3267 | U.S. Court of Appeals for the Third Circuit | {"judges": "BEFORE: CHAGARES, GREENAWAY, JR., and GREENBERG, Circuit Judges (", "parties": "", "opinions": [{"author": "GREENBERG, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ______________\n\n ... | CHAGARES | GREENAWAY JR | GREENBERG | 1 | {"CHAGARES": ", Circuit", "GREENAWAY JR": ", Circuit", "GREENBERG": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4671556/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,671,557 | Consol Pennsylvania Coal Co v. MSHR | 2019-10-22 | 18-3078 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: JORDAN, BIBAS, and NYGAARD, Circuit Judges.", "parties": "", "opinions": [{"author": "JORDAN, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n No. 18-3078\n ... | JORDAN | BIBAS | NYGAARD | 1 | {"JORDAN": ", Circuit", "BIBAS": ", Circuit", "NYGAARD": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4671557/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,673,031 | Natalie Munroe v. Central Bucks School District | 2019-10-25 | 14-3509 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: AMBRO, COWEN, and RESTANI, Circuit Judges ORDER AMENDING PRECEDENTIAL OPINION IT IS NOW ORDERED that the Precedential Dissenting Opinion in the above case", "parties": "", "opinions": [{"author": "Honorable Judge Jane A. Restani, Judge for the United States Court of International", "type": "010comb... | AMBRO | COWEN | RESTANI | 1 | {"AMBRO": ", Circuit", "COWEN": ", Circuit", "RESTANI": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4673031/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,673,496 | United States v. James Wegeler | 2019-10-28 | 17-1717 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: GREENAWAY, JR., RENDELL and FUENTES, Circuit Judges.", "parties": "", "opinions": [{"author": "GREENAWAY, JR., Circuit Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n No. 17-1717\... | GREENAWAY JR | RENDELL | FUENTES | 1 | {"GREENAWAY JR": ", Circuit", "RENDELL": ", Circuit", "FUENTES": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4673496/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,673,497 | Joy Denby-Peterson v. | 2019-10-28 | 18-3562 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: McKEE, SHWARTZ, and FUENTES, Circuit Judges.", "parties": "", "opinions": [{"author": "FUENTES, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ______________\n\n No. 18-3562\n ... | MCKEE | SHWARTZ | FUENTES | 1 | {"McKEE": ", Circuit", "SHWARTZ": ", Circuit", "FUENTES": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4673497/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,673,988 | United States v. Dwight Henley | 2019-10-29 | 18-1428 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: HARDIMAN, SCIRICA, and RENDELL, Circuit Judges.", "parties": "", "opinions": [{"author": "HARDIMAN, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n\n\n No. 18-1428\n __________... | HARDIMAN | SCIRICA | RENDELL | 1 | {"HARDIMAN": ", Circuit", "SCIRICA": ", Circuit", "RENDELL": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4673988/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,674,312 | Joseph Brown v. Sage | 2019-10-30 | 17-1222 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before Merits Panel Resubmitted En Banc July 23, 2019 Before: SMITH, Chief Judge, MCKEE, AMBRO, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., SHWARTZ, RESTREPO, BIBAS, PORTER, MATEY, PHIPPS, and FUENTES, Circuit Judges.", "parties": "", "opinions": [{"author": "CHAGARES, Circuit Judge.", "type": "010combined"... | AMBRO | SMITH | MCKEE | 1 | CHAGARES; JORDAN; HARDIMAN; GREENAWAY JR; SHWARTZ; RESTREPO; BIBAS; PORTER; MATEY; PHIPPS; FUENTES | {"SMITH": ", Chief", "MCKEE": ", Circuit", "AMBRO": ", Circuit", "CHAGARES": ", Circuit", "JORDAN": ", Circuit", "HARDIMAN": ", Circuit", "GREENAWAY JR": ", Circuit", "SHWARTZ": ", Circuit", "RESTREPO": ", Circuit", "BIBAS": ", Circuit", "PORTER": ", Circuit", "MATEY": ", Circuit", "PHIPPS": ", Circuit", "FUENTES": ", ... | 3 | 0 | 0 | 2 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4674312/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,668,640 | Maria Guzman Chavez v. Russell Hott | 2019-10-10 | 18-6086 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before FLOYD, HARRIS, and RICHARDSON, Circuit Judges.", "parties": "", "opinions": [{"author": "PAMELA HARRIS, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n ... | FLOYD | HARRIS | RICHARDSON | 1 | {"FLOYD": ", Circuit", "HARRIS": ", Circuit", "RICHARDSON": ", Circuit"} | 3 | 0 | 2 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4668640/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,672,701 | United States v. Jurother Alston, Jr. | 2019-10-24 | 18-4524 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before MOTZ, KING, and DIAZ, Circuit Judges.", "parties": "", "opinions": [{"author": "DIANA GRIBBON MOTZ, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n ... | MOTZ | KING | DIAZ | 1 | {"MOTZ": ", Circuit", "KING": ", Circuit", "DIAZ": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4672701/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,672,706 | Angela Lawrence v. Andrew Saul | 2019-10-24 | 18-1112 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before WYNN, DIAZ, and FLOYD, Circuit Judges.", "parties": "", "opinions": [{"author": "DIAZ, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. ... | WYNN | DIAZ | FLOYD | 1 | {"WYNN": ", Circuit", "DIAZ": ", Circuit", "FLOYD": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4672706/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,673,077 | United States v. Javion Scott | 2019-10-25 | 18-4440 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before KING and KEENAN, Circuit Judges, and Joseph R. GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation.", "parties": "", "opinions": [{"author": "KING, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES C... | KING | KEENAN | JOSEPH R GOODWIN | 1 | {"KING": ", Circuit", "KEENAN": ", Circuit", "R GOODWIN": ", United States District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4673077/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,673,893 | Planned Parenthood v. Joshua Baker | 2019-10-29 | 18-2133 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before WILKINSON, WYNN, and RICHARDSON, Circuit Judges.", "parties": "", "opinions": [{"author": "WILKINSON, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n ... | WILKINSON | WYNN | RICHARDSON | 1 | {"WILKINSON": ", Circuit", "WYNN": ", Circuit", "RICHARDSON": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4673893/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,674,316 | United Financial Casualty Co. v. Greg Ball | 2019-10-30 | 18-1657 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.", "parties": "", "opinions": [{"author": "NIEMEYER, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n ... | WILKINSON | NIEMEYER | AGEE | 1 | {"WILKINSON": ", Circuit", "NIEMEYER": ", Circuit", "AGEE": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4674316/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,674,863 | In re: Search Warrant | 2019-10-31 | 19-1730 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before GREGORY, Chief Judge, and KING and RUSHING, Circuit Judges.", "parties": "", "opinions": [{"author": "KING, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n ... | GREGORY | KING | RUSHING | 1 | {"GREGORY": ", Chief", "KING": ", Circuit", "RUSHING": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4674863/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,674,864 | Curtis Moore v. Denise Frazier | 2019-10-31 | 18-2441 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.", "parties": "", "opinions": [{"author": "AGEE, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n ... | WILKINSON | NIEMEYER | AGEE | 1 | {"WILKINSON": ", Circuit", "NIEMEYER": ", Circuit", "AGEE": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4674864/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,675,351 | In re: Search Warrant | 2019-10-31 | 19-1730 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before GREGORY, Chief Judge, and KING and RUSHING, Circuit Judges.", "parties": "", "opinions": [{"author": "KING, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n ... | GREGORY | KING | RUSHING | 1 | {"GREGORY": ", Chief", "KING": ", Circuit", "RUSHING": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4675351/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,666,039 | Stella Morrison v. Layne Walker | 2019-10-01 | 18-40846 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.", "parties": "", "opinions": [{"author": "DON R. WILLETT, Circuit Judge:", "type": "010combined", "text": "Case: 18-40846 Document: 00515139246 Page: 1 Date Filed: 10/01/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | SOUTHWICK | WILLETT | OLDHAM | 1 | {"SOUTHWICK": ", Circuit", "WILLETT": ", Circuit", "OLDHAM": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4666039/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,666,464 | Kenneth McMillen v. New Caney Indep Sch Dist | 2019-10-02 | 18-20420 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before BARKSDALE, STEWART, and COSTA, Circuit Judges.", "parties": "", "opinions": [{"author": "GREGG COSTA, Circuit Judge:", "type": "010combined", "text": "Case: 18-20420 Document: 00515142943 Page: 1 Date Filed: 10/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | BARKSDALE | STEWART | COSTA | 1 | {"BARKSDALE": ", Circuit", "STEWART": ", Circuit", "COSTA": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4666464/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,666,893 | Sierra Club v. EPA | 2019-10-03 | 18-60116 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before SMITH, WIENER, and ELROD, Circuit Judges.", "parties": "", "opinions": [{"author": "WIENER, Circuit Judge:", "type": "010combined", "text": "Case: 18-60116 Document: 00515144673 Page: 1 Date Filed: 10/03/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFT... | SMITH | WIENER | ELROD | 1 | {"SMITH": ", Circuit", "WIENER": ", Circuit", "ELROD": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4666893/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,667,345 | United States v. James Smith | 2019-10-04 | 18-11155 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before WIENER, GRAVES, and OLDHAM, Circuit Judges.", "parties": "", "opinions": [{"author": "WIENER, Circuit Judge:", "type": "010combined", "text": "Case: 18-11155 Document: 00515146519 Page: 1 Date Filed: 10/04/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR TH... | WIENER | GRAVES | OLDHAM | 1 | {"WIENER": ", Circuit", "GRAVES": ", Circuit", "OLDHAM": ", Circuit"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4667345/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,668,443 | United States v. Luis Valencia | 2019-10-09 | 18-51008 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before OWEN, Chief Judge, and JONES and SMITH, Circuit Judges.", "parties": "", "opinions": [{"author": "JERRY E. SMITH, Circuit Judge:", "type": "010combined", "text": "Case: 18-51008 Document: 00515152745 Page: 1 Date Filed: 10/09/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | OWEN | JONES | SMITH | 1 | {"OWEN": ", Chief", "JONES": ", Circuit", "SMITH": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4668443/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,668,734 | United States v. Jaydan Dean | 2019-10-10 | 18-50509 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before OWEN, Chief Judge, and JONES and SMITH, Circuit Judges.", "parties": "", "opinions": [{"author": "EDITH H. JONES, Circuit Judge:", "type": "010combined", "text": "Case: 18-50509 Document: 00515154922 Page: 1 Date Filed: 10/10/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n... | OWEN | JONES | SMITH | 1 | {"OWEN": ", Chief", "JONES": ", Circuit", "SMITH": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4668734/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,668,737 | Elena Sammons v. George Economou | 2019-10-10 | 18-50932 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.", "parties": "", "opinions": [{"author": "STEPHEN A. HIGGINSON, Circuit Judge:", "type": "010combined", "text": "Case: 18-50932 Document: 00515155074 Page: 1 Date Filed: 10/10/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | DAVIS | GRAVES | HIGGINSON | 1 | {"DAVIS": ", Circuit", "GRAVES": ", Circuit", "HIGGINSON": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4668737/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,669,576 | Dany Pena Oseguera v. William Barr, U. S. Atty Gen | 2019-10-15 | 17-60339 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before JOLLY, COSTA, and ENGELHARDT, Circuit Judges.", "parties": "", "opinions": [{"author": "KURT D. ENGELHARDT, Circuit Judge:", "type": "010combined", "text": "Case: 17-60339 Document: 00515158420 Page: 1 Date Filed: 10/15/2019\n\n\n\n\n REVISED October 15, 2019\n\n ... | JOLLY | COSTA | ENGELHARDT | 1 | {"JOLLY": ", Circuit", "COSTA": ", Circuit", "ENGELHARDT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4669576/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,670,090 | William Webb v. Lorie Davis, Director | 2019-10-16 | 17-51143 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before JOLLY, GRAVES, and HIGGINSON, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 17-51143 Document: 00515161079 Page: 1 Date Filed: 10/16/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CI... | JOLLY | GRAVES | HIGGINSON | 1 | {"JOLLY": ", Circuit", "GRAVES": ", Circuit", "HIGGINSON": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4670090/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,670,582 | JCB, Incorporated v. Horsburgh & Scott Company | 2019-10-17 | 17-51023 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before HAYNES, HO, and DUNCAN, Circuit Judges.", "parties": "", "opinions": [{"author": "JAMES C. HO, Circuit Judge:", "type": "010combined", "text": "Case: 17-51023 Document: 00515163443 Page: 1 Date Filed: 10/17/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE ... | HAYNES | HO | DUNCAN | 1 | {"HAYNES": ", Circuit", "HO": ", Circuit", "DUNCAN": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4670582/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,670,859 | Rebekah Gee | 2019-10-18 | 19-30353 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before OWEN, Chief Judge, and WILLETT and OLDHAM, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 19-30353 Document: 00515163811 Page: 1 Date Filed: 10/18/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR... | OWEN | WILLETT | OLDHAM | 1 | {"OWEN": ", Chief", "WILLETT": ", Circuit", "OLDHAM": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4670859/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,670,999 | United States v. Michael Herrold | 2019-10-18 | 14-11317 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before OWEN, Chief Judge, and JOLLY, HIGGINBOTHAM, JONES, SMITH, STEWART, DENNIS, CLEMENT, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.", "parties": "", "opinions": [{"author": "PATRICK E. HIGGINBOTHAM, Circuit Judge:", "type": "010combined... | OWEN | JOLLY | HIGGINBOTHAM | 2 | JONES; SMITH; STEWART; DENNIS; CLEMENT; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; HO; DUNCAN; ENGELHARDT; OLDHAM | {"OWEN": ", Chief", "JOLLY": ", Circuit", "HIGGINBOTHAM": ", Circuit", "JONES": ", Circuit", "SMITH": ", Circuit", "STEWART": ", Circuit", "DENNIS": ", Circuit", "CLEMENT": ", Circuit", "ELROD": ", Circuit", "SOUTHWICK": ", Circuit", "HAYNES": ", Circuit", "GRAVES": ", Circuit", "HIGGINSON": ", Circuit", "COSTA": ", Ci... | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4670999/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,671,000 | Christopher Cenac, Jr. v. Orkin, L.L.C. | 2019-10-18 | 18-31121 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before DAVIS, HO, and ENGELHARDT, Circuit Judges.", "parties": "", "opinions": [{"author": "W. EUGENE DAVIS, Circuit Judge:", "type": "010combined", "text": "Case: 18-31121 Document: 00515165237 Page: 1 Date Filed: 10/18/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n F... | DAVIS | HO | ENGELHARDT | 1 | {"DAVIS": ", Circuit", "HO": ", Circuit", "ENGELHARDT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4671000/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,671,197 | Janna Russell v. David Russell | 2019-10-21 | 18-20643 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before OWEN, Chief Judge, and JONES and SMITH, Circuit Judges.", "parties": "", "opinions": [{"author": "JERRY E. SMITH, Circuit Judge:", "type": "010combined", "text": "Case: 18-20643 Document: 00515165585 Page: 1 Date Filed: 10/21/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | OWEN | JONES | SMITH | 1 | {"OWEN": ", Chief", "JONES": ", Circuit", "SMITH": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4671197/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,671,389 | Evan Crocker v. Navient Solutions, L.L.C. | 2019-10-21 | 18-20254 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before STEWART, SOUTHWICK and ENGELHARDT, Circuit Judges.", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge:", "type": "010combined", "text": "Case: 18-20254 Document: 00515167087 Page: 1 Date Filed: 10/21/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | STEWART | SOUTHWICK | ENGELHARDT | 1 | {"STEWART": ", Circuit", "SOUTHWICK": ", Circuit", "ENGELHARDT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4671389/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,671,390 | Eunice Winzer v. Kaufman County | 2019-10-21 | 16-11482 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n ... | DENNIS | CLEMENT | GRAVES | 1 | {"DENNIS": ", Circuit", "CLEMENT": ", Circuit", "GRAVES": ", Circuit"} | 3 | 0 | 2 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4671390/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,671,391 | Educational Financial Service v. Stephanie Henry | 2019-10-21 | 18-20809 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before KING, HIGGINSON, and DUNCAN, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals... | KING | HIGGINSON | DUNCAN | 1 | {"KING": ", Circuit", "HIGGINSON": ", Circuit", "DUNCAN": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4671391/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,671,801 | Evan Crocker v. Navient Solutions, L.L.C. | 2019-10-22 | 18-20254 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before STEWART, SOUTHWICK and ENGELHARDT, Circuit Judges.", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge:", "type": "010combined", "text": "Case: 18-20254 Document: 00515169017 Page: 1 Date Filed: 10/22/2019\n\n\n\n\n REVISED OCTOBER 22, 2019\n\n ... | STEWART | SOUTHWICK | ENGELHARDT | 1 | {"STEWART": ", Circuit", "SOUTHWICK": ", Circuit", "ENGELHARDT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4671801/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,672,058 | Eleanor Keller v. Attala County | 2019-10-23 | 18-60081 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before STEWART, DENNIS, and WILLETT, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n ... | STEWART | DENNIS | WILLETT | 1 | {"STEWART": ", Circuit", "DENNIS": ", Circuit", "WILLETT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4672058/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,672,296 | Rajin Patel v. Texas Tech University | 2019-10-23 | 19-10009 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before KING, HIGGINSON, and DUNCAN, Circuit Judges.", "parties": "", "opinions": [{"author": "STUART KYLE DUNCAN, Circuit Judge:", "type": "010combined", "text": "Case: 19-10009 Document: 00515171167 Page: 1 Date Filed: 10/23/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | KING | HIGGINSON | DUNCAN | 1 | {"KING": ", Circuit", "HIGGINSON": ", Circuit", "DUNCAN": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4672296/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,672,798 | United States v. Tony Sparks | 2019-10-24 | 18-50225 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before ELROD, GRAVES, and OLDHAM, Circuit Judges.", "parties": "", "opinions": [{"author": "ANDREW S. OLDHAM, Circuit Judge:", "type": "010combined", "text": "Case: 18-50225 Document: 00515173123 Page: 1 Date Filed: 10/24/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | ELROD | GRAVES | OLDHAM | 1 | {"ELROD": ", Circuit", "GRAVES": ", Circuit", "OLDHAM": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4672798/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,673,037 | United States v. Kenneth Barfield | 2019-10-25 | 18-50399 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before HIGGINBOTHAM, DENNIS, and HO, Circuit Judges.", "parties": "", "opinions": [{"author": "PATRICK E. HIGGINBOTHAM, Circuit Judge:", "type": "010combined", "text": "Case: 18-50399 Document: 00515173841 Page: 1 Date Filed: 10/25/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | HIGGINBOTHAM | DENNIS | HO | 1 | {"HIGGINBOTHAM": ", Circuit", "DENNIS": ", Circuit", "HO": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4673037/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 10 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
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